BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MENASHA MUNICIPAL EMPLOYEES UNION, LOCAL
1035, AFSCME, AFL-CIO,
and affiliated with the
WISCONSIN COUNCIL OF COUNTY AND MUNICIPAL
CITY OF MENASHA, WISCONSIN
Mr. Michael J. Wilson, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO,
8033 Excelsior Drive, Suite B, Madison, Wisconsin 53717-1903, for Menasha
Union, Local 1035, AFSCME, AFL-CIO, and affiliated with the Wisconsin Council of
Municipal Employees, referred to below as the Union.
Godfrey & Kahn, S.C., by Attorney James R. Macy, 100
West Lawrence Street, P.O. Box 2728,
Appleton, Wisconsin 54913-2728, for City of Menasha, Wisconsin, referred to below as the
City or as
The procedural history of these cases up to April 17, 1997, is noted in City of
Menasha, MA-7361, MA-7362 and MA-7363, (McLaughlin as Panel Chair, 4/97). This
decision is referred to
below as the Interim Award. Hearing as directed by that decision was conducted in
Wisconsin on July 10 and July 11, 1997. The evidentiary record was held open to permit
submission of portions of a transcript of a Worker's Compensation hearing. After reaching a
stipulation on that point, the Union and the City filed briefs and reply briefs by
March 24, 1998. At the
request of the Arbitration Panel, the parties supplied the transcripts underlying their
stipulation on May,
21, 1998. The Panel met, by conference call, on July 10 and by telephone after that date to
what, if any, issues could be resolved by consensus.
The parties were unable to stipulate the issues for decision
regarding the two cases captioned
above. The panel has determined the record poses the following issues:
Was Grievance 1991-4 timely filed at Step 2 on June 13, 1991?
If Grievance 1991-4 was not timely filed at Step 2, does the Arbitration
Panel have any jurisdiction to consider it?
If Grievance 1991-4 was timely filed at Step 2, has it been withdrawn?
If Grievance 1991-4 was either untimely or withdrawn, is Grievance
1992-2 a separate grievance?
If Grievance 1992-2 is separate from Grievance 1991-4, was it timely
If the panel has jurisdiction to determine the merit of either Grievance
1991-4 or Grievance 1992-2, did the City violate Article XI, Section C,
by denying the Grievant light-duty work or by denying the Grievant the
wage differential between her normal take-home pay and Worker's
Did the City violate the collective bargaining agreement by
terminating the Grievant effective January 6, 1992?
If so, what is the appropriate remedy?
ARTICLE II - MANAGEMENT RIGHTS RESERVED
A. General: Unless as otherwise herein provided, the management of the
work and the
direction of the working forces, including but not limited to, the right to hire, promote,
demote, suspend or otherwise discharge for proper cause, and the right to relieve
employees from duty because of lack of work or other legitimate reason is vested
exclusively in the Employer.
. . .
ARTICLE V - SENIORITY AND SERVICE
A. Definitions: Seniority refers to the rank order of employees relative
employees determined by reference to the time of continuous service in the
department. . . .
E. Loss of Seniority: An employee shall lose all seniority and service if
2. Is discharged for cause;
3. Is absent three (3) consecutive working days without notice or permission;
4. Is laid off prior to attaining one year of service; or
5. Is laid off for a period of one year or more.
An employee who has one (1) year or more of service at the time of layoff and who
returns to work within one (1) year shall have his service prior to such layoff included
in computing continuous service. . . .
ARTICLE VI - JOB POSTING PROCEDURE
. . .
3. Department: A department is defined as Street Department, Sanitation
Park department (sic) and Bridge Department. (Note: This is a clarification of the
. . .
ARTICLE VII - SUSPENSION, DEMOTION AND
Suspension is defined as the temporary removal without pay of an employee from his
A. Suspension for Cause: The Employer may for disciplinary reasons
employee. An employee who is suspended, except probationary and temporary
employees, shall be given written notice of the reasons for the action, and a copy of
such notice shall be made a part of the employee's personnel history record, and a
copy shall be sent to the Union. No suspension for cause shall exceed thirty (30)
B . Suspension During an Investigation: During an investigation, hearing
or trial of an
employee on any civil or criminal charge, when suspension would be in the interest of
the City, an employee may be suspended by the Employer for the duration of the
proceedings. The suspension shall terminate within ten (10) days after completion of
the cause for which he was suspended, by reinstatement or by other appropriate action,
by resignation or dismissal of the employee.
C. Voluntary Demotions: An employee may request or accept voluntary
when the position he occupies is allocated to a lower class or when assignment to less
difficult or responsible work would be to his advantage.
D. Dismissal: No employee shall be discharged except for cause. An
is dismissed, except probationary and temporary employees, shall be given a written
notice of the reasons for the action, and a copy of the notice shall be made a part of the
employee's personnel history record, and a copy sent to the Union. An employee who
has been discharged may use the grievance procedure by giving written notice to his
steward and his department within five (5) working days after dismissal. Such appeal
will go directly to the appropriate step of the grievance procedure.
E. Usual Disciplinary Measures Shall Be:
1. Oral Reprimand
2. Written Reprimand
The Union shall be furnished a copy of any written notice of reprimand,
suspension or discharge. A written reprimand sustained in the grievance procedure or
not contested, shall be considered, a valid warning. In the case of serious infractions
prior warnings are not a prerequisite for disciplinary action that includes suspension or
dismissal. Written and oral reprimands shall not be used as the basis of suspension or
dismissal after twelve (12) months.
. . .
ARTICLE XI - AUTHORIZED ABSENCE
. . .
C. Worker's Compensation: Except for Bridge Department employees an
employee receiving Worker's Compensation Benefits shall receive the wage
differential between his normal take-home pay and Worker's Compensation.
Employees injured on the job shall report to the City Garage for light duty as required
as soon as the employee's doctor certified that such injured employee may perform
. . .
G. Leave of Absence Without Pay:
1. Requests: Requests for leave of absence without pay for justifiable
reasons shall be
made in writing at least forty-eight (48) hours prior to the leave as follows:
. . .
b) More than Three Days: For a leave of absence of three (3)
consecutive days, the
request shall be made to the Director of Public Works through the superintendent of
the department. However, for employees of the Park & Recreation Department
requests shall be made through the Park & Recreation Director.
2. Approval: Requests for leave of absence without pay may be granted
subject to the
work requirements of the City. Leaves of absence shall not be granted to an employee
for the purpose of engaging in other employment. The employee shall be obligated to
pay for the cost of his/her health and dental care benefits if such leave exceeds one
. . .
ARTICLE XV - GRIEVANCE AND ARBITRATION
A. Definition of a Grievance: A grievance shall mean a dispute
interpretation or application of this contract.
B. Subject Matter: Only one subject matter shall be covered in any one
written grievance shall contain the name and position of the grievant, a clear and
concise statement of the grievance, the issue involved, the relief sought, the date the
incident or violation took place, the specific section of the Agreement alleged to have
been violated and the signature of the grievant and the date. Matters involving a union
grievance shall be signed and processed by a Union officer or representative.
C. Time Limitation: If it is impossible to comply with the time limits
specified in the
procedure because of work schedules, illness, vacations, etc., these limits may be
extended by mutual consent in writing.
D. Settlement of Grievance: Any grievance shall be considered settled at
completion of any step in the procedure if all parties concerned are mutually satisfied.
Dissatisfaction is implied in recourse from one step to the next.
E. Steps in Procedure:
Step 1: The employee, alone or with his representative shall orally
complaint to his supervisor no later than five (5) working days after he knew or should
have known of the cause of such complaint. The employee shall perform his normal
work task and present his complaint later unless safety is an issue. If the issue is not
resolved during the discussion the employee may file a written grievance as described
in Step 2 of this article.
Step 2: If the grievance is not settled at the first step, the employee
representative shall prepare a written grievance and present it to the supervisor within
five (5) working days of the Step 1 decision.
Step 3: If the grievance is not settled at the second step, the employee
representative may appeal in writing to the Department Head within five (5) working
days of the Step 2 decision. If the Department Head is the immediate supervisor, Step
3 shall be omitted. The Department Head will further investigate the grievance and
submit his decision to the employee and his representative in writing within five (5)
working days after receiving notice of the grievance.
Step 4: If the grievance is not settled at the third step, the Union may
appeal in writing
to the Chairman of the Personnel Committee, with a copy to the Personnel Director,
within five (5) working days after receipt of the written decision of the Department
Head. The Personnel Committee shall discuss the grievance, within ten (10) working
days of the appeal, with the employee, and the Union representative shall be afforded
the opportunity to be present at this conference.
1. Time Limit: If a satisfactory settlement is not reached in Step 4, the
notify the Chairman of the Personnel committee in writing within ten (10) working
days that they intend to process the grievance to arbitration. . . .
6. Decision of the Arbitration Board: The powers of the Arbitration
Board are limited
as follows: Its function is limited to that of interpreting and applying the provisions of
this Agreement. It shall have no power to add to, subtract from or modify any of the
terms of this Agreement. The decision of the majority of the Board shall be rendered
promptly following the hearing and if exercised in accordance with the terms of this
Agreement and consistent with federal, state and local laws, shall be final and binding
upon both parties.
G. General Provisions:
1. Past Grievance: Past grievances may not be filed under the provisions
procedure and all grievances filed which bear a filing date which precedes or is the
same as the expiration date of this Agreement must be processed to conclusion under
the terms of this procedure.
. . .
ARTICLE XXII - ENTIRE AGREEMENT
A. Amendments: This agreement constitutes the entire Agreement
between the parties
and no verbal statements shall supersede any of its provisions. Any amendment or
agreement supplemental hereto shall not be binding upon either party unless executed
in writing by the parties hereto.
B. Waiver: The parties further acknowledge that, during the negotiations
resulted in this Agreement, each had the unlimited right and opportunity to make
demands and proposals with respect to any subject or matter not removed by law from
the areas of collective bargaining and that the understandings and agreements arrived
at by the parties after the exercise of that right and the opportunities as set forth in this
Agreement. Therefore, the City and the Union, for the life of this Agreement, each
voluntarily and unqualifiedly waives the right and each agrees that the other shall not
be obligated to bargain collectively with respect to any subject or matter specifically
referred to in this Agreement, or any subject or matters that arose during bargaining,
but which were not agreed to by the parties.
The Parties' Stipulation of Fact
At hearing (Transcript, Day One [Tr. 1] at 9-10), the parties stipulated to the
which underlie both Grievance 79 and Grievance 81:
1. On August 22, 1990, the Grievant . . . was an employee of the City assigned to the
position of Sanitation Worker.
2. On August 22, 1990, the Grievant injured her ankle which prevented her from
performing any work for the City and resulted in her being absent from work
commencing August 22, 1990.
3. From August 22, 1990 through May 23, 1991, the Grievant was restricted by
medical opinion from performing any work for the City.
4. On May 23, 1991, the Grievant's physician changed the Grievant's medical
restrictions from that of no work to that of allowing the Grievant to return to work
limited to light, sedentary work for an indefinite period of time. The Grievant
presented the updated medical information to her immediate supervisor, Tim Jacobson,
at his home that evening and requested light duty.
5. On May 24, 1991, the Grievant submitted a request for light duty to the City's
6. Beginning May 13, 1991, the Grievant began a period of paid leave utilizing
available vacation and sick leave. The Grievant's pay status continued until September
5, 1991, at which time her accrued paid leave benefits expired. The Grievant
submitted a request for an unpaid leave of absence dated August 20, 1991.
7. The City granted the request for a leave of absence through October 4, 1991.
8. On September 30, 1991, the Grievant submitted an additional request for leave.
request for leave was granted through October 25, 1991.
9. On October 23, 1991, the Grievant submitted an additional request for leave. Her
request for leave was granted through November 22, 1991.
10. On November 1, 1991, the Grievant submitted medical verification of her
continued inability to return to full work. In addition, the Grievant requested a further
leave of absence.
When the Grievant met Jacobson to request light duty work on May 23, 1991, she
accompanied by any Union representative. On May 23, 1991, Gary J. Eklund, the City's
then-incumbent Personnel Director, issued a letter to the Grievant which stated:
We received a copy of the May 13, 1991 letter from . . . Wausau Insurance
Companies relating to the on-going problems with your lower left leg. Due to the
determination of Wausau Insurance that the difficulties you are experiencing are not
work related, the City has placed you on sick leave effective May 13, 1991. . . .
The record does not establish when the Grievant received this letter.
On May 24, 1991, the Grievant brought her request for light duty to City Hall. Her
denied by the City, either through Eklund or its Director of Public Works, Mark Radtke.
prompted, on May 24, a discussion involving Eklund, Radtke and Jacobson. That discussion
produce any modification of Jacobson's denial of light duty. It did, however, prompt
which took place sometime in late May at the City's sign shop. Radtke, Eklund, Jacobson
and the then-incumbent President of the Union, Jim Card participated in this meeting. The
purpose of the meeting
was, at least in part, to determine whether the Grievant could work on signs for the City and
seated while doing so. Sometime, in all probability in late May or early June, 1991, Radtke
the Grievant's physician, Luther M. Strayer III, to determine the specific nature of the
would have to work under if she worked. Radtke contacted the Grievant prior to talking to
The City's denial of light duty prompted the filing of a grievance captioned by the
Grievance 1991-4. It was filed with the City at Step 2 on June 13, 1991. The grievance
form states the
"applicable violation" thus:
Article XI Authorized Absence, Section C Worker's Compensation. On Friday, May
24, 1991 (the Grievant) reported for work, in accordance with Article XI, Section C,
with a doctor's certification for light duty. (The Grievant) was not allowed to return to
The form states the "Adjustment required" thus: "Make employee whole." Jacobson
responded to the
written grievance in a memo dated June 18, 1991, which states: "This grievance is denied at
of the procedure provided by contract agreement."
The Union advanced Grievance 1991-4 to Step 3 in a form dated June 25, 1991.
received the form on June 26. Radtke issued a written response to the grievance in a letter
dated July 2, 1991, which states:
Grievance 1991-4 is inconsistent with 1035 Grievance 1990-001 dated March 27, 1990
at Step 2 of the Grievance procedure and resolved at Step 3 on April 30, 1990.
Grievance 1991-4 is denied as it was untimely filed; is denied as there is no violation
of the contract on its merits; and, is denied because it is not arbitrable on its merits. . .
Card responded in a letter dated July 9, 1991, to Donald Griesbach, the Chairman of
Personnel Committee. That letter states:
This letter is to inform you that we are currently proceeding to Step #4 of the
If it is agreeable we would like to hold this grievance in abeyance pending the
eligibility determination of the Workers Compensation claim filed by (the Grievant).
If this is not agreeable, please contact Mr. Gregory N. Spring . . .
Eklund did contact Spring and the two of them discussed Card's letter. Eklund
conversation in a letter to Spring dated July 17, which states:
. . . Due to the indeterminate length of such workers compensation appeals,
along with other considerations, it is not agreeable to the City to hold this grievance in
abeyance at Step 3. We understand you are proceeding to Step 4 of the Grievance
Procedure. . . .
In a good faith effort to resolve this matter, the City is willing to meet with
Local 1035 representatives to discuss a procedure for light duty work assignments for
any member of Local 1035 who has a medical restriction resulting from a non-work
injury or illness. Please contact me if you have any interest in arranging such a
The parties agreed to conduct the fourth step meeting on Grievance 1991-4 and several
grievances on August 20, 1991, which had previously been set for a meeting of the
Committee. Eklund summarized the results of this meeting in a letter to Spring dated August
On Tuesday, August 20, 1991, the City of Menasha Personnel Committee, in
conference with the grievants and Union Representatives, discussed four Local 1035
Step 4 grievances in accordance with Article XV.E. of the bargaining agreement and
decided as follows:
1. 1035 Grievance 1991-4 . . . Light Duty Work Grievance denied for the
reasons stated in the Department Head's written response at Step 3. . . .
Spring responded in a letter to Griesbach dated September 6, 1991, which states:
Be advised that the Union does not intend to proceed to arbitration on the
above-noted grievance. However, if it is later determined that (the Grievant's) injury is
work related, the Union retains the right to file a new grievance in the event that the
City does not make her whole for any and all losses. Based upon the City's
representations at the Step 4 meeting, the Union is hopeful that there may be no dispute
on this issue. . . .
Eklund responded in a letter dated September 17, 1991, which states:
The City of Menasha considers the above-referenced grievance to be satisfactorily
settled with prejudice pursuant to the arbitration and grievance procedures of
Article XV of the current collective bargaining agreement.
He concluded thus: "The City rejects the Union's claim to a retention of any right to
file a new
grievance in the future. . . ."
During at least the first three steps of the processing of this grievance, the parties
in collective bargaining for a labor agreement covering 1991. That contract was executed in
During or sometime after the negotiation of a 1991 labor agreement the Union and
separately to determine whether the City would modify its policy concerning the provision of
duty. Those discussions occurred sometime after the execution of the 1991 labor agreement,
in the fall or early winter of 1991. These discussions did not produce any modification of
policy on light duty.
In a decision dated January 13, 1992, an Administrative Law Judge for the Worker's
Compensation Division of the Department of Industry, Labor and Human Relations
determined that the
Grievant's injury was compensable under the Worker's Compensation Act.
The Union filed a grievance dated January 17, 1992, which repeated the "applicable
and "Adjustment required" sections of Grievance 1991-4. Jacobson responded in a letter to
January 21, 1992. That letter, headed "RE: Grievance 1992-2 (1991-4)" states:
There is no violation of the contract. This grievance is not timely filed. This matter is
not arbitrable. This grievance is denied.
The parties processed this grievance through the steps of the Article XV grievance
any resolution of the conflicting positions noted above.
On February 19, 1992, the parties executed a labor agreement in effect from January
through December 31, 1994. The parties did not make any change in the language of
The Events Leading to the Grievance
As noted above, the City placed the Grievant on sick leave effective May 13, 1991,
carrier of its Worker's Compensation insurance took the position that her injury was not
The Grievant's August 20 request for a medical leave of absence reads thus:
I am applying for a medical leave of absence to be made effective Monday,
1991. This request is being made because I am unable to perform my normal job
functions and the City will not allow me to return on a light duty basis.
Radtke responded to this letter in a letter to the Grievant dated August 29, 1991, which
This letter serves as confirmation of our telephone discussion two days ago regarding
your request for a leave of absence without pay. I indicated to you that your August 20,
1991 written request for leave of absence to be effective August 19 did not comply
with the 48 hour advance notice required by the labor agreement. It was also indicated
that our Department policy is such that no unpaid leave of absence will be granted
unless all of the employee's applicable paid leave allowances have been utilized.
Should you wish to pursue a leave of absence without pay to be effective upon the
exhaustion of all your paid leave time, please submit your request in writing at least 48
hours in advance of the effective date. In your request . . . please indicate the duration
of your requested leave and provide an updated prognosis for your unrestricted return
to work. My response to your request will be provided in a timely manner to allow you
to plan accordingly. . . .
Radtke ultimately approved the Grievant's request for an unpaid leave in a letter to the
September 4, 1991. In that letter, Radtke conditioned the approval on the exhaustion of the
"paid leave allowances." The letter noted that "this will occur at 2:15 P.M., Thursday,
1991." The leave thus granted commenced at that time and was continued "through
Friday, October 4, 1991." Radtke also noted that: "The need for extending your
leave of absence
beyond the approved leave period will be reviewed at that time and a determination will be
on the needs of the City."
The Grievant requested an extension of her leave in a letter to Radtke dated
1991, which states:
As per your instructions dated in a letter September 4, 1991, I am required at this time
to request an extension of my medical leave of absence, as my initial request for
medical leave expires October 4, 1991.
I would also like to advise you as I did in a previous phone conversation, that I no
longer am covered under any health or dental plan, as my financial situation doesn't
render this feasible.
I will await your approval of my medical leave.
Radtke responded in a letter dated October 11, 1991, which states:
Your request for an extension of your leave of absence without pay for medical reasons
as provided for in Article XI-G of the Labor Agreement is approved for the term
through Friday, October 25, 1991.
In order to consider extensions for leave of absence beyond that date, the City must
receive a complete written prognosis from your physician or a City chosen physician,
as to the expected return date for unrestricted duty as a Sanitation Worker. Such
prognosis shall be submitted to the Personnel Director, Gary Eklund, or me prior to
October 25, 1991. The need for further extending your leave of absence will be
reviewed at that time and a determination will be made based on the needs of the City.
. . .
In a letter to Radtke dated October 23, the Grievant requested an additional extension
unpaid leave. That letter states:
I am requesting an extension of my unpaid medical leave of absence, which expires
October 25, 1991.
As per our phone conversation dated 10/22/91, I explained to you that I am enclosing
the updated medical report from Dr. Strayer that was utilized at the Unemployment
Compensation Hearing. This report was dated 9-30-91, and is in fact updated from the
report presented to you in September. Due to the restricted time frame that you
imposed, I also explained that this information will have to be sufficient. As soon as
my attorney receives further updated information from Dr. Strayer, copies will be
forwarded to you.
As I stated before, it is unfortunate that I can no longer rely on your verbal
It seems regardless of what is agreed to, a different outcome is demanded. . . .
Radtke responded in a letter dated October 24, 1991, which states:
Your October 23, 1991 letter requesting an extension of leave of absence without pay
as provided in Article XI-G of the Labor Agreement is approved, with the below
conditions, for a term through Friday, November 22, 1991.
In order to consider any leave of absence extension beyond November 22, 1991, the
City must receive a detailed written medical prognosis from your physician on or
before November 15, 1991. This medical prognosis must specifically indicate whether
or not you will be able to perform the full duties of your Sanitation Worker position
without any restrictions on or before December 30, 1991 or a date certain when you
will be able to perform the full duties of the Sanitation Worker position without
restriction. The City retains the right to require a second medical examination and
opinion from a physician chosen by the City. . . .
The Grievant responded to this letter in a letter dated November 1, 1991, which states:
As per your instructions in your letter dated October 24, 1991, I am enclosing a copy
Dr. Strayer's notes, dated October 18, 1991. This is an updated prognosis, as you have
requested. I also believe it states that I will be unable to perform my full duties on or
before December 30, 1991.
Hopefully this will be sufficient for you. My next appointment is scheduled for
January 20, 1992. . . .
The notes referred to in this letter read thus:
6-4-91: Discussed her employment with Mark Radtke at City of Menasha and felt that
(the Grievant) could do light sedentary work which he (sic) might have to get up and
walk short distances infrequently, but have advised that she should not have to be
climbing up and down or walking long distances rapidly or doing anything which
requires frequent rapid push off with her sore tendoAchilles (sic). I think reason
prevail. . . .
10/18/91 . . . (The Grievant) is doing better. Today she has 10 degrees of dorsiflexion
of both ankles. She reports that the tenderness is improving. She has less discomfort
going up and down steps. Squatting however still gives her some discomfort in the
calf. She continues to use warm compresses and cold and Bufferin as needed. She is
able to walk now 15 or 20 minutes before she gets some burning discomfort in the
region of the tendo Achilles. A couple hours of rest will then improve her to the point
where she can continue walking. All in all she is gradually improving, slowly as
expected. We might expect her to continue improving for the next year or so.
Whether she can return to the jumping, running type activities which have brought this
on is problematical. We know that Marathoners with this type of a problem are often
able to return to running within 2 to 3 years after this type of injury, however it may
take them a year to get back up to speed and they probably never have quite the same
speed as they had had prior to injury. We are going to ask (the Grievant) to take 1/2
inch of raise out of both of her heels, both heel raises. Now she will have a little
greater excursion of the triceps while walking and as she continues to improve, we may
be able to take out another 1/2 inch in the next 3 months, at which time we will ask her
to schedule an appointment and we will re-examine her.
. . .
Radtke responded to the Grievant's request for an extension of unpaid leave in a
November 26, 1991, which states:
Your request of November 1, 1991 for extension of leave of absence due to medical
reasons is hereby granted for a period to expire at the end of the scheduled work day on
Friday, January 3, 1992. Granting this leave of absence is in accordance with the
provisions of Article XI.G. of the City/Local 1035 bargaining agreement.
A leave of absence may be granted subject to the work requirements of the City. Your
medical condition does not include a prognosis from your physician that appears
optimistic that you will be able to return to unrestricted work in your job as a Sanitation
Worker at any definite date in the future. The work requirements of the
City require that the position of Sanitation Worker be filled. Therefore, you are
expected to report to regularly scheduled work on Monday, January 5, 1992 with a
medical release to perform your normal job duties as a Sanitation Worker with no
restrictions. Such medical release must be presented to me in writing on or before
January 2, 1992. Your employment with the City of Menasha will be terminated
effective January 5, 1992 should you fail to report to work on that date under the
conditions specified herein. . . .
The Grievant responded in a letter dated December 30, 1991, which states:
In response to your letter dated November 26, 1991, I am attaching my current
restrictions from Doctor Strayer.
I guess since we were all aware that my physician would not release me free from all
restrictions, I have no choice but to submit this to you and request that you notify me
when you have work available that I can do within my work restrictions. . . .
The attachment to this letter included notes from her physician in addition to those
dated "6-4-91" and
"11-18-91" which are set forth above. The added notes are dated "12-19-91" and state:
(The Grievant) now has 15 degrees of dorsiflexion of both ankles. She still has
tenderness at her achilles tendon on the left but I don't palpate as much swelling as I
remember here in the past. Plus I think she is making slow, steady, gradual
improvement as we thought she might.
Apparently there is a push for her to be either restored to the ability to do her normal
job on the garbage truck or to be dismissed. At the present time, I think it would not be
in the patient's best interest to have her jumping up and down, on and off the truck, as
this activity as well as stair climbing still gives her discomfort. Plus I think we have to
keep her physical limitations the same as those that were described in the letter of 4,
October, to Mark Sewall.
Sewall was then the Grievant's attorney. In a memo dated January 2, 1992, Sewall
forwarded to the
City a copy of the October 4, 1991 letter referred to in Strayer's notes. That letter states:
I have received your letter of October 1 and hope I can answer your questions:
1) (The Grievant) has probably reached a healing plateau, but I do not know if
you can point to a specific date and say when this has occurred. It certainly
does not seem to have gotten much better or substantively worse after May up
through July, but I have not seen her since June of this year.
. . .
Certainly with her jumping on and off the sanitation truck involves a lot of repetitive
use of the Achilles tendon and such occupational injury is probably the cause of her
present problem as well as the persistence of the problem as she continued to work
with this discomfort before taken out of the work place.
3) (The Grievant's) permanent physical limitations at the present time would
involve not permitting those activities which require rapid forceful push-off of
the left leg which would be rapid walking, stair climbing, getting on and off a
garbage truck specifically or any other similar type of activity.
. . .
Radtke and Eklund met to discuss whether the Grievant's leave should be extended
beyond January of
They determined that the leave should not be further extended and confirmed this
in a letter to the Grievant dated January 6, 1992, which states:
The extension for your leave of absence due to medical reasons expired on
1992. The work requirements of the City require that the Sanitation Worker position
be filled. Because you did not comply with the conditions specified in my letter to you
dated November 26, 1991, your employment with the City of Menasha has been
terminated, effective January 6, 1992.
Thank you for the time and effort you have provided the Department of Public Works
during your years of service.
Evidence Regarding the Basis for the Termination
Eklund and Radtke testified that they concluded from the documentation submitted on
Grievant's behalf that she would be physically unable to perform as a Sanitation Worker for
indefinite period. She had already received the longest unpaid leave of absence they were
and they were reluctant to set the precedent of granting an unpaid leave of indefinite
of them considered the termination disciplinary in nature. It is undisputed that the Grievant
record of discipline at the time of her termination.
Eklund and Radtke testified that the termination helped maintain staffing levels within
Sanitation Department. Since February 14, 1991, the City had operated under an Executive
which the Mayor froze "all budgeted capital purchases and any hiring." Under the terms of
any proposed expenditure covered by the freeze had to be cleared by the Mayor's office
before it could
On January 13, 1992, an Administrative Law Judge determined that the Grievant's
work related. Hearing on that matter had been conducted sometime in November of 1991.
testified that he did have some doubt concerning the City insurer's decision that the
was not work related. Eklund and Radtke testified that the pendency of this matter played no
appreciable role in their decision to terminate the Grievant.
Throughout the period from the Grievant's injury until her termination, the table of
for the City Sanitation Department had six positions designated for employes classified as
Worker. During the Grievant's absence the City would staff the Sanitation Department by
least senior available member of the Common Laborer classification in the Streets
perform in the Grievant's place as a Sanitation Worker. Radtke testified that he felt this
could not be continued indefinitely without exposing the department to a loss of the
or unwanted overtime costs. He feared that the department's ability to cover the loss of the
would backfire if the City determined it could staff the department with five Sanitation
loss would, he stated, reduce the level of service or increase overtime costs.
The position vacated by the Grievant's termination was not posted until March or
April of 1992,
and not filled until perhaps May or sometime that summer.
Evidence Regarding Past Practice
The Arbitration Panel ruled that evidence on this point could include testimony
during the litigation of the dispute underlying the Grievant's eligibility, under Chapter 102,
receive Worker's Compensation. The parties jointly submitted portions of transcripts
during the course of that litigation before the Worker's Compensation Division of the agency
known as the Department of Industry, Labor and Human Relations.
Card has been employed by the City as its Sign Technician since October of 1983.
speaking, Card's position requires him to fabricate and install street signs. The fabrication
of the signs
is done in a sign shop. Some of that work is performed in a seated position, and is thus
assignment as light duty.
Over the years, Card has worked with a number of City employes assigned to the
while they recovered from work related injuries. Card estimated that between 1982 and
a dozen employes had been assigned to the sign shop while they healed from a work related
Throughout this period, the City maintained a policy of not providing light duty work
employes who had suffered a non-work related injury. None of the employes for whom the
assigned light duty work during this period had an injury in which there was no foreseeable
work date. The Grievant was assigned to light duty at one point in her employment when
her return to
work date was uncertain. That injury was expected to fully heal, however. The uncertainty
the precise date a return to work without restrictions would be possible.
The City attempted to alter its policy sometime in 1990 concerning what it then
viewed as the
non-work related injury of Mike Resch. When it became aware that the City was
Resch to light duty for what it perceived as a non-work injury, the Union filed a grievance.
Union's grievance asserted that any change in the implementation of the City's light duty
be bargained with the Union and that the City had wrongfully bargained with Resch as an
As a result of this grievance, the Union and the City attempted to bargain a change in the
duty policy. Those negotiations proved unsuccessful, and no change in the policy was
was not assigned to light duty during his recovery from this injury. He returned to work
after his injury
Resch was the beneficiary of the assignment of light duty for an injury which
sometime between 1989 and 1992. At the time, Resch was on crutches, and could only
sedentary work. The City assigned him light duty in the sign shop until he was able to
return to his
normal duties. His recovery from the injury was of a short duration. This is the only
example of City-assigned light duty for an employe unable to walk as a normal facet of job
In 1990, the City and the Union confronted another situation which tested City policy
the assignment of light duty. In that case, Ray Fank injured his wrist and was assigned to
work in the sign shop. His only work restriction was that he could not plow snow.
after Fank had been assigned to light duty in the sign shop, the City's insurer took the
position that the
injury was not work related. Fank asked Jacobson to continue him in light duty because of
restrictions. The City agreed to do so, and assigned him light duty, including training of
in snow plowing. The City did not agree to continue Fank on light duty until after it had
agreement on the point with the Union.
In testimony concerning City practice, Card noted that there was always work
available in the
sign shop, but not necessarily always available for an employe unable to walk. He also
workload in the sign shop was very heavy in May of 1991. That workload included, by his
a backlog of sedentary work sufficient for one to two months. The Union supported the
individual request for light duty throughout 1991 and 1992, even though, as Card
acknowledged, the Union's position on the Resch grievance and the Grievant's
arguably inconsistent and the Union was unable to reach agreement with the City on the
governing the assignment of light duty for non-work related injuries.
Radtke, Jacobson and Ecklund testified during the Worker's Compensation litigation.
testified that the City did not assign the Grievant to the sign shop because there was no
agreement to vary City policy to extend to a non-work injury; there was no reason to believe
recover sufficiently to return to work; City management believed accommodating her
restrictions in the sign shop would detract from the efficiency and safety of the sign shop;
assigning her to the sign shop would restrict the City's ability to assign full-time workers to
on inclement weather days.
It is undisputed that the Grievant was qualified to perform work in the sign shop.
On January 7, 1992, the Union filed a written grievance numbered 1992-1. The
states the "applicable violation" thus:
Article VII Suspension, Demotion, & Discharge
On Jan. 5, 1992 (the Grievant) was discharged without just cause.
The grievance form states the "Adjustment required" thus: "Make employee whole for
any & all losses
. . . Reinstatement at previous position."
The parties processed the grievance, without any resolution, through the steps of the
procedure. Eklund's written statement of the City's denial of the grievance at Step 4, dated
28, 1992, reads thus:
. . . The grievance is denied as not timely filed, not arbitrable, and that there has been
no violation of the bargaining agreement. Please also note that since there is a dispute
pending pursuant to section 102.35(3), Stats., the worker's compensation remedy
represents the exclusive recourse regarding this matter.
Please also note that (the Grievant's) termination was not for disciplinary
reasons. As you know, the termination resulted based upon (the Grievant's) continued
unavailability for work, her continued inability to perform her job as well as her having
no reasonable expectation as to when she would be able to return to work. . . .
Finally, please also note that in the event (the Grievant's) condition changes,
she should contact the City and she will be considered for priority rehire based upon
her qualifications to perform available, open positions within the City and within her
Further facts will be set forth in the DISCUSSION
THE PARTIES' POSITIONS
The City's Initial Brief
The City states the issues for decision thus:
1. Was Grievance 1991-4 timely processed in accordance with the timelines of the
collective bargaining agreement?
2. Does Grievance 1992-2 represent a grievance distinguishable from that of
1. Did the City's decision to terminate the Grievant violate the collective bargaining
The City contends, initially, that Case 79 should be dismissed as untimely filed and not
Grievance 1991-4 was untimely filed at several steps. The Grievant advanced that grievance
requesting light duty from her supervisor on May 23, 1991 and by requesting light duty from
personnel office on May 24, 1991. Each request was denied on the day of the request. The
that "(i)f those dates do not represent the dates of Step 1 grievances, then there are none."
filing of a Step 2 grievance on June 13, 1991, cannot, according to the City, be considered
Article XV, Sections C and E.
Even if the Step 2 filing could be considered timely, the City argues that the Union's
filing on June 26, 1991, violates Article XV, Sections C and E. Beyond this, the City
argues that the
Union's attempt to unilaterally hold the grievance in abeyance establishes a violation of
Sections D and G.
Since Grievance 1992-2 "represented exactly the same grievance earlier abandoned by
Union," the City concludes that it is no more arbitrable than its predecessor. Even if the
could be considered arbitrable, the City contends that it has no merit: "there simply was no
work for the Grievant; therefore, requiring light duty would not be logical."
Beyond this, the City contends that Article XI, Section C, unambiguously states a
provision for certain injured employes and a light duty requirement which turns on the City's
determination that such work exists. Since the evidence establishes that the City made the
whole as required by Worker's Compensation, and since it also establishes the City did not
Grievant to report for light duty work, it necessarily follows that there can be no violation of
Section C. Nor can there be a violation of Article XI, Section G, since "leaves without pay
discretionary to the City." To the extent any ambiguity can be found in these provisions,
bargaining history supports denial of these grievances." The Union unsuccessfully attempted
the City's authority to "provide light duty and leaves without pay in negotiations for the 1991
bargaining agreement." There is no applicable past practice on either issue and Article XXII
limits the role practice can play in the interpretation of the labor agreement. A contrary
violates Article XV, Section F, 6.
Nor did the City violate the labor agreement by terminating the Grievant's
the termination was not disciplinary in nature, Article VII does not govern it. The
reasonably based on the City's desire to preserve its table of organization and to avoid
overtime costs. Thus, the termination "was not disciplinary, but for the viable economic
needs of the
Even if Article VII could be applied to the termination, the City had cause to
Grievant. Due to the Grievant's medical inability to return to work, the termination did no
"relieve (her) from duty . . . (for) legitimate reason" as provided in Article II, Section A.
is, the City asserts, firmly rooted in arbitral precedent.
The City concludes that each grievance should be denied.
The Union's Initial Brief
The Union phrases the issues for decision thus:
1. Did the Employer have just cause to discharge the Grievant on January 5, 1992?
2. Did the Employer violate the terms of the collective bargaining agreement by
to extend the Grievant's leave of absence beyond January 5, 1992?
3. If either 1. and/or 2. is yes, what is the appropriate remedy?
After an extensive review of the evidentiary background, the Union argues that the
termination is governed by Article VII. This, the Union contends, is rooted in the language
agreement and in arbitral precedent. Because the termination is governed by a cause
Union asserts that the Grievant was entitled to progressive discipline, reasonable investigation
conference prior to the imposition of discipline.
The Union also argues that the City is limited, under the cause standard, to the
reasons for the
termination listed in the Grievant's letter of discharge. This means that the discharge must
traceable to "the work requirements of the City." The evidence will not, however, support
such a link.
The City faced no budget crisis at the time of the discharge, and had more than adequately
the Grievant's absence. Beyond this, the Grievant's "sanitation position was budgeted for
and 1992," thus belying the assertion that the City's table of organization faced any imminent
A review of the evidence establishes, according to the Union, that the City "has
crisis to expel the Grievant." That fabrication is intended to mask that "the City was
(the Grievant's) eligibility for benefits under the contract." That the City acknowledged the
of the challenge to the Grievant's eligibility for Worker's Compensation benefits underscores
assertion. The termination decision was dictated not by City operational needs, but by the
the Grievant's Worker's Compensation action and by evidence of her gradual healing.
That the Grievant has experienced a permanent partial disability cannot, under
precedent, be considered to thwart the application of just cause principles. Neither arbitral
nor contract language can support an interruption of the Grievant's seniority prior to her
paid vacation, leave and temporary total disability leave on September 5, 1991. Beyond this,
argues that even if the Grievant's seniority can be considered to have been interrupted, she
to at least the same seniority considerations as laid off employees." No termination of
seniority can be
considered for cause if it occurs within the contractually specified period for recall rights
under a lay
Nor has the City proven how the Grievant can be considered not to qualify for the
provisions of Article XI, Section C. That the City failed to provide light duty for her has no
their liability to make up the difference between her normal weekly wage and any Worker's
Compensation payment. Nor has the City demonstrated any hardship demanding it to
The Union concludes that "the Arbitration Board (should) sustain the grievance and
The City's Reply Brief
The City argues that the Union's review of the evidentiary background
inaccurately cites evidence not of record. This violates fundamental notions of due process,
of the Interim Award, and exacerbates the "(l)engthy, unfortunate but necessary litigation
already occurred in this case to protect the City's rights."
More specifically, the City contends that the Union inappropriately expands
from an issue of "the Grievant's request for light duty," to "an issue regarding the difference
workers compensation pay and regular pay." Beyond this, the Union has cited material from
companion litigation as if that material was evidence in this proceeding. The citation of this
"evidence" is inaccurate, improper and egregious.
The City then contends that the Union willfully failed to establish "whether Grievance
was timely filed at Step 2 on June 13, 1991," because it recognizes that the answer to that
its grievance. A review of the record establishes "that Grievance 1991-4 was definitively
least by May 24, 1991." Beyond this, the City contends that Grievance 1991-4 was
withdrawn by the
Union and must, therefore, be denied here.
The City notes that the Union never contended that Grievance 1991-4 and 1992-2
"continuing grievances" until the filing of its initial brief, and concludes that the Panel's
of this argument flies in the face of the Interim Award and the parties' agreements
underlying parts of
that award. Even if this contention could be considered posed on this record, the grievances
considered "continuing grievances." The labor agreement has language precluding such a
and arbitral precedent does not support it. Since Grievance 1992-2 duplicates Grievance
deserves the same denial. The Grievant has been made whole as required by Article XI,
Section C, and
the City is under no contractual obligation to create work for her. Neither language nor
support the remedy the Union seeks.
Nor has the Worker's Compensation Division decision of January, 1992, been shown
any bearing on the Grievant's termination. That decision does no more than confirm that the
had no reasonable expectation of returning to work as a sanitation worker. Nor has the
demonstrated how the City could have saved money by terminating the Grievant. The record
establishes only that the City's operational needs dictated that the position once occupied by
Grievant needed to be filled by a worker capable of performing the required work.
Arbitral precedent may indicate some arbitrators have refused to permit the
seniority of injured workers, or have conditioned such a termination on contractual recall
precedent also establishes that it is appropriate for an employer to sever the employment
of an employe incapable of performing their job. More significantly here, the implication of
rights would void existing contract provisions and would fly in the face of the parties'
history. Article V, Section E, Subsections 2 and 3 specifically provide for the
termination of the Grievant's seniority. Beyond this, the evidence shows the Union
tried and failed "to
bargain recall rights and limit the City's ability to determine light duty assignments and
leaves of absence."
The City concludes that "these grievances are without merit and should be denied."
The Union's Reply Brief
The Union notes that the City improperly failed to question the timeliness of the
Step 3 grievance until the filing of its initial brief. Since the burden of proving a procedural
"rests totally with the City," the Union concludes that any lack of clarity on the date of the
filing of the
light duty grievance must be resolved against the City. Beyond this, the City's arguments
ignore that at
the time the City contends a grievance should have been filed, "the parties were supposedly
to find light duty for" the Grievant. Thus, the City's contention does no more than
"premature and unnecessary litigation."
The same effect can be noted regarding the City's attempt to characterize the Union's
desire to hold the grievance in abeyance pending the outcome of Worker's Compensation
litigation. Thus, Grievance 1991-4 must be considered properly before the Arbitration Panel
should be sustained, with the award of an "appropriate remedy."
Beyond this, the Union asserts that the City "has not correctly analyzed the
presented in the instant case nor properly applied material contract provisions and arbitral
The termination posed here is more than a denial of an unpaid leave. It represents the
severance of the
employment relationship. It must, then, be treated under the principles of just cause. That
engaged in negotiations concerning light duty shows no more than an attempt to resolve a
which, as an offer of compromise, "cannot be considered in arbitration." That the language
unchanged does not defeat the Union's grievance because the grievance seeks that the
enforced as written.
The City has also mischaracterized the scope of the contractual provisions governing
grievance. Citations to the layoff portions of Article II have no bearing on the grievances.
to read Articles V and VII as inapplicable because discipline is not at issue is unpersuasive.
this, the City has taken provisions within Article VII out of context in a vain attempt to
direct impact of that provision on the grievances. Nor does Article V fare any better under
view. Subsection E, 2 is clearly applicable, but the City's attempt to employ Subsection 3
is, at best, a
strained reading of that provision and is in any event irrelevant since the discharge letter
citation to it.
A review of the evidence cannot support a conclusion that the City's operational
the Grievant's discharge. Those needs, according to the Union, manifest no more than an
attempt to shield the City from the appropriate application of the principles of just cause.
establishes that the City deferred to the weak case of its insurance carrier and
in so doing allowed the Grievant to be cut off from supplemental benefits and light
duty work. Beyond
this, the City treated the Grievant's use of paid leave as if it was a request for unpaid leave.
egregious actions, the Union concludes, demand that the Arbitration Board "sustain the
order appropriate remedy."
The first five issues stated above are drawn from the Interim Award. The sixth issue
merits of the two grievances, and reflects that evidence was taken on the procedural and
issues posed by the grievances.
The Interim Award noted that the first three questions turn on the date "of the Step 1
Jacobson denied the Grievant's request for light duty on May 23 and his denial was
Eklund or Radtke on May 24, 1991. The Union questions whether either response can be
a denial of a Step 1 grievance, particularly when the City met later that month to determine
had light duty work which could be assigned to the Grievant. Beyond this, the Union asserts
uncertainty on this point must be resolved against the City.
The Union's contentions cannot, however, establish any date for the Step 1 denial.
filed a Step 2 response on June 13. Contending the grievance was still being discussed
why it advanced to Step 2. It is, on this record, impossible to reject the City's contention
that its May
24 confirmation of Jacobson's May 23 denial is the latest date fixing the Step 1 meeting.
Step 2 of Article XV, Section E, demands that a Step 2 response be filed "within five
working days of the Step 1 decision." The Union filed the Step 2 response on June 13, well
five working day time limit. Grievance 1991-4 was not, then, timely filed at Step 2 on June
The City also questions whether the grievance was untimely filed at Step 3 on June
contention poses no issue beyond that noted above. If Jacobson's June 18 response is
date triggering the five day time limit, the City's contention must be accepted. However,
Section E, Step 3 states that "the employee and/or his representative may appeal in writing."
addressed his June 18 response to the Grievant "c/o Jim Card." It is not clear when either
Card or the
Grievant received this response or when, if at all, the two of them met to consider it. Nor is
whether the two of them could have met within the time limits asserted by the City. Against
background, it is impossible to apply the time limits as the City urges. Doing so could read
employee-representative conference permitted by Step 3 out of existence.
The next issue is whether the untimeliness of the Step 2 filing precludes arbitral
of its merits. Article XV, Section C states that time limits "may be extended by mutual
writing." No such writing has been submitted into evidence and an award by this Panel
up for its absence. Section C does not, however, expressly preclude arbitral consideration
merits of a grievance. Section D notes "(d)issatisfaction is implied in recourse from one step
next," and the parties continued to discuss the grievance. This does not establish arbitral
to hear an untimely grievance, but would indicate the propriety of such review should be
the facts of each case. Because of the lengthy and tortured history of this grievance, a
review of the
merits of the grievance should not be lightly denied. It is, then, the opinion of the Panel that
procedural defect of the grievance at Step 1 should be considered part of the review of its
than a rejection of such review.
The next issue is whether Grievance 1991-4 has been withdrawn subsequent to Step
withdrawal is contractual, not factual in nature. Spring's letter of September 6 establishes
Union never withdrew the grievance. Spring's letter could be read to indicate either that the
hoped the matter could be held in abeyance as sought in Card's letter of July 17, or that the
considered the issue one which could be re-asserted after the Worker's Compensation
addressed the matter as a statutory matter. Eklund's September 17 response establishes that
rejected both interpretations.
The asserted withdrawal of the grievance turns on the provisions of Article XV,
Section G, 1,
which states that "all grievances . . . must be processed to conclusion under the terms of this
procedure." There is no dispute that Grievance 1994-1 was filed in June of 1991 and that
has an expiration date of December 31, 1991. Thus, grievance 1991-4 falls within the scope
XV, Section G, 1. Since there was no joint agreement to hold grievance 1991-4 in
abeyance, the issue
becomes whether the Union's unilateral action can effect this result.
The most troublesome aspect of this issue is the City's contention that the grievance
held in abeyance coupled with its contention that Worker's Compensation issues cannot be
arbitration. The assertion that Article XV, Section G, 1 requires prompt arbitral adjudication
grievances is irreconcilable to the assertion that an arbitrator cannot resolve Worker's
based issues. If the Grievant's entitlement to compensation or light duty under Article XI,
turns on whether her injury was work-related; if only the Worker's Compensation Division
determine this issue; and if such a determination could not be made within the term of the
agreement, then strict application of Article XV, Section G, 1 is incompatible with the
Worker's Compensation issues must be resolved outside of arbitration.
This dilemma cannot, however, affect the application of Article XV to Grievance
permit the Union to unilaterally hold that grievance in abeyance is not reconcilable to the
that "all grievances . . . must be processed to conclusion under the terms of this procedure."
1991-4 must, therefore, be considered withdrawn under the terms of Article XV, Section G,
receiving Eklund's September 17 letter, the Union could have
chosen to force the matter to arbitration under the terms of the 1991 agreement or to
refile the matter
after the Worker's Compensation Division had addressed the underlying statutory issues.
cannot persuasively be read to grant the Union the authority to unilaterally hold a grievance
abeyance beyond the effective term of the governing labor agreement.
The issue thus becomes whether Grievance 1992-1, which restates the allegations of
is a new grievance and, if so, whether it can be considered timely filed. The City contends
it restates an abandoned grievance, it must meet the same fate.
The City's contention cannot be considered persuasive. During the processing of
1991-4, the City asserted the matter was not arbitrable. This may mean not arbitrable
or not arbitrable because an arbitrator cannot determine the statutory entitlement to Worker's
Compensation. While the reassertion of Grievance 1992-1 cannot cure the untimeliness of
1991-4, this does not make it possible for the City to unilaterally deny interpretation of the
Article XI, Section C. If the City's arbitrability concerns are that an arbitrator cannot
statutory issue whether an injury is work-related, then its interpretation of Article XV
becomes a bar to
arbitral enforcement of Article XI. This an unpersuasive reading of Article XV. That the
determination could not be made within the term of the 1991 labor agreement is not traceable
act or neglect on the Union's part. To accept the City's assertion would be to permit it to
determine, under the contract, if the Grievant's injury was compensable as a Worker's
matter. The City's May, 1991 change in view on the underlying cause of the Grievant's
her entitlement to light duty and to supplemental pay under both the 1991 and the 1992
say the second grievance is the same as the first is to say the City can unilaterally preclude
Grievant's entitlement to contractual benefits under the 1992 contract by asserting that events
the control of the Union did not occur in 1991. This effectively renders the rights of Article
Section C meaningless.
Thus, when the Worker's Compensation Division overturned the City's determination
injury was not compensible, the Union faced a situation unlike that posed in 1991. In 1991,
Grievant's eligibility for light duty posed the disputed fact whether her injury was work
1992 grievance posed no such disputed fact. In light of the City's challenge to the
Grievance 1991-4, Grievance 1992-1 must be considered a separate grievance. The
Compensation Division's Examiner's decision is dated January 13, 1992. The Union filed
1992-2 on January 17. It was, then, timely within the meaning of Step 2 of Article XV,
Article XI, Section C consists of two sentences, each addressing a separate right.
sentence addresses payment of a "wage differential," and the second addresses the possibility
duty work. The light duty component poses no issue addressable here. The provision of
would appear discretionary with the City in light of the reference to "as required" in the
sentence of Article XI, Section C. Even if this was not the case, the City discharged the
January 5, 1992. Thus, the issue of light duty begs the question of the propriety of the
Grievance 1992-2 poses no apparent interpretive issue concerning the provision of a
differential based on the first sentence of Article XI, Section C. This issue must also be
regarding Case 81. It should be noted here, however, that there is no persuasive evidence to
the City's contention that the parties discussed Grievance 1992-2 as an issue of entitlement to
duty. Nor is there any persuasive evidence to overturn the City's contention that the
compensation period for Worker's Compensation payments ended in May of 1991. Against
background, it is impossible to find a City violation of Article XI, Section C.
The path to the merits of Grievances 1991-4 and 1992-2 is tortuous, but does not lead
to a City
violation of Article XI, Section C.
The issue adopted above broadly addresses the Grievant's "termination." This term
from the Grievant's discharge letter. The issue is broad to reflect that the parties dispute
of the contract governs it. The first interpretive issue is, then, to determine what portion of
governs the Grievant's termination.
The Union's contention that the cause provision of Articles II and VII must be
termination is persuasive. Article II refers to "cause" while Article VII refers to the "proper
This does not, however, introduce an ambiguity requiring resolution concerning the cause
"The term 'just cause' is generally held to be synonymous with 'cause,' 'proper cause,' or 'reasonable
cause.'" Hill & Sinicropi, Management Rights, (BNA, 1986) at 99.
There is no dispute that the termination is not disciplinary. Thus, the application of
the termination is debatable, since it is typically applied as a standard of discipline. The
contention that Article II, Section A, establishes a distinguishable, non-disciplinary standard
the termination by authorizing it to "relieve employees from duty because of . . . legitimate
not, however, persuasive. Article V, Section E, is a comprehensive listing of the events by
employee's seniority can be terminated. Unless the final clause of Article II, Section
A is read as the
authority to lay off, it is not sufficient to terminate the Grievant's seniority. It is apparent
that the City
regards the termination as a severance of the employment relationship. Its citation of Article
Section A is inconsistent with this view, and its assertion that the final clause of that
support a permanent severance of the employment relationship is unpersuasive. Nor does
Section G, 2, afford a standard other than cause. That the City cannot be compelled to grant
without pay stops short of establishing when or how the employment relationship is severed.
That the cause standard is more typically applied to disciplinary situations may be
cannot obscure that the labor agreement points to broad applicability of the standard.
cause is included in Article V, Section E. Applying it to the Grievant thus avoids creating a
in a provision structured to have comprehensive coverage. Beyond this, breadth of
apparent in Article VII. Section D refers not only to "discharge" but also to "dismissal."
Section D does not expressly tie a reference to "disciplinary" to either term. The
of Section E are "Usual Disciplinary Measures," not exclusive steps. Reading
Article VII in this
fashion is consistent with Article V and Article II. The "legitimate reason" clause would
to govern relief from duty for periods of time not constituting a complete severance.
thus addresses the distinct authority to sever the employment relation-ship.
Applying the cause standard to the Grievant requires, in the Panel's opinion, that the
establish that the Grievant was unable to work at the time of her discharge; that the City had
reasonable expectation that she could return to work; and that the discharge did not
agreement provisions. The record establishes that the parties' dispute focuses on the latter
two of these
factors, particularly the third.
As reflected in the Interim Award, litigation prior to this proceeding establishes that
Grievant was not physically able to perform the duties of her job as sanitation worker on
1992. While the Union contends the Grievant's condition was improving, the evidence
basis to conclude the City had, in January of 1992, any reasonable expectation she could
return to work
as a sanitation worker. The Union points to Strayer's notes of October 18, which do note
"is doing better." That report, however, is guarded at best about her prospects of returning
She is noted to be "gradually improving, slowly as expected." This improvement, however,
expected over "the next year or so." Nor is the improvement pegged to a level sufficient to
to work: "Whether she can return to the . . . activities which have brought this on is
Strayer then speculates that such a return may never occur, or may take two to four years to
The December 30 notes add nothing to this prognosis. The injury prompting this course of
dates to August of 1990. The City's conclusion that it had no reasonable expectation that the
could return to work cannot, against this background, be viewed as unreasonable.
This conclusion poses the most troublesome aspect of the termination, which is
undermines other agreement provisions. The Union contends the reasons stated for the
the January 6, 1992 letter are pretextual. The assertion that City work requirements required
of the Grievant's position is belied, according to the Union, by the City's delay in filling the
and by the fact that it had successfully accommodated her absence for some time. That her
was funded for 1991 and 1992 belies the assertion that the hiring freeze necessitated swift
preserve the position in the City's table of organization.
The alleged improper motivation behind the termination is the City's desire to avoid
contractual liability under Article XI, Section C. Under this view, the City's challenge to the
Grievant's eligibility for Worker's Compensation froze its obligation to supply the wage
between her normal wages and her benefit level. As the matter neared resolution by the
Compensation Division, the City determined it had to be rid of her prior to any order
eligibility for Worker's Compensation.
The Union's arguments, although forcefully made, are unpersuasive on this record.
apparent that the City faced an open-ended liability to pay the Grievant the wage differential
in Article XI, Section C. The liability the City owed the Grievant for her period of
disability is not disputed and apparently paid. It is not immediately apparent what the City
owed the Grievant under that section for any period after she was found to have a permanent
disability. The City's potential liability to the Grievant for contractual benefits thus would
afford it little incentive to fabricate the basis for her discharge. That Eklund openly admitted
potential weakness of the City Insurer's case makes it difficult to conclude the City acted in
toward the Grievant. In any event, once its case had been lost, it is not apparent what
liability it sought
to forestall by discharging the Grievant. Whatever liability that decision put upon the City
included its costs of litigation and it is not apparent that the City saved money by challenging
Nor is it apparent that the City undermined Article XI, Section C by failing to offer
Grievant light duty work. Article XI, Section C, provides such duty for an employee "as
The City never required such work of the Grievant, and it is unproven that it was obligated
to do so.
Evidence of past practice supports the City's claim that providing such work for the Grievant
have contradicted the resolution of a prior grievance. Beyond this, evidence of practice falls
demonstrating the City had an obligation to create work for the Grievant. The City's
assertion that her
injury precluded her effective performance of light duty work in the sign shop stands
Card met with Eklund, Jacobson and Radtke to discuss this point at the sign shop makes it
conclude that the City did not consider her request in good faith. The Union's contention
consideration precludes finding Grievance 1991-4 untimely underscores this conclusion.
The record fails to establish what the City gained by terminating the Grievant prior to
January, 1992 decision of the Worker's Compensation Division. Whether the Grievant had
terminated immediately before or after that decision, the contractual issue remained the same.
either event, the issue turns on whether she could reasonably be expected to return to work.
The Union contends that the termination was precipitous, and undercuts the
under Article V. Under this view, the City's actions undermine the seniority rights of
Section A, and
the recall rights of Sections D and E. This contention assumes that these provisions create
from these sections, but distinguishable from the language of any one of those provisions.
one year recall period stated at Section E, read with the "continuous service" reference of
establishes that the City should not have terminated the Grievant prior to one year past the
date of her
exhaustion of any contractual paid leave benefit. This is something other than a strict recall
such a right would, under Section D, have been extinguished at any time when the Grievant
return upon being recalled."
This contention is the most troublesome raised by the Union. It is apparent the City
applied the contract as the Union asserts. The fundamental problem posed by the argument
is that the
issue before this Panel is whether the City can be compelled to so interpret the contract.
The cited agreement provisions fall short of establishing an enforceable right. The
City did pay the
Grievant her accrued leave benefits. It offered leave without pay which is, under Article XI,
G, discretionary with the City. She was in fact afforded an unprecedented level of leave.
sought by the Union would require the Panel to create a right not previously agreed to by the
Such a result is unpersuasive under Article XV, Section F, 6.
That the City did not swiftly fill her position and has not definitively established an
unwarranted amount of overtime traceable to her absence are troublesome facts. As the
contends, these facts afford reason to question the City's citation of pressing work
demanding the Grievant's termination. However, no less troublesome is the Union's
the Grievant's individual rights warrant actions up to and including threatening staffing levels
the sanitation department. Presumably, the City's management of its enterprise involves an
of staffing beyond that necessary to make day to day adjustments to cover the Grievant's
The Grievant cannot be faulted for her injury or for its unpleasant aftermath.
compelling the City to indefinitely extend the employment relationship cannot make the
injury or its
effects go away. The contract permits the City to discharge for cause. The record supports
conclusion that the Grievant was unable to work as a Sanitation Worker on January 6, 1992;
City had no reasonable expectation that she could return to work; and that the termination
undermine other agreement provisions.
THE MAJORITY VIEW OF THE
The delay in the issuance of this decision reflects the Panel's attempt to reach a
on the grievances. The effort has not, as could be expected, generated consensus. Hopefully
however, the effort has resulted in the full airing of long-litigated issues. The following
are offered not to refute the well-stated positions of the dissent, but to clarify why, in the
opinion, they are not persuasive on this record.
That the terms of a labor agreement must be harmonized to give each their effect
granted, as must the assertion that the labor agreement does not give the City the unilateral
authority to terminate the Grievant's seniority at whim. The strength of these broad
cannot, however, obscure that the Grievant was afforded longer to heal than a laid off
contractually afforded to reclaim a position. Nor can it obscure that the Grievant received
longest leave afforded by the City. The assertion that her "layoff" period should have begun
earlier than January of 1992 is difficult to read as anything other than an assertion that she
indefinite period to reclaim employment. This conclusion
creates, rather than harmonizes, contract provisions. More significantly,
it is not apparent how the
conclusion can be harmonized with the provisions of Article XI, Section G or with those
of Article V which restrict recall rights to one year.
The dissent's position on Case 79 is closely intertwined with Case 81, and is the most
troublesome aspect of this case. Roughly speaking, the dissent argues that the City cannot
terminate the Grievant's seniority based on a compensable injury, then deny her the benefit
Article XI, Section C wage supplement for employes "receiving Worker's Compensation
The strength of the dissent is that the City, having contended Worker's Compensation
issues are statutory, cannot now deny that the January, 1992 decision statutorily invoked the
differential provisions of Article XI, Section C. The dissent properly notes that the Interim
questioned whether Grievances 1991-4 and 1992-2 litigated the Grievant's entitlement to light
duty, to a pay supplement, or to both. The dissent urges that any Worker's Compensation
whether for temporary total disability or for permanent partial disability, entitled the Grievant
The interpretive issue is whether, within the meaning of Article XI, Section C, the
was "receiving" benefits during the period between May 24, 1991 and her termination. The
appears to view the Grievant's Article XI, Section C entitlement to have ended when her
temporary total disability became a right to permanent partial disability. The latter
paid as a lump sum, arguably does not fall within the meaning of "receiving" benefits over
contemplated by Article XI, Section C.
The factual and contractual issue is whether the Grievant was "receiving" Worker's
Compensation between May 24, 1991 and January 5, 1992. From the perspective of the
the weakness of the evidence on this point requires the denial of the grievance.
Indicative of this weakness is Ecklund's testimony that the City complied with the
Examiner's decision by paying temporary total disability through May 23, 1991 (Tr. I at 72).
added that the City has not made payments to the Grievant for the period following
May 23, 1991.
Whether the Grievant was "receiving" benefits in this period thus rests on arbitral inference,
proven fact. The basis for this inference is tenuous on a general and on a specific basis.
On the most general level, Article XI governs light duty and pay supplement. Both
grievances underlying Case 79 mention light duty, but neither mentions pay supplement.
Interim Award noted the potential significance of the parties' discussions
in processing the
grievance, but the record contains no persuasive evidence of substantive discussion of the pay
supplement issue. Thus, throughout the grievance process, the parties addressed light duty.
Even if this general weakness is ignored, more specific difficulties arise. The
not receive periodic Worker's Compensation payments between May 24, 1991 and her
What evidence there is on the point indicates the claim the Grievant could make for this
based on the permanent partial disability payment ordered by the Examiner. Even ignoring
evidentiary dispute regarding the Examiner's decision cannot obscure the difficulties
the inference the dissent makes. Was this payment a lump sum payment? If not, what
rebuts Ecklund's testimony? If so, can "receiving" include a lump sum payment? Did she
any payment? Can whatever payment she did receive or should have received be considered,
within the meaning of Article XI, to cover the period from May 24, 1991 through January 5,
The dissent, unlike the majority, is willing to make the inferences necessary to establish the
existence and the contractual significance of these payments. From the majority's
those inferences cross the line between interpretation and advocacy.
This should not be read to state the record was somehow deficiently developed.
record reflects how Case 79 was processed. Case 79 was processed as a light duty dispute.
Presumably, this reflects the Union's significant and ongoing effort to preserve the
position in the unit. The difficulty is that this effort is not contractually reconcilable to the
to secure the pay supplement the dissent seeks here. The latter effort presumes a permanent
disability while the former presumes a temporary disability. The City, after the exhaustion
Grievant's paid leave, afforded her a series of unpaid leaves. There is no evidence that this
conduct violated the contract. It must, then, be considered an appropriate exercise of Article
Section G. The position asserted by the dissent thus overturns conduct not shown to have
the agreement. This is not an untenable position, but it needs a contractual basis. The
posed by adopting the dissent's position is that the attempt to keep the Grievant in unit status
long as possible appropriately extended the healing period. Once the healing period proved
unsuccessful, however, the dissent's position turns the provision of unpaid leave into a trap
unwary since the pay supplement would be paid for the time the parties attempted to secure a
healing period. This would appear to undercut the effort to secure unpaid leave for
workers, since refusing unpaid leave in questionable cases would insulate the City from
pay supplement claims. The policy basis for this conclusion is less significant, as a matter of
contract interpretation, than its contractual basis. The compensation the dissent seeks under
XI, Section C, overturns unpaid leave appropriately granted under Article XI,
Section G. This may
be a defensible conclusion, but lacks an evidentiary basis in this record. If the City's
the Grievant's injury was not work-related reflected bad faith, the
result could change. However, the City's determination, although
controversial, was made in good
faith. Ecklund's candid acknowledgment of his concern with the conclusion of the City's
It is important to restrict this conclusion to the facts posed here. Whether Article XI,
Section C, can support a wage differential based on employe receipt of permanent disability
payments must be left to the parties to bargain or to litigate on the facts of each case.
the ability of an employe to return to work has a direct and case-by-case bearing on the
The majority opinion should not be read to imply that the City avoids Article XI,
payments by terminating an employe. The just cause provision and Chapter 102 preclude
action. More to the point, the majority does not deny the grievance in Case 79 because the
discharged the Grievant prior to the Examiner's decision. Rather, the majority denies the
because it lacks a proven factual basis. This does not imply such proof, although available,
produced. Rather, it reflects the majority's view that the circumstances surrounding this
are insufficient to establish a contract violation.
Grievance 1991-4 was not timely filed at Step 2
on June 13, 1991.
Although Grievance 1991-4 was not timely filed at Step 2, the Arbitration Panel has
jurisdiction to consider it, provided that the untimeliness of the Step 2 filing is considered in
evaluation of the merits of Grievance 1991-4.
Grievance 1991-4 was, under the terms of Article XV, Section G, 1, withdrawn.
Grievance 1992-2 is a separate grievance from Grievance 1991-4.
Grievance 1992-2 was timely filed.
The City did not violate Article XI, Section C, by denying the Grievant light-duty
work or by
denying the Grievant the wage differential between her normal take-home pay and Worker's
The City did not violate the collective bargaining agreement by terminating the
effective January 6, 1992.
The grievances underlying the cases captioned by the Commission as Case 79, No.
47707, MA-7361; Case 80, No. 47708, MA-7362; and Case 81, No. 47709, MA-7363 are,
under the terms of this
and the Interim Award, denied.
Dated at Madison, Wisconsin, this 29th day of January, 1999.
Richard B. McLaughlin /s/
Richard B. McLaughlin, Chairperson
Kathryn J. Prenn /s/ 1/19/99
David White /s/
DISSENTING OPINION OF ARBITRATOR
Since the parties were unable to stipulate to the issues, the Arbitration
Panel determined that it
should frame the issues before it. Among these issues is:
If the panel has jurisdiction to determine the merit of either Grievance
Grievance 1992-2, did the City violate Article XI, Section C, by denying the Grievant
light-duty work or by denying the Grievant the wage differential between her normal
take-home pay and Workers' Compensation?
The Panel has determined that Grievance 1991-4 was not processed in a timely
manner. However, it
has also ruled that the untimeliness of this grievance does not preclude arbitral consideration
merits of the grievance. Moreover, there is no reason to believe that any procedural defect
which precludes consideration of the merits of Grievance 1992-2. Therefore, the panel has
that it will answer the question as to whether the City failed to meet an obligation under
Section C to either provide light duty work, or to provide a wage differential.
Apparently, there is no dispute that the Grievant properly received her XI-C wage
prior to the City's determination (through its insurance carrier) that her injury was not one
qualified for Worker's Compensation benefits. This determination occurred on or about May
At this point, the XI-C differential payments stopped.
The question of whether the Grievant's injury qualified for Worker's Compensation
is a legal question. She pursued this matter through the proper channels, and on January 13,
Administrative Law Judge hearing the case determined that the injury was indeed work
related and she
was eligible for Worker's Compensation benefits dating back to May 12, 1991, it likewise
retroactive liability to pay the XI-C differential dating back to May 12, 1991. To the extent
City has failed to make the Worker's Compensation supplement payments, it has violated the
Termination of employment is the labor relations equivalent of the death penalty. Its
traditionally been supported by arbitrators when the basis of the employment relationship is
beyond repair. In the case of the Grievant, this is not the case. It is true that she was not
perform the full range of her regular duties at the time of her termination. While it was
long her recovery would take, she was in fact recovering. She was a ten year employe. The
argued that the Grievant should have been placed on layoff status for a period
not to exceed the period of recall under the contract. While my colleagues on the
panel state that the
contract could be interpreted in the manner the Union described, there was
nothing in the contract
which compelled such interpretation. With all due respect to my colleagues,
I take strong exception to
It is well established in labor relations that the terms of a labor agreement are to be
to give effect to all provisions. The termination of the Grievant's seniority rights due to her
injury does violence to the Grievant's seniority rights. On the other hand, placing the
layoff, with recall rights as limited by the contract, preserves the Grievant's seniority rights,
as well as
the Employer's rights to have required work performed by employes qualified to perform the
There is nothing in the contract which compels the interpretation that an employe
recovering from a workplace injury must be terminated if the employe will
not be able to return to
work within a time frame unilaterally determined by the Employer. The panel notes that the
is not to be faulted for her injury or its aftermath. Yet by being terminated, she is being
as if her injury were her fault.
Thus, it is my view that the City violated the labor agreement when it terminated the
To the extent that the above diverges from the opinions of my colleagues, I respectfully
from those opinions.