BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL UNION 953 OF THE
BROTHERHOOD OF ELECTRICAL WORKERS
CITY OF BARRON (ELECTRIC UTILITY)
Mr. James S. Dahlberg, International Representative, Local
Union 953 of the International Brotherhood of Electrical Workers, 2206 Highland Avenue,
Eau Claire, WI 54702-3005, appearing on behalf of the Union.
Weld, Riley, Prenn & Ricci, S.C., by Attorney Kathryn J.
Prenn, P.O. Box 1030, Eau Claire, WI 54702-1030, appearing on behalf of the
Local Union 953 of the International Brotherhood of Electrical Workers, hereafter
City of Barron (Utilities), hereafter City or Employer, are parties to a collective bargaining
that provides for the final and binding arbitration of certain disputes. The Union, with the
concurrence of the City, requested the Wisconsin Employment Relations Commission to
staff member as a single, impartial arbitrator to resolve the instant grievance. On
November 3, 1998,
the Commission appointed Coleen A. Burns, a member of its staff, to hear and decide the
dispute. Hearing was held on December 22, 1998, in Barron, Wisconsin. The
hearing was not
transcribed. The record was closed on February 3, 1999, upon receipt of post-hearing
The Employer frames the issue as follows:
Did the City have just cause to terminate the grievant for
falsifying an accident report filed
with the City regarding his injury on September 3, 1998?
If not, what is the appropriate remedy?
The Union frames the issue as follows:
Did the Company violate the collective
bargaining agreement by discharging the grievant
without just cause?
If so, what is the proper remedy?
The undersigned adopts the Employer's statement of the issue.
ARTICLE II MANAGEMENT
Section 1. The Utility
possesses the sole right to operate the Utility and all management rights
repose in it subject to the provisions of this Agreement and applicable law. These rights
are not limited to, the following:
A. To direct all operations of the Utility;
B. To establish reasonable work rules and
C. To hire, promote, schedule and assign
employees to positions within the Utility;
D. To suspend, demote, discharge or take
other disciplinary action against the employees;
E. To maintain efficiency of the Utility's
F. To take whatever action is necessary to comply with state or
G. To introduce new or improved methods
or facilities or to change existing methods or facilities;
H. To determine the kinds and amounts of
services to be performed as pertains to the Utility's
operations; and the number of positions and kinds of classifications to perform such services;
I. To determine the methods, means and
personnel by which the Utility's operations are to be
J. To take whatever reasonable action is
necessary to carry out the functions of the Utility in
situations of emergency;
K. To Agreement out for goods and
services, provided that it does not result in the layoff or
continued layoff of any bargaining unit employee; and
I. To relieve employees from their duties
subject to other provisions in this Agreement.
2. The Union and its officer agree that they shall not attempt to abridge
. . .
ARTICLE IV GRIEVANCE
. . .
. . .
If the Board's answer is not satisfactory, the
matter may be appealed to the Wisconsin
Employment Relations Commission (WERC) for arbitration. When a request has been made
arbitration, the WERC shall be requested to submit a list of five (5) arbitrators. As soon as
has been received, the parties or
their designated representatives shall determine by lot the order of
elimination and thereafter each
shall, in that order, alternately strike a name from the list. The fifth and remaining name
shall act as
a. The decision of the arbitrator shall be in
writing and shall set forth his/her opinions and
conclusions on the issues submitted to him/her, in writing, and/or at the hearing.
b. The decision of the arbitrator shall be
binding for both parties, shall be final, and is limited to
terms and conditions set forth in this Agreement.
c. Nothing in the foregoing shall be
construed to empower the arbitrator to make any decision
amending, changing, subtracting from or adding to the provisions of this Agreement.
. . .
ARTICLE V SENIORITY
Section 1. Seniority Defined.
Seniority is the continuous service of an employee with the Utility
compiled by the time actually spent on the payroll, plus properly approved absences.
(sic) for the purposes of determining seniority, shall include time for vacations, paid leaves
properly applied for and granted, compulsory military service prescribed by law, illness or
under the sick leave provisions hereinafter set forth, or by mutual agreement between the
Section 2. Loss of
Seniority. Seniority in the employment relationship shall be broken and
terminated if an employee:
2. Is discharged for just cause;
3. Is absent from work without justification
for three (3) consecutive working days without
notification to the Utility.
4. Is laid off and fails to report for work
within five (5) to ten (10) working days after having
been recalled by certified mail;
5. Is absent from work for any reason for
twenty-four (24) months other than military leave;
6. Fails to report for work at the termination of a leave of
absence or after expiration of a
vacation period or period for which worker's compensation was paid;
7. If an employee on leave of absence for
personal or health reasons accepts other employment
without permission; or
. . .
On Thursday, September 3, 1998, Jerry Olson, hereafter grievant, was
fellow employes in placing a light pole at a local trailer court. When the grievant and fellow
Todd Frankhauser arrived at the trailer court, the owner of the trailer court rode up to their
on an ATV. When the grievant admired the ATV, the owner suggested that the grievant
ATV for a ride. The grievant got on the ATV; rode the ATV into a drainage ditch; and was
off the ATV. As a result of this accident, the grievant injured his nose. Subsequently,
employe, Ron Karnitz, arrived at the scene of the accident and transported the grievant to a
Later that day, the grievant's supervisor, Utility Manager Alan Junkers, saw the
sitting in a truck with a bandaged nose. When Junkers asked the grievant if he had
removed from his nose, the grievant responded that he had tripped and fell by the digger
Junkers then told the grievant that he should pick up an accident report.
The grievant went into the Utility office. As the grievant was completing the report,
Junkers that it was tough filling out the report and asked Junkers what he should say.
that the grievant should tell what happened.
The grievant completed the accident report, which is entitled "Employer's First
Injury or Disease," and filed this report with the Utility in the afternoon of September 3,
that same day, Junkers submitted the report to City Hall.
In this report, the grievant stated that he had been injured in the afternoon of
1998, and that the injury occurred in the course of his employment. In the portion of the
requested an injury description, the grievant wrote "damage to nose from eyeglasses." In the
of the report that questioned "What Happened to Cause this Injury or Illness," the grievant
"Was RUNNING TO DIGGER TRUCK TRIPPED & FELL and landed on face
On September 4, 1998, pursuant to the Employer's normal business procedures, Tony
Slagstad, the City Clerk-Treasurer, telephoned the City's Worker's Compensation carrier,
Insurance, and relayed the information that had been reported by the grievant on the
First Report of Injury or Disease." The grievant did not work on September 4, 1998, but
drove to Eau Claire to be examined by his doctor.
When the grievant returned to work on his next scheduled work day, Tuesday,
1998, he approached Junkers and requested that the "Employer's First Report of Injury or
be returned to the grievant. Junkers replied that the report had been submitted to City Hall.
thereafter, the grievant went into the room where the Utility Commission was meeting and
Commission that he wanted to "confess." At that time, the grievant stated that he had been
while riding a four wheeler.
On September 8, 1998, Junkers issued the following to the grievant:
This letter is to inform you as of 3:30 p.m. this day. (sic) I am
placing you on paid administration
leave pending further investigation of your actions in regards to the September 3, 1998
On September 8, 1998, in response to a request from Junkers,
the grievant prepared the
On Sept. 3, 1998 I and Todd had the digger truck out to set
transformer at Riverview school.
After setting the transformer we went out to the pole pile to get a 30 ft. pole. On the way
mentioned to Todd that Bob wanted a st. light pole set at his trailer court on South Mill St.
loaded a pole (Todd driving) and we left. I also knew we had to set a pole at Joe Johnston's
the trailer court) Todd drove to Bob's trailer court. We meet (sic) Bob and Todd and I
to where we were to set the pole. When we got there Bob pulled up with a new 4 wheeler.
"Looks like another tax write off". He just laughed and said "take it for a ride" I said "NO"
said "come on take it and try it out". I said "I guess I could check those 2 high voltage peds
edge of the field". (If we are in an area and think of it, we usually check peds for being
if they might be rusty). I then got on the 4 wheeler and went out into the field. I had only
short distance (I wasn't looking straight ahead, I was looking to my left to see where the ped
when I looked straight ahead, I saw the huge ditch but it was too late. The 4 wheeler
the ditch, throwing me forward and off into the grass. I didn't hear Bob or Todd talking, so
think they saw what had happened. I was unable to
holler (I think I was dizzy, and I knew I was bleeding from my
head or someplace). It was maybe
about 15 seconds, when I heard Bob's voice say "oh my god Todd".. (sic) They both ran
over to me.
They looked at the cut and Bob took the 4 wheeler and went to get a first aid kit. Todd ran
truck to get our first aid kit also. They both returned about the same time. Bob put a
my nose while Todd went to call Ronny on the radio, so he could come and take me to the
On September 15, 1998, Gerald Novinski, President of the City of Barron
Light and Water
Commission, issued the following:
RE: Notice of Hearing
Dear Mr. Olson:
This letter is to advise you that a hearing
has been scheduled for 5:30 p.m. Monday, September
21, 1998, at the Barron City Hall. The purpose of the hearing will be to consider Utility
Junker's (sic) recommendation that your employment be terminated as a result of the incident
occurred on September 3, 1998. Specifically, the recommendation for termination is
based on the
fact that you falsified an accident report filed with the City regarding the circumstances of
on that date.
The hearing will be held in closed session,
unless you request that the hearing be held in open
session. You are advised that you have the right to be represented at the hearing. You
the right to call witnesses and submit evidence on your behalf. You have the right to cross
and to rebut any testimony which may be unfavorable to you. At the conclusion of the
Commission will deliberate in closed session and will take final action on the
your employment be terminated.
On September 22, 1998, Commissioner President Novinski issued the
RE: Notice of Termination
Dear Mr. Olson:
On September 8, 1998, you were placed on
administrative leave pending further investigation of
your actions regarding an incident which occurred on
September 3, 1998. On September 15, 1998, you
were advised that a hearing was scheduled for
5:30 p.m. September 21, 1998, to consider Utility Manager Junkers'
recommendation that your
employment be terminated as a result of the incident which occurred on September 3, 1998.
recommendation for termination was based on the fact that you falsified an accident report
the City regarding the circumstances of your injury on that date.
This letter is to confirm that at the
conclusion of the September 21, 1998, hearing, the City of
Barron Utility Commission passed a motion to terminate your employment effective
Thereafter, the grievant filed a grievance on his termination. The grievance was
denied at all
steps and, thereafter, submitted to arbitration.
POSITIONS OF THE PARTIES
On September 4, 1998, the grievant was not at work due to a doctor visit in
Wisconsin, for treatment of the injury resulting from the September 3, 1998 mishap.
was not at work the following Monday due to its being Labor Day, a recognized holiday at
On Tuesday morning, upon arrival at work, the grievant requested his accident report
from the Utility General Manager but was told that it had already gone to the City Clerk. At
approximately the same time, the grievant spoke directly to the Utility's Commission and
that his initial accident report was untrue and revealed the truth to the Commission.
No policy had been communicated to the grievant that use of non-Utility owned
was forbidden. The grievant was utilizing the all terrain vehicle to transport him to a nearby
"pedestal" for inspection.
The Employer failed to conduct a fair and non-discriminatory investigation.
Discharge is too
severe a discipline in light of the long tenure of the grievant and in comparison to other
action taken by the Utility.
The Union has shown a violation of the agreement by the Employer. The grievance
sustained. The equitable remedy is to award that the Employer did not have just cause
to discharge the grievant. The award should provide for immediate reinstatement, back
benefits, reduction of the discharge to a one-week suspension without pay, correction of the
and return of seniority.
There is no dispute that the standard to be applied to the disciplinary action taken
grievant is the just cause standard. Numerous arbitrators have concluded that management's
regarding the appropriate disciplinary action should not be set aside by the arbitrator unless
was arbitrary, capricious, discriminatory or excessively severe in terms of all relevant
There is no written policy or work rule that instructs employes not to lie on injury
forms. However, conduct that is dictated by common sense does not require a written rule
The concept of telling the truth on injury reports is so basic that a written rule is not
Arbitrators have held that, regardless of an employe's prior job performance record,
misconduct such as dishonesty and falsification of records is a "cardinal sin" which warrants
in the first instance. The grievant is employed as a Utility Lineman for an electric utility, an
in which honesty and truthfulness are vital to employe safety. In an unsolicited letter, the
co-workers' statements question the grievant's trustworthiness.
At the time that the grievant "came clean," five days had passed. One can only
this belated revelation was motivated by a strong belief that the City had already found out
had lied in the injury report. The grievant's claim that he filed the false report because he
up" about the accident and scared is clarified by his admission that he was scared because he
doing what he was supposed to be doing. In other words, he got caught.
An unwritten policy was in place and understood to the effect that the use of private
to perform work without prior authorization was prohibited. The grievant's claim that he
performing work for the Employer by checking "peds" is not substantiated by the record
The termination is clearly supported by the record. The grievance should be
The grievant was terminated for falsifying an "Employer's First Report of Injury or
that had been prepared and filed by the grievant on September 3, 1998. The testimony of the
grievant, as well as the testimony of other witnesses to the accident, demonstrates that the
injury was not due to the fact that he "Was Running to Digger Truck-Tripped and fell and
face-GLASSES CUT NOSE," as he stated on the "Employer's First Report of Injury or
Rather, as the grievant acknowledged at hearing, he suffered this injury when he had an
while riding an ATV. According to the grievant, he was not looking where he was going,
into a ditch, and fell off the ATV.
The grievant's statements describing what happened to cause the injury were not true.
grievant knew that they were not true at the time that he prepared and filed the "Employer's
Report of Injury or Disease."
The grievant intentionally falsified the "Employer's First Report of Injury or Disease"
prepared and filed on September 3, 1998. The grievant knew, or should have known, that it
wrong to falsify the "Employer's First Report of Injury or Disease."
As soon as the Employer had reason to doubt the veracity of the "Employer's First
of Injury or Disease," the Employer undertook to view the accident site, contact witnesses
ascertain the facts. Contrary to the argument of the Union, it is not evident that the
investigation was either unfair or discriminatory.
On the morning after the report was filed by the grievant, the information on the
transmitted to the Employer's Worker's Compensation insurer by the City Clerk- Treasurer.
It is not
evident that, at the time of the transmittal, the City Clerk-Treasurer had any reason to doubt
of the grievant's statements. Thus, the City reasonably relied upon the statements contained
"Employer's First Report of Injury or Disease" when it reported an employe injury to its
The undersigned is not persuaded that the grievant had any intent to file a false
Compensation claim. Rather, as the grievant stated at hearing, he falsified the report
because he was
scared of getting in trouble.
The December 10, 1990 minutes of the Employer demonstrate that the Employer
to grant a wage increase to the grievant at that time. The minutes, however, do not provide
rationale for this action. The June 10, 1991 minutes demonstrate that the Employer voted to
the grievant a wage increase, effective June 10, 1991, but do not provide any rationale for
At hearing, the Utility Manager testified that, in 1990, the grievant's pay was frozen because
Utility was dissatisfied with the grievant's "work
ethics" and "job performance." The Utility Manager acknowledged, however, that he
was not present
at the time the decision was made to freeze the grievant's wages. The record fails to
the 1990 wage freeze was disciplinary in nature, or due to work performance problems.
In 1992, the grievant was demoted from Line Superintendent to Line Foreman. At
the Utility Manager claimed that the 1992 demotion was due to the fact that the Utility was
dissatisfied with the grievant's attitude, work performance, and his handling of the work
documentation provided by the Employer does not state the reasons for the Utility's action,
suggest that the movement to Line Foreman resulted from the elimination of the Line
position. The record fails to demonstrate that the 1990 wage freeze was disciplinary in
nature, or due
to work performance problems.
In 1994, the grievant was demoted from Line Foreman to Lineman Operator/Meter
position that he occupied at the time of his discharge. At hearing, the Utility Manager
this demotion was due to the grievant's poor job performance. The grievant acknowledges
received this demotion. The grievant further acknowledges that, at a meeting that included
representatives, the Utility Manager stated that the grievant's demotion was due to poor job
On May 12, 1993, the grievant received a personnel reprimand for a poor attitude
fellow employes. On July 1, 1997, the grievant received a personnel reprimand for failing to
a supervisor's instruction to secure the work premises.
Given the evidence of the grievant's prior disciplinary record, the next step in the
of progressive discipline would be a suspension, rather than discharge. A just cause
however, does not require the imposition of progressive discipline in every instance. Some
misconduct is sufficiently serious to justify immediate discharge.
In the present case, the grievant falsified an employment record. The employment
was falsified was a record that the Employer relied upon in processing claims with its
Compensation carrier. The information contained in the report was information that the
Compensation carrier could consider when determining the Employer's insurance premiums.
the grievant's misconduct interfered with the Employer's ability to conduct business with its
More importantly, however, is the nature of the offense. As the Employer argues,
falsification of the "Employer's First Report of Injury or Disease" provides the Employer
reasonable basis to conclude that the grievant is not trustworthy.
As the testimony of Utility Manager Junkers demonstrates, the grievant's lineman
include preparing reports for the State and the PSC. The Employer, as well as the public,
fundamental interest in ensuring that these reports are accurate and not falsified because the
is scared of getting into trouble.
As a lineman, the grievant works with high voltage wires. Errors of omission, or
can have life threatening consequences.
It is harsh to discharge a twenty-eight year employe that is nearing eligibility for
However, the grievant's falsification of the "Employer's First Report of Injury or Disease" is
material breach of the employer-employe relationship. The Employer's conclusion that the
stringent form of discipline is needed to safeguard the Employer's legitimate business interest
having employes prepare and file accurate employment and business records is reasonable.
The grievant claims that he was still "shook up" by the accident at the time that he
the report. The fact that the grievant was able to drive himself to the doctor in
Eau Claire on the day
after the accident militates against the conclusion that any incapacity continued on Friday,
The Employer's business office was open on Friday, September 4, 1998.
grievant knew how to contact Employer supervisors and/or managers outside of the Utility's
The grievant did come "clean." He did so five days after the falsification, at a time
the Employer was well into an investigation of the circumstances of the grievant's injury.
mitigating effect of the grievant's confession is counterbalanced by the untimeliness of this
The Union argues that discipline is too severe in comparison to other disciplinary
by the Utility. The comparison that the Union makes is to an altercation that took place
Karnitz and Todd Frankhauser in which Frankhauser received a one-day suspension without
Karnitz testified that he was involved in a physical altercation with Todd; that the
occurred at lunch time; and that Frankhauser, but not Karnitz, was disciplined. The only
evidence regarding this "altercation" came from Junkers. According to Junkers, Karnitz and
Frankhauser had an altercation during a coffee break; Frankhauser took a swing at Karnitz;
did not know if Frankhauser made contact; Frankhauser had been provoked; and, when
questioned Frankhauser about the altercation, Frankhauser immediately told
Junkers what had happened. The evidence of the altercation between Frankhauser and
not demonstrate that Frankhauser's misconduct was substantively similar in kind or degree to
of the grievant.
Several of the grievant's coworkers were disciplined in connection with the incident
September 3, 1998. The record regarding the employe conduct that gave rise to this
muddled. It is not evident, however, that these employes, or any other employe, falsified an
employment record. Contrary to the argument of the Union, a comparison of the grievant's
misconduct with the evidence of other employe misconduct does not warrant the conclusion
discipline imposed upon the grievant is too severe.
The grievant was not disciplined for using the ATV. Thus, not withstanding the
arguments to the contrary, the issue of whether or not the grievant intended to use the ATV
"peds" is irrelevant, as is the Union's argument that the Employer failed to communicate to
grievant that use of non-utility owned equipment was forbidden.
In summary, the grievant engaged in the misconduct for which he was disciplined.
The level of
discipline imposed, i.e., discharge, is reasonably related to the Employer's
interest in discouraging or
preventing such misconduct. The Employer has just cause to discharge the grievant.
Based upon the above and foregoing, and the record as a whole, the undersigned
1. The City has just cause to terminate the grievant for falsifying an accident report
filed with the City
regarding his injury on September 3, 1998.
2. The grievance is denied and dismissed.
Dated at Madison, Wisconsin, this 6th day of May, 1999.
Coleen A. Burns, Arbitrator