BEFORE THE ARBITRATOR
IN THE MATTER OF THE ARBITRATION OF A DISPUTE
CITY OF MANITOWOC
CITY OF MANITOWOC EMPLOYEES LOCAL 731
Case 132 No. 55082 MA-9893
Patrick L. Willis, City Attorney, City Hall, 817 Franklin Street,
PO Box 1597, Manitowoc,
Wisconsin, 54221-1597, for the City.
Gerald D. Ugland, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, PO
Box 370, Manitowoc, Wisconsin, 54221-0370, for the Union.
The parties stipulated to the following issue:
Did the employer violate the collective bargaining agreement when it suspended
Nooker for two hours on January 23, 1997? If so, what is the appropriate remedy?
RELEVANT CONTRACT PROVISONS
Article II - MANAGEMENT RIGHTS
(d) To suspend, demote, discharge, and take other disciplinary action for just
Article III - GRIEVANCE PROCEDURE
Section 2 Procedure
Step 1 As far as can reasonably be expected, in an event of a grievance, the
continue to perform the assigned task and grieve later.
Article VI - DISCHARGE
Section 1 Procedure
The Employer shall not suspend, demote or discharge any employee without
Where just cause for any particular incident would not warrant an immediate suspension,
demotion or discharge, the Employer agrees to give at least one written warning.
Section 3 Service of Notice
Discharge or suspension of an employee must be by proper written notice
return receipt, sent to the last known address of the employee with a copy to the Union.
employee may request an investigation as to his discharge or warning notice.
Section 4 Appeal and Reinstatement
Should such investigation prove that an injustice has been done, the employee
reinstated and compensated at his usual rate of pay while he has been out of work.
This grievance arises out of a confrontation which occurred on January 16, 1997,
Dennis Nooker (the grievant) and his immediate supervisor, Building and Grounds
Supervisor, Ralph Kracht. The grievant is a Building Custodian at the City of Manitowoc
Senior Center. Ralph Kracht, at the time of the grievance, was the City's Building and
Grounds Supervisor in charge of all City buildings, including the Manitowoc Senior Center.
On January 10 and January 14, 1997, Kracht had observed the grievant and
Engineer John Schroeder standing in an unlit entrance of the Senior Center. On those
occasions, Kracht was concerned that they might be taking an unauthorized break as Kracht
was not aware of any work related activity the two employees were performing at the time.
On January 16, 1997, Kracht stopped at the Senior Center to drop off some papers. At
time, Kracht observed that the grievant was in the building and performing his assigned
As Kracht drove away from the Senior Center, he saw Schroeder's truck in the Senior Center
parking lot and decided to stop and talk to him about a boiler problem at the Senior Center.
Kracht went to the basement of the Senior Center, where the boiler is located, and spoke to
After their conversation, Kracht closed the door to the boiler room leaving Schroeder
the boiler room and started up the short basement stairway to exit the building.
Simultaneously, the grievant opened the door to the basement and started down the stairs.
At that point, a verbal confrontation took place between Kracht and the grievant. The
grievant wanted to ask Schroeder whether Schroeder had finished repairing a cart that stores
and moves chairs. However, when asked by Kracht why he wanted to speak with Schroeder,
the grievant did not give him the reason. It is disputed whether Kracht ordered the grievant
back to work. It is not disputed that Kracht refused to let the grievant speak to Schroeder.
Kracht told the grievant that he could speak with Schroeder later as Schroeder was busy
working on a project in the boiler room, and that the grievant also had work to do. The
grievant continued down the stairs despite being at least told he could not speak to
As the verbal confrontation continued, the grievant produced and turned on a personal tape
recorder, recording part of the conversation between him and Kracht. Kracht ultimately told
the grievant that he was being insubordinate and again told the grievant that he was not going
to let the grievant talk to Schroeder. At that point, the grievant went back to work and
Kracht left the building. Schroeder was in the boiler room the entire time with the door
closed; he evidently heard none of the conversation.
On January 23, 1997, Kracht suspended the grievant for two hours without pay for
insubordination stemming from the January 16 incident. Kracht delivered the suspension
notice by hand to the grievant; Kracht did not give a copy to the Union. The grievant
immediately called Union Steward Richard Neuser advising him that he had received a notice
of suspension. At the time of the arbitration hearing, Kracht was no longer the grievant's
supervisor, having been replaced by Jim Muenzenmeyr, who had assumed the duties of
Building and Grounds Supervisor.
The Union filed a grievance on January 29, 1997, alleging that the grievant had been
suspended without pay for two hours on January 23, 1997, without just cause, requesting that
the grievant be reimbursed for two hours lost wages, that the record of the suspension be
removed from his permanent work record, and that the grievant be made whole. The parties
were unable to resolve the grievance. The Union petitioned the Wisconsin Employment
Relations Commission on April 8, 1997, to appoint an arbitrator from the Commission. An
arbitration hearing was held by the arbitrator on Thursday, June 26, 1997, in the City of
Manitowoc. At the arbitration hearing, the Union alleged that the City had violated the
collective bargaining agreement by not serving the notice of suspension to the grievant by
registered mail with a copy to the Union. The parties were given the opportunity and filed
briefs which were received by the arbitrator on July 17 (City) and July 25 (Union). The
hearing was not transcribed. The hearing was closed at approximately 4:00 p.m. on June
POSITION OF THE PARTIES
It is the Union's position that the City did not have just cause to suspend the grievant
the grievant was not insubordinate during the confrontation between the grievant and his
supervisor, Kracht, on January 16, 1997, at the Manitowoc Senior Center. The Union
that the suspension should also be overturned because the City failed to serve notice of the
suspension to the grievant by registered mail, return receipt, with a copy to the Union as
required by the collective bargaining agreement. The Union argues in its brief that it had a
right to amend the grievance at the arbitration hearing to allege that the employer failed to
provide the required contractual notice of suspension and requests that the arbitrator consider
it even though the issue was never raised by the Union during the grievance procedure.
Further, the Union argues that during the confrontation between the grievant and his
supervisor, the supervisor never ordered the grievant to return to work, or if he did, it was
in such ambiguous terms that the grievant could not reasonably have understood that he was
to return to work. The Union also takes the position that not only did Supervisor Kracht
have to give the grievant a clear order, which the Union states he did not, the failure to obey
the order could only result in discipline if in fact the grievant also was told by Kracht of the
consequences of disobeying his order.
The Union takes the position that there was not in place any procedure to prevent
communication between employees and that Kracht's work order procedure was not
applicable. The Union states that for the above reasons the grievant should be reinstated
two hours of pay and that the record of suspension should be removed from his work record.
It is the position of the City that the two-hour suspension was a modest suspension and
given for just cause pursuant to the terms of the collective bargaining agreement. The City
takes the position through its testimony and evidence that there were two situations that
establish a finding of insubordination.
1. That Kracht's testimony is credible that he ordered the grievant to return to work
grievant disobeyed, and
2. That grievant refused to tell Kracht why he wanted to talk to Maintenance Engineer
It is the City's position that if the arbitrator does not credit Kracht's testimony that he
grievant to return to work, the tape recording made by the grievant proves that grievant
to respond to Kracht's legitimate question of why the grievant wanted to speak to Schroeder.
The City argues that Kracht had a legitimate concern, based on observing the grievant and
Schroeder on two previous occasions in conversation, that the
conversation the grievant wanted to have with Schroeder might not be work related.
therefore, was justified in wanting to know why grievant wanted to speak to Schroeder. It
is the position of the City that the evidence, including the testimony of the grievant, reveals
a disgruntled employee who objected to being supervised by anyone at the work site, and this
led to the altercation with Supervisor Kracht on January 16, 1997. Lastly, it is the position
of the City that the Union did not state in its grievance, or at any point during the grievance
procedure leading up to the arbitration hearing, a claim of contract violation for failure of the
City to give proper notice of the grievant's suspension. The City argues that adequate notice
was given to the grievant and the Union by Kracht's hand delivery of the notice of
to the grievant. The City requests that the arbitrator deny the grievance.
The arbitrator first addresses the Union's position that the grievance should be
because the City failed to send the notice of suspension by registered mail as required by the
labor agreement. 1 There is no dispute that
the Union raised this issue for the first time at
the hearing and to this the City objected. The Union responded that it had placed the City
notice because its grievance stated that the grievance covered all relevant portions of the
agreement. 2 As stated earlier, the suspension
was hand delivered to the grievant; a copy
was not given to the steward, although the steward, Neuser, was made aware of the
suspension by the grievant immediately after the grievant received it from Supervisor Kracht.
The Union in its brief cites the discussion of several cases in Elkouri. 3 The arbitrator agrees
with those cases that, as a general rule, a party at the arbitration hearing is not prevented
raising new arguments, broadening the scope of the grievance, refining the grievance, and
introducing new evidence regarding the presented issue. However, those same cases and the
authors of the treatise make clear that this rule does not apply to new issues, particularly
where the issue is separate from the original issue involved in the arbitration. The notice
is a procedural issue separate and distinct from the substantive issue of whether the City had
just cause to suspend the grievant for insubordination. The decision on the merits of the
grievance can be decided without deciding the notice issue. Had the Union raised the notice
issue in the original grievance or during the grievance procedure, the arbitrator would have
to decide whether the procedural defect was enough to sustain the grievance. Arbitrators
have also held that "The grievances submitted to arbitration bring into issue only
matters specifically sit forth therein and not those matters not raised within the grievances,
nor properly addressed in discussions during the processing of the grievances through the
grievance procedures." 4
There is a well accepted standard of fairness and due process attached to arbitration
proceedings and as cited by the Union in its brief, ". . . technical objections are
in an endeavor to get at the facts of a given case . . ." 5 In this case, the grievant and the
Union had notice. They were not disadvantaged by not receiving the notice by registered
mail. Further, the City could reasonably have assumed that the Union was not going to
notice contract violation when the Union never raised the issue during grievance
Therefore, the arbitrator finds that the Union cannot raise the notice issue at the arbitration
hearing for the first time. The notice issue will not be considered by the arbitrator in
whether the suspension was with just cause.
In deciding just cause, the arbitrator considers creditability issues and the arbitral
for insubordination and just cause.
Just cause has many definitions, but simply stated the employer ". . . must
have a reasonable
basis for its actions and follow fair procedures in so acting." And "The just
mandates that the punishment assessed be reasonable in light of all the
The City must also meet a burden of proof which in this case, given the alleged infraction,
shall be the preponderance of evidence test. While the Union has cited in its brief a standard
for insubordination that requires that the employee who is refusing to obey an order must at
the same time be advised of the consequences, the arbitrator in this case does not adopt such
a standard and nor is such a standard universal. A discharge case might be different, but this
is a case involving a two-hour suspension without pay. A more reasonable standard in this
case, which the arbitrator adopts, is the following: the issuance of a clear and direct order to
the employee; issuance of the order by a person known to the employee as a supervisor; and
refusal of the employee to obey the order. 7
Arbitrator John B. Coyle, in a 1991 case, lists
eight criteria for determining the creditability of witnesses' testimony among which are the
relative strength of their recollections, and the quality and reasonableness of their testimony
considered in its entirety and in relation to other credible testimony. 8
As a backdrop to the confrontation on January 16, 1997, Supervisor Kracht had
grievant and Maintenance Engineer Schroeder talking on two occasions earlier that month
at the Senior Center in a manner that he thought might give the wrong impression to the
general public. Kracht suspicioned that the two conversations were not work related which
probably affected his frame of mind when the altercation with the grievant started. There
no one to confirm the conversation between the two other than the tape recording made by
the grievant of part of the conversation and accepted by the parties at the hearing as being
accurate. The tape recording did not capture the initial part of the conversation when Kracht
testified that he told the grievant approximately three times to go back to work. The grievant
stated in his testimony that Kracht never gave him such an order; the arbitrator in this case
and based on the facts of the entire record credits the testimony of the supervisor. Given
Schroeder was working on a specific project in the boiler room, it would be natural for
not to want him disturbed at the moment, telling the grievant that he could talk to Schroeder
later. Even if the grievant disputes being given an order to go back to work, the taped part
of the conversation makes clear that the grievant persisted in his desire to talk to Schroeder
even though Kracht told him he could not talk to Schroeder at that point in time. The
grievant consistently challenged why he could not speak to Schroeder and kept coming down
the stairway toward Kracht and the boiler room.
The arbitrator credits the testimony of employee Tomas Hein that no procedure was in
that regulated casual conversations between employees. Whether grievant's proposed
conversation with Schroeder was a work related matter that fell under the procedure
orders is an open question, but it probably was not. Kracht's continued reference to it
the confrontation probably was more out of frustration than anything else. The arbitrator
does not find this testimony to be of material significance.
Proof of grievant's challenge of his supervisor's legitimate directives is supported by
grievant's own testimony that he does not need to be "babysat" and that
when Kracht was
no longer his supervisor and someone else was appointed that the "guy was changed,
the situation." The grievant testified that he preferred the supervisor situation before
when he was not directly supervised by anyone from the Building and Grounds Department,
but just answered to one of the administrators of the Senior Center. On redirect testimony,
the grievant stated that he did not think there was a need for him to be supervised by
from the Department. Lastly, on cross examination by the City, the grievant admitted that
he did not respond or give an answer when asked why he wanted to talk to, or ask a question
of, the maintenance engineer.
The City has proven that the grievant was insubordinate. He failed to return to work
directed; he failed to respond when asked why he wanted to see Schroeder or what he wanted
to ask Schroeder, and he kept coming down the stairs when he was told that he could not see
Schroeder at that point. Grievant received a directive from one who he knew was his
supervisor, and he refused to obey. That well accepted labor maxim "obey now and
later" was not followed by the grievant even though required by the labor contract
which he worked. 9 While Kracht might have
handled the situation better, front line
supervisors are not sophisticated human resource managers. The City has proven just cause
by acting in a fair and reasonable manner in the amount of discipline awarded to the grievant
given the circumstances of the confrontation. It is apparent the City took into consideration
the situation, and the two-hour suspension without pay strikes the arbitrator as more of a
warning to the grievant rather than punishment. The grievant must learn to accept that the
City has the right to supervise him in the way it wants and not in the manner that he prefers.
Considering the record in its entirety, as well as the briefs of the parties, it is the decision of
the arbitrator that the grievance cannot be sustained.
The grievance is denied.
Dated at Madison, Wisconsin, this 15th day of August 1997.
Paul A. Hahn /s/_______
Paul A. Hahn, Arbitrator
1. Article VI Discharge, Section 3, Service of
2. Joint Exhibit 2 dated January 29,
3. Elkouri and Elkouri. How Arbitration Works
5th Edition (1997) Voltz and Groggin,
4. Stone Container Corporation and United Paper
Workers Local 531, 91 LA 1186, 1190 (1988) Ross.
The Arbitrator believes that the Company's position has merit. Certainly the
entitled during the course of the grievance procedure to be informed of all aspects of a
contract violation . . . .
Lyondell Petrochemical Company and Oil, Chemical and Atomic Workers Local
4-227, 89 LA 95, 99 (1987) Caraway.
5. Union Brief pg. 13 citing Arbitrator A. Langley
6. Beatrice Foods Co. And Teamsters Local 838, 74 LA
1008, 1011 (1980) Gradwhol;
City of Portland and Portland Police Association, 77 LA 820, 826 (1981)
7. Vernon County Highway Employees Local 1527 and
County of Vernon, Case 83
No. 45528 MA-6632 (McLaughlin, 1991) citing Roberts Dictionary of Industrial Relations,
H.S. Roberts (BNA
8. Safeway Stores Inc. And United Food and
Commercial Workers Union Local
7, 96 LA 304 (Coyle,
9. Article III, Grievance Procedure, Section 2, Step 1
As far as can reasonably be expected, in the event of a grievance, the employee
continue to perform the assigned task and grieve later.