BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF GREEN BAY
BAY AREA MUNICIPAL EMPLOYEES
LOCAL 1889, AFSCME, AFL-CIO
Mr. Bob Baxter, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, 2065 East Baraboo Circle, DePere, Wisconsin 54115, on behalf of the
Mr. James M. Kalny, Human Resource Director, City of Green
Bay, 305 East Walnut Street, P.O. Box 23600, Green Bay, Wisconsin 54305, on behalf of
Pursuant to the terms of the 1998 collective bargaining agreement between the City of
Bay (City) and Bay Area Municipal Employees Union, Local 1889, AFSCME, AFL-CIO
the parties requested that the Wisconsin Employment Relations Commission designate a
its staff to serve as arbitrator of a dispute between them regarding the discharge of grievant
Kramer. The hearing was held at Green Bay, Wisconsin on December 15, 1998, at which
parties were afforded a full opportunity to present relevant testimony, exhibits and other
arguments. A stenographic transcript of the proceedings was made and received by January
The parties submitted their initial post-hearing briefs directly to each other with a copy to the
arbitrator postmarked February 26, 1999. The parties reserved the right to file reply briefs
were received according to the parties' agreement on April 26, 1999. Thereupon, the record
The parties stipulated that the following issue should be determined in this case:
Did the Employer have just cause to terminate the Grievant? If
not, what is the appropriate
(A) The Employer agrees to the seniority principle.
(B) Definition: Seniority
shall commence upon an employee's most recent date of hire in
the bargaining unit for purposes of layoff and/or job posting; however, seniority shall
the employee's most recent date of hire and membership in AFSCME Local 1889 for
vacation, overtime and sick leave.
(C) Termination of
Seniority: Seniority shall be deemed to have been terminated when:
(1) An employee resigns in writing.
(2) An employee is discharged for just
(3) An employee retires.
(4) An employee who is able to work
fails to do so for three consecutive work days unless
due to circumstances beyond his/her control.
(5) A laid-off employee fails to notify
the City of his/her interest to return to work within
one week of receipt of notice of recall or fails to report within two weeks of said notice.
These time periods may be modified by mutual consent between the employee and the City.
(6) An employee on leave of absence
accepts other employment without permission from
. . .
(A) The following disciplinary procedure is intended as a
legitimate management device
to inform employees of work habits, etc., which are not consistent with the aims of the
public function, and thereby to correct those deficiencies.
(B) No employee shall be reprimanded,
suspended or discharged except for just cause.
(C) The progression of disciplinary
action shall be: 1) oral, 2) written, 3) suspension, 4)
dismissal. However, this should not be interpreted that this sequence is necessary in all
cases, as the
type of discipline will depend on the severity of the offense. Both written warnings and
suspensions shall be maintained in effect for twelve (12) months during which time a
repetition of the
offense can result in more serious disciplinary action. In all such cases, the employee shall
right of recourse to the grievance procedure. The grievance committee chairman or his/her
designated representative shall be present during all disciplinary hearings and shall receive
all communications concerning disciplinary action.
Suspension is defined as the temporary removal without pay of an
employee from his/her designated position. The Employer may, for disciplinary reasons,
employee. Any employee who is suspended, except probationary employees, shall be given
notice of the reasons for the action, and a copy of such notice shall be made a part of the
personnel record, and a copy shall be sent to the Union. No suspension shall exceed thirty
calendar days. Suspended employees shall appeal directly to Step 2 of the Grievance
(E) Dismissal: No
employee shall be discharged except for just cause. Any employee who
is dismissed, except probationary, shall be given a written notice of the reasons for the action
copy of the notice shall be made a part of the employee's personnel record and a copy sent
Union. Any employee who has been discharged may use the grievance procedure by giving
notice to his/her steward and his/her supervisor within ten (10) working days after dismissal.
appeal shall go directly to arbitration. If the cause for
discharge is dishonesty, intoxication on the
job or drinking on duty, use of drugs on the job,
and/or if any employee is convicted in the illicit sale or distribution of drugs, the individual
dismissed immediately from employment with no warning notice necessary.
. . .
(A) The Union recognizes the prerogative of the City to
operate and manage its affairs in
all respects in accordance with its responsibilities, and the powers and authority which the
not officially abridged, delegated or modified by this Agreement are retained by the City,
the power of establishing policy to hire all employees, to determine qualifications and
continued employment, to dismiss, demote and discipline for just cause, and to determine
schedules of work and to establish the methods and processes by which such work is
City further has the right to establish reasonable work rules . . . .
The City has had a collective bargaining relationship with the Union for many years.
Union represents all regular full and part-time employes of the City of Green Bay employed
City Hall and associated departments including the Parking Utility involved herein. The City
issued a training manual to parking ramp cashiers which reads, in relevant part, as follows:
Under general supervision; performs work
of routine difficulty in the collection of cash;
performs related work as required.
DUTIES AND RESPONSIBILITIES
Operates a computerized cash register to
compute parking fees.
Receives currency and checks in payment
and gives correct change.
Performs daily accounting of receipts
through the preparation of tally slips, Counting of
tickets received and preparation of bank deposit slips.
May keep record of the number of vehicles
entering and leaving the parking ramp.
Provides information and direction to the
public as requested.
. . .
EXPERIENCE AND TRAINING
High school diploma or equivalent.
Previous experience in working with the
handling of moneys and or using a cash register.
. . .
Typical Parking Utility environment. Usually works in an
. . .
1. You represent the Parking Utility to our
customers. Courtesy is a must, be pleasant, say
please, thank you and smile.
2. Keep your money in the
cash drawer until you are ready to make a deposit.
. . .
5. Any switching of shifts must be put in writing,
signed by both cashiers and submitted to the
Parking Utility Supervisor.
6. Your breaks start from when
your relief cashier enters the booth and ends (sic) when you are
back to the booth, remember to be on time as the break person has a schedule to follow.
7. Cashier booth doors MUST
be closed and locked at all times.
. . .
There is no specific dress code, but you are expected to come to
work clean, hair combed and
neatly attired. If you are sent home to correct a deficiency in the above, it will be on your
You may not leave your cashier booth unless there is someone to
relieve you. Your break starts
when the relief person arrives. Below is the length of the break you are to receive:
Less than four hours no break
Four to six hours 15
Seven hours two 15 minute
breaks (either back to back or
one morn. And one after noon (sic))
Eight hours two 15 minute
breaks and a 30 minute lunch.
. . .
According to City records, Kramer's supervisor spoke to him in 1989 regarding his
to leave work early. In 1995, Kramer's supervisor went over a verbal policy that cashiers
custody of money bags at all times. In March, 1997, Kramer's supervisor spoke to him
appearance and hygiene. 1/
1/ It is undisputed that
there is no formal dress code at the Parking Utility, but that employes
are expected to come to work clean and neatly attired. If an employe does not appear
appropriately dressed and groomed, that employe is sent home on their own time to remedy
situation. In regard to custody of money bags, Union steward Scanlon stated that if employes
abandon their money bags, this does not always result in discipline; that sometimes if a
bag is left in a booth by an employe, that employe is simply reminded not to do that and no
discipline is issued.
During the investigation of the instant grievance, the City could find only one other
somewhat similar to the Grievant's. That situation can be summarized as follows. On July
the City issued part-time Parking Utility cashier Patti Stowe a three-day suspension for
unapproved absence from work on July 1, 1997, and failing on June 27, 1997 to set
up a mandatory
employe assistance meeting as well as failing to call the EAP as required on July 2, 1997.
at this penalty, the City also took into consideration a 1996 warning received by Stowe.
did not grieve her three-day suspension, and she voluntarily quit her position thereafter,
worked for the City as a cashier from 1988 until her voluntary termination in 1998.
The Grievant, James Kramer, had worked for the City as a parking ramp cashier for
when he was terminated on July 14, 1998. At the time of his termination, Kramer's work
clean. The facts surrounding his discharge are relatively straightforward. Although some of
are disputed, I find the facts of this case are as follows.
On Wednesday, July 1, 1998, the Grievant was scheduled to work from 10:00 a.m.
p.m. at the Adams Street ramp. After twelve noon, Kramer's wife came to his parking
booth and told
him that she was going to give away his dog. The Grievant became very upset over this
Nancy Meyer, an enforcement attendant for the City, arrived to give Kramer his contractual
break, Meyer observed that Kramer was quite upset about his dog. Kramer made a
and then left on his break. During his conversation with Meyer prior to leaving for break,
was mumbling, and Meyer heard him state that he would be going home, and that he was not
if he would return.
After observing Kramer's demeanor, Meyer was concerned that Kramer might not
his break and flagged down another Parking Utility employe (Shirley ------) who was driving
the time. Shirley told Meyer to give Kramer time to return from his break, and that if he
to give him extra time; that if he still did not come back from the break, Meyer should call
and report Kramer's failure to return.
Kramer returned early from his break, although he seemed even more upset than he
before he left. Kramer told Meyer that during his break, Kramer had attempted to go home
up his dog so that his wife could not give the dog away. Kramer, however, had not found
at home, and returned to the Adams Street parking ramp booth. At this point, Kramer
on his time card, and threw the card on the counter. He left, mumbling to himself, leaving
bag in the booth. Kramer did not tell Meyer he was quitting his job. Meyer remained in the
Kramer admitted that he forgot the money bag, being so upset about his dog.
After Kramer left the Adams Street booth, he went home to attempt to take care of
situation there and pick up his dog. At approximately 3 o'clock on July 1, Kramer went to
Parking Utility office to pick up some personal things from his money bag which Meyer had
to the office for safekeeping. At this time, he spoke to Mary Scanlon, the union steward for
Parking Utility. Scanlon advised Kramer that his walking off the job and failing to return
in severe discipline. At this time, Kramer was still quite upset and mumbling to himself. At
during his conversation with Scanlon did Kramer state that he was quitting or resigning his
with the City.
On July 1, in the afternoon, after Kramer left his parking booth without permission,
Utility Director Pirlot spoke with Mary Scanlon regarding what would occur if Kramer
to report to work again. Scanlon questioned Pirlot regarding whether the City would pay the
employe who had covered Kramer's shift if he appeared for work. Pirlot responded that
would be allowed to work if he reported prior to July 5th. However, before the close of
July 1, Pirlot spoke to representatives of the Human Resources Department of the
City. Pirlot was
told that he should not allow Kramer to work if he appeared prior to July 5th. Pirlot's
with Human Resources resulted in the following letter being mailed to Kramer which he
certified mail, on July 2, 1998:
. . .
On Wednesday, July 1, 1998 you were assigned to cashier at the
Adams Street Lot from 10:00
a.m. to 5:00 p.m. At 1:56 p.m. you stated that you quit, punched out and left the work site.
Be advised that, at this time, the City
considers you to be absent without approved leave. If you
do not show up for any of your scheduled work shifts prior to the start of your shift at 11:00
Sunday, July 5, the City will consider you to have voluntarily resigned your position.
. . .
Kramer received the City's July 1, 1998 letter prior to the 4:00 p.m. starting time of
scheduled work shift on July 2. The letter led Kramer to believe that he had been
given until July 5th
to report to work. At this point, Kramer decided to take some time to consider his
Therefore, Kramer did not report to work on July 2, 1998, nor did he call in to explain his
in reliance on his interpretation of the City's letter dated July 1st.
However, Kramer later reread the City's July 1st letter and
concluded that it could be
interpreted two ways. Therefore, he decided to report to work on July 3rd.
Because he did not know
when he was scheduled to work that day, some time after 11:00 a.m., Kramer called
Parking Utility booth cashier Linda Hefner to ask her what his work schedule was that
told Kramer that he was scheduled to work beginning at 11:00 a.m. at the Cherry Street
Kramer immediately drove to the Cherry Street booth, arriving at approximately
11:30 a.m. There,
he found Parking Utility employe Bernice Delano. Delano observed that Kramer was upset.
told Kramer that he was to report to the Parking Utility office.
Kramer left the booth and went to the Parking Utility office, arriving at
a.m. (Kramer was not wearing any socks or shoes at this time.) When he arrived at the
stated that he intended to work that day and then asked office employe Lois Terry why he
go to work. Terry explained to Kramer that he was not to go to work, that she had an
City Manager John Derenne which she then delivered to Kramer. 2/
2/ On July 3rd, no City
managers were present at the Utility, due to celebration of the July 4th
Kramer stated that he already had a letter from City Hall. Terry explained that there
was nothing she
could do, that she was merely following instructions. Terry asked Kramer where his shoes
he said they were in his van. Kramer opened the letter from Derenne 3/ and left before
tell him that if he had any questions, he could call John Derenne.
3/ The City failed to
offer into this record any letter from John Derenne to Kramer.
On July 7, Kramer was asked to appear at an investigatory interview with members
management as well as his union steward. At this time, the City managers indicated that
investigating the situations which occurred on July 1 through 3, 1998. Notes taken by the
the interview document indicate that although Kramer admitted he intended on July
1st to resign, he
never quit or formally resigned on July 1, 1998. Kramer also told City managers that he
money bag; that his actions on July 1 had been prompted by the fact that his wife had told
she was going to give his dog away; that the certified letter he received on July
2nd, he believed meant
that he had until July 5th to report to work; that after receiving that letter on July 2, he
thought that the letter might be interpreted differently and decided to report to work on July
he did not have his shoes and socks on when he spoke with Parking Utility employes on July
he was reporting to work when he arrived at the Parking Utility offices on July 3rd and he
socks and shoes in his van; that he did not know why the City
was conducting an investigation when it appeared they had already decided to fire him.
4/ Also on
July 7th, Kramer admitted that he was aware on July 1st
that leaving his
4/ At the July
7th interview, Kramer made several admissions regarding statements he
to non-supervisory employes on July 1st concerning his intentions. It is
clear that Kramer was
in a highly emotional state of mind on July 1st caused by the situation
concerning his dog.
However, it is equally clear from the facts herein that, whatever Kramer's intentions may
been, he did not formally resign or quit his employment on July 1st.
work site, reporting for work late, and not reporting to work are rule violations for
which he could
be disciplined by the City; and that he should keep his cash bag with him at all times,
Between July 7 and July 14 when the City issued its termination letter, the City
not speak with Kramer. Kramer stated herein that although he did not tell anyone from the
reason he had to leave work on July 1, he did discuss his situation with Nancy Meyer on
July 1st and
that she was fully aware that he had a personal crisis involving his dog which Meyer could
conveyed to City managers.
The City next sent Kramer a letter dated July 14, 1998, terminating his employment,
read, in relevant part as follows:
. . .
On Wednesday, July 1, 1998 you were assigned to cashier at
Adams Street lot from 10:00
a.m. to 5:00 p.m. At 1:56 p.m., you left the work site without approval, stating, "That's it,
I'm 'outta' here". You left your money bag in the booth. You returned later in the day to
some personal belongings. At that time, union representative Mary Collier-Scanlon warned
what you had done could result in severe discipline.
We notified you by certified letter the next
day that we considered you to be absent without
approved leave, and advised you that we would consider you to have voluntarily resigned
position if you did not appear at your scheduled work shifts.
On Thursday, July 2, 1998, you were
scheduled to work from 4:00 p.m. to 10:30 p.m. You
did not appear for work and did not call in.
On Friday, July 3, 1998, you were scheduled to work at
a.m. You appeared at the
Parking Utility office at approximately 11:50 a.m. on that day. You were barefoot and your
were wet to the ankles and therefore you were not appropriately attired for work. At that
were placed on administrative leave pending an investigation of these incidents.
On Tuesday, July 7, 1998, we met with
Interim Director of Public Works Dick Hall, Assistant
Director of Public Works Frank Dadam, Traffic Engineer Chris Pirlot, and Personnel
Lindsley to discuss this matter. Also present were union representatives Mary
Dawn Ligocki. At that meeting, you stated, among other things, that it had been your
resign, and that you were aware that leaving your work site, not reporting for work, and
for work late are violations of rules for which you would be subject to discipline. You also
that you were aware that it is department policy to take your cash bag with you when you
work site for the day.
Chapter 14 of the City's Policies and
Procedures Manual 5/ states that an employee may
be dismissed for the following:
5/ The City has a
Policies and Procedures Manual which appears to contain work rules.
These rules are neither incorporated into the labor contract nor negotiated with the
Chapter 14(B) Attendance and Punctuality
(1) Constant failure to report promptly at the starting time of
a shift or leaving before
the scheduled quitting time of a shift without the specific approval of the supervisor.
(2) Unexcused or excessive
(4) Failure to notify the supervisor
promptly of unanticipated absence or tardiness.
Chapter 14(B) Personal Attire and Appearance
(7) Inappropriate dress or lack of personal hygiene which
adversely affects performance
or constitutes a health or safety hazard.
We attempted to reach you by telephone
on July 9, 1998 to discuss the disposition of this
matter but were unable to reach you, and subsequently scheduled a meeting with you on July
Leaving your work site without approval,
not reporting for work, reporting for work late, and
inappropriately attired, and not appropriately securing your cash bag are serious rule
cannot be tolerated. After careful review of the above, we have determined to terminate
employment effective July 14, 1998.
During the July 7, 1998 meeting and on
previous occasions, you have stated your belief that
one of the Parking Utility supervisors was involved in the 1994 death of your dog and has
contact with your wife regarding your position. You also stated that you felt other
employees of the
Parking Utility are "out to get you". We obviously do not believe that any supervisor or
were involved in the incident with your dog, have spoken to your wife, or have conspired
We want you to understand that the City cannot and will not tolerate any retaliation by you
co-workers or supervisors as a result of this job action.
We also want you to know that, although
we have no alternative to dismiss you for such
serious work violations, we will make the Employee Assistance Program available to you and
family for the next two-month period.
. . .
POSITIONS OF THE PARTIES
Initially, the City urged that based on conversations which Kramer had with
employes on July 1, 1998, the City reasonably believed that Kramer had quit when he left
without permission, which belief was later confirmed when Kramer returned to pick up his
effects. Therefore, the City sent Kramer its letter of July 1st by registered
mail which indicated that
the City believed Kramer was on an unapproved absence when he left work on July
on July 3rd, Kramer arrived at work at least 30 minutes late,
inappropriately attired for work which
gave the City further justification for his discharge. In a July 7th interview
with City officials, Kramer
failed to explain his conduct or show any remorse for his actions and refused to attend the
Assistance Program. The
Employer therefore terminated Kramer by letter dated July 14th for
having committed five violations
of the City's rules: (1) leaving work without permission on July 1st; (2)
leaving his money bag in the
parking booth unattended on July 1st; (3) failing to appear for work on
July 2; (4) appearing late for
work on July 3rd; (5) appearing for work inappropriately attired on July
Based upon this evidence, the City urged that it had just cause to terminate Kramer.
regard, the City argued that Kramer had been given advance warning of the possible and
disciplinary consequences of the conduct he engaged in from July 1st
through July 3rd. Specifically,
the City noted that Kramer was aware of its rules. In this regard, Kramer admitted that he
to leave work without permission; that he was expected to wear proper attire to work; that he
expected to keep control of his money bag at all times; and that he should arrive in a timely
for work. In addition, the City pointed out that its Policies and Procedures Manual at
Chapter 14 lists
causes for dismissal including attendance, punctuality and personal appearance, all of which
engaged in during July 1st through 3rd.
The City argued that it had fairly and appropriately investigated the situation
and that no evidence of bias was offered by the Union regarding the investigation. The City
argued that the reasons or excuses that Kramer came up with for his activities in early July,
were either insufficient or not grounded in logic. In this regard, the City noted that it should
excuse for leaving work or leaving the money bag in the booth that another employe
happened to be
present at the time. In addition, there was no excuse for Kramer's lack of appropriate attire
he reported to work. Furthermore, the City noted that as Kramer's personal crisis over his
over by 3:00 p.m. on July 1st, that he should have reported back to the City
at that time.
In regard to its letter of July 1, 1998, the City argued that this letter gave Kramer the
opportunity to return to work but that Kramer misinterpreted the clear language of the letter.
City urged that each incident beginning with his leaving work without permission on July
to return to work in the afternoon of July 1st when he came to pick up his
personal effects, failing to
report for work or call in on July 2nd and being late for work on July
3rd should each be considered
separately by the arbitrator. As such, Kramer's actions buttress the City's argument that it
just cause to discharge Kramer.
The City further argued that it had applied its rules without discrimination, pointing
case wherein an employe (Patti Stowe) had received a written warning on the first incident,
to Kramer's and a three-day suspension when the second incident of willful abandonment
Given Kramer's five rule violations, therefore, the City argued that the grievance should be
and dismissed in its entirety.
Furthermore, the City argued that the degree of discipline meted out against Kramer
reasonably related to his work record as well as to the seriousness of the proven offenses. In
regard, the City noted on July 7th that Kramer not only failed to explain his actions, he
remorse, appeared antagonistic, expressed no interest in correcting his behavior and he
City's offer of entrance into the Employee Assistance Program. Kramer's attitude, in the
opinion, aggravated the seriousness of his conduct and should affect the penalty in this case.
noted that the Parking Utility employes who testified at the hearing each thought that leaving
money bag and appearing improperly attired for work should be punished. The City then
it could be expected to enforce its work rules if the Arbitrator allows Kramer to avoid the
consequences for the violations of rules which he committed.
The City urged that the Union failed to prove that Kramer had a clean work record
an average work record and that without this evidence, in the City's opinion, Kramer's
not be considered as a positive factor in this case. In regard to Chapter 14 of the City's
Procedures Manual, the City argued that Chapter 14 of that Manual could easily be read
without conflict with Article 16 of the collective bargaining agreement. In regard to the
argument that Article 16 (E) lists the sole reasons for immediate termination, the City noted
Article 16 (C) indicates that the City can skip progressive disciplinary steps if an employe's
are serious enough, and that Kramer's violation of five work rules certainly justified his
discharge. Finally, the City urged that it would undermine the morale of Utility employes to
Kramer back to work and it urged that the grievance be denied in its entirety.
The Union argued that the Employer did not have just cause to terminate Kramer.
noted that the Employer did not follow progressive discipline as required by Article 16; that
was not guilty of any of the various activities which would have sanctioned his immediate
(as listed in Article 16E) and that the five alleged rule violations the Employer claims
Kramer's case were insufficient to support Kramer's immediate termination.
The Union argued that Kramer had good reasons and mitigating circumstances for
workplace on July 1 in order to take care of the crisis concerning his dog. In regard to the
Kramer left his money bag in the booth on July 1, the Union noted that the bag was never in
unattended and that the City's work rules do not provide that employes will be disciplined for
activity. In regard to Kramer's failure to report to work on July 2, the Union asserted that it
perfectly reasonable for Kramer to believe, based on the Employer's July
1st letter, that he did not
have to report to work until July 5th. In regard to
the claim that Kramer was late arriving for work on July 3rd, the
Union noted that the City asserted
Kramer's lateness in reporting to the Parking Utility office (not his normal work station) and
any event the City never intended to allow Kramer to work on July 3rd. In
regard to Kramer's lack
of proper attire on July 3rd, the Union noted that Kramer was not on the
clock at the time he appeared
and that he had had no contact with the public during this period. Thus, in the Union's
alleged violations of the City's work rules should not be considered in this case.
The Union argued that Kramer was not guilty of any offense that required immediate
discharge and that as his personnel file was clear of prior discipline as of the date of this
the City was going to contend that it was discharging him for stale disciplinary actions,
termination on such a basis should be overturned. Furthermore, the Union noted that the
does not provide for a meeting such as the one held on July 7th; that neither
the Union nor Kramer
was ever given copies of the questions which Kramer was asked on July 7, nor were they
review the answers recorded by a management official at that July 7th meeting. Thus, the
urged that the July 7th meeting was not an attempt to provide due process to
Kramer, but an attempt
to bolster the Employer's discharge decision. In any event, the Union urged that evidence
July 7th interview should be discounted as the City had made its decision to
terminate Kramer prior
to the July 7th meeting.
The Union argued strongly that the City's reliance on Chapter 14 of its Policies and
Procedures Manual was misplaced and absurd in the circumstances of this case. In this
Union noted that Chapter 14 of the Policies and Procedures Manual conflicts specifically
16 of the collective bargaining agreement which narrowly limits the causes for immediate
The Union urged that as a matter of general procedure, most arbitrators give little or no
employer-issued booklets that have not been negotiated or agreed to by the collective
agent, and therefore, the Union urged that Chapter 14 of the City's Policies and Procedures
should be disregarded in this case.
The Union contended that the City violated Kramer's due process rights in processing
discharge. Specifically, the Union noted that management never spoke to Kramer from July
through July 5th and that no member of management ever inquired
regarding the circumstances
surrounding Kramer's abandonment of his workplace on July 1st. Instead,
the City chose to issue a
letter to Kramer dated July 1st which was reasonably susceptible to more
than one interpretation.
When Kramer responded in a reasonable manner by failing to report to work on July 2, the
chose to type a letter for delivery to Kramer indicating he was on administrative suspension.
Employer never intended to allow Kramer to work on July 3rd, the
Union asserted that the evidence
showed that at the very least the Employer had decided to suspend Kramer on July
1st. The Union
noted that no written policy regarding
the abandonment of a money bag existed at the City, and that Kramer should not have
disciplined for this violation as he had not been disciplined for a previous violation of this
The Union asserted that the events surrounding Kramer's crisis and his reaction
(which occurred from July 1st through July 3rd) should all count as one instance rather
separately counted, as the City has urged. The Union observed that the Employer's
of July 1 arrived at Kramer's residence prior to the start of his shift on July 2. The Union
asserted that Kramer should not be considered a "no call/no show" on July
2nd as he was essentially
excused from work that day due to the inartful drafting of the City's
July 1st letter and because he was
still taking care of the crisis regarding his dog. After giving Kramer until July
5th to appear for work,
the Employer then placed Kramer on administrative leave by its letter dated July
2nd without first
contacting him or inquiring regarding his circumstances. Whatever problems Kramer had on
(tardiness, inappropriate attire) the Union urged that these should be disregarded, as the
never intended to allow Kramer to work on July 3rd. In any event, the
Union observed, Kramer was
not on the clock at the time his inappropriate attire was noted. In sum, the Union urged, as
was unjustly discharged, the grievance should be sustained in its entirety, and an order issued
Kramer be reinstated with full back pay.
The parties reiterated many of their arguments stated in their initial briefs. These
have not been restated here.
The City asserted, contrary to the Union, that the July 7 interview with Kramer was
"trap" and that there was nothing improper about it. Kramer changed his story from July
7th to the
date of hearing, as evidenced from the notes of the July 7 interview. Kramer's credibility
doubted based upon this shift.
When read as a whole, the City's July 1st letter is clear, and not
subject to any different
interpretation. The City argued that Kramer should have known based upon the July
1st letter, that
the City had placed him on an unapproved absence, and believed that he had quit his
It was up to Kramer, at that point, to advise the City to the contrary. As the City believed
had quit, delivery of the July 2nd letter to Kramer when he arrived at the
Parking Utility office on July
3rd was reasonable, and did not violate Kramer's due process rights. The
City had a right, after
Kramer's actions of July 1st and 2nd to investigate his
Kramer's failure to appear at work or call in on July 2nd cannot be
excused because the City
placed Kramer on administrative leave on July 3rd. The City noted that
Kramer's personal emergency
was over by 3:00 p.m. on July 1st and he had no excuse for not returning
to work on July 1st after that
emergency was over. The fact that Kramer went to the Parking Utility office and picked up
personal effects in the afternoon of July 1st shows that he quit his job.
The Union's assertion that Kramer had a good work record is not supported by the
in this case and such an allegation should not be considered in his favor. The City argued
XVI of the labor agreement can easily be read together with Chapter 14 of the City's Policy
Procedures Manual. In this regard, the City noted that the reasons listed for immediate
Chapter 14 are there so "all employees are on notice". On the other hand, Article 16 of the
agreement provides the procedure which the employer must follow with unit employes on
matters. The record evidence failed to show that the City was anxious to discharge Mr.
contrary to the Union's assertions. The City noted that Kramer showed absolutely no
refused two offers to go to the Employe Assistance Program. Therefore, the City urged that
should not be reinstated.
The Union noted that Mr. Kramer never quit or resigned in writing as required by
of the collective bargaining agreement (in order to terminate seniority) and that Kramer did
any employes then present at the Parking Utility on July 1st that he was
going to do so, contrary to
the City's claims. Furthermore, the Union argued that the Employer must have known that
did not resign when it put him on administrative leave as of its letter of July 2, 1998.
contrary to the City's arguments, the Union noted that Kramer's personal crisis took more
day to take care of, and that it was not until the afternoon of Friday, July 3, 1998 that Mr.
stated in his testimony that the crisis involving his dog had subsided.
The Union argued that the July 7th meeting between management,
the Union and Kramer
constituted a "hostile environment". In this regard, the Union noted that the Employer tried
prior disciplinary actions which the contract prohibits it from considering in arguing that Mr.
should not be reinstated. The Union urged the arbitrator to admonish the Employer for
arguments. Furthermore, what other employes felt should be cause for discipline is not
this case. In all the circumstances, and relying upon its prior arguments, the Union urged
arbitrator to sustain the grievance and reinstate Kramer with full back pay and benefits.
Article 7, Section C, indicates that seniority shall be deemed to have been terminated
among other things, an employe resigns in writing or fails to report to work for three
work days when the employe is able to work, unless circumstances are beyond the employe's
Article 16, Section B, provides that employes shall not be reprimanded, suspended, or
except for just cause. Section C of Article 16 specifically lays out the progression for
action, and states that such progression "shall be oral, written, suspension and dismissal,
type of discipline may depend upon the severity of the offense." Section C also provides that
written warnings and disciplinary suspensions may only be maintained in effect for 12
which time a repetition of the offense can result in more serious disciplinary action. The
of this sentence requires that any written warnings or disciplinary suspensions must be
the employe's file 12 months after they are issued if the employe has not engaged in a
the offense involved. Section D of Article 16 also states that no suspension shall
exceed 30 calendar
days. Section E of Article 16 specifically provides that "if the cause for discharge is
intoxication on the job or drinking on duty, use of drugs on the job, and/or if any employee
convicted in the illicit sale or distribution of drugs, the individual may be dismissed
employment with no warning notice necessary."
James Kramer worked for the City as a parking ramp cashier for 16 years prior to his
discharge on January 14, 1998. The City submitted evidence that in 1989, Kramer's
to him regarding Kramer's responsibility not to leave work early; that in 1995, Kramer's
also reviewed a verbal policy regarding cashiers maintaining custody of their money bags at
and that in March, 1997, Kramer's supervisor spoke to him about his appearance and
the City failed to submit any evidence that Kramer received any written warnings or
regarding any of these incidents, I have assumed that Kramer was, at most, counseled or
warnings regarding these incidents. Therefore, I disagree with the City's argument that the
Kramer was counseled three times during his 16 year employment with the City constituted a
work record. Rather, I find that Kramer's work record was generally a good one, although
The facts of this case indicate that on July 1st, James Kramer
responded to what he perceived
to be an emergency situation when he left work to take care of his dog. Although Kramer
reacted differently, and should have advised the City of his predicament before he left, the
surrounding Kramer's response to his wife's actions support a conclusion that Kramer
what he viewed as a true emergency.
In this regard, I note that Nancy Meyer was present at Kramer's parking ramp booth
he departed for home to try to find his dog. Meyer testified that Kramer was extremely
the news that his wife was going to give his dog away. Meyer was concerned enough about
state of mind when he left for lunch, that she flagged down another Parking Utility employe
happened to be driving by at the time to ask advice. Although Kramer returned from his
break in a
timely fashion (to Meyer's relief) he was still very upset, and he left again shortly thereafter,
mumbling to himself and forgetting his money bag in the booth, leaving Meyer to take care
there. It is therefore clear from the record facts that Kramer perceived there was a crisis
his dog on July 1 and that he needed to respond to that crisis immediately. This is not to say
Kramer was unaware that his conduct could be severely disciplined. Rather, it is clear on
that when Kramer returned to the Parking Utility office during the afternoon of July
Steward Scanlon told him that his actions could result in severe discipline and Kramer
I disagree with the City's contention that Kramer's crisis regarding his dog was over
o'clock on July 1st. Rather, it is clear from the evidence in this case and Kramer's
I credit), that the situation with Kramer's dog was not resolved until the afternoon of July 3,
Also, although the Employer attempted to elicit such testimony, neither Union steward
Parking Utility employe Meyer confirmed that Kramer had told them that he was quitting his
when they spoke to him on July 1st. In any event, such conversations with
would not be binding upon Kramer. Given the language of Article 7, Section C(1), Kramer
have had to resign in writing for the Employer to have been reasonable in terminating his
as of July 1st.
Although the point is arguable, I agree with the Union's contention that the City's
letter was misleading and could have been interpreted as Kramer interpreted it. Although
interpretation may not be the most reasonable interpretation, I note that no evidence was
to show that Kramer had ever before received a letter like the City's July
1st letter. It is also clear that
Kramer's position with the City did not involve regular exposure to business letters or any
awareness of labor relations terminology. In addition, although the City's letter indicated
considered Kramer to be "absent without approved leave", the City failed to indicate that
abandonment of his work station on July 1st would be disciplined upon his
return to work and that
any failure to call in and appear for work on time would also be punished in the future.
in all of these circumstances and in light of Kramer's good work record, Kramer's failure to
to work or to call in on July 2nd was due to Kramer's initial
misrepresentation of the City's July 1st
letter which should not be counted against him.
However, the fact that the City failed to include sufficient detailed warnings in its
July 1st letter
does not require a conclusion that the City is forever barred from disciplining Kramer for his
actions. In regard to Kramer's actions in leaving his money bag in the parking ramp booth,
that the Parking Utility's training manual states that cashiers are to keep their money in their
drawer until they are ready to make a deposit. In addition, cashiers (including Kramer) are
a verbal policy at the Parking Utility that cashiers should maintain custody of their money
bags at all
times. In 1995, Kramer was specifically reminded of this policy by his supervisor. Thus,
Kramer's leaving work without permission on July 1st (which he
knew was prohibited) and his
forgetting his money bag in the booth were actions for which the City could have reasonably
Regarding Kramer's lack of proper attire when he arrived late for work on
July 3rd, the
evidence showed that the City never gave Kramer the opportunity to report to his work
that day. Rather, the City had already decided that it would not allow Kramer to work on
In these circumstances, the fact that Kramer appeared without his shoes and socks on July
not have been a reason for the Employer's immediate discipline of Kramer. Rather, it is
the record evidence that it has been a practice in the past that employes who appear attired
for work are generally given the opportunity to go home in non-paid status and become
attired and to report back to work without any further discipline being meted out. Thus,
improper attire on July 3rd could not properly form a basis for discipline.
In regard to Kramer's tardiness on July 3rd, the City was justified in
using Kramer's tardiness
as a reason for disciplining him. Kramer had no viable excuse for being late on
July 3rd. He admitted
herein that he had not checked his schedule to determine his starting time that day.
The City has argued that its Policy and Procedures Manual should control this case.
City's Policy and Procedures Manual, a document which is similar to a set of work rules can
appropriately be considered in this case. However, the real issue in this case is, given
work record during his 16 years of employment and the contractual requirement that
discipline be applied, whether the City had just cause to terminate Kramer.
The Union has argued that the City may only discipline employes without prior
actions expressly prohibited by Article 16, Section E. I disagree. Article 16, Section E
grounds for immediate discharge, and if one of these were proved against an employe, just
immediate discharge of that employe would be maintainable. However, not all such grounds
stated in that Section, nor could they be. For example, the fact that Article 16, Section E
list as one cause for immediate discharge an employe's attacking his/her supervisor does not
that such an attack, if proved, would not fairly support the immediate discharge of the
involved. The record in this case shows that Kramer did not engage in any of the conduct
Article 16, Section E as cause for immediate discharge. In addition, Kramer's actions,
serious, do not rise to the level of those prohibited by Article 16, Section E.
The prior case which the City claims supports its actions regarding Kramer fails to do
my opinion. Rather, the Patti Stowe case showed that Ms. Stowe was warned for the first
of failing to report properly to work, and that she then received a three-day suspension for
second offense. Thus, the Stowe case is not at the same level as Kramer's, a more serious
it is not particularly helpful to the inquiry here.
The Employer has argued that Kramer's work record, along with the seriousness of
offenses and his lack of remorse justified the level of discipline herein. As stated above, I
do not find
that Kramer's work record was a bad one. As Kramer's lack of remorse and refusal to go
Employe Assistance Program were not part of the basis for his discharge, I do not find these
material or relevant. In addition, I note specifically that the City admitted that attendance at
Employe Assistance Program when offered, was voluntary for Kramer.
In all of the circumstances of this case, I find that the City lacked just cause for its
of James Kramer given his 16 years seniority with a good work record. I will therefore
Kramer with back pay. However, the fact that Kramer left his Parking Utility position first
advising the employer of his predicament, and the fact that he left his money bag in the
booth and that
he appeared late for work on July 3rd cannot be condoned. As noted
above, Article 16, Section D
indicates that no suspension shall exceed thirty calendar days. Given the seriousness of
offenses and using Section D as a guideline, I shall suspend Kramer for thirty calendar days
14, 1998 through August 12, 1998) and order him reinstated effective August 13,
1998. The City
shall make Kramer whole for the period from August 13, 1998 forward and it shall
him in a position substantially similar to the one from which he was terminated.
The Employer did not have just cause to terminate the Grievant. The Employer shall
immediately offer James Kramer employment as a parking ramp cashier or a substantially
position and make him whole from August 13, 1998 forward. 6/
Dated at Oshkosh, Wisconsin this 18th day of June, 1999.
Sharon A. Gallagher, Arbitrator
6/ I shall retain
jurisdiction in the case regarding the remedy only for a period of ninety
(90) days after issuance of this Award.