BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL UNION NO. 43 OF
INTERNATIONAL BROTHERHOOD OF
CITY OF LAKE GENEVA,
COUNTY OF WALWORTH, STATE OF
Mr. Jonathan M. Conti, Previant, Goldberg,
Uelmen, Gratz, Miller & Brueggeman, S.C., Attorneys
at Law, 1555 North RiverCenter Drive, Suite 202, P.O. Box 12993, Milwaukee, Wisconsin
appearing on behalf of Teamsters Local Union No. 43 of the International Brotherhood of
referred to below as the Union.
Mr. Robert W. Mulcahy, and Mr. Jesus
J. Villa, Michael, Best & Friedrich, LLP, Attorneys at
Law, 100 East Wisconsin Avenue, Milwaukee, Wisconsin 53202-4108, appearing on behalf
of Lake Geneva, County of Walworth, State of Wisconsin, referred to below as the City or
The Union and the City are parties to a collective bargaining agreement which was in
at all times relevant to this proceeding and which provides for the final and binding
certain disputes. The parties jointly requested that the Wisconsin Employment Relations
appoint an Arbitrator to resolve a grievance filed on behalf of Ron Carstensen, who is
below as the Grievant. The Commission appointed Richard B. McLaughlin, a member of its
Hearing on the matter was held on November 16, 1999, in Lake Geneva, Wisconsin. A
that hearing was filed with the Commission on November 30, 1999. The parties filed briefs
waiver of reply briefs by February 4, 2000.
The parties were unable to stipulate the issues for decision. I have determined the
poses the following issues:
Did the City have cause to discipline the Grievant for his
conduct on June 13, 1999?
If not, what is the appropriate remedy?
1. The Employer possesses the sole right to operate the Department and
rights to repose in it with the understanding that such rights of management will not be used
purpose of discrimination against any employee or contrary to this to this (sic) Agreement.
rights include, but are not limited to the following:
A. To direct all
operations of the department;
B. To establish
reasonable work rules and schedules of work;
. . .
E. To suspend demote,
discharge and take other disciplinary action against employees
for just cause;
. . .
17. JOB SAFETY AND WELFARE
. . .
Section 8. Hazardous work
shall be determined by a committee consisting of the Union
Grievance Committee, the Department Superintendent involved, and the City Business
Employees shall not be required to perform hazardous work so determined unless all required
reasonable safety equipment is available to employees use.
. . .
ARTICLE 21. DISCHARGE OR
1. The Employer shall not discharge nor suspend any full-time employee,
probationary employees, without cause but in respect to discharge or suspension shall give at
(1) warning notice of the complaint against the employee to the employee in writing and a
copy of the
same to the Local Union and job steward except that no warning notice need be given to an
before they are discharged or suspended for the following causes:
. . .
Daniel Winkler, the City's Director of Public Works & Utilities issued a
June 15, 1999 (references to dates are to 1999 unless otherwise noted), to the Grievant which
On Sunday, June 13, 1999, at approximately 8:30 AM, you were
ordered by Mayor Spyro
Condos to remove a broken and hanging limb on the corner of Wrigley Drive and Baker
limb was, in the opinion of the Mayor, Police Chief and Fire Chief, a safety hazard to the
public in need of immediate abatement. He therefore wanted the limb removed that
limb was not removed until approximately 5:30 PM that evening, after directed to by
Allen by myself.
In accordance with Article 21, Sub-section (G) of the Labor
Agreement, your refusal to remove
the limb at the Mayor's direct order is considered insubordination and grounds for
You are hereby issued a three (3) day suspension without pay effected the first working day
your acceptance of this action.
If this decision is challenged, said suspension will be delayed until
a final disposition of any or all
appeals available to you has been rendered.
The Union responded by filing a grievance, which asserts that the discipline violates
Section 8. In a written statement attached to the grievance, the Grievant stated that the
constitutes "unjust disciplinary action" and that the Mayor, Police and Fire Chief had
"reckless disr(e)gard for the rights and safety of myself & other coworkers."
A core of fact underlying the grievance is not disputed. The Grievant has worked for
for roughly five and one-half years, and is currently classified as a Worker/Operator. The
description for Worker Operator states:
I. WORK CHARACTERISTIC OF THE
Under general supervision to perform a variety
of semiskilled maintenance, machinery
operation, and repair tasks of more than ordinary difficulty requiring certain techniques or
special knowledge which generally are acquired through experience on the job; and to do
related work as required.
. . .
10. Trims, plants, sprays, and removes
. . .
Prior to the incident at issue here, he had not received any discipline.
The Grievant was, at
the time of the incident posed here, part of an eleven man street crew. The direct supervisor
of the street crew is Lynn Allen, the City's Street Superintendent. Winkler is Allen's direct
supervisor. At the time of the incident the City employed a City Administrator as Winkler's
direct supervisor. That position is no longer part of the City's table of organization. In any
event, all City employes ultimately report to the Mayor and Common Council. Spyros
is the City's Mayor. Winkler views the Grievant and Rex Greene as the street crew
most experienced in tree maintenance.
On the weekend of June 11, Winkler took vacation to attend a
soccer game in
Milwaukee and to attend his daughter's soccer game in Appleton. He returned to Lake
Geneva in the late afternoon of June 13. Allen was on vacation from June 7 through June
Sometime late in the afternoon of June 11, a storm blew through
Lake Geneva, bringing
high winds and rain with it. Rain and wind blown debris blocked storm drains and flooded
City streets. The City called the Grievant and other street crew members in on overtime to
clear the storm sewers and roadways. The storm caused many trees throughout the City to
drop branches. One of the trees damaged by the storm was located adjacent to a City
in front of the Hotel Meridian. The Hotel Meridian sits on a corner lot abutted by Highway
120, which is known within the City as Wrigley Drive. Coming from the south into the City,
a car traveling on Wrigley Drive would descend a hill traveling west toward the lake, which
the Hotel Meridian faces. At the bottom of that hill, the road makes a close to ninety degree
turn to the north. The sidewalk parallels that course. The speed limit on Wrigley drive, at
turn, is twenty-five miles per hour.
The damaged tree stood roughly six to ten feet behind a curb
opening through which
the sidewalk slopes into Wrigley Drive. A City park, which includes a public boat landing,
located across Wrigley Drive from the west face of the Meridian. As noted above, following
a route from the south into the City, Wrigley Drive curves sharply to the north. On the
Meridian side of the road and after the curb opening, Wrigley Drive includes a passageway
for pedestrians and cyclists, bounded by a white stripe. The damaged tree, a deciduous
hardwood, forked into two major branches perhaps fifteen feet above the ground. The storm
weakened one of those forks, causing it to break, falling northward, into the other fork. The
falling branch split the other fork, wedging it between the split halves of the second fork,
remained attached to the trunk of the tree. The falling branch's crown fell to the ground,
covering the adjacent sidewalk and spreading into the curb area of the pedestrian/cyclist
It cannot be determined when this damage occurred, although in
all probability it
occurred during the evening of June 11. In any event, during his normal rounds of the City,
on June 12, Police Chief Richard Meinel noted the damaged tree. He concluded that the tree
would force pedestrians onto Wrigley Drive to avoid its branches. Wrigley Drive is a
particularly busy street during the summer, and Meinel thought the fallen branch posed a
considerable safety issue. He decided to inform the Mayor. At roughly 11:00 p.m. Meinel
Condos took a drive around the City to view storm damage including the damaged tree.
Meinel and Condos agreed that the tree posed a safety risk and that it should be removed.
Condos directed Meinel to have the Police Department inform the Street Department to
Sometime around 5:30 a.m. on June 13, Sergeant Richard Fritz
informed the Grievant
of the damaged tree. The Grievant and two other street crew members proceeded to the
Meridian to view the tree. After pulling and kicking the fallen branches, the Grievant
concluded that it "wasn't going anywhere" (Transcript [Tr.] at 192). The crew then
to perform other duties. At sometime around 8:00 a.m., on June 13,
the Grievant phoned
Condos. The two discussed the situation. Shortly after ending his conversation with the
Mayor, the Grievant phoned Allen at his home.
Condos left the City shortly after his conversation with the
Grievant, and returned at
roughly 3:30 p.m. He drove by the Meridian, and noted that the tree branch had yet to be
removed. Condos then phoned the Police Department and Allen. He then phoned the Chief
of the Fire Department, and asked him to inspect the tree with him. The two agreed the
posed a safety risk requiring immediate attention, and the Fire Chief started to call in fire
fighters to perform the work. At roughly the same time, Winkler returned from Appleton,
noted that City parks still manifested the storm's aftermath. He phoned Allen to determine
what was being done to clean up. Allen informed him that Condos had just phoned
concerning the tree in front of the Meridian. Winkler and Allen ultimately joined the Mayor
and the Fire Chief at the site of the damaged tree. Ultimately, the City street crew,
the Grievant, Greene and Hansen, removed the branch. The removal was completed using
only City equipment and City street crew members.
The City has implemented an Employee Handbook, which states
at Section 501:
. . . Each employee is
expected to obey safety rules and to exercise caution in all work
activities. Employees must immediately report any unsafe condition to the appropriate
supervisor. Employees who violate safety standards, who cause hazardous or dangerous
situations, or who fail to report or, where appropriate, remedy such situations, may be
to disciplinary action, up to and including termination of employment. . . .
The City also has implemented a safety manual, which includes the
The City of Lake Geneva
recognizes that the responsibility for safety is shared. The City
accepts the responsibility for leadership of the safety program, for its effectiveness and
improvement, and for providing the safeguards required to insure safe
. . .
. . .
D. Inform your
supervisor immediately of any hazardous conditions which you may
encounter or injury you may suffer.
The background set forth above is not disputed. The balance of the
background is best set
forth as an overview of witness testimony.
Meinel has served as the City's Police Chief for roughly three
years. He noted the
Mayor often accompanies him for a patrol of the City after the Mayor's restaurant closes.
This happened on June 12, and about 11:00 p.m., he and Condos drove by the damaged tree
in front of the Meridian. Meinel had observed the tree earlier during his rounds, and wanted
to bring it to the Mayor's attention. It was raining at the time he and Condos viewed the
and they remained in the squad car. They agreed that the fallen branch seemed to be
precariously, and posed a risk to anyone passing near or beneath it. Beyond this, they
that the branch posed a traffic hazard since it blocked the sidewalk. They feared that
pedestrians choosing to walk on Wrigley Drive to get around the tree might walk into the
traffic lane. Because the branch had fallen across the sidewalk just to the north of the curb
opening, they feared that northbound traffic could not get a good view of any pedestrian as
the traffic rounded the ninety degree turn around the curb opening.
On Meinel's suggestion, Condos agreed that the work should be
put off until the
following morning. They concluded that traffic flow would drop by early Sunday morning,
and that light conditions could only improve as day broke. They agreed that Meinel would
instruct the night-shift sergeant, Richard Fritz, to contact the street crew to attend to the
matter. Condos informed Meinel that any employe with questions should contact him at his
restaurant up until 8:30 a.m.
Meinel relayed this information to Fritz thus:
I told Sergeant Fritz that the mayor wanted the
tree taken down the following morning
and that he should notify the Street Department when they come in. No one was sure who
would be the street crew. . . . We just know there's people there early in the morning on
weekends to do park clean-up and stuff. (Tr. at 32).
He detailed the specifics of the conversation thus:
Q Did you tell Sergeant Fritz
that the mayor issued a direct order that the tree be taken
down Sunday morning?
A Did I
use those words?
Not that I recall.
you tell Sergeant Fritz, did you emphasize that the mayor was demanding that it
come down immediately?
only did I tell him that the mayor was demanding it come down immediately, but
also that if they had any questions or concerns, that they should contact him personally
at his restaurant early that morning.
you didn't know who Sergeant Fritz was going to talk to, though?
certainly did not know who was going to be at the Street Department that following
you didn't know who was allegedly in charge either?
But even if I would have, that would not necessarily mean that the person left in
charge would be on that early morning crew . . . (Tr. at 39).
Meinel next learned of the matter sometime after 5:00 p.m. on June
13, when Sergeant Stern
phoned him at home to inform him that the Fire Department had been dispatched to the
Meridian to take down the branch, and the Police Department had been requested to provide
traffic control. Stern also informed Meinel that "the mayor sounded upset" (Tr. at 28).
Meinel then proceeded to the Meridian. Within minutes of his arrival, the Fire Department
reported for work, and within minutes of that, the street crew arrived. Shortly after the
arrival of the street crew, Winkler arrived at the scene. After reviewing the traffic control
provided by the Police Department, Meinel returned home.
Bauman is a Captain on the City's Police Force. He testified
that he has some
experience with tree trimming and removal based on years of relying on wood to heat his
home. His testimony tracked his written report of the incident. His written report reads
On Sunday, June 13, 1999 shortly before 5:45
a.m., Captain Bauman reported to the police
department for his shift. . . . Captain Bauman met with Sergeant Fritz, the off-going duty
sergeant, who advised that he had been requested by Chief Meinel to notify the street
department that a very large branch had to be removed from that tree in front of the
Fritz advised that he had
made contact with the driver of the truck vacuum, also a street
department employee, and made the Chief's request known to them. That person advised he
would notify (the Grievant), the person in charge, as soon as he arrived. He was scheduled
be in at 7:00 to clean the Riviera. Fritz also advised that he had made it known that the
had requested or ordered that this limb be removed and should the street department
employees have any questions, they were to see him. He would be at the Harborside Cafe
6:00 a.m. until approximately 8:30.
Captain Bauman went out
in his squad for routine patrol, during which he did drive past
the location in front of the Meridian and did observe a very large tree branch that was lodged
in the broken off portion of the trunk. The heavier, thick end of the branch was lodged
probably 18 to 20 feet off of the ground. The branches, the small end of the tree limb was
completely blocking the sidewalk. It was Captain Bauman's opinion that should any
pedestrians wish to pass that location, they'd be forced to walk out into the street, which was
very near or at a sharp curve or corner in the roadway at Highway 120. This would not
any drivers who were north bound very much time to react should there be a pedestrian in
street. It was also Captain Bauman's opinion that should any wind pick up, it was quite
possible that that branch could fall and either strike someone who may be walking underneath
it or strike a car that was on Highway 120 and happened to be passing, or at least block the
roadway partially and could cause an accident.
At approximately 8:15
a.m., Mayor Condos called Captain Bauman to advise him of the
situation with the tree and also advise that he was going to be leaving the restaurant and
to church and requested that Captain Bauman do what he could to see that this tree was
removed, as he considered this a very dangerous situation. Captain Bauman advised that he
would do so and that he had checked the tree itself and agreed that it needed to be taken
down. Also, Captain Bauman informed the mayor that Sergeant Fritz had passed his request
on to the street department. The mayor advised that he had talked with (the Grievant) from
the street department and discussed this issue with him.
At approximately 9:15
a.m., Captain Bauman received a phone call from (the Grievant)
who advised that he had gone down and checked the tree branch that was to be removed.
(The Grievant) expressed that in his opinion they did not have the expertise or equipment to
remove the tree safely and that he did not want to do so. Captain Bauman advised that
certainly did not want to order the street department to do anything that was dangerous or
beyond their capabilities
and asked if he had
contacted Lynn Allen his supervisor. (The Grievant) advised that he
had contacted Lynn Allen and had explained the situation to Lynn Allen and Allen told him
that the tree was not to be cut down if it was believed to be dangerous and they would take
care of it on Monday. It should be noted that it had been raining hard and continuously for
many hours and the ground was completely saturated.
Captain Bauman advised
(the Grievant) that as long as his supervisor was aware of the
situation and that he had told him not to cut the tree down and to go home, that that's exactly
what they should do. (The Grievant) stated he had just gotten off the phone with Lynn Allen
and that's exactly what was said. Bauman advised him that was Lynn's decision to make and
as a supervisor he would have to take the heat for that decision on Monday. Captain
thanked (the Grievant) for calling him and making him aware of the status of this incident
the conversation ended.
At 1:45 p.m. the same
day, Captain Bauman held roll call with the on-coming shift officers
and advised Sergeant Stem of the status of this tree and the fact that the street department
not going to remove it but they were aware of it. Lynn Allen had been notified by (the
Grievant) and he advised that it would be dealt with on Monday. . . .
Bauman testified that he did not know if the Grievant was the
Working Foreman for June 13,
or if the Street Department had advised Police Dispatchers who should be called in the event
of a problem during the weekend of June 11.
Winkler has served as the City's Director of Public Works and
Utilities for roughly four
years. He also serves as the City's Safety Director. Winkler has distributed a list of street
department personnel and their phone numbers throughout the City, including the Police
Department. He considers himself available and on-call twenty-four hours per day. No one
attempted to contact him, by phone, pager or voicemail, during the weekend of June 11.
When Allen is absent, he selects a street member to serve as
Working Foreman. An
employe serving as Working Foreman receives a straight-time premium of seventy cents per
hour. Winkler testified that he, Allen or a Working Foreman can call street crew members
on overtime. In Winkler's opinion, the Grievant had been selected to serve as Working
Foreman for the work-week including the June 11 weekend. In that position, the Grievant
would assign street
crew members their daily and any overtime tasks. Allen left Winkler
a phone message on June
4 that indicated that Greene would be "in charge" or Working Foreman on June 6, while the
Grievant would be "in charge wk. of 7th." A work week, from the
perspective of the City's
payroll system, runs from Monday through the following Sunday.
Winkler testified that a review of the Grievant's time cards
shows that he was first
called in for overtime on June 11 at 4:56 p.m., for four hours. He worked an additional two
and three-fourths hours for the Water Utility on June 11. On June 12, he worked three and
one-half hours of overtime at the Riviera, a ballroom and banquet facility owned by the City.
On June 13, the Grievant worked three and one-half hours in the morning at the Riviera,
returned at 5:28 p.m., to remove the damaged tree in front of the Meridian.
Winkler testified that he returned to Lake Geneva shortly before
5:00 p.m. on June 13.
The weather was sunny, with little wind. As noted above, after noting the storm's effect, he
phoned Allen. He thought the City parks should have been cleaned up by then, and phoned
Allen to determine why they had not been. Allen then informed Winkler that Condos had
called to complain about the tree in front of the Meridian. Allen also indicated that he was
leaving to visit the site and that the Grievant had earlier informed him that the tree could
until Monday to be cleaned up. Winkler then determined to view the scene himself. After
viewing the tree, he told Allen to call a crew in to remove it. Winkler then took his wife
daughter home. He did not return to the scene until after the street crew had begun to
the tree. Winkler noted he agreed with the Mayor's assessment of the safety risk it
On June 14, Winkler, the then-incumbent City Administrator
and Condos met to
discuss the street crew's response to the tree removal. Condos stated that the Grievant
be summarily discharged for insubordination. Winkler attempted to mollify the Mayor's
and was successful in persuading the Mayor to accept a three-day suspension. Winkler
assessed the level of discipline thus:
A Well, normally the
progression is for a reprimand, written reprimand, suspension,
termination. For insubordination, that placed the incident in a different category. Had
poor judgment just been made of not doing anything about the limb hanging over the
sidewalk all weekend at a very busy intersection, that would have been a different issue
and there probably would have been either an oral or a written reprimand, something
along that line pursued, but the fact that the mayor had stated very clearly that it was
insubordination . . . that placed it in a completely different category in my mind . .
Q And did you agree with the
three-day suspension based on your investigation of all of
the facts regarding the insubordination and the poor judgment and not clearing the
(Tr. at 90)
Until June 13, Winkler had believed that the tree in front of the
Meridian was not City
property. He noted that the Mayor and Allen have a "less than good" (Tr. at 103) working
relationship. He also noted that he believes the Grievant "is a very good worker" (Tr. at
Fritz noted that Meinel spoke to him regarding the removal of
the damaged tree branch
sometime in the early morning hours of June 13. Meinel directed Fritz to personally advise
street crew employes of the branch as soon as they reported for work on June 13 or to leave
word with Dispatchers to convey the message. At roughly 5:30 a.m. on June 13, Fritz saw
Grievant, and approached him to convey Meinel's message. Fritz described the conversation
A I said that there was a
message to deliver to him from the mayor that the chief told me
to deliver this message. . . . And the message was that there was a tree damaged in front
of the Meridian, that the mayor wanted it taken care of first thing this morning before
traffic started getting busy.
what, if anything, else was discussed?
was some discussion on whether it was on city terrace or on private property. .
. . I said I thought it was on city terrace but I wasn't sure. It wasn't my call. . . . (The
Grievant) thought it was on private property. . . .
(the Grievant) tell you that he was not going to remove the tree?
A I think
he said he would go down and take a look at it. (Tr. at 127).
Fritz noted that he understood the directive to be
that the tree "needed attention or it could
be checked . . . to do whatever it was needed to be done to it." He added that "seeing it
that it probably should have came down." (Tr. at 128). Fritz also informed the Grievant that
Condos would be in his restaurant between 6:00 and 8:00 a.m. on June 13, if there were
questions. Fritz could not recall if he contacted the Grievant because he thought the Grievant
was the Working Foreman or simply because the Grievant was available.
Condos has served the City as Mayor for three terms, and has
prior City service as a
Fireman and a Reserve Police Officer. He noted that he and Meinel agreed the damaged tree
posed a safety risk. Meinel asked Condos to issue a mayoral directive to remove the tree.
Condos agreed, and asked Meinel to have the directive communicated to the street
department. Condos agreed that the traffic would die down briefly in the morning, and pick
up again after church services ended.
Condos received a phone call from the Grievant slightly before
8:00 a.m. They
discussed the tree for a few minutes. Condos detailed the balance of their conversation
A . . . he had mentioned to me
a bunch of reasons why he didn't want to take it down.
He said it was dangerous, he said he didn't feel we had the right equipment, he wanted
to know if I was concerned if they got hurt maybe a couple other ones. . . . He said what
are we going to do if the tree is on private property? And I said that that wasn't his
concern because I was directing him to take it down and we would worry about who
was going to pay for it the next day, because of the danger of the
when he got finished with indicating to you that he did not have the right
equipment, it was potentially unsafe and did you have a concern about whether he
would get hurt or not, did you say anything to him about any of those
A I told
him that that was their job, that that's part of their job. There's always a
concern if they are going to be hurt . . .
Q . . .
do you recall how the conversation ended?
A I told
him to just do it and get it done. . . . I said: Ron, I would like you to take that
limb down right away. And that's all I remember saying. (Tr. at
Condos also informed the Grievant that he would be out of town to
attend a service for the
death of his sister, but would return later in the afternoon.
Condos returned to Lake Geneva at about 3:30 p.m., and saw
the tree at the Meridian
in the same position as when he had left. He then phoned the Police Department and spoke
with Stern, who informed him that the Grievant had discussed the matter with Allen.
then phoned Allen, who informed him that the Grievant thought the limb could wait until
Monday. Allen acknowledged directing the Grievant to leave the branch alone. Condos
that he knew the Grievant was the Working Foreman for the weekend, and concluded that
nothing would be done prior to Monday unless Condos got it done. He then phoned
Fire Chief and met him at the Meridian. They agreed the matter
should be attended to
immediately, and arrangements were set in motion to get Fire Fighters, fire trucks and police
personnel to the site to cordon off the area, pull the branch down and drag it across Wrigley
As noted above, street department personnel came to the scene,
and eventually removed
the fallen branch. The tree was City property, but in Condos' opinion its ownership was
irrelevant since it blocked a public sidewalk.
The following morning Winkler and the then-incumbent City
to meet with Condos to discuss the incident. Condos agreed to a three-day suspension
the Grievant had been, in his opinion, insubordinate. He acknowledged he did not warn the
Grievant of the consequences of refusing to remove the tree, but stated he thought the
Grievant fully understood the directive. He did not speak to the Grievant after his
conversation with Allen because it would have been futile. He acknowledged he stated on
13 that he wanted the Grievant terminated.
The Grievant noted that he agreed to serve as Working Foreman
during the week from
June 7 through June 11. Because he took a day of vacation on June 7, however, Greene
as Working Foreman for that day. Allen was on vacation from June 7 through June 11. The
Grievant did not consider himself to be the Working Foreman on June 12 or June 13. He
noted that June 12 and June 13 were days of scheduled overtime for the Riviera. As
Foreman, the Grievant did no more than offer that work to unit employes by seniority.
Because no more senior employe accepted the Riviera work, the Grievant took it. He did
consider himself to be in charge of the crew for the weekend work. Allen called in another
employe to respond to street flooding late in the evening of June 12 or early in the morning
The Grievant reported to work on June 13 at roughly 6:30 a.m.
Hansen had been
sweeping streets that morning, and informed the Grievant that Fritz had approached him
regarding the damaged tree at the Meridian. As the Grievant and two other street crew
employes scheduled to clean the Riviera left the shop, Fritz approached the Grievant. Fritz
asked the Grievant if he was the man in charge. The Grievant informed Fritz that he did not
know who was in charge for that weekend. Fritz then told the Grievant that "there was a
branch hanging out of the tree in question here and that we needed to look at it and the
let the mayor know whatever was going on so it would cover his ass" (Tr. at
They then left for the Meridian to inspect the tree. It was, at
that time, raining fairly
hard. The Grievant stated that he concluded the branch could not be removed safely. It was
too dark, the ground was saturated, the crew lacked sufficient
manpower, and the crew lacked
the proper equipment. The Grievant felt that to properly barricade the road and remove the
branch, he would need five people. Beyond that, he felt the crew would need a hydraulic
saw to permit the split branch to be cut from a safe distance. He stated he also believed the
tree was on private property.
The Grievant testified that he was not concerned that the fallen
branch would dislodge
from the trunk of the tree. He stated that the branches that had fallen to the ground were
embedded, and that after vigorously pulling and shaking the branches, he concluded the
fork of the tree was not going to move. While he pushed and pulled at the fallen branch,
Greene and the other crew member stood within a five foot radius of the tree. The Grievant
assumed, as the senior member of the crew, responsibility for the decision not to remove the
branch, but viewed the decision as a consensus of the crew.
The Riviera was to be used on June 13, so the crew left the
Meridian to get the Riviera
prepared. While at the Riviera waiting for the delivery of some tables, the Grievant phoned
the Mayor. He noted that Condos griped to him about the condition of the parks. The
Grievant responded that cleaning the parks was not, in his experience, done while on
and that he was not the man in charge. Condos then mentioned the tree at the Meridian.
two discussed whether it should come down, the safety risk it posed and whether it was a
privately owned tree. The Grievant detailed the end of the conversation
A After we talked a little bit
more, whatever he had said, I told him that I could, if he
wanted us to, I could - would go back, we could probably chain it up just to make
that it does not go anywhere, but that's about the best we could do, and if he wanted
me to go back and look at it, we can, I can see if there is something I can do to remedy
this or whatever, and he says: well, see what you can do, and that was the end of the
Q Was it
your understanding that the mayor was giving you a direct order?
A No, it
was not. . . .
the mayor ever say to you that the branch had to come down immediately?
A No, he
did not. (Tr. at 200).
The Grievant then relayed the conversation to Greene, and then
decided to call Allen "because
I was not the man in charge on the weekend, and I thought I should probably call my
supervisor and let him know what was going on" (Tr. at 201).
The Grievant detailed his conversation with Allen
. . . I believe I probably woke him up, and I told
him that the mayor had called and was
complaining about the parks and stuff, and Mr. Allen says: Well, what the hell does he
about it, we don't pick up parks or whatever on the weekend after a storm like this. And
I told him about the tree branch being down, and Mr. Allen's words to me were: Leave the
fucking tree alone. It is a fucking private tree. If there is any heat to be taken, I will deal
it and take care of it on Monday. (Tr. at 201).
The Grievant did not, during this conversation, describe to Allen the
condition of the tree in
front of the Meridian. The Grievant testified that he called Allen because another crew
member had once been warned about bypassing the departmental chain of command to speak
with elected officials on issues of departmental concern. The Grievant did not call the
after the 8:00 a.m. conversation because he did not want to get into the middle of a dispute
between Allen and Condos.
After finishing work at the Riviera, the Grievant phoned
Bauman to advise the Police
Department of the status of the Meridian tree. He did not hear of the incident again until
roughly 5:10 p.m. on June 13, when Allen phoned him to come in to remove the branch.
Grievant objected that it could not be done safely, but agreed to come in when Allen said he
could show him how to safely do it. The street crew removed the branch, using its lift
Fire engines and police cars blocked off Wrigley Drive to permit the bucket truck access to
tree from Wrigley Drive. Greene worked from the bucket with a chain saw. The Grievant,
Hansen and Allen assisted from the ground. Allen directed Greene to tie a cable around the
fallen branch and attach it to the bucket truck. Greene then worked from the bucket to sever
the fallen branch from the tree trunk.
The Grievant testified that after he received his suspension on
June 15, he asked that
he be paid the Working Foreman premium for June 12 and June 13. He reasoned that if he
was being disciplined for failing to exercise the authority of a Foreman, he should at least be
paid for it.
Greene noted that he and the other crew member waited about
five feet behind the
Grievant while he tested how solid the fallen branch was. Greene agreed with the Grievant
that the branch should not be removed at that time since "it was pouring rain, it was dark,
tree was solid, the branch was solid in the crotch, it was not going anywhere, it was safer at
that time to leave it alone than to mess with it" (Tr. at 256). The branch was not, in his
opinion, removed safely. He felt he was too close to it while cutting the tree trunk with the
chain saw to free the fallen branch. He stated his view of the situation preceding the
We weren't given the time.
This had been blown so much out of proportion, it just had
to be done. I didn't like it, I did not feel safe. (Tr. at 261-262).
Greene did not view the Grievant to be a Working Foreman for the
weekend work of June 11.
Greene noted that unit members do not typically volunteer to serve as Working Foreman, and
that Allen never explicitly informed the crew that Allen would be back on duty for June 12
Further facts will be set forth in the DISCUSSION section
THE PARTIES' POSITIONS
The City's Brief
The City states the issues posed thus:
Was (the Grievant) appropriately disciplined for
his actions on Sunday June 13, 1999,
relating to a fallen tree incident in downtown Lake Geneva?
If not, what is the
After a review of the evidence, the City contends that the Grievant's
insubordination. Under Article 21, the City could appropriately suspend the Grievant for this
conduct without having to issue a written warning. A review of the evidence establishes,
according to the City, that it has proven each element required to establish insubordination.
Testimony, the City's organizational chart and Wisconsin Statutes establish that the Mayor
is the City's chief operating officer, and that as such he has the authority to issue a direct
to subordinate employes. Beyond this, the evidence establishes that the Mayor clearly
the Grievant to remove the limb and that the Grievant understood the direction. That the
order was directly related to the Grievant's work duties is indisputable. The City's
Handbook and the Collective Bargaining Agreement highlight that the Grievant should have
understood the disciplinary consequences of failing to carry out the order. Any possible
on this point is addressed by the Grievant's conduct in contacting Allen at home. Finally,
evidence establishes that the Grievant had ample time to comply with the order on Sunday
morning, since the actual removal took less than one-half of an hour.
The City then contends that Allen's conduct affords the Grievant
no defense for his
insubordination. Initially, the City asserts that "common sense dictates that the Mayor's
authority supercedes the authority of any lower-level supervisor." Even if the Grievant was
confused about what to do, his failure to ask either supervisor for clarification makes him
personally accountable. Beyond this, the City notes that Allen's
instruction not to remove the
limb was based on inaccurate information supplied by the Grievant.
The Grievant's contention that the City lacked the necessary
resources to remove the
limb cannot be credited. This "argument is discredited by the simple fact that the tree limb
was removed later that Sunday using all City workers and all City equipment that were all
available to Grievant earlier that morning." Even if it is assumed the Grievant sincerely
doubted the sufficiency of City resources, his own involvement in past City use of
contractors establishes he should have acted to bring in outside help. Similarly incredible are
assertions that the Grievant lacked the authority to call in other City employes, particularly
in light of his status of serving as Working Forman on the weekend of June
Nor can assertions that the limb removal was unsafe be credited.
Whatever risk was
involved cannot overcome the applicability of the "work now, grieve later" principle. In any
event, the assertion that the work was unsafe is belied by the Grievant's conduct. The actual
removal of the limb, including the Grievant's involvement, establishes this. Beyond this,
whatever risks were posed, "such risks were inherent to Grievant's job in the Streets
Department." The City adds that "it is questionable whether Grievant's alleged safety
was the primary motivation for his refusal to carry out the Mayor's directive." That the
Grievant did not advise Allen of a significant safety risk and that the Grievant tested the limb
by "pulling and kicking the fallen limb 'real hard' to see if it would dislodge while his
co-workers were standing within five feet of the limb" undercut any persuasive basis to the
assertion that the limb removal posed hazardous work.
Viewing the record as a whole, the City concludes that "the
Arbitrator should find that
the City appropriately disciplined the Grievant, and deny the present
The Union's Brief
The Union states the issues posed thus:
Did the City have just cause to suspend the
grievant . . . for insubordination, and if not,
what is the appropriate remedy?
After a review of the evidence, the Union asserts that the City
failed to demonstrate just
cause for suspending the Grievant. Initially, the Union asserts that the City "accused the
grievant . . . of insubordination" and must "therefore prove that (he) disobeyed a direct
not merely that he . . . handled the events of June 13, 1999, negligently, or incompetently,
improperly." A review of the record establishes that "there is no evidence that (the
was guilty of insubordination." The evidence offered by the City will meet no generally
accepted definition of the term. More specifically, the Union
contends that Condos "never
clearly gave (the Grievant) direct orders to remove the tree on the morning of June 13,
Nor did the Mayor clearly indicate that the tree had to be removed immediately, nor did the
Mayor indicate to the Grievant that "he would be subject to discipline" for not removing the
tree. The evidence supports the Grievant's view that he had been issued not "a direct order,
but . . . an open-ended instruction to see what other options he might have to resolve the
That the Grievant responded by verifying that the limb would
not move, and then by
calling Allen cannot be characterized as anything other than following the appropriate chain
of command. Past action by supervisors to require unit employes to follow departmental
of command when issued requests for work from elected officials only underscores the
reasonableness of the Grievant's response. That he informed the police department of his
conversation with Allen further underscores the reasonableness of the Grievant's response.
City assertions that the Grievant could have called in an independent contractor for the work
ignores that the Grievant was unaware of his authority to do this until after the suspension.
The Union summarizes the record regarding insubordination thus:
Missing from any charge of
insubordination in this case are the key requirments of a
direct order, an unequivocal refusal to follw the order, and notice of the consequences for
failing to follow the order. At the very most, (the Grievant's) actions constituted a failure to
carry out an order, as opposed to insubordination.
Even if the Grievant failed to follow a direct order, his conduct was
appropriate since he "was
reasonably and sincerely concerned for his safety and the safety of his fellow workers."
Application of a "reasonable person standard" to the evidence affirms this. Weather
conditions on Sunday morning precluded safe removal of the tree. The location of the work
would, in addition, have required additional help to block the road and to perform the actual
removal. Significantly, Condos paid "no heed" to the Grievant's professed safety concerns.
That the limb was taken down without incident cannot obscure that tying a branch to the
truck holding the bucket in which an employee is sawing up through a limb violates known
That the Grievant was not serving as Working Foreman on June
13 is established by
the evidence. He requested such pay for the time spent removing the limb, and only after he
had learned he would be suspended for his conduct.
Nor can City assertions that the limb constituted a safety hazard
to the public be
credited. That it extended into the street can be granted, but this ignores that pedestrians
could safely cut across the hotel's lawn, cross the street, or walk in the shoulder strip not
obstructed by the fallen limb. Weather conditions kept potential pedestrians inside on
morning. More significantly, the City's professed concerns are belied by the fact that the
fell, in all probability, no later than Saturday afternoon. Thus, the police and many citizens
were aware of it well before Meinel and Condos viewed the tree late Saturday night. That
one prior to that time sought action undercuts the City's professed concern, as does the
of Meinel and Condos to take immediate action on Saturday night. That the Grievant tested
the limb's branches does not establish anything more than a higher level of care than that of
Meinel and Condos who chose to view the scene at night from within a squad
There is no dispute the Grievant is a good employe, with no
history of discipline or
difficulty working with supervisors. Thus, there is no basis to believe he fabricated his
concerns or that he deliberately defied Condos' supervisory authority.
Viewing the record as a whole, the Union concludes that "the
arbitrator should order
the City to rescind (the Grievant's) suspension and make him whole for all wages lost while
attending the arbitration hearing."
The parties have not stipulated the issue on the merits of the
grievance, and this poses
the threshold point for determination. The Union's statement of the issue, unlike the City's,
states the just cause standard, but restricts it to the issue of insubordination. My statement
of the issue broadly questions the propriety of disciplining the Grievant for his conduct on
June 13, and expressly states the cause standard.
The labor agreement and the parties' stipulation of the issue of
remedy make it
unpersuasive to restrict the statement of the issue to insubordination. Article 2, Section 1, E,
grants the City the right to "suspend . . . and take other disciplinary action against
employees." Article 21, Section 1 governs discharge or suspension, and specifically
levels of discipline preceding suspension or discharge. More specifically, the section states
with listed exceptions, "in respect to . . . suspension" the City "shall give at least one (1)
warning notice of the complaint against the employee." These provisions raise the possibility
of cause to discipline short of suspension, and my statement of the issue is thus stated
to incorporate that possibility. The parties' mutual submission of potential remedial issues
underscores the need to state the issue on the merits broadly.
Although Article 2, Section 1, E refers to "just cause," and
Article 21, Section 1 refers
to "cause," there is no reason to conclude these references establish distinguishable standards
for assessing the propriety of discipline. "Just cause" and "cause" are commonly treated as
synonymous: "The term 'just cause' is generally held to be synonymous with 'cause,'
cause,' or 'reasonable cause.'" Hill & Sinicropi, Management Rights,
(BNA, 1986) at 99. See
also Bornstein, Gosline & Greenbaum, Labor and Employment
Arbitration, (Matthew Bender,
1999) at Section 14.01. My statement of the issue thus turns on whether cause exists to
discipline the Grievant for his conduct of June 13.
Where the parties have not stipulated the standards defining just
cause, the analysis
must, in my opinion, address two elements. First, the Employer must establish the existence
of conduct by the Grievant in which it has a disciplinary interest. Second, the Employer
establish that the discipline imposed reasonably reflects that interest. This does not state a
definitive analysis to be imposed on contracting parties. It does state a skeletal outline of the
elements to be addressed and relies on the parties' arguments to flesh out that
In this case, specific contract provisions temper these broad
considerations. Article 21
governs suspension, and Section 1(G), demands that a "warning notice" precede a suspension
unless the suspension is caused by "(i)nsubordination." Thus, the initial determination must
be whether the Grievant was guilty of insubordination on June 13. If he was, then Article
Section 1(G) establishes that the City has met both elements of the cause analysis. The
subsection need not be read to preclude a lower level of discipline for insubordination, but
establish summary suspension as an appropriate sanction. If the Grievant was not guilty of
insubordination, the issue becomes whether the cause analysis supports any
"Insubordination," is the "deliberate defiance of . . . supervisory
Gosline and Greenbaum, at Sec. 20.04. As Article 21 underscores, insubordination is not
uncommonly treated as a capital offense in labor relations. The severity of the sanction is
rooted in the willful nature of the offense, which connotes the deliberate undermining of
place management. Insubordinate behavior, under Article 21, must be distinguished from
negligent behavior. The former is routed to summary suspension or discharge, while the
is routed to progressive discipline.
Arbitrators have stated the elements to proving insubordination
in a variety of ways.
In my opinion, to establish insubordination, the City must demonstrate that the Grievant
understood and deliberately defied a clear, work-related order issued by a known supervisor.
See, for example, Roberts' Dictionary of Industrial Relations, (BNA, 1986);
Gosline & Greenbaum at Section 16.04.
Condos occupied a known supervisory position, authorized to
give work orders to unit
employes. Whatever the statutory authority of a mayor may be under Wisconsin statutes, it
is apparent that City employes knew that Condos occupied the top position in the City's
administration. The Grievant's June 13 call to Allen manifested his own and Allen's
understanding that the Mayor was a supervisory force to be reckoned with regarding the
assignment of work. Meinel's, Bauman's and Fritz's responses underscore this. That the
Mayor could direct the street crew to remove a tree branch to remove what he reasonably
perceived as a public safety hazard must be viewed as a work-related order. The street crew
trims and removes tree branches as a function of its normal duties. Whether the order to
remove the branch poses a safety issue under Article 17 is addressed below, and plays no
in determining insubordination. Rather, it asserts that Article 17 establishes a defense for
what would otherwise be insubordinate conduct. While the parties dispute the degree to
the removal needed to be performed on June 13, the labor agreement affords no evident basis
for arbitral review of the Mayor's determination of the priority appropriate to City
Thus, the parties' dispute focuses on whether the Mayor issued
a clear order that the
Grievant understood and deliberately ignored. The existence of a clear order to remove the
branch is the crucial factual issue. Viewed as a whole, the record fails to establish such an
order and thus fails to support the allegation of insubordination.
As preface to a discussion of this conclusion, it is necessary to
note that the evidence
does not make this issue resolvable as a credibility determination. Although Condos and the
Grievant spoke directly to each other at roughly 8:00 a.m. on June 13, the order had, by the
time of that conversation, passed through at least two other people. Meinel, with whom
Condos spoke directly, understood that the Mayor wanted nothing other than the removal of
the branch. By the time Fritz relayed the message, however, the order had lost some of its
definition. Fritz testified he understood the order to be that the branch "needed attention or
it could be checked," but "that it probably should have came down." He and the Grievant
engaged in some of the discussion that would underlie the Grievant's later conversation with
the Mayor. At the time the Grievant was first informed of the order, then, he could have
reasonably perceived the order as a request to check out the branch to determine what, if
anything, needed to be done. This is apparent in Fritz' testimony, without regard to the
Grievant's. Significantly, Fritz noted the Grievant's final response regarding the order to be
that he would "check it out." In sum, without regard to either the Grievant's or Condos'
testimony, at the time the Grievant arrived at the Meridian, he regarded the damaged trunk
as a potential job, not as a direct and pressing priority.
Condos and the Grievant thus approached the 8:00 a.m.
conversation from radically
different perspectives. Condos viewed the branch removal as a direct order, and the
viewed it as a debatable point. This is apparent under either view of their testimony
concerning the 8:00 a.m. conversation. Under Condos' view, the
conversation ended with a
clearly stated request that the limb be removed right away. There is no reason to doubt
Condos' sincerity or credibility to note that even under this view, the evidence surrounding
this work order is an insufficient base to support insubordination.
The context and the content of the 8:00 a.m. conversation make
it unpersuasive to treat
it as the clear communication of a direct order. Condos' and the Grievant's testimony
establish that the conversation wandered over points beyond a simple order to remove the
branch. Absent from both accounts of the conversation is any discussion of the specifics of
removing the branch. At least in the early morning hours, weather conditions were a serious
consideration. Thus, it was open to question when the work would be performed. Who
perform the work was also open to question. The work at the Riviera had to be done in
addition to the branch removal. Thus, under any view of the conversation, the asserted
order to remove the tree was, in effect, a communication of a work priority. The Grievant
could plausibly view this conversation more as an argument over the priority to be given the
branch than a direct order to remove it immediately. Underscoring the probability that
Condos and the Grievant never shared a common understanding of the content of their 8:00
a.m. conversation is that no testifying witness asserted the order was communicated with an
"or else" attached to it. It is not necessary to assert the communication of disciplinary
consequences is a necessary element of proving insubordination to note that the absence of
such a communication makes misunderstanding of the order more likely. That Condos chose
not to communicate with the Grievant after the 8:00 a.m. conversation may well have been
prudent in light of his anger on returning to the City to view the branch in the same position.
It also, however, foreclosed any opportunity to address their competing views of the earlier
The context of the 8:00 a.m. conversation further underscores
the ambiguity of the
order. As noted above, the Grievant received from Fritz something less than a clear
communication of a direct order to remove the branch. The branch had, in all probability,
been down since Friday evening, and had, at a minimum, been observed by patrolling police
throughout the weekend. It is not necessary to doubt Meinel's or Condos' assessment of the
public safety risk posed to note that no attempt was made to block off a pedestrian
passageway. This does not connote fault, but underscores that the nature of the threat to
public safety was less than self-evident. No City official who viewed the tree found it
to cordon off a walkway for pedestrians. This lends plausibility to the Grievant's stated view
that once he determined the branch would not move, he had addressed the potential safety
In sum, the evidence indicates that Condos and the Grievant
started and ended the
conversation on June 13 with two diametrically opposed views. Condos viewed the
conversation as the communication of a direct order to remove the branch. The Grievant
viewed it as an argument over a number of points, including the priority to be given to the
removal of the branch. The plausibility of both views in light of
surrounding evidence makes
it impossible to conclude the Grievant deliberately disobeyed a direct order. The competing
testimony manifests not a credibility dispute, but an ongoing argument regarding the priority
to be given the removal of the branch. The existence of two competing and plausible views
the 8:00 a.m. conversation precludes finding the Grievant's response to the conversation a
deliberate defiance of a direct order. Because deliberate defiance of an order is crucial to a
finding of insubordination, the evidence will not support a finding of
As noted above, under Article 21, this conclusion means that
there was no cause to
suspend the Grievant without a prior warning. The issue now becomes whether cause exists
for discipline short of suspension.
The Union forcefully asserts that the Employer cannot assert any
in the June 13 incident other than the insubordination noted in the letter of suspension. I do
not, however, believe Article 21, Section 1 can be persuasively read to extinguish the City's
disciplinary interest in arguably insubordinate conduct. Rather, that section routes that
interest away from summary suspension and toward "at least one (1) warning notice." The
issue thus becomes whether the City had a disciplinary interest in the Grievant's
The evidence manifests no more apt characterization of the
the removal of the tree in the late afternoon of June 13 than Greene's testimony that "(t)his
had been blown so much out of proportion, it just had to be done." The issue remaining is
whether the City has a disciplinary interest in the Grievant's role in the process by which the
job blew out of proportion. The evidence establishes that it does.
The Grievant's response to the removal of the branch manifests
While the clarity of the order to immediately remove the branch can be doubted, there is no
doubt that the Grievant knew he had been directed to attend to the branch's removal. It is
no less apparent that the Grievant did not want to have the crew do the work. His conduct
following his conversation with Condos, however, manifests only his desire not to perform
work. He thus inserted himself into the priority given the branch's removal. While this falls
short of insubordination, it demonstrates flawed judgment contributing to the rushed removal
of the branch in the late afternoon of June 13.
That the Grievant phoned Allen at all demonstrates that he
understood his conversation
with the Mayor was something other than an academic dispute on when or how to remove
branch. His account of his conversation with Allen underscores that he sought something
other than to communicate a passing difference of opinion on removing the branch.
Significantly, the Grievant opened the conversation not by describing the branch, but by
noting the Mayor was upset with the condition of City parks. This may have predisposed
Allen to viewing the
removal of the branch unfavorably, but did nothing to accurately
convey even the Grievant's
view of his 8:00 a.m. conversation with the Mayor. The Grievant's failure to describe the
branch in any detail to Allen is unexplained and inexplicable in light of any view of the
8:00 a.m. conversation. By the end of his conversation with Allen, the Grievant had
successfully pointed Allen away from a serious evaluation of the priority to be attached to the
branch's removal. This served no end but the Grievant's desire not to perform the work that
The Grievant's subsequent conversation with Bauman similarly
other than concern for the chain of command. Rather, the Grievant further insulated himself
from the Mayor through that phone call. By the end of the Grievant's work day, Allen had
no idea how contentious the 8:00 a.m. conversation had been or how much of it dealt with
safety hazard posed by the fallen branch. He had, however, been placed in a position to
assume responsibility for the delay in attending to the branch until Monday. The Grievant's
subsequent call to Bauman did little more than put Allen, rather than himself, in the path of
the Mayor's anger.
In sum, the Grievant determined that the street crew should not
remove the branch on
June 13, and acted throughout the day to further that end. This falls short, on this record, of
deliberate defiance of a clear order. However, the evidence establishes he sought to further
own view of the priority to be given the branch's removal at the expense of the Mayor's.
Whether or not he was the Working Foreman on that day, he bears responsibility for
obstructing the implementation of Condos' decision to have the branch
Article 17, Section 8 affords no defense for the Grievant's
actions. That section places
the determination of "hazardous work" in the hands of a committee, and shields employes
from performing "hazardous work so determined" in the absence of "all required and/or
reasonable safety equipment." There is no evidence the committee acted regarding work of
Nor will the evidence support an inference that the work was so
hazardous to shield the
Grievant. Under the labor agreement, the safety manual or arbitral inference, workplace
safety is an obligation shared by the City and its employes. The Grievant failed to clearly
define a safety issue for Condos, Allen or anyone else. Had the Grievant accurately
the branch and the risk it posed to Allen or Condos, he could have undercut or eliminated the
City's disciplinary interest in his conduct. However, he never clearly specified his safety
concerns. Rather, he sparred with the Mayor about this and a series of other points. If the
Grievant doubted that the branch could be removed safely, what difference did it make
whether it was a publicly owned tree, or whether it was removed on overtime? No less
a basis for his safety concerns is shown in his conversation with Allen. He failed to detail
the condition of the branch or his specific concerns with its safe removal to Allen. No one
Grievant can bear responsibility for the failure of potential safety
issues to be aired prior to
its removal in the late afternoon on June 13.
In sum, the evidence does not establish that the Grievant
deliberately defied a clear
order from the Mayor to immediately remove the tree branch. Thus, the evidence fails to
establish insubordination. The evidence does, however, establish that the Grievant failed to
communicate to any supervisory personnel an accurate summary of the condition of the fallen
branch or the priority the Mayor attached to its removal. This failure furthered the
Grievant's view of that priority, but undermined the Mayor's. Because this failure
contributed to the rushed removal of the tree in the late afternoon of June 13, the City retains
a disciplinary interest in it.
The nature of the City's disciplinary interest does not require
Under Article 21, conduct not warranting summary suspension warrants a disciplinary
warning. The Award entered below authorizes the City to issue a written warning to the
Grievant for his failure to accurately describe the condition of the branch and the Mayor's
concern with its removal to supervisory personnel. The June 15 letter of suspension
the Grievant has not yet suffered financially for the suspension, and thus the Award does not
state any make-whole relief.
Before closing, it is appropriate to tie the conclusions reached
above more tightly to the
parties' arguments. The Grievant's status as Working Foreman cannot play a determinative
role in this case. There is no persuasive evidence to undercut the Grievant's testimony that
he was not going to be paid as Working Foreman on the weekend of June 11 until he insisted
on it after learning of the suspension. Any lack of clarity on his status as Working Foreman
undercuts the asserted insubordination. The Grievant should not have to guess whether he
occupies a quasi-supervisory position or whether a particular position he took put his job at
Similarly, his status as Working Foreman has no determinative
bearing on the warning
authorized in the Award. For whatever reason, the Grievant served as the conduit between
the Mayor and the chain of command in the street department. His failure to accurately
convey the condition of the branch or the Mayor's view of it to Allen manifests flawed
judgment. No employe, supervisory or not, can work without exercising judgment, and no
employe can escape responsibility for the exercise of judgment. Whether a Working
or not, the Grievant's desire to prevent the street crew from removing the branch on June 13
played a significant role in creating the "last-minute" environment surrounding its
Analogous ambiguities in the Grievant's and Condos' views of
the 8:00 a.m.
conversation preclude adopting the extreme arguments of either the City or the Union.
Condos' view that the conversation ended with an unambiguous order cannot account for the
context preceding and surrounding it. His command, no matter how clearly conveyed to
Meinel, arrived at the Grievant in a less compelling form. The conversation itself strayed
widely from the command, thus obscuring the compelling force the City seeks to give it. The
Grievant's view of the conversation similarly fails to account for events surrounding it. A
difference of opinion would not warrant either the call to Allen or to Bauman, and fails to
account for the Mayor's response. Beyond this, the assertion of a significant safety issue
presumes that the conversation came to a definitive conclusion. The evidence cannot
simultaneously support the assertion that the conversation came to no definitive conclusion
and the assertion that it posed a significant dispute regarding workplace safety. Viewed as a
whole, the evidence establishes that the Grievant and Condos approached and left the
conversation with two diametrically opposed views of it. That they failed to mutually
understand its conclusion precludes finding insubordination, but not the exercise of flawed
judgment by the Grievant.
The City did not have cause to suspend the Grievant for his
conduct on June 13, 1999,
but did have cause to issue him a written warning.
Because the City did not have cause, under
Article 21, Section 1(G), to suspend the
Grievant for insubordination, the City shall expunge from the Grievant's personnel file(s) any
reference to a suspension for insubordinate conduct on June 13, 1999. The City may,
amend the Grievant's personnel file(s) to reflect the issuance to the Grievant of a written
warning, under Article 21, Section 1, for poor judgment in his failure to accurately report to
street department supervision the condition and public safety implications of the fallen branch
in front of the Meridian Hotel.
Dated at Madison, Wisconsin, this 4th day of April,
Richard B. McLaughlin, Arbitrator