BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS UNION LOCAL 695
THE CITY OF MADISON
(MADISON METROPOLITAN TRANSIT
(Termination of G.H.L.)
Mr. Larry W. O Brien, Assistant City Attorney, Office of the
City Attorney, City of Madison, City-County Building, Room 401, 210 Martin Luther King,
Jr. Boulevard, Madison, Wisconsin 53709, appeared on behalf of the City.
Ms. Andrea F. Hoeschen, Previant, Goldberg, Uelmen, Gratz,
Miller & Brueggeman, S.C., 1555 North Rivercenter Drive, Suite 202, P.O. Box 12993,
Milwaukee, Wisconsin 53212, appeared on behalf of the Union.
On January 22, 1999, Teamsters Union Local No. 695 and the City of Madison
the Wisconsin Employment Relations Commission appoint William C. Houlihan, a member
of its staff,
to hear and decide a grievance pending between the parties. Hearing on the matter was
on May 5, 1999, in Madison, Wisconsin. A transcript of the proceedings was made and
by May 17, 1999. Post-hearing briefs were submitted and exchanged. Reply briefs were
letter of July 22, 1999.
This Award addresses the termination of employe G.H.L., for her off-duty conduct
period of time in which she received Worker's Compensation benefits.
BACKGROUND AND FACTS
G.H.L., the grievant, has been employed by the Madison Metropolitan Transit
May, 1984. The grievant has been a bus driver for the last several years. In 1992, the
terminated from employment at Madison Metro for presenting false and/or altered medical
notes. The grievant was terminated by a letter which included the following paragraph:
It has been established that you knowingly and repeatedly
submitted fraudulent and altered
medical documentation, during the period from January, 1991 to August, 1992, in order to
substantiate your application and receipt of sick leave benefits. The fraudulent appropriation
leave benefits, by an employe of Madison Metro, cannot and will not be tolerated. Your
subject you to termination under Article 23.2(D) of the labor agreement.
On November 11, 1992, the grievant was reinstated to her employment pursuant to
of a last chance agreement. That agreement included the following provisions:
. . .
Investigation has revealed that Ms. H. altered a valid medical
certification of illness. Ms. H.
submitted various versions of the altered document to the employer on numerous occasions to
validate claims for sick leave pay and was in fact paid sick leave benefits for dates certain in
1992. . .The parties desire to avoid further litigation and agree to the following enumerated
conditions as an alternative to the letter of termination dated October 9, 1992.
(1) The letter of termination
dated October 9, 1992 shall be rescinded and replaced with a letter
of disciplinary suspension. . .
(2) The disciplinary suspension
is to be served without pay for a period of thirty-one (31)
calendar days commencing on and retroactive to October 1, 1992.
(3) Ms. H. will be returned to
work on Monday, November 2, 1992 without loss of seniority.
(a) Upon returning to work, Ms. H. shall
serve in the position of Transit Information
Specialist I. Ms. H's. salary shall be that of the Transit Information Specialist I. . .
(b) Ms. H. shall serve in
this position for a period of six (6) calendar months. Prior to the
end of the six (6) month period, the employer will conduct a complete performance
review of Ms. H., including, but not limited to, job performance, attendance (both
days worked and timeliness in reporting), and abilities. If she successfully passes the
performance review, she shall be afforded the opportunity to return to a Motor Coach
Operator position when the next authorized vacancy occurs in accordance with
number (5) below. In the event she does not successfully pass the performance
review, her employment shall be terminated without recourse to the arbitration
provisions of the labor agreement. Unsatisfactory performance during a probationary
period shall result in termination prior to the end of the six (6) month period.
(a) In the event that Ms. H. receives a
successful performance review as set forth in
number (4) above, she shall be returned, without loss of current Motor Coach
Operator seniority, to the position of full-time Motor Coach Operator when the next
authorized vacancy occurs. This shall not occur any sooner than six (6) months from
November 2, 1992.
. . .
(c) Ms. H. shall serve in a special
probationary status for a period not to exceed twelve
(12) calendar months. Prior to the end of the twelve (12) month period, the employer
will conduct a complete performance review of Ms. H., including, but not limited to,
job performance, attendance (both days worked and timeliness in reporting), and
abilities. If she successfully passes the performance review, she shall continue in the
position of full-time Motor Coach Operator. In the event she does not successfully
pass the performance review, her employment shall be terminated without recourse
to the arbitration provisions of the
labor agreement. Unsatisfactory
performance during the probationary period shall
result in discharge prior to the end of the twelve (12) month period.
(a) During the time period described in
numbers (4) and (5) above, the employer shall
have the right to request that Ms. H. provide medical documentation to justify any
absence (other than vacation, floating holiday and jury duty).
(b) Performance reviews
referred to in numbers (4) and (5) of this agreement shall not be
performed in a discriminatory, arbitrary or capricious manner.
(7) In the event any time subsequent to November 2,
1992, Ms. H. is charged with and found
guilty of willfully and knowingly supplying the employer with false, fraudulent, altered or
forged information or certifications, it shall be deemed sufficient cause for discharge without
recourse to the arbitration provisions of the labor agreement.
It was the testimony of Paul Larrousse, Transit General Manager, that during the
the negotiation of the last chance agreement the grievant indicated that she would be a model
employe, and that the employer would never again see any action along these lines.
testified that the grievant indicated that whatever city procedures were out there, the city
assured that the grievant would follow them. Larrousse further indicated that the grievant
that the city would never again see an altered doctor's excuse, and that whatever the doctor
grievant would have to do.
The grievant did return to work, and since 1992 worked as a bus driver. In August
the grievant suffered an injury to her right shoulder. The injury was compensable under
Compensation. As a consequence of this injury, the grievant missed ten partial days of work
August, 1997. She missed 14 partial days in September of 1997. She missed fourteen full
seven partial days of work in October. In November, the grievant missed 16 partial days of
In December, she missed 12 partial days of work. In January, 1998, the grievant missed 10
days of work. In February, the grievant missed 20 full days of work. In March, she missed
days, and was thereafter released to return to work.
The grievant was treated by Dr. Diana Kruse. The grievant's treatment and work
were made in conjunction with the treatment provided by Dr. Kruse. The grievant visited
on a number of occasions to be treated. Two of those occasions, November 4 and
1997, are particularly noteworthy. Kruse wrote the following letter, dated March 20, 1998,
summarizing her treatment of the grievant:
G.H. was seen on 12/9/97 for work-related injuries to her right
shoulder girdle, shoulder, neck
and lower back. The right shoulder girdle and neck problem have been long-standing. The
problem began in August of 1997, improved over a several week period, and then increased
August of 1997, as reflected in my 10-7-97 office note. She returned to work part-time on
10-22-97. When seen on 11-4-97, her low back problem was improving and on or about
she was increased to six hour workdays, continued in therapy as this was helpful in
low back symptoms.
On the 11-4-97 visit, bowling was
discussed, and I indicated bowling was not appropriate at that
time, so as not to stress her low back and added in the 12-9-97 office visit that it would be
wait until she had been working full-time for several weeks such as January, since she
returned to full-time on or about 12-15-97. My understanding is that G. tried bowling in her
back support in
December and did not have adverse reaction to that with respect to low back pain. Since she
left-handed, this does not stress her right shoulder and shoulder girdle problem.
When seen on 1-27-98, G. again had increased back pain after
working a 10-hour day on Martin
Luther King day. Her back exam and symptoms were significant at that visit, an MRI of the
spine was ordered and done on 1-30-98, showing a disc protrusion at L-5-S1. Subsequently,
was done on 2-9-98, and the patient was kept off work to maximize effect from injection and
instructed to gradually increase activity as tolerated. She did this, and on 3-3-98 was given a
to work full-time.
The grievant testified that she could not recall a discussion relative to bowling at the
November 4 visit. It was her testimony that she did not bowl much during the month
Dr. Kruse's December chart notes contain the following reference to bowling:
"G. wonders about trying bowling. Specifically, I indicated that
it would best to wait until she
has been working full-time for several weeks and at least waiting until January prior to trying
With respect to a healing plateau as questioned by Chris Zimdars,
the rehabilitation consultant
associated with G.'s case, I would not anticipate a healing plateau prior to another three to
months. G. is going to be seen again on 1-27-98 for a follow-up check."
Dr. Kruse's notes relative to the December discussion is consistent with the testimony
The grievant bowls recreationally. Notwithstanding her injury, the grievant bowled
and through the winter. She bowled in a weekly league on Tuesdays, and also bowled in yet
league every other Sunday. She wore a brace to support her back while bowling. The
suffered a right shoulder injury, bowls left-handed. It was her testimony that when she
discomfort, she would refrain from bowling. The grievant acknowledged that the doctor
it would be better to wait. She denies the doctor ever directed or ordered her not to bowl, or
the doctor used the term "inappropriate" in describing her bowling.
The grievant bowled in the open. She made no effort to conceal the fact that she was
bowling. Co-workers, including the secretary of the General Manager, were members of one
league. It was the grievant's testimony that Jane Warncke, the adjuster for Crawford and
a Worker's Compensation administrator for the city, called in December of 1997, and asked
she was bowling. The grievant responded that she previously bowled, and that she was again
bowling league. According to the grievant, there was no subsequent follow-up telephone call
Warncke or anyone else.
In late January/early February, a co-worker of the grievant's, evidently aware that
receiving Worker's Compensation, approached the employer with information that the
bowling. That person, or another co-worker, videotaped the grievant bowling, and provided
videotape to the employer. The videotape was made during a time frame in which the
off work due to an exacerbation of her Worker's Compensation injury.
By letter dated March 3, 1998, the grievant was advised as follows by Crawford and
. . .
Please be advised that we have information which indicates that
you have chosen not to follow
the treatment plan specified by your treating physician. Therefore, we must inform you that
temporary disability can be authorized beyond the date of this letter.
On that same day, March 3, 1998, the grievant received a letter from her employer
advising her of
You are hereby placed under investigation for receiving Worker
Compensation benefits under
a fraudulent pretense.
Madison Metro is in receipt of information
which indicates that you were receiving Worker
Compensation benefits while participating in activities in direct contradiction to your
recommendations. If this information is found to be accurate, your actions may be in
Article 22(D) of the labor agreement between the City of Madison and Teamsters Union
695 and may subject you to disciplinary action.
You will be advised of the outcome of this
investigation. . .
Following the issuance of these two documents, a
pre-determination meeting was conducted
in order to elicit information relative to the grievant's bowling. The grievant did not deny
bowling. The meeting adjourned with an understanding that the grievant would consult Dr.
to present the employer with information seeking to clarify whether or not her bowling
her injury. The document referenced above was Dr. Kruse's response.
The grievant was sent for an independent medical examination, which took place on
1998. The grievant testified that the examination took approximately five minutes. The
report is an
eight-page report prepared by orthopedic surgeon Stephen Weiss. Two of Dr. Weiss'
specific questions are noteworthy. Dr. Weiss was asked:
Q: What is the relationship, if any, of the recent low
back pain to the August, 1997 work
A: For the reasons stated
above, I do not believe that Ms. H.'s low back pain, even though it was
present on August 22, 1997, was either caused or aggravated by the work incident in
question. . .
Q: Given the nature of Ms.
H.'s injury, was she capable of bowling during her recovery?
A: Considering the nature of
her shoulder injury, I would not have recommended that she bowl
during recuperation. . .
The grievant was subsequently terminated by the following letter, dated August 31,
The City of Madison has concluded its investigation regarding
your conduct in use of
Worker's Compensation benefits and your subsequent failure to follow the doctor's directions
designed to facilitate healing.
On November 11, 1992, the City of
Madison and Teamsters Union Local 695, and yourself,
entered into a Memorandum of Understanding. This Memorandum of Understanding
to work after you had been terminated for submitting various versions of altered documents
sick pay. The Memorandum of Understanding that you signed contained the following
7. In the event any time subsequent to
November 2, 1992, Ms. H. is charged with, and found
guilty of willfully and knowingly supplying the employer with false, fraudulent, altered, or
information or certifications, it shall be deemed sufficient cause for discharge without
recourse to the
arbitration provisions of the labor agreement.
When this Memorandum of Understanding
was signed, the employer, union, and yourself
discussed the consequences of what would happen if you subsequently were found to have
the terms of the Memorandum. In responding to this, you indicated that you understood that
to properly submit certifications and comply with all of the restrictions that were contained
You indicated that you would be a "model" employe.
On November 12, 1997, you were seen by
Dr. Diana L. Kruse, M.D., for a Worker's
Compensation claim. You applied for, and received Worker's Compensation benefits as a
this doctor's appointment. Part of the certification that Dr. Kruse submitted, it was indicated
would be able to work six (6) hour days on split shifts. Dr. Kruse's chart notes contained
"G. wonders about trying bowling.
Specifically, I indicated that it would best to wait until she
has been working full-time for several weeks and at least waiting until January prior to trying
At your pre-determination hearing, you
admitted you knew of that notation.
The City of Madison has obtained
documentation that you did not follow the doctor's
restrictions. You bowled in two bowling leagues during the month of December, which
you did not follow the doctor's directions contained above. You admitted at the hearing that
bowled in December. By submitting Worker's Compensation documentation that contained
restrictions on the work you were to perform, you agreed to abide by these restrictions. You
your doctor's recommendations, which were part of the stipulations under which the
Compensation payments were provided.
Based upon the information that the City
has received and which you have admitted is accurate,
it is clear that you did not follow your doctor's recommendations. This constitutes behavior
not in accordance with, or acceptable under the Memorandum of Understanding of November
1992, and its intent. In the instant circumstance, you have falsely submitted information to
benefits from the City.
Therefore, in accordance with the
Memorandum of Understanding that was previously signed,
your employment is hereby terminated.
Paul J. Larrousse /s/
Paul J. Larrousse
Transit General Manager
The parties stipulated the following issue:
Was the grievant discharged for just cause? If not, what is the
RELEVANT PROVISIONS OF THE COLLECTIVE
GRIEVANCE AND ARBITRATION
. . .
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 conferred
upon him/her by this Agreement shall be final and binding upon both parties. Any question
of excess of authority, fraud or arbitrary action, shall be subject to the usual legal remedies.
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 backpay, in discharge or suspension
cases, be retroactive more than ten (10) days before the date on which the grievance was first
presented in writing in Step 1 above. In the case of a discharge or disciplinary layoff
grievance, the arbitrator shall have the power to uphold the action taken by the employer, or
to, return the grievant to his/her employee status with or without restoration of backpay, or
mitigate the penalty as equity suggests under the facts. . .
22.1 The employer shall not discipline
any employee without just cause.
shall be only after written warning notices to the employee with a copy to
the Union except for the following serious offenses:
a. Failure to stop for
railroad crossings as required by law and employer policy. This
provision applies equally to all shop and operator employees.
b. Conviction of morals
offense making the employee unacceptable to the public as a bus
c. Performing assigned
duties while under the influence of, or use of, or in possession
of controlled substances or alcohol.
d. Theft or
e. Other misconduct of
a serious nature acted on by the employer and agreed upon by
the union after its investigation.
unauthorized person to perform operating duties.
g. No-show for work
for two (2) consecutive days or more without notice to the
Employer except where the notice cannot reasonably be given.
h. Fighting (physical
contact) on employer premises or while on duty.
i. Operating a bus with
knowledge of revoked Commercial Motor Vehicle License
required by state law and failure to notify employer of revoked status.
j. Willful damage to
k. Possession of a
firearm, bow and arrow, or any instrument designed specifically to do
. . .
POSITIONS OF THE PARTIES
The Employer notes the stipulated issue presented for decision and contends that,
the issue becomes did the grievant's bowling, intentionally undertaken contrary to the
directions of her treating physician, constitute a violation of the Memorandum of Agreement
into between the parties in November of 1992? The Employer concludes that the answer is
Employer construes that Agreement and the grievant's contemporaneous comments to provide
she would do nothing which would result in any receipt of City benefits to which she was not
In its argument, the Employer relies heavily upon the grievant's proffered statement
would do nothing similar in the future, that she would be a model employe, and that
doctor said that she would have to do, she would. The employer relies upon Larrousse's
testimony in so contending. It is the Employer's view that the grievant's promises in this
an integral part of the basis of the settlement leading to the last chance agreement and
corresponding willingness to allow her reinstatement. It is the Employer's claim that
upon her promise in agreeing to the last chance agreement. It is the Employer's contention
grievant's words, as testified to by Larrousse, are as much a part of the MOA as if they
out as a part of that document.
The Employer contends that the Union's claim that the MOA is invalid due to a lack
limit, is without merit. The Employer acknowledges that the document has no end point, but
that during the course of the discussion leading to the creation of the document, there was no
discussion as to how long it would survive. It is the Employer's view that neither the Union
grievant can now be heard to complain about the lack of time limit for the application of this
The Employer points to the two doctor's cautions about bowling, and contends that
doctor was concerned that the grievant not exacerbate her injury by bowling. The Employer
on to contend that the concern for the grievant's back problem which led to the instruction
real when, in January of 1998, the back pain increased. The grievant attributes her problem
working a 10-hour workday, but, contends the Employer, the grievant did not tell her doctor
had been continually bowling against instructions during the recuperative time. The
believes it is reasonable to infer that the grievant did exacerbate her back problem by
may have extended her return to work.
It is the Employer's view that by bowling, the grievant risked injury to her back and
shoulders and neck. This is the very risk her doctors seek to avoid. It is the Employer's
the grievant mislead her doctor about the extent of her bowling, and by choosing to ignore
doctor's instructions, the grievant has been fraudulent in her dealings with her doctor and
employer. Her actions are contrary to the words, the spirit and the intent of the MOA and to
promises made to secure her reinstatement.
The Employer believes that actual proof of exacerbation of injury is not the point of
proceeding. The Employer contends that the critical factors which must cause this grievance
are the grievant's conduct throughout, and the undeniable fact that she broke her promise to
each and every one of her doctor's instructions and restrictions and that she did so knowingly
It is the Union's view that there is no just cause for the termination of the grievant.
It is the
Union's conclusion that what the City has done is to simply question the grievant's judgment
bowling, while she suffered from a medical condition.
It is the Union's view that the last chance agreement is invalid. The document was
on November 11, 1992. Almost six years later, the grievant was terminated for allegedly
the Agreement. The last chance agreement purports to bind the grievant to its standards
permanently deprive her of the just cause protection of the collective bargaining agreement.
Union cites authority for the following propositions: like any other contract, a last chance
must have a term; and, in the absence of a term, it is incumbent upon the Arbitrator to insert
reasonable duration for the Agreement. The Union contends that nine months, the period
warning notices survive, would be a reasonable time period for the last chance agreement.
summary, it is the position of the Union that the last chance agreement should be deemed to
Assuming, for purposes of argument, the last chance agreement is operative, it is the
position that the grievant did not violate that agreement. The agreement makes no reference
complying with doctor's medical recommendations. Compliance with medical restrictions
one of the reasons for the grievant's termination in 1992. Medical restrictions were not even
in the 1992 termination. The issue in 1992 was falsifying medical documents, and the
not allege that the grievant has submitted any false medical documents in 1997 or 1998. At
City has charged the grievant with exercising questionable judgment by bowling. Neither
nor questionable judgment violates the terms of the MOA.
The Union contends that the Employer lacks just cause to terminate the grievant.
does not constitute just cause for discharge. There is absolutely no evidence that bowling
exacerbated the grievant's shoulder. On December 9, 1997, Dr. Kruse predicted that the
would reach a healing plateau in three to four months. Not quite three months later, the
secured a full release to return to work. The Union contends that the grievant was very
about her recovery, despite bowling. She did not bowl with her injured shoulder, she
bowling when she felt pain, she always wore a back brace, and she diligently attended her
The Union points to other employes and contends that the Employer treated the
harshly than other employes who violated medical restrictions.
I believe the last chance agreement continues to exist, and controls the disposition of
proceeding. That agreement has no termination date. Had the parties wanted a terminal
were in a position to insert one at the point of the document's creation. The Union claims
be a contract without end, i.e., running in perpetuity. That is not the case. This grievant
someday quit or retire. Her severance from service will terminate the agreement. In the
circumstances may dictate that these parties, or an arbitrator, declare it at an end. Such
are not present here. Six years passed since the creation of the document. That is
admittedly a long
period of time. However, the context is the fraudulent behavior described in the
understanding (MOA). What survives of the memorandum of understanding is paragraph 7.
the limited scope of paragraph 7, and the behavior described, I do not believe it to be
onerous or oppressive to hold the grievant to that standard six years after execution of the
I believe that the last chance agreement governs this proceeding. That is what the
letter says. The MOA modifies the contractual just cause provision as applied to the grievant
certain circumstances. The employer does not here contend that her behavior offends the
bargaining agreement's just cause provision; rather, it is alleged to violate the MOA.
The Union contends that the grievant has been subjected to disparate treatment.
examples were offered which I do not believe to be persuasive. The circumstances described
very different from that involving the grievant. The employes involved had no history
of the grievant with the employer. Where applicable, the MOA creates a standard which
grievant to an analysis significantly different from that enjoyed by her co-workers.
I do not believe that the last chance agreement was violated. The grievant did not
and/or knowingly supply the employer with false, fraudulent, altered or forged information
certification. The employer must establish this to be the case for its behavior to be measured
the memorandum of agreement, as opposed to the just cause provision of the collective
What the grievant did was to bowl, contrary to the advice of her physician. While
reflect a poor exercise of judgment on her part, it does not begin to rise to the level of
described by paragraph 7 of the MOA. The grievant bowled openly. She did so in the
co-workers. That fact is relevant in light of paragraph 7's focus on willful
The employer argues that I should infer that the grievant exacerbated her back
bowling. I am not willing to do so. There is nothing in the record that supports such a
parties to this proceeding had access to the treating physician and the independent medical
Neither of those doctors has so indicated.
The employer relies heavily upon Larrouse's testimony relative to the grievant's
surrounding the last chance agreement. Whatever was said was not incorporated into the
terms of the agreement. It thus stands like the rest of the puffery that surrounds negotiated
The employer contends that representations made should be treated as if they were a
the MOA. I am not willing to do so. Paragraph 7 is explicit in carving out an area of
is exempt from the collective bargaining agreement's just cause provision, and grievance
protection. The representations attributed to the grievant are vague, general, and sweeping.
incorporate them into the MOA requires me to determine if the grievant has been a "model
whether the grievant has followed "whatever procedures the City requires", and/or whether
the grievant has done "whatever" her doctor says. To give full effect to these behavioral
reads all meaning out of the words the parties used in crafting the memorandum of
agreement. If the
words testified to by Larrouse form the standard of review, paragraph 7 has no meaning.
The grievance is sustained.
The employer is directed to reinstate the grievant and to make her whole for any lost
and/or benefits she suffered as a consequence of the termination. The employer is free to
obligation under this award by any interim earnings the grievant may have earned during the
since she was terminated. I will retain jurisdiction over this matter for purposes of resolving
as to remedy. Absent a request to extend my jurisdiction, I will consider my jurisdiction
February 1, 2000.
Dated at Madison, Wisconsin this 27th day of December, 1999.
William C. Houlihan, Arbitrator