BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AFSCME LOCAL 2807
CITY OF RACINE (WASTEWATER
(Wayne Brown Discipline)
Pursuant to the provisions of the collective bargaining agreement between the parties,
AFSCME Local 2807 (hereinafter referred to as the Union) and the Racine Wastewater
(hereinafter referred to as the Employer or the Utility) requested that the Wisconsin
Relations Commission designate Daniel Nielsen as arbitrator of a dispute over discipline
Wayne Brown. A mediation session was held on April 29, 1998, but the matter was not
hearing was held on June 24th Racine, Wisconsin, at which time the parties
were afforded full
opportunity to present such testimony, exhibits, other evidence and arguments as were
stenographic record was made and a transcript was received on July 8, 1998. The parties
post-hearing briefs, the last of which was received by the undersigned on September 29,
whereupon the record was closed.
The parties agreed that the following issue should be determined herein:
Did the Employer have just cause to
impose disciplinary action against the Grievant? If not,
what is the appropriate remedy?
In conjunction with the stipulation on the issue, the parties also stipulated that the
lost pay from January 7 through January 23, 1998, as a result of the discipline. They further
stipulated that the matter was properly before the arbitrator.
The Employer is a utility affiliated with the City of Racine, but governed by an
commission, which provides water and wastewater services to the citizens of Racine. The
the exclusive bargaining representative for the Utility's blue-collar employes. The grievant is
Worker who joined the Utility in October of 1994.
Prior to joining the Utility, the grievant was a seasonal employe with the City of
Department of Public Works. In May of 1994, while still with the DPW, he stepped on a
nails through it and punctured his foot. The puncture caused continuing problems with his
the resulting change in his gait also caused back problems for him. As a result of these
missed a substantial amount of time over the next three years, including some time off for
and became embroiled in a workers' compensation dispute with the City of Racine. In the
1997, while he was off work, one of his doctors prescribed a specially made pair of boots
believed would alleviate the grievant's problems.
On November 19th, he went to National Pedorthic Services (NPS), a
provider of boots and
shoes with specialty orthotics. He had a foam impression made of his feet by Certified
Kathy Kannenberg in anticipation of ordering boots, but did not place an order. NPS
printout of the total cost for him. The total for a pair of #3121 P.W. Minor Boots, with
inserts, an extended steel shank and rocker bottom soles was $727.00. $84.00 of this total
cost of the foam impressions, which the grievant paid on his November 19th
On November 25th, the grievant's attorney, Scott French, sent a
copy of the receipt for the
$84.00 to the Department of Workforce Development's Worker's Compensation Division,
the City. On November 26th, the City also received a copy of the printout
A hearing was scheduled on December 4th on some of the grievant's
claims. The City was
represented by Stacey Salvo, a legal assistant in the City Attorney's office who is responsible
workers' compensation litigation. Terry Parker, the Senior Personnel Assistant responsible
and workers' compensation was also present. The grievant attended along with his attorney.
Settlement discussions took place, and a partial compromise agreement was reached, under
among other things, the City agreed to pay the cost of the specialty boots. As part of the
the grievant agreed to return to work as soon as the boots were ready.
The grievant went to NPS on December 9th for a fitting of the
boots. The boots used for the
fitting were 8 inches high, but Kannenberg told him that the boots also came in a 6-inch
told her that he preferred the 6-inch height. She advised him that the boots would have to be
modified to add the steel shank and rocker soles, which takes seven to ten work days.
Before he left,
she told him they would have to order the six-inch boot.
On December 11th, Brown called his supervisor, Maintenance
Supervisor James Jordan, at
8:55 a.m. and told him the boots had been ordered but would take a couple of weeks to
because of the holidays. This was consistent with Jordan's understanding of the situation,
had not expected him to return by the 11th. It was not unusual for employes off on workers'
compensation leave to have undefined dates for returning to work, and Jordan was not
the grievant's exact return date was unknown.
Terry Parker had been handling the grievant's worker compensation claims.
hearing on the 4th, Parker's belief was that the grievant had an appointment
to get his boots the next
day, on Friday, December 5. However, he did not hear from the grievant on Friday.
Instead he got
a call from the grievant on Monday the 8th, saying he would go for the
boots the next day. On
Wednesday the 10th, Parker called NPS and spoke with the receptionist.
She told him that she had
not dealt with the grievant on his fitting, but it was her understanding that the grievant had
the boots that were available because he didn't like the style, and that other boots were being
The receptionist said that he could have taken the boots that were on hand.
Parker called the Utility and told Tom White that the grievant could have returned to
on the 9th but he rejected the boots that were available and had a different
style special ordered.
White decided that the grievant was not really interested in doing any work for the Utility, so
City Personnel Director James Kozina that he wanted to discharge him. Kozina counseled
discharge would be premature, and advised him to impose a three-day suspension instead.
James Jordan send him a letter of suspension:
December 12, 1997
. . .
According to Terry Parker of the Personnel Department, you
were able to return to work on
Tuesday, December 9, 1997 but you did not. Therefore, you will not be paid for Tuesday,
9th, Wednesday, December 10th, and Thursday, December
11th. Furthermore, you will be suspended
without pay for three days for being absent from work without authorization. The 3 day
will occur on December 12th, December 15th and
December 16th. You should report for work on
Wednesday, December 17th or face further discipline.
This notice was mailed to the grievant, and was also hand delivered and read to him
telephone. When Jordan read the grievant the suspension letter, he asked him what his
address was, and he said it was 5330 Athens Avenue. The Utility records had his address as
Maryland Avenue, and that was where the discipline notice had been sent. Jordan did not
Personnel Department of the grievant's change of address.
On December 16th, Parker called Kannenberg at NPS, and asked
to provide a letter saying
that the grievant could have had boots on the 9th, but rejected them because
of style. Parker
understood her answer to be that he could have gotten the boots on the 9th.
did not send a letter to that effect.
When the grievant did not report for work in the 17th as ordered in
the suspension letter, nor
on the 18th or 19th, White told Kozina he wanted to
proceed with a discharge. He did not check with
Jordan before doing this, as he assumed the Personnel Department would do so. No one did
with Jordan, who had in fact spoken with the grievant on the 11th and been
told that he would return
when the boots were ready and that that would not be until Christmas at the earliest. A
sent by certified mail on Monday, December 22nd advising him that his
failure to report on three
consecutive days -- the 17th, 18th and
19th -- was grounds for termination. The letter also advised him
to contact the Personnel Department no later than December 29th to submit
a written account of any
mitigating circumstances, and that a final decision would be made after a review of such
documentation. Because the City's records had the old address for the grievant, he did not
the letter, and did not respond. Kozina sent a certified letter of termination on December
was also sent to the old address.
Unaware that his termination was pending, the grievant spoke with James Jordan on
December 22nd and 26th, both times telling him that the
boots were not yet ready. Jordan did not
mention the termination to him. On the 29th, he spoke with another
Bradley, and told him that the boots would be ready on January 6th,
and he would return to work on
the 7th. Bradley passed this information on to Terry Parker, but did not tell
the grievant that discipline
was pending against him. On January 2nd, Bradley and the grievant spoke
again, and the grievant
repeated that he would be in on the 7th. Bradley told him he should call
Kozina. He telephoned
Kozina, and was told he had been terminated and that he should contact his Union.
On January 6th, Kannenberg sent a letter to the Utility, summarizing
her dealings with the
11-19-97 - Initial visit. Evaluation, measure for shoes.
Impressions of feet taken to fabricate
11-09-97 - Second visit. Fit orthotics with
sample boots for size. Client tried on boots, size
10.5, 8" height. Placed order in same size for 6" height according to client's request.
12-23-97 - Called client and Terry Parker
and advised them both that we had received the
special order boots. The boots were given to our technician to apply the prescription
of steel shanks and rocker soles. Both parties were advised that the boots would be ready for
Brown to pick up on 1/06/98 along with the custom orthotics.
Note: Custom items, orthotics and shoe
modifications, require 10 to 14 days for our technician
Special order shoes/boots have a time frame
of two weeks for receiving from the manufacturer.
A copy of this letter was given to Parker, who tried to reach Kannenberg. He went
office on January 13th. He questioned her reference to the shoes as
"samples" and she made a note
on the bottom of the letter changing this to "salable." She told him that even if the boots on
were used, it would still have required 7 to 10 working days for modifications, plus some
account for the holidays.
A meeting was held with the grievant, representatives of the Utility and the Union.
rescinded the discharge and directed the grievant to report to work on January
23rd. The Utility
refused to pay him for the time lost between January 7th and the
23rd, and advised the grievant and
the Union that this time would be treated as a suspension. The instant grievance was filed,
all of the discipline. It was not resolved in the grievance procedure, and was referred to
A hearing was held on June 24, 1998. In addition to the facts recited above, Kathy
Kannenberg testified that she had no recollection of speaking with Terry Parker before
23rd, when she told both him and the grievant the boots would be ready on
January 6th. She also
testified that NPS is only open on Tuesday, Wednesday and Thursday, and is closed on
Friday. The grievant testified that he had never told Parker he would get his boots on
since that was a Friday and NPS was closed. According to the grievant, he needed a shorter
because of circulatory problems, and was never told that ordering a six-inch boot would take
substantial amount of time. He also claimed that, in addition to the phone conversations with
and Bradley, he had spoken several times with some temporary secretary the Utility was
December of 1997.
Additional facts, as necessary, will be set forth below.
THE POSITIONS OF THE
The Position of the Utility
The Utility takes the position that it had multiple legitimate grounds for imposing
and that the grievance should be denied. The grievant clearly failed to keep the Utility
advised of his
current address, despite rules requiring him to do so, and also failed to inform his
supervisors that he
would not report for work on numerous days in December. He violated an employe's
duty to either report for duty or justify his absence in advance. Further, he extended his
rejecting the prescription boots that were available for his use on December
9th, and special ordering
another pair that were more to his taste. In so doing, he manipulated the system to avoid
to duty. Given his pattern of abuse of the system of sick leave and workers' compensation
it is entirely appropriate for the Employer to have suspended him for thirteen days, matching
amount of work time missed by his improper extension of his medical leave. The arbitrator
defer to the Employer's reasonable judgment that just cause existed and that this suspension
appropriate penalty. The grievance should be denied.
The Position of the Union
The Union takes the position that there was no misconduct in this case, simply a
errors and mishaps, most of them the Utility's own doing. Every participant in the
hearing knew that special boots would have to be ordered and would take an indeterminate
delivery. Despite this, the Utility imposed a three-day suspension on him for failing to
December 5th, the day after the hearing. City witnesses admitted at the
hearing that this suspension
was improper. The Utility then rescinded the suspension and
terminated him for failing to report on December 17th, a date that
appears to have been arbitrarily
selected. After the Union protested this entire sequence of events, the Utility switched gears,
rescinding the discharge and suspending the grievant from January 7th
through the 23rd. The basis for
this new suspension was that he could have returned to work earlier if he had not requested
high boots instead of eight-inch high boots. However, the clear evidence is that no one told
grievant that asking for a different height would delay delivery of the boots. He cannot have
improperly extended his leave by taking an action that he could not know would extend his
The Utility also suggests that the grievant did not keep in touch with his supervisors, but the
supervisors conceded that he had spoken with them, and kept them advised of his status.
Utility claims that he kept them in the dark about his correct address. However, the Utility
someone to pick him up for a surgical appointment in 1996, and that person went to the
address without the grievant giving him directions. Clearly the Utility knew where he lived.
Taken as a whole, the Utility's evidence does not prove just cause for any level of
much less a lengthy suspension. The grievance should be granted and the grievant should be
whole for his losses.
The grievant was disciplined for various and apparently cumulative reasons. The
primarily discussed in the Utility's brief are (1) failure to keep the Utility advised of his
address; (2) failure to call in and advise his supervisors of his whereabouts in December; and
improperly extending his medical leave by ordering a different style of boots. Each is
Failure to Advise the Utility of His Address
The Utility asks that the grievant "be held accountable" for failing to report his
address. It is not at all clear what the Utility seeks, or what harm -- other than further
events in this case -- befell the Utility from the failure to update the address. The grievant
receive the termination notices after they were sent in late December, but he was not going
to work until January 6th in any event, and he knew of it before then
through telephone conversations
with Personnel Director Kozina. In any event, before it ever became an issue, the grievant
the Utility of his new address. Kozina testified that the proper procedure for an address
for the employe to notify his supervisor. The grievant's supervisor, James Jordan, knew of
of address on December 12th because he asked the grievant for his current
address when he read him
the suspension notice and noted that it was different than the one in the files. It did not
Jordan to pass this information along, which suggests that the City's procedure is not well
Even assuming, solely for the sake of argument, that discipline can be used to force
to update their addresses, on this record and using a just cause standard, I must conclude that
grievant did not violate this procedure.
Failure to Call In During December
As a general rule, employes must call before the start of their shifts if they are not
able to report. The grievant did not call in to say he would not be in until he spoke with
at about 9:00 a.m. on December 11th, and told Jordan he would return to
work as soon as his boots
were ready. Thus on December 5th, 8th,
9th, 10th and 11th, he failed to call
before the start of his shift.
However, the City participated in a hearing on December 4th during which
it was agreed that the
grievant would not return until he had his boots. While Parker thought he had promised to
on the 5th, that is not the grievant's recollection, and there is no reason to
think he would have said
this, since it would have been impossible. NPS is not open on Fridays or Mondays, and the
could not have been fitted until Tuesday the 8th. Thus I conclude that
Parker is wrong in his
recollection, and the City had reason to know that the grievant could not possibly return to
December 9th at the earliest. That was apparently the conclusion of the
Utility as well, since the
original attempt to suspend him listed a failure to report on the 9th,
10th and 11th as the incidents of
Utility Superintendent Tom White conceded in his testimony that the grievant could
returned to work on December 9th, 10th and
11th, and conceded that the suspension was not
warranted. Further, he conceded that the grievant could not have returned on December
and 19th, which were the dates cited as triggering the discharge. In fact,
even if the grievant had taken
the 8-inch boots, he would not have been able to return to work until December
26th at the earliest.
Two weeks were needed for the modifications on the boots and, having been fitted on the
would have gotten them on the 23rd. The next two days are holidays for
Utility employes. (See
Article 17, Section A of the collective bargaining agreement).
Thus prior to the 26th at the earliest, the only basis for disciplining
the grievant would have
been his failure to call in. Yet he did call in on the 11th, and told Jordan that he would
the boots were ready, which would be at least two weeks. Jordan did not tell him to call
and conceded in his testimony that it was common to have people with workers'
injuries off for undetermined periods, and that he did not consider the grievant to be in
any policy during this period. On the 22nd, the grievant called Jordan and
told him that his boots were
not yet ready. Jordan told him to call every day. On Friday the 26th he
called Jordan. On Monday
the 29th, he called and spoke to Bradley, advising him that the boots would
be ready on January 6th,
and he would return on January 7th. On Friday, January
2nd, he spoke to Bradley again, and Bradley
told him to call Kozina. He did, and found he had been discharged.
The City and its representatives knew perfectly well that the grievant would not be
to work until the special boots were ready. It is evident from the testimony of White, Jordan
Parker that the complaint about calling in was not the reason for discipline in this case.
was based upon Parker's report that the grievant had cavalierly rejected a pair of boots that
have allowed his return on the 9th, because he did not like their style.
Ordering the Lower Cut Boots
Parker spoke with the receptionist at NPS on December 10th, and
came away with the
impression that the grievant could have taken the boots that were in stock on the
9th and have
returned to work, but rejected them because he did not like the style. This continued to be
impression after he spoke with Kannenberg a week later. This was the basis for both the
suspension and the discharge. It is not possible to state with any certainty what the
Parker on the 10th, but if she said what he claims, she was clearly wrong.
The boots that the grievant
tried on were not ready to wear, and could not have been made ready for at least two weeks.
this, it is impossible to accept that Parker's recollection of his conversation with Kannenberg
accurate. If one assumes that the receptionist knows nothing about the business, she might
confused about the difference between the boots being in stock and the boots being ready for
However, Kannenberg is a professional in the field, and could not possibly have told Parker
grievant could have had the boots on the 9th. She denies having told
anyone that, her written
chronology is inconsistent with any such claim, and it simply makes no sense at all that she
have said the boots could be used on the 9th when she knew it would take
at least two weeks to get
them ready. I find it far more likely that Parker was confused about the difference between
themselves and the boots properly fitted with the required modifications, and asked his
interpreted the answers guided by this misunderstanding.
The only volitional act by the grievant that can be pointed to as misconduct is the
ask for 6-inch boots rather than 8-inch boots. The Utility believes that this was done either
the grievant's return to work, or with casual disregard of the resulting delay. Put another
grievant did not care that the City was incurring workers' compensation costs for every day
was off work. In order to make out this case, the Utility must persuade the arbitrator that
grievant knew that asking for 6-inch boots would materially delay the delivery of the finished
According to Kannenberg, she told the grievant that the boots were available in either an
or a 6-inch style, and he said he preferred the 6-inch boots. She did not tell him at the time
that 6-inch boots would have to be ordered, but she did tell him this before he left the store.
is nothing in the record to suggest that she told him that ordering the boot would take an
weeks, and that long a delay is not something that one could be held to naturally assume. In
connection with this, it bears noting that the grievant spoke with Jordan on the
11th and told him the
said it would be about two weeks before the boots were ready. This suggests either
that he did not
anticipate some substantial delay by reason of asking for 6-inch boots, or that he was
supervisor for no particular reason.
It is not difficult to understand the Utility's frustration with the grievant's prolonged
from his foot injury, nor -- given the receptionist's apparently misleading information to
Parker -- the
Utility's anger at the idea of the grievant putting off his return to work just because he
different style of work boot. What is striking in this record is the failure of anyone to
actually ask the
grievant about this, which might well have avoided a great deal of confusion. Once Kozina
involved at the discharge step, the Utility did at least ask the grievant to advise them of
circumstances, but unfortunately that effort was thwarted by the problem with the grievant's
In the end, however, no matter how understandable the Employer's concerns, the issue
arbitrator is whether the grievant did anything that would establish just cause for a
suspension. On this record, he did not. He complied, even if accidentally, with the
making a change of address. He advised his supervisors of his status and of the time frame
likely return to work. That return was unquestionably delayed by his decision to have 6-inch
instead of 8-inch boots, but the record does not show that he would have known the choice
shorter boot would trigger a meaningful delay, and his conversation with Jordan on
suggests that he did not know this.
On the basis of the foregoing, and the record as a whole, the undersigned makes the
The Utility did not have just cause to discipline the grievant. The appropriate
remove the suspension from his record, and make him whole for his losses
Dated at Racine, Wisconsin, this 30th day of December, 1998.
Daniel Nielsen, Arbitrator