BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF RACINE, Wisconsin
AFSCME LOCAL 67
(Gerald Highman -- 5 day suspension)
Mr. John Maglio, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, P.O. Box 624,
Racine, WI 53401-0624, appearing on behalf of the Union and Grievant.
Mr. Guadalupe G. Villarreal, Assistant City Attorney, City of
Racine, 730 Washington Avenue,
Room 201, Racine, WI 53403, appearing on behalf of the City.
The Union requested that the Wisconsin Employment Relations Commission designate
arbitrator to hear and decide a dispute concerning the above-noted grievance, arising under
parties' 1995-97 Agreement (Agreement). The Commission designated the undersigned
Gratz as the Arbitrator.
The grievance was heard by the Arbitrator at Racine City Hall on May 28, 1977.
proceedings were transcribed. The parties' post-hearing briefs were exchanged on July 16,
marking the close of the hearing.
At the hearing, the parties authorized the Arbitrator to decide the following issues:
1. Did the Employer violate the
Collective Bargaining Agreement when it disciplined Gerald
Highman for his actions on October 31, 1996?
2. If so, what is the appropriate remedy?
PORTIONS OF THE
Management and Union Recognition
. . .
E. Management Rights. The
City possesses the sole right to operate City government and all
management rights repose in it, but such rights must be exercised consistently with the other
provisions of his contract and the past practices in the departments covered by the terms of
Agreement unless such past practices are modified by this Agreement, or by the City under
conferred upon it by this Agreement, or the work rules established by the City of Racine.
rights which are normally exercised by the various department heads include, but are not
. . .
To hire, promote, transfer, assign and
retain employes in positions with the City and to
suspend, demote, discharge and take other disciplinary action against employes for just
PORTIONS OF CITY WORK
. . .
D. Parking, Driving and Operating
Vehicles and Equipment.
6. Employees shall exercise extreme care
at all times when driving and/or operating any
vehicles or equipment. (See Safety Manual for further details)
. . .
F. Check Location of Nearby
Persons and/or Obstructions
1. Prior to operating any vehicle or
equipment, the operator shall check to make sure all
persons and/or obstructions are safely clear of the vehicle and/or equipment.
. . .
L. Vehicular and Property Damage
1. Employees who are involved in any
vehicular or property damage accident shall adhere
to the following procedure:
a. do not move the vehicle.
PORTIONS OF THE CITY
CODE OF ORDINANCES
Chapter 102 VEGETATION
. . .
Sec. 102-59. trimming.
(a) <Trees> and shrubs standing
<in> or upon any public right of way, public areas, or upon
any private premises shall be kept trimmed by the owner or occupant of the property from
<trees> or shrubs project so that the lowest branches projecting over the public
<street> or alley
provide a clearance of not less than 13 1/2 feet. The city forester may waive the provisions
section for newly planted <trees> if the traffic engineer determines that they do not
public traveling, obstruct the light of any <street> light, or endanger public safety.
(b) Trees and shrubs standing in or upon
any public right-of-way, public areas, or upon any
private premises adjacent to a public sidewalk shall be kept trimmed by the owner or
occupant of the
property from which such trees or shrubs project so that the lowest branches or foliage
over the public sidewalk provide a clearance for pedestrian traffic of not less than eight feet.
(c) the necessity of pruning trees under
this article shall be subject to approval by the city
[Code 1973, 7.08.050(b)]
The City and Union have for many years been parties to collective bargaining
covering a bargaining unit consisting of certain public works system employes of the City.
The Grievant, Gerald Highman, has been employed by the City since April of 1978,
a public works Truck Driver since 1982.
The disciplinary notice giving rise to the subject grievance was issued by City
of Public Works Joe Golden on November 6, 1996. That notice reads in pertinent part as
On Thursday October 31, 1996, you were the operator of Solid
Waste #11 when it struck and
destroyed a large tree at the southwest corner of Saint Patrick Street and Michigan Blvd.
subsequently fell up against a house which resulted in what appeared to be minor damage to
and Solid Waste #11. Solid waste trucks drive by this location on a weekly basis and to my
knowledge there has been no previous incident of this nature.
Prior to deciding on the appropriate level of discipline in
regards to this matter both myself
and the Personnel Director reviewed your personnel file and in particular your driving
have received numerous disciplinary notices including a 3 day suspension for vehicle
Therefore it has been determined that you will receive a 5 day suspension for violation of
"D. Parking, Driving and Operating Vehicles and Equipment Sec.6." and "F. Check
Nearby Persons and/or Obstructions, Sec.1." As I have stated in previous disciplinary
driving record is unacceptable and if at any time it is determined that you have become a
your fellow employes or the general public I will take whatever steps are necessary to avoid
situation from occurring. It appears to me that we have reached that point and following
suspension you along with your Union representatives will be meeting with the Personnel
and myself in an attempt [to] remedy this most serious problem. Please be advised that any
violations of this nature will result in possible termination of your employment with the City
The subject grievance was timely filed asserting that the five-day suspension ". . . is a
of Article 2 Section E and any other articles that may apply as well as a violation of the
ordinances." The grievance specifies the "Adjustment required" as follows: "Remove five
suspension from any and all personnel files of Gerald Highman and make said employee
any and all lost wages. (5 days plus overtime)."
The grievance was denied at the pre-arbitral grievance steps on the basis that
being progressively disciplined for continued vehicular and/or equipment accidents and
dispute was then submitted for arbitration as noted above.
At the arbitration hearing, the City presented testimony by Labor Supervisor Thomas
Public Works and Solid Waste General Supervisor Jeffrey Fidler, Superintendent of Public
Golden, and City Forester Charles Klimek. The Union presented testimony by Tree
Schmidt, Solid Waste Collector Paul Reinhold, and the Grievant.
The evidence establishes that Grievant was traveling eastbound on St. Patrick Street
way back from a break to rejoin an end loader and operator with whom he was performing
collections on a street some two blocks away. Grievant was approaching a stop sign at the
intersection with Michigan Boulevard after which he would be making a right turn onto
Boulevard. As he slowed approaching the stop sign, his truck came to a full stop
Grievant found that he was unable to move the truck forward despite stepping on the
Grievant got out of the truck and discovered that an inch or two of the curbside top corner of
back box was wedged under a heavy branch of a tree that was overhanging the street from
stop sign. At or about the time when Grievant reentered his truck and attempted to free it by
in reverse, the tree then fell such that some of its branches came to rest on Grievant's truck
came to rest on the adjacent residence. (tr.16, 118)
Grievant then completed radio communications to his supervisor that he had initiated
point after the truck had stopped. Weber arrived at the scene first and discussed what had
with Grievant. Weber then passed along that information to Fidler and Golden when they
the scene. Also responding to the scene were a City Police traffic investigator, the City
eventually other City personnel for removal of the tree and evening of the stump area.
Grievant was not issued a traffic citation in connection with the incident.
Additional background is set forth in the summaries of the parties' positions and in
DISCUSSION which follows.
POSITIONS OF THE PARTIES
The Grievant has a history of multiple violations of vehicle driving safety work rules
he has been disciplined and warned, and because of which the City has provided him with
training to help him deal with his driving problems. That record includes seven instances
prior to the
instant case, dating back to 1-14-92, in which Grievant was disciplined for vehicle accidents
Grievant was determined to be at fault, not counting other accidents in which he was not
to be at fault. The two most recent violations include a 4-7-95 property damage accident (hit
with dump box) for which Grievant served a one-day suspension, and an 11-27-95 property
accident (hit utility pole) for which Grievant served a three-day suspension.
On the date in question, Grievant operated his garbage truck on a public street in a
fashion, violative of the Work Rules cited in the suspension notice. He failed to scan ahead
direction of travel or he would have seen the low-hanging tree limb that was in his direct line
vision. He should have stayed in and turned from the travel lane as much as possible and
the parking lane both to avoid the tree limb and to enable him to turn safely without
oncoming lane of the street onto which he was turning. Grievant
admitted that there was no oncoming traffic that prompted him to be so close to the
proximity to the curb was not related to the leaf collection function because he was simply in
mode on his way to the street where leaf collection was in progress when his truck came into
with the tree.
The City ordinance requiring maintenance of a 13.5 foot clearance above the street
excuse Grievant's carelessness in contacting the tree limb with his 11.5 foot high truck. The
establishes that thousands of trees are out of compliance with that requirement for various
(including because the trees could not survive compliance pruning) such that City truck
trained to be alert for and to avoid low-hanging tree limbs.
The high winds of October 30 did not cause the tree to fall on Grievant's truck on
Grievant did not testify that he heard the tree fall on his truck. Rather, he admitted that he
under the tree limb and became wedged under it. At first he thought his truck was not
because of a mechanical malfunction. He only realized that his truck was in contact with and
under a tree when he got out and saw the tree in contact with the truck.
Grievant's efforts to move his truck after he discovered that it had become wedged
tree constituted an additional violation (of Work Rule D.1.a.), and an aggravating factor
the subject violation. He should have waited for his supervisors or the City Forester to
whether and how to free the truck while avoiding or minimizing damage to the adjacent
For those reasons, the five-day suspension was an appropriate imposition of
discipline which should be upheld in all respects.
The City lacked just cause for imposing the instant suspension, such that the
violated Art. 2.E.2 of the Agreement. The following factors all mitigate in Grievant's favor.
The City has an ordinance which requires trees to clear the roadways by a minimum
feet, which is two feet higher than the highest point on the truck Grievant was driving. The
cannot deny the ordinance' existence by contending that a large number of trees are allowed
out of confirmity with its requirements. For, as Golden admitted in his testimony, the
that ordinance would prompt him to feel that he was not at fault if he were to have,
impacted a non-complying tree branch with a private vehicle that was less than 13.5 feet in
Because the City ordinarily disciplines for vehicular accidents only where the employe is at
is unfair, disparate treatment for the City to discipline Grievant in circumstances the
views as free of fault on the driver's part.
The weakened condition of the tree played a role in the incident. The evidence shows
involved was severely rotted at its base; that it had been improperly planted too deep,
root development and causing fungal disease and root rot; that its root support was
also constrained by its location between the street and sidewalk; and that the stump was
so rotted that
it did not require any grinding and was simply pushed in with a loader and tilled with
Klimek testified that the tree was sufficiently rotted that it could have toppled over on its
own or by
reason of a vehicle merely brushing it, whereas a normally rooted, healthy tree would not be
According to Grievant, for all he knew the tree fell on top of his truck. The truck's
motion came to a halt. He attempted to put the truck in reverse to free it. Management
Weber and Fidler both admitted that it was possible the tree fell on the truck. Grievant
simply to have been in the wrong place at the wrong time; a victim of a fluke for which he
Windy conditions also added to the weakening of the tree. Newspaper accounts
there were high winds and downed trees and branches in the Racine area over the two days
October 31, 1997; various witnesses confirmed that it was also windy when they arrived to
of the accident; and the City had two crews out on October 31 cleaning up from the wind
to trees. A tree as rotted as the one involved here could have been weakened by the high
the two days preceding the incident and toppled by the winds on the day in question. For
again, it cannot be determined that the indicent was Grievant's fault.
Grievant's driving on the day in question was no different than that of other
employes bring a Vac-All about the same height as Grievant's truck as close to the curb as
truck was, to clear the catch basin at the intersection in question; yet there has been no
which the tree in question was struck in that process. City employes also plow snow with
trucks in such a way that their plow blades cover the street curb to curb; yet, none of those
ever previously hit the tree in question. Union witness Paul Reinhold also testified that he
driven the same kind of truck as Grievant was using, to perform the solid waste runs that
pickups on St. Patrick Street. Reinhold further testified that, when driving on the same
street, he has
operated the same distance from the curb as Grievant did on October 31, without incident.
Grievant was eastbound on St. Patrick Street, ready to make a southbound turn onto
Michigan Boulevard. The pictures in evidence show the truck to be about three feet from the
Grievant testified he felt he was in the correct location. He felt that if westbound traffic
appear, the truck would obstruct such traffic if he were to have driven it in the middle of the
In addition, damage to the truck was minor and damage to the house, if any, was not
determined or shown. If the tree was, in fact, uprooted by the force of Grievant's truck
hitting it, then
it stands to reason there would have been more significant damage to both the truck and the
Grievant's prior work record cannot be the basis for finding him at fault for an
has not otherwise been shown to be his fault. The Racine Police investigated the incident
and did not
issue Grievant a citation finding him at fault for the incident. The Arbitrator should reach
For those reasons, the Arbitrator should grant the grievance and the relief requested
This case turns on whether the impact between the tree and Grievant's truck was
As outlined in the disciplinary notice and detailed in Golden's testimony, the City
that Grievant was at fault by failing to avoid a low-hanging branch and by driving too close
curb in the circumstances. For the following reasons, the Arbitrator finds that the evidence
persuasively supports both of those conclusions, and that the various factors cited by the
not sufficient to overturn or reduce the discipline imposed in this case.
It is undisputed that there are numerous branches overhanging City streets at levels
top of the truck Grievant was driving on the date in question. It is also undisputed that
and avoiding such below-truck-top-level branches is a basic and important responsibility for
Truck Driver, especially when driving a truck as tall as the Grievant's was in this case.
acknowledged those facts in his testimony and acknowledged that they had been covered in
training provided to him by the City. (tr.122-23) Grievant testified that he saw the branches
tree "waving," not "whipping," in the wind as he approached the stop sign. He further
he was quite sure he had cleared those branches.
However Grievant also testified that his truck came to an unexpected stop before he
the stop sign. (tr.118) Notably, Grievant did not describe hearing or feeling an impact on
the top of
his truck at that point; rather he recalled at first attributing the truck's immobility to a
problem of some kind. Thus, Grievant's own description of the incident makes it quite
the tree fell on the truck without first being impacted by the truck.
Other evidence making it quite unlikely that the tree fell on the truck without first
impacted by the truck includes the following: Klimek's persuasive and expert opinion -- with
benefit of viewing the broken tree trunk and of feeling the extant winds first hand -- that the
would likely have stood 5-10 more years but for being impacted by the truck; the absence of
other whole trees being felled by the wind that day (tr.76,98); the fact that the winds were,
Grievant's estimate, only 25-30 mph at the time of the incident; and the fact that the upper
of the tree had lost most of their leaves, somewhat reducing the potential effect of the wind
tree. In the face of that evidence, the testimony of various witnesses, that it was possible
that the tree
fell without first being impacted by the truck, is not a persuasive basis on which to conclude
is what, in fact, happened.
It is also undisputed the City has trained its drivers, including Grievant, that making
on City streets with trucks requires positioning the truck at the start of the turn farther from
than would be appropriate when making the turn in a passenger car. (tr.122) Grievant's
that it was necessary, appropriate and safe for him to position his truck as close to the curb
as he did
in advance of making the right turn onto Michigan is squarely contradicted by the opinions of
supervisor witnesses Fidler and Golden, both of whom are accredited defensive driving
While Union witness Reinhold agreed on direct-examination that it "would be possible" that
get as close as Grievant did to the curb in advance of a right turn onto Michigan from
Patrick during solid waste pickup operations (tr.109), on cross-examination Reinhold also
"For safety purposes, yes," he would make that turn from a point "Probably no -- four feet
the curb." (tr.111) The Arbitrator finds the supervisors' opinions more persuasive than
the instant circumstances because: Grievant was not making a pickup or performing any
operation that might have warranted his getting as close as possible to the curb; St. Patrick
wide enough to permit him to position his truck farther from the curb without crossing the
and without unduly risking a collision with a possible oncoming vehicle making a turn off of
onto westbound St. Patrick; there was, in fact, no oncoming vehicle making such a turn onto
Patrick from Michigan; and turning a truck as long and wide as Grievant's from as close to
as his was would likely have taken Grievant's truck into a portion of the oncoming
lane of Michigan Boulevard in order to complete the turn. (tr.38-39 and 123) By being
close to the curb and tree, Grievant unnecessarily increased the risk that his truck would
overhanging limb as it did.
While the City has imposed on itself and other property owners a City Code
to allow branches to hang lower than 13.5 feet over the street, the evidence shows that
by the City and other property owners is very much a matter of circumstance or
than certainty. As a result, the City has trained its drivers to be alert for low-hanging (and
of compliance) branches and to avoid or work around them. While the ordinance might well
a person in the sort of hypothetical presented by the Union to Superintendent Golden to feel
fault if that person's privately-owned truck struck an out of compliance low-hanging branch,
employes cannot avoid responsibility, under the City's published Work Rules, for failing to
impacting such branches with their vehicles in the context of the realities of the streets of
which they work and of the training concerning such hazards which they have received.
The evidence definitely supports the Union's contentions that the tree involved was
rotted, at least in its trunk and probably in its roots, and that for various reasons the tree's
support was significantly limited relative to that of a similar tree planted at a proper depth
concrete restrictions. Otherwise, the tree would not have been felled by the sort of contact it
with Grievant's truck. The evidence also establishes to the Arbitrator's satisfaction that there
been tree-felling winds in the Racine area on the day or two preceding October 31, but that
on October 31 more moderate. While the tree was weakened and the winds had blown hard
still blowing at least to some extent, the Arbitrator is nonetheless persuaded, for reasons
that the tree would not have fallen but for Grievant's truck coming into contact with it.
The evidence does not support the Union's contention that Grievant's driving on the
question was no different than that of other employes. While it is true that employes bring a
about the same height as Grievant's truck as close to the curb as Grievant's truck was, to
basins like the one at the intersection in question, Golden testified that the City would
expect the employes involved to maneuver the Vac-All in such a way as to avoid contact with
low hanging branches, or that the catch basin involved would alternatively be cleaned by
a lower and more maneuverable 5-yard dump truck. (tr.55-56) While it is also generally true
City plows snow curb to curb, the City obviously expects and trains its drivers to avoid
and other obstructions such as large low-hanging branches; the City does not plow with its
garbage trucks"; (tr.29) but rather it plows in residential areas such as at St. Patrick and
using lower five-yard dump trucks. (tr.41) On the other hand, the big garbage trucks are
solid waste runs, and those runs do require the drivers to get close to the curb to facilitate
However, as noted above, Reinhold's direct-examination testimony on that subject, when
taken in the
context of the related cross-examination, does not persuasively establish that Reinhold ever
drove his solid waste truck as close to the curb as Grievant did, when Reinhold had occasion
approach the interesection in question eastbound in the course of his solid waste operations.
The fact that the Racine police investigated the matter and did not issue Grievant a
citation removes one of several factors that are potentially relevant in the City's decisions
impose discipline in connection with a vehicular accident; however the nonissuance of a
alone, is not sufficient to relieve Grievant of disciplinary consequences for the incident. The
Police traffic investigator would be applying statutes and ordinances, whereas the City
provisions of its Work Rules. Thus, as Golden testified without contradiction, in "many,
instances," employes have received discipline for vehicular accidents where no citation was
(tr.61), and that the City has no policy conditioning its exercise of discipline in such cases to
in which a citation for violation of the law has been issued.
The fact that at most only minor damage was sustained by the truck and house neither
precludes the City from imposing discipline if Grievant was at fault for causing that damage
establishes that the tree could not have been felled by reason of Grievant's carelessness. A
accident in which a 30-40 year old Norway Maple tree is felled in a residential neighborhood
an unusual and a significant event. It is fortunate that the damage that resulted was not
greater. While the evidence makes it clear that the contact with Grievant's truck would not
felled the tree had the tree's internal structures not been significantly weakened by various
beyond Grievant's control, that does not relieve Grievant of responsibility for carelessness in
his truck come into contact with the tree as it did.
While Grievant's prior work record cannot be the basis for finding him at fault for an
occurence that has not otherwise been shown to be his fault, the Arbitrator is persuaded in
that Grievant was at fault in this case, for reasons noted above. The City therefore
considered Grievant's prior work record in determining the appropriate level of discipline to
imposed. Golden took the time to make a calm judgement in that regard, with the benefit of
of Grievant's past record and advice from the City's Personnel Director.
The Arbitrator therefore finds no basis on the instant record to overturn or modify the
five-day suspension imposed by the City in this case. The Grievant has been shown to have
of the Work Rules cited in the suspension notice. (The City's contention, raised for the first
its brief, that Grievant also violated Work Rule D.1.a. has not been considered by the
this matter because it was not included in the suspension notice.)
Accordingly, the Arbitrator concludes that the suspension has been shown to have
just cause and not violative of Agreement Art. 2 or of any Agreement provision.
DECISION AND AWARD
For the foregoing reasons and based on the record as a whole, it is the decision and
the Arbitrator on the ISSUES noted above that
1. The Emloyer did not violate the Collective
Bargaining Agreement when it disciplined
Gerald Highman for his actions on October 31, 1996.
2. The subject grievance is therefore
denied, such that no consideration of a remedy is
necessary or appropriate.
Dated at Shorewood, Wisconsin this 2nd day of
Marshall L. Gratz, Arbitrator