Superior City Employees' Union Local #244, AFSCME, AFL-CIO, hereafter Union,
of Superior, hereafter City or Employer, are parties to a collective bargaining agreement
provides for the final and binding arbitration of grievances arising thereunder. The Union
and the Employer concurred, in the appointment of a Wisconsin Employment Relations
staff arbitrator to hear and decide the instant dispute. The undersigned was so appointed.
hearing was conducted at Superior, Wisconsin, on July 23 and August 20, 1998.
The hearing was
not transcribed and the record was closed on November 10, 1998, upon receipt of
Steve Erickson, hereafter grievant, began employment with the City of Superior on
27, 1990. On August 26, 1993, the City issued the following:
At the time that this policy letter was issued, the grievant was a CEA employee.
On April 26, 1995, the City's Director of Public Works, Jeff Vito, issued the
A representative of Local 244 signed this last chance agreement on
February 1, 1996. The grievant
signed this last chance agreement on February 8, 1996. Representatives of the City signed
chance agreement on February 1 and 13, 1996.
In February of 1996, a second employe signed a last chance
agreement to avoid termination
for tardiness and falsification of time cards and a third employe signed a last chance
avoid termination for tardiness, falsification of time cards and prohibited harassment. A
representative of Local 244 and representatives of the City also signed each of these last
The areas of concern raised by your supervisors on your performance resulting from
this probationary review include the following:
1. Being ready to work in your work area at the start of the shift and using time
efficiently during the work day and working in the assigned area rather than
wandering throughout the shop holding conversations with other staff that interrupt
2. Completing jobs in a timely manner as assigned by supervisors
3. Work time use of the telephone for personal reasons;
4. Productive use of the work day where you are not ready to work at the start of the
day; before and after lunch breaks or immediately before the end of your work day.
5. Entering the unattended supervisors area and spending time in this area with no
I would hope that you, Art Swede and Len Moen can work together to improve your
performance in your assignment as a Certified Mechanic for the City and that you
can focus on improvement in these specific areas.
. . .
On September 25, 1996, the grievant's supervisor, Art Swede, issued
TO: Steve Erickson
FROM: Art Swede, Fleet Manager
This letter addresses some of the events that occurred on September 12, 1996 to
include required corrective actions. On that day I took and forwarded a personal
phone call to you which you kept ongoing for the better part of 10 minutes. This has
been a reoccurring situation which you and I have spoke of before. To clarify this
issue the following policy should be observed. With the exception of emergency
calls, all personal use of the phones should be done during your break periods or
At the close of the same day approximately 3:00 PM, Len Moen assigned you the
task of unloading some materials from a vendor's trailer with the forklift. When the
3:30 PM shift change took place I observed you wandering around the Shop and
talking with oncoming shift personnel. Len Moen later observed you standing in the
time clock area. Neither Len or myself were able to understand why you were still
on the grounds after shift change. You than applied for ¼ hour overtime for that
time. We both agree you had ample time to accomplish your assignment before shift
change. Considering the actions that took place, your request for overtime was
denied on your timecard.
In summary, so that there is no misunderstanding as to what is expected of you
during the normal workday, the following should clarify what is acceptable at the
end of your shift. Clean-up time at the end of the shift is the amount of time that it
takes to clean yourself, your work area and put tools away. Time spent loitering
anywhere on the premises or by the time clock should not be considered part of the
clean-up time. You likewise need to understand these guidelines should be utilized
for your coffee and lunch breaks as well.
One additional subject needs to be addressed in this correspondence. Your
August 26 request to flex through your 11:00 AM lunch break is denied. At this
time, I believe you need to concentrate on having a good compliance program with
your present normal shift before you enter into any alternate programs.
When the grievant was presented with this document, he declined to sign that portion
document that states "I have received a copy of this letter of counseling."
On September 25, 1996, Swede issued the following:
TO: Steve Erickson, Certified Mechanic
FROM: Art Swede, Fleet Manager
RE: Notice of Suspension
This will serve as your notice that on September 26, 1996 you will be suspended
from work for one 8-hour shift without pay. The basis of this suspension is your
violation of written policy on timecard reporting.
On September 12, 1996, both Len Moen and I were unable to locate you at the
7:00 am start time. Len did see you entering the locker area in your street clothes
minutes after 7:00 am. Your timecard turned in at the end of your shift
revealed that you had hand written your starting time as 7:00 am, yet you were not
in the Shop at that time. This is not an acceptable practice and is specifically against
written Shop policy. All written entries require supervisor authorization (see
attached CEA policy dated August 26, 1993). This written entry was not authorized.
Further as part of a Last Chance Agreement you agreed that there would be no
unexcused tardiness or absences or falsification of any City record including time
reports. As a part of reaching this Last Change (sic) Agreement you were counseled
on the timecard reporting requirements. Your signed agreement indicates that you
will comply with these conditions. In entering the hand written starting time without
obtaining a supervisors (sic) authorization, it is questionable as to whether you have
an unexcussed (sic) tardy and if you falsified the starting time. We have determined
that you did violated (sic) the time reporting policy and that as a result, a 1-day
suspension is the appropriate discipline. You are expected to be ready for work in
your work area and punched in by the time clock by 7:00 am each morning. You can
not (sic) enter hand written entries on your time card without having a supervisor's
In the event you in the future you (sic) violate this policy you will be subject to
further discipline up to and including termination. You may provide a written
response to this notice of suspension that will be retained in your personnel file.
When the grievant was presented with this document, he declined to sign that portion
document that states "I have received a copy of this letter of counseling."
On October 16, 1996, Vito issued the following:
TO: Steve Erickson, Certified Mechanic
FROM: Jeff Vito, Public Works Director Jeff Vito /s/
RE: Response to Grievance Dated 10/9/96 Eight Hour Suspension
On September 26, 1996 you were suspended from work for one 8-hour shift without
pay. The basis of this suspension was your violation of written policy on timecard
reporting. All written entries require supervisor authorization (CEA policy dated
August 26, 1993). As a part of a Last Chance Agreement you agreed that there
would be no falsification of any City record including time reports. As a part of
reaching this Last Change (sic) Agreement you were
counseled on the timecard reporting requirements. Your signed
that you will comply with these conditions. In entering the hand written starting
time without obtaining a supervisor's authorization you violated the time reporting
policy. Based upon the previous action taken by the City, counseling and a written
agreement, a one-day suspension is appropriate discipline. You have been informed
that further violations of this policy will result in termination.
On December 3, 1997, the City's Public Works Director, Jeff
Vito, issued the
TO: Steve Erickson, Certified Mechanic
FROM: Jeff Vito, Public Works Director
RE: Notice of Release from Employment
This will serve you with notice that you are released from employment effective
December 5, 1997 at 3:30 p.m. The basis for this release from employment is a
violation of your last chance agreement and department policy. On April 26, 1995,
I issued a memo which included direction that employees are to be at work and ready
to perform their assigned duty at their specified starting time. Your starting time is
7:00 a.m. which means that you were expected to be ready to perform mechanic
duties at 7:00 a.m.
As a result of you prepunching time cards, rather than be terminated, you entered
into a last chance agreement which included a 30 working day suspension; a six-month
probationary period; and an agreement that you would not have any
unexcused instances of absence or tardiness for the period of February 23, 1996
through February 22, 1998; in addition to some other requirements. You signed this
agreement on 2/8/96. On August 23, 1996, you completed your probationary period
and then on September 12, 1996 you were not ready to work at 7:00 a.m. On
September 24, 1996, you received a memo that indicated you need to be ready to
work at the start of the day. On September 26, 1996, you were suspended for one 8-hour
shift without pay as a result of not having your supervisor sign your time card
when you clocked in after your starting time on September 12th.
Since that time, you have been not ready to work at 7:00 a.m. or your scheduled
starting time on the following days:
December 16, 1996, December 18, 1996, December 19, 1996, January 5, 1997,
January 8, 1997, March 14, 1997, March 17, 1997, June 17, 1997, June 27, 1997,
July 17, 1997, and October 6, 1997.
On these days you clocked in after the starting time and therefore could not have
been ready to work at your starting time. These tardies were unexcused and a
violation of the last chance agreement.
As a result of this record of continuous flagrant violation of department policy and
your last chance agreement, you are released from employment with the City
effective December 5, 1997 at 3:30 p.m. You will need to remove your tools and
personal belongings from the City Garage by that time in coordination with your
supervisors, Art Swede or Len Moen. Turn in keys, gas cards, City Identification and
any other City property to Art Swede.
. . .
On or about December 15, 1997, a grievance was filed alleging
that "Mr. Erickson was
discharged from his position as mechanic without "just cause." On March 15, 1998, the
provided the City's Human Resource Committee with the following:
To Whom It May Concern,
I have enclosed copies of the letters the City of Superior gave to me at the time of
my termination. I have also enclosed copies of the time cards city officials cited in
my termination letter. There are a few points of defense I would like known in my
First of all, because of the petty nature of my dismissal, I believe I lost my job due
to personality conflicts with my supervisors. Art Swede admitted to several people,
including Mary Lou Andresen, that I am one of the best mechanics the City of
Superior has had in recent years. Therefore, it is clear that I was not terminated due
to my job performance, skills and efficiency.
Secondly, the members of the mechanic's garage have access to two time clocks.
These time clocks are not synchronized to each other nor are they synchronized to
the clocks on the wall. Someone could punch in late on one time clock and walk to
the other time clock and be on time or even early. On some of the time cards listed,
I punched in at 7:02, which is not 2 minutes after 7am but 2/100 of an hour late.
(1/100 of an hour = approximately 35 seconds.) It should be noted that on the days
that I punched in late, I worked past the 3:50pm shift end.
As part of my last chance agreement, I could not have any unexcused times of
tardiness. Therefore, when I did punch in late, I requested that one of my supervisors
initial my time card. Sometimes my supervisors complied, sometimes they refused
without reason. It was my understanding that their initials on my timecard made the
tardiness excused. No one ever corrected or denied this claim. When my
supervisors did refuse to initial my timecard, I immediately notified Mary Lou
Andresen by phone and was told by her to not worry about it. She said she would
take care of it. I realize now I should have got something in writing.
The City of Superior did not act in good faith when they terminated me. Had I been
blatantly late, I would agree that termination was in order. However, I was late less
than five minutes and made up the time at the end of the day. Weather, trains,
traffic, and bringing my two small children to daycare and their doctor appointments
caused me to be late in all of the occasions. I am the first to admit that I am not
perfect but I do not think that this is any reason to terminate me or anyone else from
their job. Further examination of many other C.E.A. employees' time cards over the
same time frame will show a similar amount of late punches (most likely without
Thank you for taking the time to review my case. If you have any questions, please
call me at the above number.
The grievance was denied at all steps of the grievance procedure and submitted to
POSITIONS OF THE PARTIES
The letter terminating the grievant's employment provided two reasons for
the termination. First, the alleged violation of the grievant's last chance agreement
and, secondly, the alleged violation of Department policy.
The City argues that the grievant punched in late and, thus, could not have
been ready to work at the required starting time. The Union responds that the act of
termination is not reasonable.
At most, the grievant was a few minutes late and, frequently, the grievant was
only seconds late in punching the time clock. The grievant provided mitigating
reasons for late punches, which were unjustifiably ignored by the Employer. By
initialing the late punches, without discussion, the grievant's supervisors approved
the late punches.
Employes have the option of punching one of two time clocks, each of
different time, often differing by several minutes. Thus, the accuracy of the time card punch
must be called into question. Contrary to the argument of the City, the evidence
demonstrates that the City did rely on the time card punches, and not visual observation,
when determining that the grievant was tardy.
Standards and expectations of the supervisor were unclear as demonstrated by
Supervisor Swede's inability to communicate performance expectations to employes. Not
until the supervisors began refusing to initial the grievant's time card did the grievant
become aware that there was a problem. When the grievant attempted to discuss the matter
with Supervisors Moen and Swede, each refused to talk to him about their concerns.
On July 17, 1997, the grievant went to the City's Human Resources Director,
Mary Lou Andresen, and informed her of the situation. Andresen responded by
grievant that there was no problem. On that same day, the grievant spoke with the City's
designated Employe Assistance Counselor concerning the lack of communication and the
poor relationship he was having with his supervisors.
There was no communication from supervision until nearly two months later, when
the termination letter of December 3, 1997 was issued. The alleged concern about the
lateness of the grievant is belied by the fact that there was a two-month delay in issuing the
letter of termination. If the City believed that the grievant's actions merited termination, the
City should have taken immediate action of either termination or, preferably, discussing the
concern with the grievant.
Many arbitrators have set aside or reduced the Employer's disciplinary action in
cases where the violation of the last chance agreement was viewed as minor or where, as
here, there were mitigating circumstances.
The grievant is an excellent mechanic, who acted in good faith to adhere to the terms
of the last chance agreement. The arbitrator should take into account the testimony detailing
a very uncommunicative supervisor who lacks the ability to effectively supervise employes.
The arbitrator should sustain the grievance and return the grievant to work.
The Public Works Director, Jeff Vito, published a memo on April 28, 1995,
addressing several Public Works policies, including establishing the "need for employes to
be at work and ready to perform their assigned duty at their specified starting time." The
policies apply to all Public Works employes, including the grievant. The grievant testified
that he was familiar with the policy.
On February 8, 1996, the grievant, of his own free will,
into a last chance
agreement with the City of Superior. Under this last chance agreement, the grievant agreed
that for the period of the agreement, January 11, 1996 through February 22,
1998, he would
not "have any unexcused instances of absence or tardiness."
The last chance agreement included a six-month probationary period. Upon
completion of that probationary period, the grievant received a notice, dated
1996, indicating that one area of concern continued to be that he be "ready to work in your
work area at the start of the shift."
On September 25, 1996, the grievant was issued a memo regarding work
performance issues. Included in this memo was the denial of a request for flexing through
the lunch hour, citing a need to "concentrate on having a good compliance program with the
present normal shift" before entering into any alternative programs.
On September 26, 1996, the grievant was issued an eight-hour suspension for
to appropriately complete his starting time entry on his time card. At that time, he received
notice that he was expected to be punched in and ready for work in his work area by
7:00 a.m. each morning. Vito's response to the grievance referenced that further
of the policy would result in termination.
The grievant testified that he was aware of the standard of being on time and ready
to work at the appointed starting time. He further testified that his supervisor, Swede,
consistently maintained that "late was late," which gave little latitude for not being ready
to work on time. The testimony of other Union witnesses demonstrates that this was a
During the period of the last chance agreement, the grievant was late for work on a
number of occasions. After several instances of tardiness, Supervisor Swede refused to sign
off on the time card. The grievant indicated to Swede that as long as he had an excuse he
could not be considered tardy. Swede responded that he had the right to determine whether
or not to accept the grievant's excuse.
The two other employes under the last chance agreement were not late during the
period of January, 1996 through March, 1997. Supervisor Swede had counseled other
employes for being late and they had corrected the problem.
The testimony of supervisors Moen and Swede indicates that clocks were not relied
upon solely for determination of tardiness. Rather, a visual viewing by either supervisor
would be later verified through a discussion with Erickson.
As the testimony of the two supervisors demonstrates, the grievant did
his pattern of tardiness after written and oral instructions and reprimands. The attempts to
claim there was a personality conflict that caused supervisors to monitor the grievant's
behavior is not substantiated by the record evidence.
The grievant was well aware of the requirement to be at work at 7:00 a.m. and
aware of the fact that his supervisors were disappointed and frustrated with his continued
inability to meet that requirement. The grievant was provided with a number of chances to
correct his pattern of tardiness, including oral and written warnings and a suspension. The
City acted appropriately in ending his employment.
Notice of the grievant's discharge was provided to the grievant by Public Works
Vito's letter of December 3, 1997. In that letter, Vito stated that the grievant was
"violation of your last chance agreement and department policy."
The department policy alleged to have been violated was an April 26, 1995 memo
included the direction that employees are to be at work and ready to perform their assigned
their specified starting time." The violation of the last chance agreement was alleged to
occurred when the grievant had unexcused tardies. A "tardy" was defined as not being ready
work at 7:00 a.m. or the grievant's scheduled starting time.
The parties' collective bargaining agreement contains the following:
10.01 The City of Superior agrees that it will act in good faith
in the discipline or
discharge of any employee. No employee will be disciplined or discharged except
for just cause.
The City has also implemented various policies and procedures that adopt a policy of
Neither the language of Sec. 10.01 of the collective bargaining agreement, nor the
progressive discipline policies adopted by the City, are relevant. The reason being that, as
in Paragraph One of the grievant's last chance agreement," the terms of the last chance
"supersede any collective bargaining agreement or other City Ordinance or policy."
Paragraph Seven of the last chance agreement states as follows:
7. If Erickson breaches any of the provisions of this Agreement, the City may
discharge Erickson. No such discharge shall be subject to review by grievances or
arbitration, or breach of contract action, either under this Agreement or any
collective bargaining agreement, except that if a collective bargaining agreement is
in effect and timely grievance is filed, an arbitrator may review the question of
whether the union has proved by clear and convincing evidence that Erickson did not
breach this Agreement. No arbitrator has jurisdiction to hear any other issue, nor to
decide the severity of the breach by Erickson, nor to consider anything in mitigation
of the breach, nor to change the remedy of discharge.
At the time of the discharge, the grievant was bound by the following provision of
the last chance agreement:
. . .
4. As a condition of continued employment, for the 24-month period beginning on
February 23, 1996 and ending on February 22, 1998 Erickson may not:
a. have any unexcused instances of absence or tardiness; and
. . .
The City claims that the grievant breached this provision by having
unexcused tardiness on
December 16, 1996, December 18, 1996, December 19, 1996, January 5, 1997, January 8,
March 14, 1997, March 17, 1997, June 17, 1997, June 27, 1997, July 17, 1997, and
October 6, 1997.
Under the terms of the grievant's last chance agreement, the arbitrator does not have
jurisdiction to decide any issue other than whether or not "the union has proved by clear and
convincing evidence that Erickson did not breach this Agreement." The undersigned turns to
Union's argument that Erickson did not breach the last chance agreement because his
As the Union argues, on many occasions of alleged tardiness the grievant brought his
card to one of his two supervisors, offered an explanation for the tardiness, and the
initialed the time card without comment. According to the grievant, such conduct by a
indicates that the tardiness was excused. Other Union witnesses confirmed that tardiness was
excused by having a supervisor initial the time card.
The evidence demonstrates that the grievant's supervisors initialed, without
comment, the late punches that occurred on December 18, 1996; December 19, 1996;
1997; January 8, 1997; March 14, 1997; and June 17, 1997. The record further
the grievant was not advised that any of these late punches were not excused until December
1997, when the grievant received his discharge letter from Vito.
The undersigned is satisfied that, by initialing the grievant's late punches of
1996; December 19, 1996; January 5, 1997; January 8, 1997; March 14, 1997; and June 17,
without providing timely notification that the tardiness was not excused, the grievant's
excused this tardiness. The Union has provided clear and convincing evidence that the
tardiness on December 18, 1996; December 19, 1996; January 5, 1997; January 8, 1997;
1997; and June 17, 1997 were excused. Accordingly, the City may not rely upon these
argue that the grievant had unexcused tardiness in violation of his last chance agreement.
On December 13, 1996, the grievant requested and received approval to take four
hours of sick leave from 7:00 a.m. to 11:00 a.m. on December 16, 1996 for the purpose of a
appointment. On December 16, 1996, the grievant's unpaid lunch hour was from 11:00 a.m.
11:30 a.m. The grievant punched into work at 1152, which is approximately 11:31 a.m.
clock records in hundredths of an hour.)
On March 14, 1997, the grievant requested and received approval to use four hours
of sick leave from 7:00 a.m. to 11:30 a.m. for a doctor's appointment on March 17, 1997.
17, 1997, the grievant punched into work at 1156, which is approximately 11:34 a.m.
According to the grievant, he assumed that he could take as much time as was needed
for his appointments and, thus, he did not have an unexcused tardy. The grievant's
incorrect. The grievant was entitled to take only the amount of sick leave that was requested
approved. The grievant does not claim, and the record does not demonstrate, that the
sought his supervisor's approval to use additional leave time on December 16, 1996 and
On June 27, 1997 and July 17, 1997, the grievant had a start time of 7:00 a.m. and
punched in at 702. The grievant requested one, or more, of his supervisors to initial his time
on each of these dates, which requests were refused. By this refusal, the supervisors
grievant with timely notice that his tardiness was not excused.
Following the July 17, 1997 incident and understanding that he was in trouble, the
grievant contacted the employe assistance counselor. The employe assistance counselor
grievant to contact either the Union, or the City's Director of Human Resources,
The grievant telephoned Andresen, explained that his supervisors were refusing to
initial late punches, and was told that Andresen would look into it. In a second conversation,
Andresen said that she would have a meeting to discuss it and that the grievant should not
The grievant acknowledges that his department has a chain of command from Moen
to Swede to Vito. The grievant further acknowledges that he understood that Andresen was
setting up a meeting with Vito. Given this context, it is not reasonable to conclude, as
grievant apparently did, that Andresen had either "excused" his tardiness, or had promised
would have his supervisors excuse his tardiness.
On October 6, 1997, the grievant had a start time of 7:00 a.m. and punched in at
The grievant requested Moen and Swede to initial his late punch and each refused. By this
the supervisors provided the grievant with timely notice that his tardiness was not excused.
At hearing, the grievant and other Union witnesses testified that the time clocks were
not accurate. Specifically, these witnesses testified that the two clocks that the grievant was
permitted to use were not consistent with each other, or with Central Standard Time.
Supervisor Swede acknowledged that he had an ongoing problem with the time
clocks not being consistent with one another. According to Swede, unless the clocks had
tampered with, each time clock was within a minute of one another and within one minute of
time, which the undersigned understands to be Central Standard Time. The other record
did not rebut Swede's assertion that each time clock was within one minute of Central
There is clear and convincing evidence that the time clocks are not precise. More
specifically, there is clear and convincing evidence that there is as much as a one minute
between each time clock and Central Standard Time.
Given the imprecision of the time clocks, it is not reasonable to conclude that a
punch of 1152 demonstrates that the grievant punched in after 11:30 a.m., nor is it
conclude that a punch of 702 demonstrates that the grievant punched in after 7:00 a.m.
it is not the time card punch, per se, which determines whether or
not the grievant was tardy.
The City Operations Policy of April 26, 1995, which was noticed to all Local 244
employes, including the grievant, expressly states that employes are required to be at work
to perform their assigned duty at their specified starting time. The grievant was reminded of
need to conform to this policy when the City issued the "Completion of Probationary Period"
of September 24, 1996, and advised the grievant that he had completed his probationary
that his supervisors continued to be concerned about his "Being ready to work in your work
the start of the shift. . . ." and when the City issued the September 25,
1996 "Notice of Suspension"
in which Supervisor Swede advised the grievant that "You are expected to be ready for work
work area and punched in by the time clock by 7:00 a.m. each morning."
Contrary to the argument of the Union, the grievant was clearly advised that the City
had a standard of timeliness, i.e., that an employe is to be punched in and in the
work area ready to perform the employe's assigned duty at the employe's specified
time. Additionally, the grievant was clearly advised that he was expected to comply with
standard of timeliness.
The grievant testified that, after he punches in, he normally talks to whoever is
around the time clock; goes to his stall; gets his coveralls; and starts to work. By the
testimony, he is not in his work area and ready to perform his assigned duty at his specified
time at the time that he punches the time clock.
In summary, the record provides a reasonable basis to conclude that, by punching in
at 702 on June 27, 1997; July 17, 1997; and October 6, 1997, the grievant punched in at his
starting time of 7:00 a.m. and that, by punching in at 1152 on December 16, 1996, the
punched in at his specified starting time of 11:30 a.m. There is no reasonable basis to
by punching in at 1156 on March 17, 1997, the grievant had punched in by his specified
time of 11:30 a.m.
Neither these time card punches, nor any other record evidence, provide clear and
convincing evidence that the grievant was in his work area and ready to perform his assigned
at his specified starting time. Absent such evidence, the undersigned must conclude that the
grievant was tardy on December 16, 1996; March 17, 1997; June 27, 1997; July 17, 1997;
October 6, 1997. Unlike the tardiness discussed above, there is no clear and convincing
that the tardiness of December 16, 1996; March 17, 1997; June 27, 1997; July 17, 1997; and
6, 1997 was excused.
Under the terms of the grievant's last chance agreement, the City has the right to
discharge the grievant if he breaches any provision of his last chance agreement. The
not overturn the discharge unless the Union has proved by clear and convincing evidence that
grievant did not breach a provision of his last chance agreement.
The Union has not proved, by clear and convincing evidence, that the grievant did
not have any unexcused instances of tardiness during the 24-month period beginning on
1996 and ending on February 22, 1998. Accordingly, the City has just cause to discharge
grievant for breaching a provision of his last chance agreement, i.e., Paragraph
As set forth in Paragraph Seven of the "Last Chance Agreement," the arbitrator does
not have jurisdiction to decide the severity of the breach or to consider anything in mitigation
breach. Nor may the arbitrator change the remedy of discharge. Accordingly, the
undersigned is without jurisdiction to address the Union's argument that the discipline
should be set aside or reduced because the breach of the last chance agreement was minor, or
was mitigating circumstances.
The testimony of Union witnesses demonstrates that other employes have not been
in their work area and ready to perform their assigned duty at their specified starting time
not been disciplined for having an unexcused tardy. The last chance agreement, however,
obligate the City to treat the grievant in a manner that is consistent with any other employe,
including those employes that are also the subject of a last chance agreement. The only
upon the City's right to discharge the grievant for a breach of a provision of his last chance
agreement is the Union's right to "prove by clear and convincing evidence that Erickson did
breach this Agreement."
The Union maintains that the grievant had the choice of entering into the last chance
agreement or facing immediate termination and, thus, questions the validity of the City's
that the decision to enter into the last chance agreement involved the exercise of "free will."
grievant maintains that the City would not extend a last chance agreement to any of the three
employes unless each signed his last chance agreement and, therefore, he was coerced into
the agreement. Any claim that the grievant was coerced into signing the last chance
that the grievant did not enter into the agreement of his own free will, is not only untimely,
does not fall within the limited jurisdiction conferred upon the arbitrator by Paragraph Seven
grievant's last chance agreement.
As the Union argues, there was an unusually long delay between the time of the
infraction and the imposition of discipline. Under other circumstances, the length of the
be evidence that the conduct was not considered sufficiently serious to warrant discipline, let
discharge. In this circumstance, however, the severity of the misconduct and the appropriate
of discipline for the misconduct are established by the terms of the last chance agreement.
the terms of the last chance agreement, the City has the right to discharge the grievant for
unexcused instances of tardiness which occur during the 24-month period beginning February
1996 and ending on February 22, 1998. The last chance agreement does not require the City
impose the discharge immediately following the unexcused instance of tardiness, nor does it
establish any other time limit for imposing the discipline.
Based upon the above and foregoing and the record as a whole, the undersigned
The Employer has just cause to discharge the grievant, Steve Erickson.
The grievance is denied and dismissed.
Dated at Madison, Wisconsin, this 13th day of January,
Coleen A. Burns /s/
Coleen A. Burns, Arbitrator