BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS UNION LOCAL NO. 695
CITY OF STOUGHTON
Teamsters Union Local No. 695, hereinafter referred to as the Union, and the City of
Stoughton, hereinafter referred to as the City, are parties to a collective bargaining
provides for the final and binding arbitration of disputes arising thereunder. The Union
request, with the concurrence of the City, that the Wisconsin Employment Relations
designate a member of its staff to act as an arbitrator to hear and decide a grievance over a
and discharge. The undersigned was so designated. Hearing was held in Stoughton,
February 23, 1998. The hearing was transcribed and the parties filed briefs and reply briefs,
of which were exchanged on May 22, 1998.
In 1973, the Grievant was in an automobile accident and suffered a severe closed
which resulted in memory problems and chronic seizure disorder which is controlled by
The Grievant also has problems with balance and motor skills and has a broad-based spastic
Grievant was hired by the City in 1981 and worked in the City's wastewater treatment plant.
Grievant was discharged by the City in November, 1991, for failure to complete work
discharge was appealed to arbitration and the Grievant's
discharge was reduced to a three-day suspension and he was reinstated in about July,
1992. In 1993,
the Grievant was evaluated by a rehabilitation psychologist who reported that the Grievant
continue to experience difficulty completing forms absent reasonable accommodations. It
suggested that the Grievant be provided with a memory book containing step by step
examples which the Grievant would need to carry with him at all times. Additionally, it was
recommended that a job coach work one on one with the Grievant and that he be given
periods for task acquisition and completion. The City retained a job coach to assist the
The City thought that the Grievant was not too keen on the idea, and was aloof, so the job
let go after only one day. The City also provided the Grievant with a memory notebook
but the Grievant lost them. The Grievant was off work from January, 1994 until April,
1995, due to
a foot injury and subsequent surgery. On May 10, 1995, the Grievant was given a written
letter related to inadequate job performance. The letter was grieved and as a result, a
was issued to the Grievant. On February 16, 1996, the Grievant was given a one-day
putting the handle of a sewer tape into a drain he was attempting to unplug on November 1,
with the result that the tape became stuck requiring dismantling of equipment to remove it as
On April 28, 1997, the Grievant was given a three-day suspension for his actions on
1997 when he was working with a fellow employe on a jet vac cleaning sewer lines in that
to warn the jet vac operator of approaching traffic, did not follow directions and operated his
in such a manner to almost cause an accident. This was grieved and is part of the instant
On May 15, 1997, the Grievant was discharged for leaving his radio on the street
working with the jet vac operator and then forgetting about the radio. The radio was found
citizen and returned to the City. The radio costs about $800. The discharge was grieved
and is part
of the instant arbitration.
The parties stipulated to the following:
1. Did the City suspend the Grievant, Jon Onsrud, on April
1997, without just cause?
If so, what is the appropriate remedy?
2. Did the City discharge the Grievant, Jon Onsrud, on May
15, 1997, without just cause?
If so, what is the appropriate remedy?
ARTICLE 3 MANAGEMENT RIGHTS
Section 1. Teamsters Union Local No.
695 recognizes the prerogatives of the City of
Stoughton to operate and manage its affairs in all respects in accordance with its
powers of authority which the City has not officially abridged, delegated or modified by this
Agreement and such powers or authority are retained by the City. These management rights
but are not limited to the following: the rights to plan, direct and control the operation of
force, determine the size and composition of the work force, to hire, to layoff (sic), to
discharge for just cause, to subcontract after notifying the Union, to establish and enforce
rules of conduct, to introduce new or improved methods of operation, to determine and
enforce minimum standards of performance subject to the provisions of this Agreement.
. . .
ARTICLE 17 MISCELLANEOUS
. . .
Section 7. Warning letters shall not
remain in effect more than eighteen (18) months from
date of issue. Copies of all warning letters shall be sent to the Union and provided to the
the time of issuance to the affected employee.
The City contends that there was just cause to discipline and discharge the Grievant.
that the Grievant's actions warranted the discipline, he was afforded due process, he was
that of the type of conduct that would result in discipline, he was counseled as to his job
and was given progressive discipline.
With respect to the Grievant's conduct, the City points out that shortly after the
returned to work in April, 1995, he was given a written warning for failure to properly
tasks assigned to him. It observes that throughout the summer of 1995, the Grievant's
was not satisfactory. It notes that in February, 1996, the Grievant was suspended one day
he improperly tried to clean a drain with the sewer tape handle
getting stuck in the drain, necessitating substantial repairs. It asserts that the three-day
at issue also involves the improper performance of the job duties assigned in assisting a
on the jet vac. It claims that the Grievant was not paying attention and did not have his
him, so he did not warn his co-worker about traffic. It states that the Grievant drove his
truck so as
to almost collide with another vehicle and these incidents were reported by the co-worker
resulted in the Grievant's three-day suspension. It submits that within two weeks of this
Grievant lost an $800 radio. It argues that no evidence was presented that these events did
The City claims that unsatisfactory job performance provides just cause for discipline.
The City insists that the Grievant was aware of job expectations and warned of the
consequences for failure to meet them. It alleges that because of his memory problems, the
discussed with the Grievant what its expectations were for the job tasks assigned to the
It maintains that the City met with the Union and agreed to work with the Grievant and
his memory problem, to make sure he knew how to perform the tasks assigned to him. It
that he was given a log to help him and was made aware of the maintenance manuals. It
his supervisor discussed with the Grievant how to perform each task for which he received
It contends that the three-day suspension and the discharge were appropriate. It
the last two incidents followed a long series of incidents involving damage or potential
property or person which resulted in progressive discipline. It asserts that progressive
followed and additionally, meetings were held with the Grievant and Union to attempt to
work deficiency problems. It claims that returning the Grievant to work will not result in his
performing tasks properly and safely. It argues that the arbitrator should defer to the City's
to discipline as it was rational, followed a logical progression and was not arbitrary and
The City takes the position that the Union has not established grounds for setting
discipline. It anticipates the Union will argue that the Grievant was not trained for the tasks,
were not disciplined for similar offenses and the discipline is too severe for the offense.
As to the training issue, the City submits that for each relevant task, the Grievant was
instructed how to perform it or knew how to perform it. It notes that the last two disciplines
cleaning sewers with the jet vac and the Grievant had been performing it starting the week of
3, 1997, and the first incident occurred on Thursday, April 17, 1997. The argument that he
know how to do the work ignores the fact and the Grievant's admission that he knew what he
expected to do.
With respect to disparate treatment, the City reviews three incidents, the first, an
involving the jet vac truck and a car when another employe was assisting the jet vac
second, in 1984 an employe lost a pager; and the third involves three accidents where no one
disciplined. As to the first example, the City claims that the accident occurred before the
employe was set up and the accident was caused by a reckless driver running into the jet vac
It submits that no discipline was warranted and the City thereafter established a procedure to
future accidents. The City points out that the record of the two employes involved in this
was not put in evidence so there can be no comparison with the Grievant from a progressive
standpoint. As to the pager lost in 1984, the City alleges that the cost difference between the
and the radio is $25 for the pager versus $800 for the radio. Also, the employe who lost the
had no outstanding warnings at the time he lost the pager. It concludes that the 1984
incident is not
relevant to the instant case. As to the three accidents, the City concludes that the Safety
reviewed these and the Union Steward testified there had been no discipline but admitted that
discipline is not a function of the Safety Committee but is up to the supervisors to determine,
supervisor John Lynch testified discipline resulted from one of these accidents. The City
that the record is not sufficient to establish any difference in treatment as the circumstances
established nor the disciplinary record of those involved and the claim of disparate treatment
supported in the record.
The City maintains that the discipline was based on written warnings within the
time lines. It states that the contract provides that written warnings cannot remain in effect
than 18 months from the date of their issue and the City has complied with this provision. It
that the Grievant was given a written warning on March 30, 1995, a one-day suspension on
16, 1996, the three-day suspension was issued on April 28, 1997, and the discharge within a
of the suspension; thus it complied with the 18-month time frame. The City insists that none
Union's arguments have merit or establish that the disciplinary action was arbitrary and
so as to justify modification of the discipline.
The Union contends that the City has failed to meet its burden of proof on the
suspension and discharge. It argues that Article 3 requires the City to prove just cause for
suspension and discharge and it has failed in its burden of proof. It submits that the City did
establish just cause for the suspension on April 28, 1997. It points out that the suspension
on the complaints of a co-worker with whom the Grievant was performing jet vac duties on
It claims that jet vac work is seasonal in nature and the Grievant had not performed this
the prior fall and had not been retrained, which in light of his impaired memory, is
states that the City claimed the Grievant made a U-turn on April 3, 1997, which was
because of oncoming traffic, but there was
no accident, and because of the Grievant's memory problems, the only proof is the
testimony of his
co-worker but the co-worker did not signal or radio the Grievant and even though it was
that same afternoon, no discipline was given until almost four weeks later. The three-day
was based on the Grievant's failure to warn of oncoming traffic but again, there was no
although there was an accident which occurred on March 28, 1997, yet neither of the
involved in that accident were disciplined. It points out that it was reported that the Grievant
to the wrong manhole cover. It submits that this does not indicate any intentional
wrongdoing on the
Grievant's part and the manhole covers were off center in this location. It alleges that this
does not indicate that the Grievant could not perform these duties with the proper training. It
maintains that the miscommunication of this type does not warrant a three-day suspension. It
that the mere fact the Grievant has disabilities does not automatically mean he is considered a
risk. It also contends that the Grievant's co-worker has negative feelings toward the
Grievant as a
result of the Grievant's failure to inform him of his wife's call in the fall of 1995 that their
ill and this negative bias demonstrates that his testimony cannot be fully credited and should
The Union asserts that the Grievant's suspension amounted to disparate treatment
the City has treated similar and even more serious safety violations with less severity. It
that there was no accident on April 17, 1997, yet there was one a week or two earlier and no
disciplined. There were two other accidents, according to the Union (forks on a forklift too
failure to wear safety goggles) where no one was disciplined. It maintains that there is no
basis for the disparate treatment of the Grievant and no just cause for the suspension.
The Union believes that the City failed to take mitigating circumstances into
when it suspended the Grievant. It points out the City knew when it hired the Grievant that
memory problems and needed training and instruction for duties he had not performed in a
The Union recalls that it met with the City and made suggestions after the May 10, 1995
warning but the City took the attitude that these would not help the situation. The Union
the City was on notice and did not accommodate the Grievant but waited for him to fail and
disciplined him. According to the Union, because of the City's failure to attempt to
the Grievant's memory problems, it lacked just cause to suspend him.
The Union submits that there was no just cause for the Grievant's discharge. It
the Grievant's leaving the radio at the work site and failing to report it missing at the end of
is not a safety violation but a simple mistake. It claims that the punishment of discharge is
and not reasonably related to the offense. It observes that the Grievant was not used to
radio and his memory problems required retraining which he was not given and this
circumstance mitigates against a discharge. The Union suggests that simply strapping the
the Grievant's belt would
avoid a repetition of the problem. The Union observes that another employe lost a
pager in 1984 and
despite the fact the pager was never found, no discipline was meted out. It dismisses the
assertion that the pager was less expensive than the radio because the difference in cost was
exaggerated and there was absolutely no loss in this case because the radio was recovered. It
that discharge under the circumstances was disparate treatment.
The Union argues that the prior discipline raised by the City may not be considered
Article 17. The Union insists that the May 10, 1995 letter falls outside the 18-month period
cannot be used to support the Grievant's suspension and discharge. The Union also contends
the City's reference to Lynch's notes from June, 1995, were not the subject of discipline and
be used to justify the discharge now. The Union concludes that the suspension and discharge
without just cause and it asks for an order reinstating the Grievant to his former position and
be made whole.
The City contends that the safety issues involving the discipline are real and
states that not surprisingly the Grievant's defense focuses on his disability as an excusing or
factor and the City should accommodate him by excusing his failures. The fallacy of this,
to the City, is his fellow employe's testimony which speaks clearly to this that he no longer
working with the Grievant. The City maintains that the record is replete with circumstances
routine, simple tasks misperformed by the Grievant creating the risk of damage to property
It states that the only "accommodation" is having someone else do the tasks for the Grievant.
City points out it operates a complex, sophisticated wastewater treatment plant and employes
to be assured that other employes are not posing a risk to them. It observes that the Grievant
presented no testimony to refute the facts giving rise to the discipline. It alleges that the
filled with near misses which were addressed by progressive discipline and it fears that
major will happen but the ability to impose discipline does not depend on injury to person or
The City insists that it took steps to assist the Grievant. The City asserts that the
doctor testified that the Grievant's condition is stable and has not changed from the 1980's
Grievant needed to be informed what he was required to do to complete a task and the City
this. The City argues that the May 10, 1995 letter and the summer 1995 documentation is
because it demonstrates that the City worked with the Union to address and improve the
performance. The City points out that it got notebooks for the Grievant, made available its
maintenance manuals, instructed the Grievant how to do tasks, attempted to get him a job
gave him extended time to perform tasks. The City claims that short of having someone
at the Grievant's side or doing his job for him, the City did all it could to assist the Grievant.
The City insists that the Grievant knew how to do the jobs which gave rise to the
With respect to the sewer tape, the City asserts that he had used it before and was instructed
for 15-20 minutes how to accomplish the task at hand with it. It also notes that on the jet
vac, the Grievant
had performed the work the week of March 31 and again, the week of April 14, 1997, and
incident occurred on April 17, 1997, so he had been doing the job for some time and knew
do it. The City observes that during this time and later the Grievant was carrying the radio
The City argues that the Grievant was not subject to disparate treatment. The City
that the earlier accident with the jet vac involved different circumstances and was caused by
driver and the two employes were not shown to have had any prior discipline. It notes that
differ plus the Grievant made an unsafe U-turn and failed to go to the correct manhole which
evidence unsafe behavior on his part. It states that nothing in the record suggests anyone
the Grievant's disciplinary history and series of events was not disciplined by the City. The
claims that the discipline cannot be viewed as arising from memory problems but rather
malfeasance. The City alleges that the discipline was meted out within 18 months of the
in the process in accord with the contract and the Grievant cannot argue that the time
incidents warrants a lesser discipline. It concludes that the grievance should be denied.
The Union contends that the City improperly relied on alleged misconduct which
more than 18 months prior to the Grievant's discharge. It states that the only prior discipline
the time frame was the February 16, 1996 suspension which was based on events four
which was outside the 18-month period. The Union points out that earlier incidents were all
the 18-month period. It observes that the Grievant was gone on a medical leave for more
than a year
as of April, 1995, and given his memory problems, it is not surprising that he had forgotten
the job in the initial months of his return. It notes that the City acknowledged the Grievant's
problems but took the position that nothing would help.
It alleges that in the absence of retraining, the Grievant had to relearn the job on his
submits that as there was no further incident of poor work from November 1, 1995 for the
and one-half, the Grievant did relearn most aspects of the job. It asserts that the incident in
were duties that the Grievant had not performed for a long time for which he had received no
retraining. It claims that the deficiencies at issue were from performing sporadic field work
the City accommodating his memory problem with adequate training.
The Union contends that the City has failed to accommodate the Grievant's disability.
submits that the City has known of his disability for a long time and received a report that he
constant repetition to acquire new skills. It argues that when he resumes seasonal tasks, he
be retrained and by failing to accommodate the Grievant's known disability, the City violated
cause standard for discipline.
The Union reiterates that others have engaged in the same conduct or omission as the
Grievant and have not been disciplined. It observes that although the City argues that other
do not have the Grievant's disciplinary record, the other employes did not even receive a
discipline but received no discipline at all. It concludes that the Grievant was given disparate
treatment. It asks that the grievance be sustained and the Grievant be reinstated with full
The facts underlying the suspension and discharge are essentially undisputed. I credit
Erickson's testimony with respect to the events in April, 1997. Although the Union argued
was biased because the Grievant failed to notify him of an emergency phone call, I conclude
incident does not discredit his version of what occurred in April, 1997. Unfortunately, the
could not recall what happened in April, 1997, and thus the facts related to the three-day
have been established by Erickson.
As to the lost radio, the facts speak for themselves. The radio was lost, probably
Grievant placed it near a manhole, was found by a citizen and turned in to a fellow employe.
Grievant was responsible for the radio and forgot it or where he had left it and luckily it was
Thus, the facts giving rise to the discharge have been established.
Given these facts, the next issue is whether just cause for the suspension and
been established. Just cause includes the concept of progressive discipline. Progressive
is based on the premise that behavior will be corrected if sufficient punishment is given to
repeat of misconduct. This generally proves effective where the misconduct is intentional
consequences of a willful repetition of such misconduct will result in greater discipline and
discharge. This is based on the assumption that behavior will be changed by punishment. In
instant case, the Grievant suffers memory problems, a seizure disorder and physical
progressive discipline scheme seems inappropriate because no matter how much discipline is
it will not restore the Grievant's memory or change his physical limitations. Arbitrator
addressed this in his decision between the parties. City of Stoughton, 7/92. While not
the Americans With Disabilities Act of 1990 (ADA), Arbitrator Honeyman stated the
Yet it is impossible to determine whether there is "just cause"
for the Grievant's suspension
and then discharge, without entering some way into an analysis of the facts using some of the
principles that have led to the establishment of handicap discrimination statutes. Other
before me have found that it is not "just cause" to discharge or discipline an employe for
amounts to a handicap, where the employer concerned could have reasonably accommodated
employe.1/ Thus the question of whether or not the Grievant's inabilities constituted
which the Employer could reasonably accommodate are, whether separately addressed by
not, unavoidable in this "just cause" claim. (Footnote omitted).
Just cause in this case requires a determination of whether or
not the City reasonably
accommodated the Grievant's handicap. On November 10, 1993, Rehabilitation Psychologist
K. Lynch sent a report to the Grievant's supervisor, John Lynch, indicating the means of
accommodating the Grievant's residual memory deficits. (Ex. 5). As to reasonable
the report states the following:
The first of such would be a memory book with step-by-step
instructions on completion of the
forms which Mr. Onsrud would need to carry with him at all times and refer to as needed.
second means of accommodating Mr. Onsrud, in conjunction with the memory book, would
him to work one-on-one with a job coach in a supportive employment setting to ensure
of skills, thus improving his overall performance on-the-job.
A supported employment/job coaching
situation involves an individual working directly one-on-one with Mr. Onsrud so as to
provide support to him, as is necessary, such as cueing him to look at
his memory book, reminding him of completion of paperwork, keeping Mr. Onsrud on task,
down job tasks into smaller steps for further comprehension and retention, etc. Services of
nature are available via many vocational rehabilitation agencies.
The second question posed relates to Mr.
Onsrud's ability to understand and execute verbal or
written directives. It would appear that his ability to follow simple directions is sufficient.
when confronted with instructions on new tasks or with complex directions, Mr. Onsrud may
difficulty with comprehension and retention. Once again, the use of a job coach and memory
compensation techniques should accommodate him in this situation. It is possible that verbal
repetition of directives will be needed, as well as written copies of such directions.
It is expected that Mr. Onsrud may require additional time to
complete certain job tasks that are
not of his normal routine or something that is of a complex nature containing numerous steps
complete. It is nearly impossible to "factor" how much additional time would be needed for
complete tasks as it will vary from event to event. He will definitely work most efficiently
in a job
situation which was routine, standardized, non-complex, and which requires little in the way
With employee training, Mr. Onsrud will
definitely require additional time to receive and
assimilate information being provided. He will need to compensate for his learning deficits
a memory book, sample tasks, continued retraining, job coaching, etc.
Based upon information reviewed in regard
to this particular job situation, it is our feeling that
Mr. Onsrud is able to complete the functions of a Wastewater Treatment Facility Operator 4
reasonable accommodations such as a job coach, memory books, extended time periods for
acquisition and completion, etc.
The City argues that it has reasonably accommodated the
Grievant by giving him log books,
making maintenance manuals available and giving him instructions. It also claims that it
extended time to do tasks and attempted to get a job coach. The undersigned is not
convinced by the
record that the City made a good faith effort to accommodate the Grievant's disability. The
a job coach for one day but determined that the Grievant didn't feel he needed one, was
didn't like what was going on. The job coach never testified in this matter and there was no
that the Grievant was told that he had to work with a job coach to improve his performance.
evidence is insufficient to establish that the Grievant refused this accommodation. The City
obligated to accommodate the Grievant and if the Grievant refuses or rejects the
then termination would be appropriate because without the accommodation, he will not
his memory problems. Although the City gave the Grievant notebooks to carry around, they
lost. Again, the evidence failed to establish that these were the type of "memory book"
by Dr. Lynch's November 10, 1993 report. The evidence failed to show what, if any,
directives were given by the City to the Grievant. The City's attempts to accommodate the
were not wholehearted and were less than reasonable. In short, the City did not reasonably
accommodate the Grievant's "disability" or "handicap" so it must be concluded that the City
have just cause to suspend or discharge the Grievant.
Having concluded that the City lacked just cause to suspend or discharge the
next issue is to determine the appropriate remedy. This is an unusual case which calls for an
remedy. Arbitrators are allowed great latitude in fashioning a remedy. Lodge
No. 12, Machinists v. Cameron Iron Works, 292 F.2d 112, 48 LRRM 2516
(5th Cir., 1961). The
undersigned is concerned that merely reinstating the Grievant will only result in his discharge
time in the future and in the meantime, there is a possibility that without retraining and job
the Grievant may harm himself or someone else or do property damage including
as he works in a wastewater plant. The undersigned is also concerned that the Grievant
a job coach and acquire the skills necessary to resolve his memory problems. Also, even if
Grievant is reasonably accommodated by the City, his performance may be unacceptable
following all of Dr. Lynch's suggestions, the Grievant may not be able to perform in a safe
satisfactory manner. Therefore, the remedy shall be that the City conditionally reinstate the
to his position as an Operator 4 and make him whole by paying him back pay and benefits
interim wages, unemployment compensation and other monetary benefits he has received due
termination. The City is ordered to reasonably accommodate him by providing the assistance
suggested by Dr. Lynch. Dr. Lynch suggests a three to six month period for the Grievant to
success with all tasks to a reasonable degree of proficiency. Thereafter, the undersigned will
jurisdiction for at least 90 days but not more than 180 days for the sole purpose of resolving
disputes with respect to the remedy herein. If the Grievant refuses to accept the job coaching
other accommodations suggested by Dr. Lynch, his conditional reinstatement will be revoked
termination will be upheld. If the City fails or refuses to reasonably accommodate the
will be reinstated without condition.
Based on the above and foregoing, the record as a whole and the arguments of
undersigned issues the following
The City did not suspend and discharge the Grievant for just cause. The City is
conditionally reinstate the Grievant and make him whole for lost wages and benefits, less any
earnings, unemployment compensation or other monetary benefits received but for his
The City shall reasonably accommodate his memory problems. The undersigned will retain
jurisdiction for a period of at least 90 but not more than 180 days for the purpose of
disputes with respect to the remedy discussed above.
Dated at Madison, Wisconsin, this 14th day of August, 1998.
Lionel L. Crowley, Arbitrator