BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF GREEN LAKE EMPLOYEES
GENERAL CITY EMPLOYEES LOCAL 514, AFSCME,
CITY OF GREEN LAKE
(Bill Wagner Grievance)
Mr. James E. Miller, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, on behalf of the Union.
Godfrey & Kahn, S.C., by Mr. Edward Williams, on behalf of
The above-captioned parties, herein "Union" and "City", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in the City of Green Lake, Wisconsin, on March 11, 1999. The hearing was not transcribed
there issued a "bench" decision, which this Award augments.
1. Is the grievance arbitrable?
2. If so, did the City have just cause
to issue a verbal reprimand to grievant Bill Wagner?
Director of Public Works Jim Bradley on September 22, 1998 (unless otherwise
dates hereinafter refer to 1998), issued grievant Wagner the following verbal warning:
. . .
This memorandum constitutes a verbal warning confirmed in
writing. On Tuesday, September
15, 1998 you were assigned the duty of reading water meters. At 12:50 I observed your
the truck of a friend of yours (Gary McConnel who had no city business) parked at the shop.
I observed that your truck was still parked at the shop. I called you on the radio and asked
were at the shop and not reading water meters. You stated that you were taking a break.
It is unfair for the other employees to do
extra work that has been otherwise assigned to you.
It is also unfair to other employees to have them working when you are taking extra breaks.
You are not authorized to take unscheduled
work breaks or extra breaks when they are not
authorized by law.
Bill, henceforth you are not to take
unscheduled breaks (or extra breaks) without prior approval
. . .
Upon receiving it that day, Wagner told Bradley he would be grieving it. Thereafter,
grievance was filed on September 29 and received by the City on September 30.
Bradley responded to the grievance via an October 1 memo that stated:
. . .
I am in receipt of your grievance number 1998-1 dated
September 29, 1998 which I received
on September 30, 1998. I have carefully reviewed this grievance. I am denying the
Defect Section 4.6 Step 1 of the grievance procedure requires the employee,
alone or with his representative, to discuss the grievance with the employee's supervisor no
later than five (5) work days after the grievance occurs. This was not done. The grievant
discussed the grievance with me in a timely fashion.
Furthermore, the grievance was
presented at Step 2. Because the Union has by-passed Step 1 and failed to present the
grievance no later than five days of the verbal warning, the Union has not complied with the
provisions of the grievance procedure in the contract.
The City of Green Lake did not violate any terms of the Agreement.
For both of the above reasons, your
grievance is denied.
The City asserts that the grievance was untimely filed under
Article 4 of the contract which
provides in pertinent part:
. . .
4.4 Time Limitations: Time limits set forth in
this Article may be extended by mutual
agreement in writing. Any grievance not complying to the time limits set forth in this
be null and void.
4.5 Settlement of
Grievance: Any grievance shall be considered settled at the completion
of any step in the procedure, if all parties concerned are mutually satisfied. Dissatisfaction is
in recourse from one step to the next.
4.6 Steps in Procedure:
Step 1. The employee, alone or with his
representative, shall take the grievance up
with the employee's supervisor no later than five (5) work days (excluding Saturdays,
Sundays and holidays) after he knew or should have known of the event giving rise to the
grievance. In the event of a grievance, the employee shall perform his assigned work task
grieve his complaint later. The supervisor shall attempt to make a mutually satisfactory
adjustment of the matter, if possible. Failing to do so, the supervisor shall, within two (2)
work days, orally inform the employee and the representative of his decision.
Step 2. If the grievance is
not settled at the first step, the employee and/or his
representative shall prepare a written grievance on the form attached as Exhibit B and present
it to his/her department head within five (5) work days of the supervisor's response in Step
1. The department head will further investigate the
grievance and submit his decision to the employee and
his representative in writing
within five (5) work days after receiving written notice of the grievance.
Here, while the grievance was not presented to the City
five days after Wagner
received his September 22 oral reprimand, it also is true that Bradley did not get back in
Wagner within two days after Wagner told him on September 22 that he would be filing a
over his verbal warning. That being so, it is unfair to hold Wagner to the strict language of
contract. As a result, and because the City was not prejudiced in any way, I find the
grievance to be
As for its merits, the record shows that Wagner on September 15 took a break that
about thirty (30) minutes. While Wagner claimed he did so to rest his bad back, he should
sick leave to do so if his back hurt him that much.
Wagner also claimed that he did not take his authorized 15 minute coffee break that
because he responded to a fire call. However, since Wagner never made that claim prior to
instant hearing, and since Wagner never wrote on his September 15 time card that he had
morning break (as he was required to do), this claim is without merit.
Wagner also claimed that he was treated unfairly because another employe also took a
break on September 15 and that he was never disciplined. In fact, the record fails to clearly
the duration of the other employe's break. Hence, there is no basis for finding that Wagner
victim of disparate treatment.
Furthermore, the record shows that Wagner previously had been warned in his
1996, evaluation: "You take too long on breaks." Given that prior admonition and the
facts here showing that he took an unauthorized thirty-minute break, the City had just cause
Wagner a verbal warning when he took too long a break on September 15.
In light of the above, it is my
1. That the grievance is arbitrable.
2. That the City had just cause to issue a verbal warning to grievant Bill Wagner.
3. That the grievance is hereby denied.
Dated at Madison, Wisconsin this 16th day of March, 1999.
Amedeo Greco, Arbitrator