BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
DRIVERS, WAREHOUSE AND DAIRY
EMPLOYEES LOCAL NO. 75
THE CITY OF OCONTO
(Grievance of R.B.)
On November 17, 1997, the City of Oconto and Teamsters Local Union No. 75
Wisconsin Employment Relations Commission that they had selected William C. Houlihan, a
of the Commission's staff, from a panel to hear and decide the captioned dispute. A
conducted on March 10, 1998, in Green Bay, Wisconsin. The proceedings were not
Post-hearing briefs and reply briefs were submitted and exchanged by May 21, 1998.
This arbitration addresses the termination of employe R.B.
BACKGROUND AND FACTS
R.B., the grievant, was employed as the Assessor/Building Inspector/Assistant City
for the City of Oconto for nearly four years prior to the date of his discharge. His
employment ended upon his discharge on October 13, 1997 by Michael Ottensmann,
the Director of
Public Services for the City of Oconto. The grievant was terminated by the following
From: Michael Ottensmann
Director of Public Services
Re: Job Performance
I have previously provided you
with a list of allegations regarding your job performance. I
have given you opportunity to respond to those allegations.
Additionally, I have received a
complaint from Hall Abstract regarding the need for rezoning
the property. You have had an opportunity to respond to that as well.
From my investigation of this
matter I am satisfied the following has occurred:
1. Your refusal
to follow the Mayor's order not to attend the assessor's seminar in LaCrosse,
Wisconsin constitutes gross insubordination.
2. You have
failed to properly identify true property owners for purposes of their being notified
of City proceedings which may adversely affect use of their property.
3. You have
failed to properly follow instructions with respect to shooting surveys.
The conduct described above
adversely affects the orderly operations of the City with respect
to your insubordination and adversely affects the rights of the public which is permitted by
law to be
informed of any actions taken by the City of Oconto which might affect their enjoyment of
I have taken into consideration the
seriousness of the offenses above-described and your past
job performance. I have also taken into consideration past disciplinary actions and their
occurrence in reaching my decision.
I am satisfied for all of the above reasons that your
employment with the City of Oconto must
be terminated effective immediately. You must surrender all your keys to the building and
equipment currently in your possession that belongs to the City of Oconto.
Dated this 13th
day of October 1997.
Michael Ottesmann /s/
Michael Ottesmann, P.E.
Director of Public Services
City of Oconto
cc: Mayor Utecht
The discharge was grieved the next day, October 14, 1997. The grievance was not
ultimately leading to this proceeding.
The events set forth above had their origin in the spring of 1997. On Monday, April
the Oconto Utility Commission met and considered a number of measures. Four of the five
Commissioners were in attendance. Also in attendance were Michael Ottensmann, Mayor
and citizens seeking Commission action. Notably, Bill Imig approached the Commission
have water service connected to his property. The official minutes of the Committee meeting
Exhibit No. 5) reflect the following disposition of Imig's request:
. . .
9. D. Written request from Bill Imig to have
water service to his property along
Locust Street and Perrigo; Michael has stated this could be done in house; six to eight
owners are involved along this area; Michael will send each property owner a letter with
and approximate cost and ask for them to sign a waiver of special assessment; if some
against this project, and does not sign request, there will be a public hearing in the normal
Moved by Merenhausen, second by Longsine to
recommend to Council to proceed with
installing water service along Locust Street and Perrigo as discussed. Motion carried upon
vote -- four ayes, one absent.
. . .
At the arbitration hearing, Mr. Imig testified that at the conclusion of the meeting
noted above, he
asked if he would get his permit. It was Imig's testimony that Ed Wilde, Chair of the
indicated that the Council normally approved the Commission's recommendation.
Imig, Wilde indicated that even if there were objections, it would not be a major issue
project has objections.
Imig testified that at the conclusion of the meeting, there was a consensus that he
issued a building permit. Imig indicated that no one told him he would face a delay. He
testified that Ottensmann was present during the discussion.
It was the grievant's testimony that on or about April 8 Ottensmann advised him that
Utility Commission had recommended water extension and that Imig wanted a building
grievant testified that in this context he felt comfortable issuing the permit. It was his
Ottensmann never indicated that no permit should be issued until City Council action
Ottensmann denies any conversation in April relative to the issuance of a permit. It was
Ottensmann's testimony that a permit discussion occurred in mid-summer.
The grievant issued Mr. Imig a building permit on April 22, 1997. The City Council
to take up the Utility Commission's recommendation. City ordinance requires Council
water service, prior to permitting construction. Upon receipt of his permit, Mr. Imig began
Ottensmann was not aware of the fact that Imig was building.
In order to extend water service to the subdivision involved, a special assessment was
required. Such an assessment is prefaced by notice to property owners and a hearing.
Ottensmann, the grievant was assigned responsibility to properly notify affected property
The grievant prepared a property owner's list in April. The list, consisting of seven names,
A special assessment hearing was conducted on September 9, 1997. It was attended
number of people, who vocally disapproved of water access. Following the hearing, the
allowed water service, and a special assessment of $1,580 per parcel was levied on seven
Following the hearing and Council action, on September 10 a number of angry people met
Mayor. It was at this meeting that the Mayor first learned that certain people were not
when he further discovered that Imig had been issued a building permit.
The Mayor, faced with some irate citizens and a flawed notice, vetoed the
approval of water installation. His veto was sustained.
This caused the approval process to start over. The grievant was directed to redo the
September and he did so but still had one error. When Ottensmannn subsequently checked
records, he discovered the correct information to be present. Mr. Imig had requested, and
received, a building permit and had a largely completed home. On the other side were a
citizens irate that assessments had been levied against them without notice. Adjacent
were angry that Imig had secured a building permit and commenced construction prior to
an opportunity to be heard on the installation of water and assessments. The project was
approved. There was no assessment levied on one parcel, three were reduced substantially
final three were assessed the original amount. City taxpayers absorbed the added cost.
The grievant was disciplined for his mishandling of the notice to adjacent property
It was the grievant's testimony that on August 20, he asked Ottensmann for
attend a municipal assessor's institute. According to the grievant, Ottensmann asked for
about the cost of the program. In response, the grievant provided an itemized list of
gave that list to Ottensmann. The grievant testified that he had traditionally gone to this
and that no approval from the Mayor or Council had ever been requested, or received. The
testified that he had gone to other programs where there was no mayoral or Council approval
required. Ottensmann never indicated a need for approval, other than his own.
It was Ottensmann's testimony that the grievant told him that he would be attending
conference, and asked him to sign off. There was no discussion as to how much the
would cost. Ottensmann authorized the issuance of reimbursement checks. On August 22,
registration check was issued over the signature of the Mayor and the City Clerk/Treasurer.
signature was produced by a signature machine. That same day, a separate check was issued
hotel for lodging at the conference.
When Mayor Utecht discovered that the grievant was going to the conference, he
Ottensmann about it. The Mayor testified that he told Ottensmann that he did not want the
going to the conference because of all of the problems that had arisen and were surrounding
issuance of the permit to Imig. In the Mayor's eyes, it was a critical time to assemble the
landowner's names, and provide them with notice. There was a committee meeting coming
The grievant was scheduled to leave to attend the conference on September 23. The
before, September 22, the Mayor called the grievant at the grievant's home. According to
Mayor, the six to seven-minute conversation consisted of the following. The Mayor asked
grievant if he was going to the conference. The grievant responded "yes." The Mayor
it "had never been approved." The grievant indicated that "Michael gave approval." The
responded that it was "not by the Mayor or by the Council." The Mayor continued,
he was "not going to allow him to go; if he went, he would be on his own." Mayor Utecht
he repeated that he was not going to allow the grievant to go and that if he did he would be
own. According to the Mayor, the grievant replied that "he had approval, that the fees had
paid, and that he was going anyway." On cross-examination, the Mayor acknowledged that
not indicate that if the grievant went to the conference, he would be fired. He indicated that
grievant would be on his own. The Mayor also indicated that he did not believe he had to
why he did not want the grievant to attend the conference.
The grievant has a different version of the September 22 conversation. According to
grievant, the conversation proceeded as follows: The Mayor asked if the grievant was going
conference. The grievant replied "yes, he was going." The Mayor inquired as to "who
and the grievant replied "Michael". The Mayor indicated that "he didn't know if he
approved, that he may need Council approval." The Mayor continued, "If you go, you
may be on
your own." The grievant testified that he interpreted the Mayor's words to put him at risk
possibly paying his own expenses. According to the grievant, the Mayor never indicated that
discipline was a possibility.
In response to a request from Ottensmann, the grievant prepared a written summary
immediately prior to his discharge. With respect to this telephone conversation, the
narrative (City Exhibit No. 3) contains the following entry:
September 22, 97. Mayor Utecht called my home, told
my wife to return his call.
I returned call, Mayor Utecht stated AI hear you are
going to some kind of convention. I said
yes; the assessor conference at LaCrosse, he asked who approved this, I said Michael, who
supervisor, the Council didn't approve this and I don't either, if you go, you will be going
own, I said the reservations and checks were sent in on August 22, 97, he said well, I still
approve it. I stated its a budgeted item and also in my job description to attend continuing
for my certification as assessor. The Mayor said I still don't approve. End of
The grievant left on September 23, attended the conference, and following the
submitted vouchers for meals received. Those vouchers were reimbursed on October 7,
It was the Mayor's testimony that the City has an unwritten policy obligating
attend conferences to inform the Mayor and Council. Conference requests need approval.
to the Mayor, city employes follow the policy, though it has never been put in writing nor
has it ever
been voted on or approved by the Council. At the time, Ottensmann was a new supervisor
and a new
city employe, and was unaware of the policy. The Mayor indicated that Ottensmann
believed he had
the authority to approve attendance at this conference.
The final event referenced in the discharge letter involved surveying a grid of points.
September 3, 1997, Ottensmann directed the grievant to survey an area under construction.
was being raised higher than the plane of land in a flat topography. Ottensmann directed the
to shoot a grid. Ottensmann testified that he directed the grievant to shoot a four by three
indicates that he directed the grievant to shoot at the edge of the road, in the yard, and
adjacent to the house. It is Ottensmann's testimony that he demonstrated what he wanted
by use of
a diagram. It was Ottensmann's testimony that the grievant returned with an eight by two
a shot on the road, and in the yard, but not near the house. Ottensmann was concerned that
product was deficient in that it would not allow an accurate assessment of the runoff potential
It was Ottensmann's testimony that he reiterated his instruction and sent the grievant
He testified that the grievant followed his subsequent instruction and returned with the shots
were desired. Ottensmann testified that if the grievant had shot sufficient points, i.e. three
work product might have been all right.
The grievant testified that he did not recall Ottensmann directing a three by four grid.
his recollection of the conversation that Ottensmann directed him to do what works and what
situation. When he brought the grid back, he was asked if he shot near the house. When he
that he had not, he was directed to do so, and did. The grievant testified that there was
reference to discipline.
The grievant was subject to discipline in August, 1997. That discipline appears
unrelated to the matters in this proceeding, and was resolved by the following agreement:
The undersigned hereby agree to resolve the discipline
issued to R.B. on August 13, 1997 as
suspension shall be reduced from 3 days to 1 2 days. R. shall be reimbursed for the 1 2
days of pay deducted from his compensation.
B. R. does not
admit to any guilt associated with this incident.
C. The City shall
not rely on this incident in any future discipline unless the conduct is related
to inspections and notification of whereabouts.
disciplinary action shall not be relied on as precedence by either party in any future action
where flagrancy is the issue as referenced in the discharge provisions of the contract.
personnel file shall be expunged on August 19th, 1997 with respect to
with previous employers. The parties acknowledge that the file has been expunged to R.'s
Dated this 19th
day of August, 1997.
It was Ottensmann's testimony that "incidents prior to that
time were settled". He believed
that the grievant "started at zero" as of August 13. He testified that he became aware of
incidents leading to the discharge after August 13.
Sometime subsequent to his discharge, the City came to believe that the grievant was
certified plumbing inspector. That qualification is a part of the grievant's job description.
Mayor evidently contacted the Wisconsin Department of Commerce seeking to know what
and/or credentials the grievant possessed. By letter dated November 20, 1997, the
Department of Commerce responded indicating which areas of certification the grievant
By letter of November 24, 1997, Ottensmann wrote the grievant as follows:
Dear Mr. B:
We have reviewed your
original job description and application for employment. You
were required to obtain plumbing certification through the State of Wisconsin. Please find
a copy of the pertinent portion of the job description imposing that requirement.
You were employed for more than six months by
the City of Oconto. At no time
during that period did you obtain such certification. To that end, please find verification
State of Wisconsin Safety and Buildings Division confirming that you do not hold a plumbing
inspection certification. Accordingly, I have determined that you are not qualified to hold
for which you were hired. If this information is in error, please advise.
The parties stipulated to the following:
Was R B. terminated for just cause?
RELEVANT PROVISIONS OF THE COLLECTIVE
Article 16 -- Management Rights
The City possesses the sole right to operate the city
government, and all management rights
repose in it, subject only to the provisions of this contract and applicable law. Such rights
but are not limited, to, the following:
. . .
D. To suspend, demote, discharge for
just cause, and take other disciplinary action against
E. To relieve
employees from their duties because of lack of work or any other legitimate
. . .
Article 18 -- Arbitration
The party desiring arbitration shall within five (5)
working days after notifying the other party
of its intent to arbitrate, request the Wisconsin Employment Relations Commission (WERC)
prepare a list of five (5) impartial arbitrators. The Union and the City shall then
two (2) parties each on the slate with the party filing the grievance exercising the first and
strikes. The Union and the City shall exercise their strikes within fifteen (15) days following
of the slate from the WERC. The remaining arbitrator shall
then be notified of his or her
appointment as chairperson in a joint statement from the union
and a copy to the City.
It is understood that the arbitrator
shall not have the authority to change, alter or modify any
terms or provisions of this agreement.
The expense of the arbitrator shall be divided equally
between the parties to this agreement.
Article 19 - Discharge
A. The Employer
shall not discharge or suspend any employee without just cause, (except for
probationary employees), and shall give at least one (1) warning notice against such
to the employee in writing, and a copy of same to the union affected. No warning notice
be given to an employee before he is discharged due to dishonesty, being under the influence
of intoxicating beverages while on duty, drug addiction, or other flagrant violations. It is
recognized that progressive discipline principles shall apply with a normal disciplinary
procedure including; first -- verbal warning; second -- written warning; third -- suspension;
fourth -- discharge. It is additionally understood, however, that this procedure need not be
followed in all cases depending on the severity of an offense.
notice provided herein shall not remain in effect for a period of more than nine
(9) months from date of said warning. Discharge or suspension shall be in writing with a
to the Union and to the employee affected.
B. Any employee
desiring an investigation of his discharge, suspension or warning notice must
file his protest with the Union and the Employer within fifteen (15) days, exclusive of
and holidays, of the date the employee received such discharge, suspension or warning
The protest must be filed in writing.
discharge, suspension or warning notice shall then be discussed by the Employer and the
Union as the merits of the case. Failure to agree shall be cause for the issue to be submitted
to arbitration as provided for in the arbitration clause of this Agreement.
D. Should it be
found that the employee has been unjustly discharged or suspended, he shall be
reinstated and be compensated for all time lost, except as otherwise determined by agreement
between the Employer and the Union or by direction of the impartial arbitrator.
POSITIONS OF THE
The Employer sets out its view of the facts, and makes credibility argument. The
thereafter argues that an employe may be discharged for insubordination, citing arbitral
The Employer contends that the grievant is not eligible to hold his job. Pointing to
description, the Employer notes that the Assessor/Building Inspector is required to be a
inspector at the time of hire, or to be able to obtain that certification within six months of
Employer contends that the grievant lacks plumbing inspection certification. The Employer
Section 101.60, Wis. Stats., requiring "all inspections shall be by persons certified by the
department." (Section 101.66, Wis. Stats.) The Employer notes that on November 24,
advised the grievant that he was ineligible to hold his position as Building Inspector/Assessor
he lacked certification. As of the hearing, the grievant lacked the appropriate certification.
takes the position that the undersigned is without authority to reinstate the grievant to a
he is not eligible to hold. To do so would exceed the arbitrator's lawful authority. The
through its testing and certification process, has determined whether an individual is qualified
certain positions. This is not a requirement imposed by the City. The City contends that the
undersigned is not free to waive this statutory obligation.
The City contends that it faces a very difficult task. It must now go through all one
and two-family construction permits issued during the grievant's period of employment and
structures reinspected by a certified inspector.
The City contends that the grievant was discharged for cause. It is the City's
the grievant engaged in flagrant misconduct, constituting cause for his discharge. The City
that progressive discipline is not required under the circumstances of this case.
The City notes that the grievant had just returned from a one and one-half day
without pay. The City claims it to be reasonable to assume that there would be an
the employe's work performance and attitude. The City contends that every organization,
paramilitary or not, has a right to expect that employes will follow the lawful orders of
The grievant was insubordinate on three separate occasions within a six-week period
return from a disciplinary suspension. It marks the grievant's conduct as flagrant, as these
insubordination occurred within such a short period of time following disciplinary
The City notes that the first two alleged acts of insubordination; failure to obtain the
names of taxpayers to be notified, and shooting grades as directed, by themselves would not
constitute flagrant misconduct. However, the City contends that taken together, and the fact
they had occurred within such a short period of time following disciplinary suspension may
rise to the
level of flagrant misconduct.
It is the City's contention that the grievant's refusal to follow the Mayor's order
attend the seminar constitutes flagrant misconduct.
In the alternative, it is the City's view that all three acts of insubordination taken
support a conclusion that it was flagrant misconduct.
The City contends that the seed of the grievant's insubordination was planted and
germinating when he issued the building permit to Imig. The grievant knew on April 22,
the City Council had not approved the installation of water to Imig's property. He also
the property was not served by a well. In total disregard of the ordinance requirements, he
The impact of the grievant's disregard of the rules played itself out when the City
required to hold a public hearing to determine whether water should be extended to Imig's
The City became embroiled in a controversy which was occasioned by the fact that the
issued a building permit and allowed someone to construct a home prior to the time that
installed. The City was placed in a compromised position. The house had already been
The City was in no position to order the property owner to take the house down. To do so
have brought about a lawsuit. Alternatively, the City had to face the wrath of property
did not want water installed on their street at that time. Property owners on Locust and
Streets were justifiably frustrated because they saw that a house had been constructed, and
forcing the issue of water installation to their property.
The City contends that while on the surface it might appear that the grievant's
obtain the true property owner's identity was negligence, a more careful examination of his
leads to the conclusion that it was insubordination. The City points out that the information
was readily available within mere feet of his office; i.e. at City Hall. Rather than look at the
information that was readily available in his own building, and which contained the proper
information, the grievant went to another source, County records. The City contends that
information he uncovered should have been crosschecked with information available at City
Pointing to the testimony of Ottensmann, the City contends that the grievant was told,
shown by way of illustrative drawing, how to shoot grades on the property. The City takes
the grievant's explanation as to his understanding of his direction. It is the City's position
statement in the arbitration hearing is inconsistent with the handwritten response he provided
after the incident in 1997. His handwritten response makes no reference to the fact that he
allegedly given wide latitude to shoot grade in whatever way he thought appropriate.
The City contends that the Mayor called the grievant, and pursuant to his lawful
authority, directed him not to attend the seminar. It is the City's view that the grievant
conscious decision to defy the order of the Mayor and attend the conference notwithstanding
Mayor's directive that he not. The City finds it interesting that the person who caused the
controversy in which the City found itself embroiled in late September, 1997 took it upon
be away from the City at the very time it was crucial to determine how best to protect the
the taxpayers of the City of Oconto.
The City contends that Ottensmann followed the appropriate steps of discipline. It is
of the City that the grievant's actions constituted three separate items of insubordination.
items rise to the level of flagrant misconduct, contends the City.
In its reply brief, the City contends that Ottensmann did not become aware that the
permit had been illegally issued until after August 13, 1997. The City contends that the
knew, or should have known, that the information he needed to provide the property
was available in City Hall. In April he was asked to prepare a list of property owners. He
he used City records to compile that list. When it was discovered in September that the
was inaccurate, the grievant claims that he ignored the City's information and went to the
Courthouse to review the records of the Register of Deeds. The City characterizes the
use of County, rather than City records, as defiance.
The Union contends that during the spring of 1997, two noteworthy events occurred:
grievant's position became part of the bargaining unit represented by Teamsters Local 75
City hired Michael Ottensmann as the grievant's supervisor. In the Union's view, those
resulted in the termination of the grievant.
The Union contends there was no just cause for discharge. The Union contends that
attendance at the seminar was not cause for discharge. The Union contends that the Mayor
issued an order directing the grievant not to attend the seminar. The Union points to the
of the Mayor where he conceded that he merely told the grievant that if he went to the
"may be on his own". The Mayor testified to a long-standing policy that
employes had to get permission from the Council to go to conferences or seminars.
There was no
evidence of any such long-standing policy. On cross-examination, the Mayor explained that
wanted the grievant to stay in Oconto because of issues surrounding the Imig building
However, he never told the grievant that he wanted him to stay in Oconto to handle the Imig
The Union contends that the identification of property owners was not just cause for
discharge. The grievant testified that he used the City property records for the first list.
Ottensmann told him the list was incorrect, the grievant used the more up-to-date County
The Union notes that the City attacks the grievant for getting information from the County
but even Ottensmann testified that County property records are the most accurate because
the source for City property records. The Union notes that the Employer has attacked the
for the issuance of the Imig building permit. That, however, was not the grounds set forth
The Union notes that Ottensmann admitted on cross-examination that he knew before
13 that the permit had been issued. He said he discussed the building permit with the
the summer and before the grievant's settled discipline, to make sure the building permit
to an ordinance regarding split plats. Several months before he discharged the grievant,
knew that the building permit had issued in advance of a final Council vote on the extension
service, and Ottensmann did nothing to discipline or reprimand the grievant. Ottensmann
condoned the issuance of the permit.
The Union contends that shooting an eight by two grid is not cause for discharge.
Notwithstanding the disputed testimony on the precise direction given, when Ottensmann
grievant to shoot another grid point, he did so immediately and without protest. There was
reprimand at the time. Ottensmann testified that he did not consider the incident to be a case
insubordination but merely a case of negligence.
It is the Union's view that the grievant was subject to the progressive discipline
of the contract. Clearly, there was no progressive discipline, and the discipline imposed is
for that reason alone. The City is not free to bypass progressive discipline by saving up
in the hope of making a case of flagrancy. The very purpose of progressive discipline is to
employes of the possibility of termination, and to give them an opportunity to reform before
aggregate misconduct warrants discharge.
The Union contends that the absence of a plumber's license does not mitigate an
termination. The Union contends that I should not consider the City's new grounds for
Rather, the discharge must stand or fall upon the reason given at the time of discharge. The
alleges that Ottensmann conceded that the grievant never represented
that he had a plumber's license, and there was nothing in his personnel file to suggest
that he had a
plumbing license. The grievant testified without contradiction that under State law, he does
a plumbing inspector's license to issue building permits or complete other aspects of his
grievant has competently performed all aspects of his job without such a license.
The City terminated the grievant for three reasons. At hearing, and in its brief, the
that progressive discipline is not applicable because the behavior, either individually or
constitutes flagrant behavior within the meaning of the collective bargaining agreement. The
does not contend that the lack of licensure is a basis for discharge, rather the City contends
that it is
a bar to the reinstatement of the grievant.
Article 19 of the collective bargaining agreement requires progressive discipline for
excepting certain "flagrant" behavior. The use of the term "flagrant" conjures up images
behavior so glaring, notorious, outrageous, and/or shocking that it can neither escape notice
condoned. The term takes on further meaning in the context in which it is used. In the
collective bargaining agreement, "flagrant" behavior is that behavior which may warrant
with no warning notice required nor progressive discipline due. It is used to continue a
which describes dischargeable behavior such as "dishonesty, being under the influence of
beverages while on duty, drug addiction, or other flagrant violations." That is
the standard against
which the termination is measured.
On August 19, 1997, the parties agreed to a resolution of certain discipline which had
imposed on August 13. On its face, paragraphs c and d limit the applicability of the August
discipline to future matters. As a practical matter, the discipline, and the incident
should certainly have served to put the grievant on notice that the Employer was dissatisfied
some aspect of his work performance. Ottensmann's testimony summarizes the attitude of
parties relative to the grievant's disciplinary status as of August 13.
The most egregious of the three incidents relied upon by the City was the grievant's
attendance at a conference. There is little dispute that the grievant originally had permission
the LaCrosse conference. Testimony conflicted as to precisely how he asked and/or
he would attend the conference, but his testimony was that in response to Ottensmann's
he indicate how much the conference would cost, he produced a document summarizing
That document was made an exhibit in the hearing. Additionally, Mayor Utecht testified that
conversation with Ottensmann, Ottensmann had indicated that he believed that he had the
to grant the grievant's attendance.
It was the Mayor's testimony that Ottensmann lacked such authority, and only the
Council could grant permission to attend such a conference. However, the record does not
the existence of any such policy. It was the Mayor's testimony that the policy was not in
nor had it ever been considered or passed by the City Council. There were no examples of
application of the policy provided. The grievant testified that he had never heard of the
that he had never previously needed approval to attend the same and/or other conferences.
Ottensmann, who was new, was unaware of the policy. The Mayor's version of the
conversation made no reference to any such policy, per
There is a dispute as to the content of the conversation between the Mayor and the
Under the grievant's version of the conversation, there was no order given that he not
conference. Given the grievant's view of the conversation, it was a fair inference that the
reference to being "on his own" was a reference to paying the cost of the conference. As
conversation was described by the grievant, there was no aspect of it that would fairly put
notice that his attendance at the conference was job-threatening. However, he was certainly
to understand that the Mayor was reluctant to have him attend the conference.
Under the Mayor's version of the conversation, there was no order directing the
to attend the conference. Under the Mayor's version of the conversation, he indicates that
"not going to allow him (the grievant) to go." In isolation, the remark is directory.
Mayor contends that he followed the remark by indicating that if the grievant went, he would
his own. That remark was repeated. If the Mayor intended to order the grievant not to go
conference, it is unclear to me as to the purpose of "you're on your own." The grievant
that he understood the remark to be a reference to who would have to pay for the cost of the
conference. His testimony in that regard is consistent with the Mayor's claim that the
replied that the fee had already been paid. I believe the Mayor's message was ambiguous.
The Employer uses a military, or para-military analogy. I believe the analogy fails
reasons. First, this is not a para-military situation. The second, and more compelling, is
military-style order was issued. There was no direct, unequivocal, clear order issued. If it
intent of the Mayor to order the grievant to stay in Oconto and not attend the conference, I
it was incumbent upon him to make that clear. That is particularly the case where the
upon this conversation as grounds for a termination based upon willful insubordination.
The grievant returned from his conference on September 26. The Mayor never
about the matter. No one said a word about his attendance at the conference. If, as is
now alleged, he had been ordered not to attend the conference, and did so in stark
defiance of that
order, I find the Employer's post-conference behavior odd. Odder yet, is the fact that the
submitted additional expense vouchers for the conference, and was paid on October 7, 1997.
The context of this event included the controversy surrounding the Imig permit. All
were certainly aware of the controversy that surrounded the issuance of that building permit.
believe the grievant's behavior demonstrated a lack of sensitivity, judgment, and potential
inattentiveness to work. Had the Mayor explained his concerns and reservations and the
ignored them, I would have regarded his conduct as more serious. Had the Mayor issued an
and the grievant defied it, I would have regarded that to be insubordination. However,
The Employer contends that the grievant could have, and should have, called
Perhaps so. However, Ottensmann did not call the grievant either. Ottensmann was aware
fact that he had granted permission for the grievant to attend the conference. Ottensmann
aware that the Mayor disapproved of the grievant's attendance at the conference, and why.
Ottensmann was squarely in the middle of a potential controversy. A phone call from
to the grievant could have served to eliminate any ambiguity in the Employer's position
attendance at the conference.
Under the circumstances set forth in this case, I believe that the grievant's
attendance at the
conference, following his discussion with the Mayor, does not rise to the level of a flagrant
the meaning of the collective bargaining agreement. It is an exercise of questionable
is subject to progressive discipline.
The second matter leading to this discharge was the grievant's role in the Imig
subsequent notice to homeowners. The genesis of trouble in this entire dispute was the
a building permit prior to notice of water extension. This act was not a basis for discharge.
permit was issued in April. The record establishes that Ottensmann was aware that the
permit had been issued prior to August 13.
Both Ottensmann and Mayor Utecht were in attendance at the April committee
Imig had been promised a permit. It was Ottensmann who offered to send the notice letter.
Ottensmann delegated the research task to the grievant who committed error in his two
searches. The problems emanating from the Imig matter were compounded by the
error which resulted in two property owners not being notified.
The grievant was asked to redo his work in September, and again came back with
information. Nothing in this record suggests that either of these errors were insubordination,
intentional and/or malicious. They appear on their face to be the product of negligence or
workmanship. The Employer invoked no discipline for either of these matters at the time.
When told to repair his work in September, the grievant used a County, as opposed
record, to obtain addresses. The City argues that his use of County records is evidence of
insubordination and/or non-cooperation. I disagree. The grievant had used City records and
been in error. The fact that he tried a different source suggests that he considered the
his source of information was a problem. Ottensmann testified that when he discovered the
errors, he indicated that he would go to the County to get a corrected list. It was his
there existed some chance that a recent change in address may not have been picked up by
records. The County is the source of City records.
The grievant was the one who actually did the research. In anticipation of his
Ottensmann sent the grievant a document which outlined the grievant's alleged failings, and
a response. That document (Joint Exhibit No. 8), indicates that the grievant "was directed
to go to
the County tax listing office and confirm the accuracy of the roll."
The letter of termination indicates the grievant "failed to properly identify true
owners." The use of the term "failure" suggests a lack of success, in contrast to a notion
This record does not support a finding that the grievant's use of County records was
insubordinate, defiant, or otherwise inappropriate. His continuing to bring back erroneous
information may well be evidence of a lack of effort or ability. If this conduct is
collective bargaining agreement requires progressive discipline.
The third grounds for discipline was the grievant's failure to properly shoot a
survey. On its
face, the conduct appears to be a minor matter. Ottensmann's summary of incidents letter
Exhibit No. 8), indicates that the grievant's failure was that he shot an eight by two grid
instructed to do a three by four grid. Ottensmann testified that the key fault was the
failure to take a third shot near the house.
In referencing this matter, the termination letter indicates the grievant "failed" to
follow instructions. Again, the use of the term "fail" is used instead of a term indicating a
willful and/or defiant behavior.
When the incident occurred, Ottensmann directed the grievant to redo the shot. The
promptly did so. There was seemingly no other reaction. To the extent this was rank
insubordination, the Employer's non-reaction is quizzical. The event occurred on
There was no reaction until Ottensmann identified this as a performance flaw in anticipation
October 13 discharge. On direct examination, Ottensmann testified that he assumed the
incident was negligence.
In its post-hearing brief, the Employer takes issue with the grievant's testimony in
alleging it to be inconsistent with his written response to Ottensmann's inquiry. The
written response consisted of a general explanation of his behavior in this incident. His
not respond to and/or address Ottensmann's reference to a four by three versus eight by two
I regard this as a relatively inconsequential event. To the extent it rises to the level
disciplinable behavior, the contractual progressive discipline clause is applicable.
It is my conclusion that none of the events cited by the Employer rises to the level of
flagrant act. I regard the grievant's attendance at the conference as an act of questionable
It was not an act of willful insubordination. I regard the grid shot and the errors in
research to be, at most, examples of poor work. I believe that the progressive discipline
of the contract is applicable, and was not satisfied.
I believe that the Imig permit and its aftermath underlies all of this. Suffice it to say,
key events occurred, and were known, prior to mid-August. The events relied upon by the
do not justify discharge.
The grievance is sustained. There was not just cause for the termination of R.B.
Article 19 of the contract addresses the appropriate remedy. The City contends that
reinstatement is not available because the grievant lacks a license necessary to perform his
light of the Employer's claim that the grievant lacks the minimum certification required by
by his job description, I have not directed a specific remedy, if any is applicable. I do not
record to be adequate to that task.
I direct the parties to attempt to fashion an appropriate remedy. I will retain
the purpose of resolving any dispute as to remedy.
Dated at Madison, Wisconsin this 9th day of September, 1998.
William C. Houlihan, Arbitrator