By Kevin Boneske
ASHWAUBENON – An arbitrator with the Wisconsin Employment Relations Commission (WERC) issued a 14 page ruling Thursday, May 7, to deny a grievance filed on behalf of an Ashwaubenon public safety officer.
The officer objected to having a letter of direction placed in his personnel file after being seen off-duty wearing a thong while golfing.
WERC Arbitrator Raleigh Jones found the Village of Ashwaubenon did not violate its collective bargaining agreement with the Ashwaubenon Public Safety Officers’ Association (APSOA), nor deviate from, misinterpret or misapply any policy or practice related to conditions of employment when it issued a letter to Zynda that did not constitute formal discipline and placed it in his personnel file.
Jones concluded the village “had a reasonable and justifiable basis to issue the letter of direction.”
Zynda had been directed in December 2018 to review the village’s anti-harassment policy and dress code after participating in the Fraternal Order of Police (FOP) golf outing Aug. 3, 2018, at the Brown County Golf Course.
“Prior to the issuance of the letter, Zynda thought it was acceptable for him to tee off in a thong at a FOP golf outing,” Jones said. “He now knows otherwise.”
The hearing was scheduled as the final step of the grievance process after the village board decided in April 2019 the matter involving the golf outing wasn’t subject to arbitration and, if found to be, it would deny the grievance.
Jones sided with the APSOA when he found the grievance was subject to arbitration because the union’s contract with the village broadly defined a grievance.
But he ruled the letter wasn’t disciplinary in nature, because Zynda would not have been allowed to participate in a promotional process for lieutenant had he been disciplined within a year.
Zynda was with three Ashwaubenon Public Safety Department lieutenants in a golfing foursome, whose participation in the FOP outing was investigated when the village retained an outside attorney, Geoffrey Lacy, after photos and video from the outing circulated and Village Manager Allison Swanson also heard about Zynda’s conduct.
Lacy’s report found Zynda, who teed off in a thong, “did not have any intent to harass, make uncomfortable, or otherwise infringe on the rights of others, but was rather simply having fun.”
Lacy concluded the FOP golf outing – though attended while off-duty, organized by an independent entity (the FOP) and not expressly identifying the golfers as an Ashwaubenon Public Safety team – “is nonetheless reasonably treated as an extension of the workplace.”
Jones said he agreed with Lacy’s findings because the golf outing was a law enforcement outing, an Ashwaubenon community services officer (CSO) was assigned to work at the outing, the CSO operated an all-terrain vehicle provided by the village’s public safety department for the event and the department and the village had been providing financial contributions for the annual outing.
“When these factors are considered collectively, they outweigh the association’s claim that the golf outing at issue here involved strictly off-duty, private conduct,” Jones said.
Though then public safety chief Eric Dunning and other department supervisors didn’t determine an investigation was warranted, Jones said he agreed with Swanson, who ordered an outside investigation, “that Zynda’s thong stunt was, in a word, inappropriate.”
“Simply put, it should not have occurred at this particular outing because it was an extension of the workplace,” Jones said.
His ruling also states Swanson thought what Zynda did was “problematic because it had the potential to harm the department’s reputation, image and credibility.”
Though the letter Zynda received did not say he violated the two policies, Jones said, “it insinuated it.”
“When an employee does something that the employer does not want repeated, it can say that to the employee,” Jones said. “In doing that, the employer does not have to say that the employee violated a specific rule or policy or make a finding to that effect.”
Village President Mary Kardoskee said she is pleased with the arbitrator’s decision denying the APSOA’s grievance and its claim the village misapplied a policy or practice in violation of the collective bargaining agreement.
“The arbitrator’s decision reinforces an employer’s ability to establish and enforce standards of conduct to manage its employees in providing exceptional services to the village and its residents,” Kardoskee said.
The APSOA’s attorney, Aaron Halstead with the Hawks Quindel law firm, called the ruling an “unfortunate precedent” after department supervisors didn’t find what happened at the outing warranted an investigation, and the outside investigation Swanson ordered didn’t find Zynda violated any village policy.
Halstead said the outside investigation, which billing records show cost more than $11,000, was a “big waste of village money.”
He said the arbitrator’s ruling can’t be appealed, and as a result the letter will inappropriately remain in Zynda’s personnel file.