BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TWO RIVERS CITY EMPLOYEES, LOCAL 76,
CITY OF TWO RIVERS
Two Rivers City Employees, Local 76, AFSCME, AFL-CIO, hereinafter referred to
Union, and the City of Two Rivers, hereinafter referred to as the City, are parties to a
bargaining agreement which provides for the final and binding arbitration of disputes arising
thereunder. The Union made a request, with the concurrence of the City, that the Wisconsin
Employment Relations Commission designate a member of its staff to act as an arbitrator to
decide a grievance over a suspension. The undersigned was so designated. Hearing was
held in Two
Rivers, Wisconsin, on April 29, 1998. The hearing was transcribed and the parties filed
reply briefs, the last of which were exchanged on September 18, 1998.
The facts underlying this case are not in dispute. The grievant has been employed as
wastewater treatment plant operator for the last thirteen years. Prior to June 5, 1995, the
treatment plant was manned 24 hours a day. Beginning June 5, 1995, the plant was manned
7:00 a.m. to 7:00 p.m. and was unmanned from 7:00 p.m. to 7:00 a.m. during which time a
wastewater treatment plant employe was on paid standby in case his services were needed.
the period it is unmanned, dial out alarms are sent to the water filtration plant, which is
hours a day. Certain alarms are critical, others are normal and some alarms require no
Depending on the alarm, the water plant operator will call the standby wastewater plant
who in turn will take care of the problem.
The grievant was on paid standby the evening of February 17, 1997 and the early
February 18, 1997. At approximately 1:03 a.m. on February 18, 1997, a transformer failed
in a power outage in a part of the City. The water plant operator, Kevin Perry, called the
Department and reported that the transformer was out and they responded to repair it. The
Street lift station signaled a pump failure. At 1:31 a.m. the water plant operator called the
and told him about the power outage and that the 37th Street lift station
signaled a failure. The
grievant told him not to worry about the alarm and that when the power was restored, the
would return to normal operation. The power was restored and the electricians completed
by 2:28 a.m. The 37th lift station continued to alarm every half hour for a
total of 12 times.
Sewage accumulates at a lift station and it is pumped out to a higher location so that
flow by gravity to the wastewater treatment plant. Without power, the pump cannot operate
sewage continues to collect in the lift station and if it is not pumped out, it will back up to
location which is usually someone's basement. Generally, the capacity of the lift station is
no action need be taken for two hours or more depending on sewage flow. If the power is
longer than this time period, the wastewater plant operator can hook up a generator to the
pump the sewage out. If power is restored, the pump generally, but not always, resets itself
sewage is pumped out clearing the alarm. However, if it does not reset, then the wastewater
operator must reset the pump manually and it then pumps the sewage out.
On February 18, 1997, after the power was restored, the lift station pump did not
sewage backed up into the basement of a house occupied by the Rezachek family. There was
substantial damage and the Rezacheks had to move out of their house for a week until
repairs were completed and the cost to the City's insurer for damages was over $13,000.
February 28, 1997, the grievant was given a three-day suspension for failure to respond and
the problem with the lift station which failure caused the sewer backup and resulting damage
inconvenience to the Rezacheks. The grievant grieved his suspension which was appealed to
The parties were unable to agree on a statement of the issue. The City stated the
Did the City of Two Rivers violate the terms of
Article III, Section D and Article V,
Section K-1 when it suspended Chris Behrendt for three days on February 28, 1997?
If so, what is the proper
The Union states the issue as:
Did the employer violate the
collective bargaining agreement when it suspended Chris
Behrendt for three days?
If so, what is the proper
The undersigned frames the issue
Did the City have just cause
to suspend the grievant for three days?
If not, what is the
ARTICLE V -- EMPLOYMENT
K. Suspension: Suspension is defined as temporary
removal without pay of an employee
from his/her designated position.
1. Suspension for Just Cause: The
Employer may for disciplinary reasons suspend an
employee. Any employee who is suspended, except probationary, temporary and seasonal
shall be given written notice of the reasons for the action, and a copy of such notice shall be
part of the employee's personnel history record. No suspension for just cause shall exceed
(30) calendar days.
The City contends that the required procedure is that once the paid standby employe
the employe must report on-site to correct the problem. It states that the grievant did not
required and the predictable consequences followed. It argues that the grievant was lucky to
with a three-day suspension. It insists that the grievant had a duty which he breached by
unwarranted assumption that the pump would reset itself but he was wrong and his failure to
resulted in damage to the City and the discipline is justifiable.
It maintains that the grievant has no excuse for his inaction. It points out that he
reported or he could have told Perry to call him back if the alarms continued or he could
Perry later to verify that the alarms had ceased, but he didn't do any of these. It submits
are two possible excuses; simple laziness, the grievant did not want to report; or arrogance,
better and was not required to report. It insists the grievant's conduct cannot be
The City asserts that the grievant is attempting to muddy the waters by claiming he
have to respond until the third alarm. It points out that he did have to report plus he assured
operator not to worry about the alarms. It further observes that the grievant dwelled on
he made but he had no authority to make such assumptions and he could not gamble with the
public's health and besides his assumptions were false and unreasonable. It concludes that
proximate cause of the damages to the City was the grievant's willful failure to respond. It
that because the grievant did not reset the pump, the damage occurred and had he performed
was required nothing would have happened.
The City takes the position that the grievant's attempt to shift the blame to Perry for
calling him back is ironic because it was the grievant who told him not to worry and assured
once the power was on the pump would reset itself. It insists that the grievant cannot dodge
responsibility by blaming another employe when he never told the employe to call him back
"assumptions" were wrong. It submits that the grievant's story is so full of holes that
there is no
The City claims that the grievant acted recklessly and irresponsibly by failing to
the call by going to the lift station. It maintains that the grievant exercised "discretion"
justification or excuse which had disastrous results and was so clearly beyond his authority as
provide ample cause for discipline. The City asserts that the three-day suspension is lenient
grievant must be sent a message that his judgment was faulty and his behavior improper so
does not repeat his behavior with more serious consequences. It states the grievance should
The Union contends that after the power was restored, the pump remained in alarm
water operator, Perry, should have called his supervisor or again called the grievant. It
there were ten alarm calls after Perry contacted the grievant yet Perry did nothing. The
that the standby person should not be called until after the third dialer alarm and Perry
have called until after the third alarm. It asserts the City's argument that the standby
report when called is not correct as evidenced by a call to Supervisor Larry Lambries in
Lambries told the water operator to wait for the third call.
The Union argues that after a power outage, a lift station may reset itself and it is
wait until the power comes back on and if a lift station resets within at least two hours, there
problem. It points out that a lift station cannot be reset until the power comes back on so
grievant respond immediately would only incur greater costs and his judgment would be
question. The Union observes that employes must use their own judgment in responding to
no one has told the grievant not to use judgment.
The Union blames Perry for not calling the grievant again or for not calling his
the power was restored and the alarm continued. The Union suggests that the City did not
inform Perry as to his duties with respect to the procedures for calling the standby
person. It claims that the grievant rightly assumed that Perry knew his job but the
that his training was inadequate. It argues that even without adequate orientation, the water
Perry, should have done something during the five hours of dialer calls.
The Union observes that the City did not talk to the grievant prior to his suspension
not conduct a proper investigation before issuing the suspension. It notes that the grievant
accused of making comments that he was not concerned about what happened to the
home; however, this was based on hearsay and no credible evidence was presented for this
which is denied by the grievant.
The Union insists that the grievant did exactly what he was supposed to do. It points
the alarm situation was due to a power outage which was expected to be of short duration
on his experiences the grievant assumed that the lift station would reset itself and if it did
assumed Perry would call him back. It notes that Perry never called him back. It argues
grievant's behavior was appropriate as he assessed the information he received and expected
called again if the pump did not reset as Perry would know to call him again if the lift
continued to alarm.
It asks that the grievance be sustained, the suspension withdrawn and all records
it expunged from the grievant's files and the grievant be made whole.
The City contends that the grievant has admitted everything which the City needs to
case. In rebuttal to the Union's assertions, the City observes that the grievant's testimony
asked Perry whether an emergency generator was needed, was never corroborated and only
at the arbitration hearing. It claims that, in any case, it is irrelevant because the grievant's
to investigate the alarm and correct it and Perry's job was solely to inform the grievant of
It argues that the grievant is attempting to foist the blame onto Perry.
The City finds it amazing how quick the Union is to tell other people how to do their
the grievant failed to do his. It notes the Union claims that Perry should have called the
the power came on and the alarm from the lift station came in again at 3:05 a.m. It states
the grievant come in as he was required, there would have been no problem, and besides,
not call the grievant because the grievant assured him that nothing further needed to be done.
The City reiterates its position that the grievant's claim that he should have been
the third dialer call is irrelevant as there is no reason to believe the grievant knew or could
it was the third or tenth call on the alarm. It maintains that the grievant "assumed"
the pump would reset itself and assured Perry it would and then "assumed" Perry would
back if the alarm persisted, despite never advising Perry to call him back. The
City insists that Perry never called back because of the grievant's assurance that Perry
did not have
to do anything further. The City observes that the 1995 event involving supervisor Lambries
materially different and Lambries did go to the lift station in a timely manner and reset the
The City agrees that a lift station may reset itself but "may" does not equal "will"
is the heart of the case because the grievant made an erroneous and unwarranted assumption
turned out to be wrong and unreasonable. It argues that the real issue is that the grievant
had a duty
to go out and monitor the situation and he failed to do so and an unnecessary disaster
points out that the grievant was not disciplined for waiting an hour or even two but rather for
failure to report at all.
The City insists that the grievant's purported claim of his exercise of judgment is
unreasonable and unauthorized. It asserts that there is a certain amount of discretion during
but not when on standby. It observes that the grievant's total failure to respond is the first
occasion by an employe of the City. The City contends that the grievant was not disciplined
on conversations with the Rezacheks but rather the damages in excess of $13,000 to their
The City concludes that the Union's arguments are based on irrelevant facts and
assumptions. It alleges that the grievant was negligent by failing in his duty to correct a
problem which resulted in a preventable consequence of over $13,000 damage to the
home and it requests denial of the grievance.
The Union contends that Perry should have called the grievant again after the power
was restored and
the lift station continued to dial in alarms. It states he could also have called his supervisor
instead he did nothing. It suggests that perhaps his orientation was inadequate and it is the
responsibility to assure that appropriate operational policies are in place. It notes that there
policy to cover a power outage at a lift station. It claims the grievant used good judgment
his experience that lift stations reset after power outages and the grievant assumed that Perry
use good judgment too. It argues that the grievant had no responsibility to instruct or direct
It reiterates its claim that the City did not conduct a thorough investigation in an unbiased
It insists that the grievant did nothing wrong as he knew he could not reset the lift station
power was on and he told Perry the pump would reset itself after the power was restored. It
that the grievant did not know this did not happen and Perry was in a position to do
did nothing, so the grievant should be completely exonerated. The Union seeks the relief
in its brief in chief.
As noted in the Background set out above, the basic facts underlying this grievance
in dispute and need not be repeated here. The main issue presented is where to assess fault
damage done to the Rezachek's home. The grievant contends he is blameless.
It should be noted that the grievant was on paid standby. What was he being paid
Obviously he was receiving pay to be available to perform work if required and to exercise
judgment in the performance of his duties. The grievant as an experienced wastewater
plant operator had knowledge and experience in the operation of the wastewater system. The
grievant was called by Mr. Perry on February 18, 1997 and informed of the power outage
alarm on the 37th Street lift station. Mr. Perry had no wastewater
treatment plant experience. Once
the grievant was notified of the alarm, it was his responsibility to handle it using his
knowledge. The grievant made two assumptions. The first was that the pump would reset
the power came on and the second was that Perry would call him again if the alarm
the power was restored. Both assumptions proved incorrect. The grievant was not
making these assumptions. It is clear that a pump doesn't always reset itself when power is
and the grievant told Perry not to worry about the alarms and when power was restored, the
would return to normal operation. After telling Perry this, the grievant's assumption that
would call him again is not particularly a good assumption. The instant case is not much
from the following scenario. The grievant is called by Perry about the alarm and the
Perry not to worry and the grievant would take care of the problem. The grievant then falls
asleep and does nothing either because he decided to ignore the call or he assumed the pump
reset itself and if it did not, Perry would call him back or would call a supervisor if the
continued. The grievant could not excuse his failure to take any action on the assumption
subsequent events would intervene to prevent damage. The failure of the pump to reset as
the failure of Perry to call him again would not excuse the grievant's failure to take action
in the first
Both assumptions made by the grievant are risky and evidence very poor judgment.
the grievant's responsibility to exercise good judgment and handle the problem. The
have asked Perry to call him back when the power returned and the alarm did not clear. He
have waited an hour and called Perry to check the status of the alarm or he could have
waited an hour
and gone in personally to check the lift station. He could have done what Mr. Lambries did
August 9, 1995. (Ex. 19) The grievant did not do any of these things which a prudent
The grievant was being paid to exercise good judgment and to act responsibly and he failed
to do so.
The grievant cannot shift the responsibility and blame to anyone else. The grievant may
things would work out as he assumed, but they didn't and he must accept the consequences.
the pump would have reset itself and perhaps Perry was remiss in not taking action as the
continued a total of 12 times but this does not excuse the grievant. The fact that the
supervisors did not talk to him before disciplining him does not violate just cause as the facts
for themselves. It was the grievant's job to do what was required and he failed to do so.
As far as
penalty is concerned, given the damage to the Rezachek's home as well as the
intrusion on their lives, the three-day suspension is certainly warranted.
Based on the above and foregoing, the record as a whole and the arguments of
undersigned issues the following
The City had just cause to suspend the grievant for three days, and therefore, the
is denied in all respects.
Dated at Madison, Wisconsin this 8th day of October, 1998.
Lionel L. Crowley, Arbitrator