BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL UNION NO. 695
CITY OF MADISON
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C.,
by Attorney Andrea F. Hoeschen,
1555 North Rivercenter Drive, Suite 202, P. O. Box 12993, Milwaukee,
Wisconsin 53212, appearing
on behalf of Teamsters Local Union No. 695.
Mr. Michael Deiters, Labor Relations Manager, City of
Madison, City-County Building, Room 502,
210 Martin Luther King, Jr. Boulevard, Madison, Wisconsin 53710, appearing on behalf of
Teamsters Local Union No. 695 and City of Madison (Transit System) are parties to
collective bargaining agreement that was in effect at all times relevant to this proceeding and
provides for final and binding arbitration of certain disputes. The Union, by request to
grievance arbitration received by the Commission on January 22, 1999, requested the
to appoint Commissioner Paul Hahn to serve as arbitrator. The Commission appointed Paul
as Arbitrator on January 26, 1999. Hearing in this matter was held on May 12, 1999 at the
of Teamsters Local Union No. 695 in Madison, Wisconsin. The hearing was transcribed.
filed post-hearing briefs which were received by the Arbitrator on July 15, 1999 (City) and
1999 (Union). The record was closed on July 20, 1999.
Did the grievant violate Article 4.2 of the contract which states:
"In the event of any strike, work
stoppage, slowdown or interruption or impeding of work, the Employer shall notify the
thereof, and the Union shall take all reasonable means to induce such employees to return
jobs during any
period of stoppage and the Employer shall have the sole and
complete right to immediately
discharge any member of the bargaining unit inciting or participating in any strike,
or other cessation of work and such members of the bargaining unit so discharged shall not
to or have any recourse to any other provision of this agreement. This provision shall not
or limit either party from making or advocating such agreement as to the termination of such
as it may feel will best serve to re-establish the public service of the employer. It is further
that in all cases of a strike, slowdown, walkout or any cessation of work in violation of this
agreement, the Union shall not be liable for damages resulting from such acts of its
the action of the employees is condoned, ratified or approved by full-time employees of this
Did Alan Woodman violate the contract by engaging in a
prohibited work slowdown? If not,
what is the appropriate remedy? Or, did the Employer have just cause to suspend Alan
for 45 days? If not, what is the appropriate remedy?
ARTICLE 1 RECOGNITION AND
1.1 Recognition: The Employer agrees that it recognizes the
Union as the sole bargaining
agent for all drivers, office employees, and garage employees, including mechanics, washers,
and helpers, and excluding guards, supervisors, confidential, professional and managerial
as defined by Section 111.70, Wisconsin Statutes.
. . .
ARTICLE 4 NO STRIKE -
4.1 No Strike: The
Union recognizes the validity of Section 111.70 of the Wisconsin
Statutes and agrees not to support any action in violation of said Statutes. The Union agrees
the duration of this Agreement, Union Officers, Representatives or members will not
or support any strike, work stoppage, slowdown, interruption of work or interference with
of the Employer.
4.2 In the event of
any strike, work stoppage, slowdown or interruption or impeding of
work, the Employer shall notify the Union thereof, and the Union shall take all reasonable
induce such employees to return to their jobs
during any period of stoppage and the
Employer shall have the sole and complete right to
immediately discharge any member of the bargaining unit inciting or participating in any
slowdown, walkout or other cessation of work and such members of the bargaining unit so
discharged shall not be entitled to or have any recourse to any other provision of this
This provision shall not prevent or limit either party from making or advocating such
to the termination of any such action as it may feel will best serve to re-establish the public
of the Employer. It is further agreed that in all cases of a strike, slowdown, walkout or any
of work in violation of this Agreement, the Union shall not be liable for damages resulting
acts of its members, unless the action of the employees is condoned, ratified or approved by
employees of the Union.
. . .
ARTICLE 8 GRIEVANCE
8.1 Having a desire
to create and maintain labor relations harmony between them, the
parties hereto agree that they will promptly attempt to adjust all complaints, disputes,
or other grievances arising between them involving questions of interpretation or application
terms and provisions of this Agreement.
. . .
8.4 The arbitrator
shall have no power to change, modify or add to or detract from any
of the terms of this Agreement. The award of the arbitrator within the term of authority
upon him/her by this Agreement shall be final and binding upon both parties. Any question
of authority, fraud or arbitrary action shall be subject to the usual legal remedies.
8.5 The arbitrator's
decision may or may not be retroactive as the equities of the case may
demand, but in no event shall any award with respect to back pay, in discharge or suspension
be retroactive more than ten (10) days before the date on which the grievance was first
writing in Step One above. In the case of a discharge or disciplinary layoff grievance, the
shall have the power to uphold the action taken by the Employer or to return the grievant to
employee status with or without restoration of back pay, or mitigate the penalty as equity
under the facts.
. . .
ARTICLE 22 DISCIPLINE
22.1 The Employer shall not discipline any employee without
. . .
Suspension shall only be after written warning notice to the employee with a copy
the Union, except for the following serious offenses:
A. Failure to turn in cash or tickets.
B. Misconduct resulting in a
C. Loss or expiration of
commercial motor vehicle license required by State law.
D. Conduct resulting in
being charged with a morals offense may be cause for suspending
an employee as a bus operator but not necessarily from all employment.
E. Employee issuing worthless check
payable to Employer.
F. Willful refusal or failure to carry
out a direct order or instruction.
G. Off route without authorization.
H. Abandoning coach or failing to wait
for proper relief.
I. Leaving coach unsecured.
STATEMENT OF THE
This grievance involves the City of Madison (Transit System) (hereinafter City), and
Teamsters Local Union No. 695 (hereinafter Union) representing the employes set forth in
Recognition. (Jt. 1) The Union alleges a contractual violation by the City for the 45-day
of the Grievant. The suspension was effected by a letter to the Grievant from Ann
Service Manager, dated October 27, 1998. (Jt. 5) The Union alleged a violation of Article
Sections 22.1 and 22.3 of the agreement by notice of a written grievance dated October 28,
Employer representative Gullickson. (Jt. 2) The grievance was denied by Gullickson for the
October 29, 1998. (Jt. 2)
The City operates a metropolitan transit system which serves the citizens of the City
Madison and Dane County. The City operates in excess of 100 buses; the number of buses
operation vary daily and particularly as between the Monday through Friday operation and on
Saturday-Sunday weekend. City buses are parked, maintained and serviced in a City garage.
of the effective operation of the transit system it is incumbent that buses that come in from
each evening are parked in a manner that facilitates their being returned to service the
The Grievant works on what is called the service lane. The service lane consists of
tasks which include: vaulting (emptying money from the bus fare boxes), fueling,
(assigning where the buses are to be parked in the evening) and driving the buses through the
to their appropriate parking location. Buses are parked in numbered parking spaces. (Er. 1)
lane employes select which of the aforementioned duties they wish to do by seniority. The
lane employe responsible for assigning the parking of buses does not physically park the
assigns the parking location with the help of a status sheet which lists the buses that need
need fumigating, and are held out from service for various other reasons. (Er. 3) Prior to
lane employe assigning the parking, another service lane employe has come in an hour
earlier to do
what is commonly called set-up which involves organizing the information about buses that
coming in which the service lane employe, responsible for parking, utilizes to assign the
particular parking spaces. (Tr. 49, 50)
On Friday, September 25, 1998, the Grievant was scheduled and worked from 4:00
12:54 a.m. (Tr. 131) Grievant was assigned or chose the responsibility for assigning buses
appropriate parking spaces. (Tr. 35, 131) That particular evening the employe who was to
set-up did not come to work so set-up had not been performed prior to the Grievant assuming
parking duties. Grievant was in the process of completing doing the set up work when told
supervisor to start parking the buses, which Grievant initially refused to do without doing the
(Tr. 36-38) When directed again to start parking the buses Grievant did so and proceeded to
parking spaces without the benefit at that point of a status sheet. (Tr. 38, 135)
The buses were ultimately parked in a manner that resulted in mechanics reparking
later that Friday evening and Saturday morning in order that enough buses were ready to be
Saturday, September 26, 1998. This activity of reparking the buses properly also
mechanics not being able to perform their work.
On October 2, 1998, the City placed the Grievant on leave with pay in order to
the events of Friday, September 25 and Saturday, September 26, 1998. (Jt. 3) On October
the parties held a pre-determination hearing to address the issue of the parking of buses on
September 25, 1998; the Grievant was represented by representatives of the Union.
(Tr. 91) (Jt. 4)
At the pre-determination hearing on October 19, 1998, the City advised the Union that it was
disciplinary action against the Grievant under Article 4, the No Strike/No Lockout article of
parties' collective bargaining agreement. (Jt. 1 and Tr. 90) The City took the position that
Grievant intentionally misparked the buses because of a dispute with his immediate
Because of this alleged intentional misconduct, the City suspended the Grievant for a period
of forty-five days, from Wednesday, October 28 through Friday, December 11, 1998.
(Jt. 5) On October 28,
1998, the Grievant and the Union filed a grievance alleging a violation of Article 22,
and 22.3. (Jt. 2) The Union alleged that the Grievant was disciplined without just cause and
violate any provision of the contract which would warrant the 45-day suspension without pay.
The parties processed the grievance through the contractual grievance procedure and
unable to settle the grievance; the grievance was appealed to arbitration. No issue was raised
the arbitrability of the grievance. Hearing in this matter was held by the Arbitrator on May
in the City of Madison, Wisconsin at the offices of Teamsters Local Union No. 695.
POSITIONS OF THE PARTIES
The Union first takes the position that Grievant did not engage in a prohibited work
slowdown in violation of Article 4. The Union points out that there was no evidence that the
Grievant purposely parked the buses incorrectly and that purposefulness or willfulness is a
element of a work slowdown. Further the Union, citing cases, submits that a work
slowdown, in the
context of a No Strike/No Lockout article, is generally perceived as a deliberate reduction of
by a group of workers used as a means to attempt to gain some concession from an
(Union brief p. 6) The Union takes the position that the Grievant's conduct does not meet
definition of a work slowdown under the context of a no strike clause. The Union also takes
position that if the Grievant had engaged in a work slowdown, the contract would not allow
to discipline him because the City never sought the Union's intervention in preventing the
such a request for intervention is required by the labor agreement. (Jt. 1) (Tr. 19, 93) The
exclusively on the alleged work slowdown as a grounds for disciplining Grievant and, as the
argues, since there was no proof of a work slowdown, the Union takes the position that the
should overturn the discipline without considering any other grounds for discipline.
In the alternative, it is the position of the Union that the City violated the collective
agreement when it suspended the Grievant without pay for 45 days. Union argues that on
25, 1998, a series of events took place that resulted in the improper parking of the buses.
lane crew, including Grievant, arrived at work at about 4:00 p.m. on September 25, 1998.
were already an hour behind schedule. The service lane employe who normally arrives an
to do set-up had not shown up but had called in sick. (Er. 4) None of the service lane
senior to the Grievant were willing to assume the parking responsibilities when there had
been no set-up. Although the parking could be accomplished without set-up, it was more
difficult, as the City
would not assign someone to do set-up for an hour each day if it were not important. The
points out that the Grievant was willing to park the buses but he first tried to do some of the
His supervisor, Jack Laylan, according to the Union, stopped Grievant twice from doing the
and just told him to "just park the buses." The Grievant objected once but obeyed his
directive the second time. The Union argues that the Grievant proceeded to park the buses
he could without any set-up and that his efforts did not cause the parking disarray. The
the position that the lack of any organizational scheme combined with Grievant's supervisor's
to tolerate any delay caused the parking problems. The Union argues that Grievant was
handicapped in parking the buses without a status sheet which indicates which buses are to be
aside for maintenance and other work. The Union points out that even management
for the City admitted that parking is made more difficult without a status sheet. The
that there were two supervisors on duty Laylan and Bonnie Baxter for the Grievant's
and neither of them told the Grievant that he was improperly parking the buses. The Union
points out that the Grievant mainly parks buses on the weekend and was not experienced with
them during the week when substantially more buses are needed to be parked. Therefore the
argues the suspension violated the just cause requirement of the collective bargaining
For these reasons, the Union states that the Arbitrator should order the City to
discipline against the Grievant for the events of September 25, 1998 and to make him whole
45-day suspension, including all losses in pay and benefits, less interim earnings and
compensation benefits and order the City to pay directly to the Department of Workforce
Development, State of Wisconsin, any unemployment benefits received by the Grievant.
The City takes the position that the Grievant violated Article 4, No Strike/ No
the labor agreement (specifically Section 4.2) arguing that the Grievant intentionally caused
"interruption or impeding the work." (City Brief p. 4) The City bolsters its argument by
the Grievant was experienced at parking buses and should have known the proper procedure
if a status sheet were not available. The City raises the issue of Grievant's inconsistent
about the status sheet and argues that the Grievant never pursued asking his supervisor Jack
for the status sheet according to the Grievant's own testimony. (Tr. 154) The City
service lane employes who worked on September 25, 1998 who testified that the status sheet
totally necessary to park buses of similar makes and models. The City's position is that
intentionally parked the buses "every-which-way causing disorder to the organization and
mechanics to stop doing their work and re-park the buses in the proper manner." (City Brief
The City argues that Grievant's alleged statement to mechanic supervisor Jack Langsdorf that
action was needed so that Mr. Kelly would be advised to tell Mr. Jack Waylan to stop
micro-managing in the service lane." (City brief p. 4) is further evidence of an intentional
Finally the City argues that the Union well knew that the City was considering discipline
4. Ann Gullickson, Transit Service Manager, testified that she informed the Union at the
pre-determination meeting that "management was looking into the possibility of discipline in
the line of
Article 4 of the contract." (City Brief p. 3) That position of the City was made clear by the
statement of City representative Mike Dieters at the arbitration hearing and by the City's
of the issue. The City was relying solely on Article 4 for the 45-day suspension of the
Lastly the City argues that Grievant's willful and intentional action could have resulted in
under Article 4 but that after considering all aspects of the matter, the City reached a
decision to give
the Grievant a long suspension. The City asks that the grievance be denied and the
This case involves the discipline of Grievant for allegedly impeding the work of the
intentionally parking buses in an improper manner on September 25, 1998. The City bases
discipline solely on a violation of Article 4, the No Strike/No Lockout provision of the
agreement. 1/ The Union argued that Grievant did not violate this article, and, in the
argued that the City did not prove just cause for discipline under Article 22,
whether Grievant deserved discipline under a just cause standard for his actions on
is not before me. Because the City bases its entire case and Grievant's discipline on a
Article 4, I only have to decide whether Grievant violated Article 4. To decide this
question it is
appropriate to set forth the standards accepted by arbitral authority as to what constitutes a
slowdown or impediment of work under a No-Strike clause, the same as or similar to the
1/ At the arbitration hearing in this matter,
on May 12, 1999, the City by its representative stated the issue
as "did the grievant violate Article 4.2 of the current contract, if not what is the appropriate
statement was taken down by the arbitrator as, after a reasonable period of delay, the parties
hearing without the reporter who arrived during the testimony of the first witness. This
statement of the issue is
confirmed in the City's post hearing brief found at page two (2).
What constitutes a slowdown, therefore, is critically important.
One definition, contained in
Black's Law Dictionary is "Slowdown an organized effort by workers in a plant by
production is slowed to bring pressure on the employer for better terms and conditions of
Another definition, from Webster's Third New International Dictionary, Unabridged, is
a slowing down in the performance of duties by workers as a protest and means toward
compliance with demands." Those definitions conform to the usual understanding of a
a concerted action on the part of employees with the objective of obtaining a certain result.
It is a
deliberate intent to restrict production as distinguished from an individual employee's poor
2/ Pantry Pride Enterprises, Inc., 79 LA 833, 887 1982,
I believe the definition of slowdown
submitted by the Company is as good as any and adopt
it for the purpose of this proceeding. Under this definition employees engage in a slowdown
they do so to obtain some concession from management. In this case, then, our inquiry is
to determining whether or not these employees reduced their rate of production in order
a concession. If they reduced the speed of their effort only
because they did not feel like working
harder or for any other personal reasons, they acted within
the right granted by contract and should not have been disciplined. However if they did so
of an effort to obtain a concession, management had the contractual right to discipline them.
difficult burden of proving the intent of these employees, of proving their action
was engaged in as part of their effort to obtain a concession. 3/
Corporation, 89 LA 880, 883 1987, Ross.
I further believe it is clear from well established arbitral authority
that to violate
a nostrike clause such as the one in the parties' labor agreement in this case an
employe cannot act alone. In other words, the slowdown by Grievant must be
intentional and it must involve soliciting other employes to slowdown and it must be
an attempt to win a concession from the employer.
The Arbitrator agrees with the Union's
position that in this case the Company's
action in discharging the Grievants can only be sustained on the basis of finding that
they violated the no-strike clause, Article 14, Section 1, of the collective bargaining
agreement. As we have seen, Article 14, Section 1 provides as follows:
"During the term of this
Agreement, there shall be no strikes, lockouts, work stoppages, picket
lines, slowdowns, secondary boycotts, or disturbances even of a momentary nature. The
shall not resort to subterfuge or mass demonstrations or remain away from duty for any
evade their obligations under this Agreement. The Union shall support the Employer fully in
maintaining operations in every way. Participation by any employee or employees in an act
this provision in any way will be complete and immediate cause for discharge by the
The language of
Article 14, Section 1 makes it clear that poor work
performance by an individual employee, even if that poor work performance were the
result of an intentional slowdown of work by that employee, would not fall within
its provisions. Since Art. 14, Section 1 speaks in terms of strikes, lockouts, work
stoppages, picket lines, and secondary boycotts; it is clear that it is referring to
concerted activity on the part of employees. Therefore, an individual slowdown by
a single employee would not come within the terms of Article 14. Section 1; and it
would not then "be complete and immediate cause
for discharge by the Employer" that the section
authorizes. Indeed, the Company
has not applied Article 14, Section 1 to individual slowdowns by employees.
4/ Walgreen Company, 100 LA 468, 470 1992
I now turn to the facts of this case as established in the record
if the Grievant was guilty of a slowdown or impediment of work under Article 4.
Although Grievant had limited experience parking buses on a week night, I believe he
knew enough of the general practice of parking buses of similar make together and
making sure lift equipped buses were available for Saturday runs to make a
reasonable attempt to correctly park the buses even in the absence of the normal set-up
procedure and the availability of a status report. The conflicting evidence
regarding the availability of that status report need not be resolved; Grievant could
have made more of an attempt to ask for it, and his supervisor could have made more
of an attempt to ensure that Grievant had it. I note that there were two supervisors
on duty while Grievant was arranging the parking of buses; one of those supervisors
worked along side Grievant for a period of time while he was assigning the buses to
particular parking spots. (Tr. 49, 102, 103) I am left to wonder what those
were doing if Grievant was not parking the buses properly.
There is no evidence in the record that shows even marginally
disobeyed any direct order on how to park the buses. While his supervisor, I am sure,
did not tell Grievant to park the buses "any which way," there is not any testimony to
prove that he said anything other than "park the buses" as the crew was already
behind that evening. (Tr. 36-38) I believe the main point that the City relies on to
argue an intentional work stoppage or slowdown is the alleged statement made to the
mechanics foreman, Langsdorf, that the Grievant was slowing down the work by
improperly parking the buses to teach Laylan, his supervisor, not to micro-manage the
service lane. (Tr. 8) The Grievant denies that he made such a statement. (Tr. 138, 139)
Even if I credit the foreman's testimony that the statement was made, which would
tend to prove an intentional slowdown, the City still has to meet the other two
aspects of the test to justify discipline under Article 4.
There is absolutely no evidence in the record to prove that the
solicited any of his fellow employes to join in a slowdown of work to gain a
concession from the City. Grievant joined a few of the service lane employes outside
the maintenance garage early in his shift when he first refused to park the buses, but
there is no evidence that he asked any of those employes to join him in a slowdown or
an attempt to impede work. Further, there is nothing in the record to indicate that
the Grievant or any other employe was seeking a concession from the City. I find any
alleged complaint about Grievant's supervisor micro-managing the service lane to be
just that, a complaint or gripe, not a request for a concession as that word is clearly
used in arbitration case law. Absent that concerted activity or request or promotion
of that concerted activity to win a benefit from the City there simply cannot be any
violation of the contractual No-Strike provision.
This standard test for concerted activity has been consistently
upheld by the
National Labor Relations Board and the Courts.
II. Concerted Activity
 Section 7 of the
National Labor Relations Act, 29 U.S.C. subsection 157, grants
employees the right to engage in "concerted activity" for their mutual aid and
protection. Section 8(a)(a) makes it an unfair labor practice for an employer to
interfere with an employee's exercise of this right. Woolworth argues that the
activity at issue here was not concerted since Withers acted alone. Activity is
concerted, however, even where only one employee is involved if the employee is
enlisting the support of fellow employees. See NLRB v. Sencore, Inc. 558 F.2d 433, 434,
95 LRRM 2865 (8th Cir. 1977). By pressing for more female employees to
be assigned to
the shipping department, Withers was seeking to enlist the support of at least some
of his fellow employees at MDAC. 5/
5/ F. W. Woolworth v. NLRB, USCA
8th Cir., 107 LRRM 3261, 3262, 1981.
The other requirement of the No-Strike clause that was not met
by the City was
not advising the Grievant to stop his alleged slowdown and not enlisting the Union's
assistance to stop the slowdown or impediment of the work on September 25, 1998.
Article 4, Section 4.2 specifically requires that the Union must be contacted if the
City believes a slowdown is ongoing; there is no dispute that this did not happen. (Tr.
93) In a case cited by the Union in its brief, the arbitrator ruled against the company
where the facts proved a shift slowdown among the employes, but the company failed
to enlist the union's help adequately by making a reasonable attempt to notify the
union and did not warn the employes that they were engaged in an unlawful work
stoppage or slowdown. 6/
6/ Mann Packing Company, 83 LA 552, 555,
I can make no other finding in this matter than the Grievant did
not engage in
a slowdown, impediment of or work stoppage in violation of Article 4 of the labor
agreement. As the City did not argue that Grievant in the alternative should be
disciplined under Article 22, I do not need and will not consider whether Grievant's
performance on September 25, 1998, violated reasonable work standards which would
have justified just cause discipline under Article 22.
Taking into account the record and the briefs of the parties I
find that the
Grievant did not violate Article 4, Section 4.2 of the labor agreement for his actions
on the evening of September 25, 1998.
Based on the foregoing and the record as a whole, I enter the
The Grievant did not violate Article 4 of the labor agreement
grievance in this matter is sustained.
The City shall make the Grievant whole for all losses in pay and
benefits for the
period of his suspension, less interim earnings and unemployment compensation benefits, and
shall remove all evidence of the discipline in this matter from the Grievant's personnel
record with the City. The City shall pay directly to the Department of Workforce
Development any unemployment compensation benefits received by the Grievant during the
period of his suspension.
Dated at Madison, Wisconsin this 20th day of August, 1999.
Paul A. Hahn, Arbitrator