BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SUPERIOR CITY EMPLOYEES' UNION
LOCAL 244, AFSCME, AFL-CIO
CITY OF SUPERIOR
(Terry Jacobson Grievance)
Mr. James Mattson, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, on behalf of the Union.
Fryberger, Buchanan, Smith & Frederick PA, by Attorney Joseph
Mihalek, on behalf of the City.
The Superior City Employees' Union Local 244, AFSCME, AFL-CIO (herein the
the City of Superior (herein the City) are parties to a collective bargaining agreement, dated
13, 1997, covering the period January 1, 1997, to December 31, 1999, and providing for
arbitration of certain disputes between the parties. On October 18, 1999, the Union filed a
with the Wisconsin Employment Relations Commission (WERC) to initiate grievance
regarding the discharge of Terry Jacobson (herein the Grievant) and requested the
a member of the WERC staff to arbitrate the issue. The undersigned was designated to hear
dispute and a hearing was conducted on February 2, 2000. The testimony was not
parties filed briefs on March 21, 2000. Reply briefs were filed by April 20, 2000.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties were unable to stipulate to a statement of the issue. The Union proposed
the issue as follows:
Did the Employer have just cause when it terminated the
Grievant from his position in the
Waste Water Treatment Plant?
And if not, the appropriate remedy is for
the Employer to reinstate the Grievant to his position
and to make him whole for any and all lost wages and benefits.
The City proposed to frame the issue as follows:
Whether Terry Jacobson's employment with the City of Superior
was terminated on April 7,
1999, for "just cause" as that term is used in Sections 3D and 10.01 of the collective
agreement between the City of Superior and Superior City Employees' Union Local 244,
The Arbitrator frames the issue as follows:
Did the City have just cause under the collective bargaining
agreement to terminate the
Grievant as an operator at the Waste Water Treatment Plant?
If not, what is the appropriate remedy?
The City possesses the sole right to operate
the City Government and all management rights
reside in it, subject only to the provisions of this Contract and applicable law. These rights
. . .
D. To suspend, demote, discharge and take other disciplinary
action against employees for just
cause. In the event that a demotion will cause a layoff, the person demoted will be laid off.
10.01 The City of Superior agrees that it
will act in good faith in the discipline or discharge of
any employee. No employee will be disciplined or discharged except for just cause.
10.02 In the event a
disciplinary action is taken against any Union employee, a notification of
such action shall be given in writing to the employee and the Union stating the reasons said
shall be taken and when it will commence.
disciplinary action and discharges shall be subject to the grievance and arbitration
procedure of this Agreement.
These policies are established in accordance
with Article 3 of the Working Agreement between
the City of Superior and Local 244. They are intended to concur with all regulations as they
to the Federal, State and Local Code and to set standards in order to promote a safe, clean,
productive work place.
ARTICLE 1 CODE OF
1.01 Any activity which is in violation of
local, state or federal law is prohibited and may result
in civil or disciplinary action. Further, if any employee is aware that their coworker(s), or
employee is; in possession of a firearm or similar weapon, drinking alcohol or consuming
the job, sleeping on the job, falsifying plant documents, physically threatening or assaulting
employees, stealing, intentionally causing damage to city property or otherwise abusing the
bestowed upon their position, that operator has an obligation to notify their supervisors of
abuses. If any operator is aware of such abuses and through passive acceptance tries to
cover up or
willingly goes along with such activities, they become accomplices in the act and are
for their actions.
prohibited behavior includes performing personal activities at work.
Examples include but are not limited to:
Watching Commercial Television (unless
authorized or as part of a training program)
Working on personal hobbies such as
electronics, wood working, mechanics, welding, musical
instruments, real estate, etc.
Washing, waxing, servicing, or maintaining private vehicles
Completing personal taxes, balancing
checkbooks, or paying bills
Making unauthorized long distance
telephone calls at City expense or having extended telephone
conversations on City time. Please understand that the primary function of our phone system
business use, NOT personal use
Allowing friends, guests, and children to
tour the yard area and buildings.
. . .
The City of Superior maintains a Waste Water Treatment Plant (WWTP) on the
side of the City, adjacent to Superior Bay, which consists of 26 different buildings and
The plant operates 24 hours per day and runs three shifts, the first, or midnight shift, from
to 7:00 a.m., the second, or day shift, from 7:00 a.m. to 3:00 p.m., and the third, or
from 3:00 p.m. to 11:00 p.m. One plant operator is on duty during each shift.
In 1992, the State of Wisconsin brought an action against the City for violations of
Statutes and Administrative Rules regulating the disposal of wastewater. In April, 1992, the
and the City entered into a stipulation resolving the litigation which conditioned the
reissuance of the
City's Water Pollutant Discharge Elimination System (WPDES) permit on, among other
upgrade of the wastewater treatment facilities and improvements in its monitoring
that end, the City initiated a $5.5 million program to improve its facilities and in 1995
of compliance from the State.
As part of its efforts to improve the quality of its operations, the WWTP management
plant operators developed an Operator Rounds Manual in 1995 in order to systematize the
procedures for monitoring the plant and reduce the risk of future problems. A rounds
created and during each shift the plant operator is to go through the facility to check the
record various readings and make sure all the necessary systems are online and functioning
On each round, the operator is to stop at 15 separate stations, perform various tasks and then
off the tasks and record the time of the stop on a checklist maintained at each station. This
twice during each shift and, according to the time lines contained in the manual, around two
are set aside for the first round, whereas the second round takes about an hour. During the
of the shift, the operator takes samples, performs maintenance and does various other tasks.
the past problems, the plant management has stressed the importance of accurate testing and
meticulous record keeping to the operators.
The Grievant, Terry Jacobson, was an employee of the Superior Department of Public
since 1977, working in the City's Waste Water Treatment Plant. Over that period of
time he had held various positions, eventually becoming a plant operator. He
contributed to the
development of the Operator Rounds Manual. In 1986, the Grievant was diagnosed with
(insulin dependent) diabetes.
In November, 1995, the Grievant was issued an Employee Disciplinary Report for
of records, in that Michael Beattie, at that time the Interim Assistant Superintendent, had
that on November 27 he had filled in some of the station checklists from his rounds that day
fact. The Grievant objected to the discipline and explained that he was having a low blood
reaction which made him disoriented while performing his rounds and he was unaware that
filled out the forms until later. He then went back and filled in the information. He was
thereafter, that the discipline would be withdrawn, but that he needed to see his doctor about
regulating his condition to prevent a recurrence. In January, 1996, Dr. Robert Sjoberg
Grievant and recommended the installation of an insulin infusion pump to regulate his blood
which was done. Thereafter, the management did not make any regular effort to monitor the
Grievant's work habits or record keeping. Since that time, the Grievant has not had any low
sugar events at the workplace. There is no other recent record of discipline in the Grievant's
On March 31, 1999, the Grievant was the operator on the afternoon shift. On that
Beattie, now the Assistant Superintendent for Operations, left instructions that he should go
Station #1 to turn on the pumps then check on Combined Sewer Overflow Station #5
the South side of the City. The Grievant left the Main Plant in a City pickup truck at
6:30 p.m. While returning to the Main Plant at approximately 7:00, the Grievant made a
deviation from his route to deliver a kerosene heater to his ex-wife and was observed doing
Beattie, who happened to be passing by. Beattie returned to the plant and determined to
the Grievant, as it was against department policy for employes to use City equipment for
business without permission. While looking through the plant for the Grievant, Beattie
the second round had been checked off for that shift on several of the station checklists with
logged from 8:45 p.m. to 9:40 p.m., even though it was not yet 8:00. He also noticed
that on some
other checklists neither round had been checked off.
When Beattie located the Grievant, he confronted him about his personal use of the
the checklists. The Grievant admitted using the City truck to deliver the heater and stated
didn't think it would be a problem. He also admitted filling out the checklists ahead of time
explained that he had just decided to fill out the forms for both shifts at once to save time,
he fully intended to complete the second round of inspections at the times indicated. At that
Beattie sent him home and then collected all the checklists for that day. The next day, Jeff
Public Works Director, issued the Grievant a Notice of Intent to Release from Employment
for ". .
. deliberate falsification of records and inappropriate use of a City vehicle. . .," immediately
suspending him without pay and informing him that his termination would occur on April 7,
The Grievant and representatives from the Union met with members of management on April
and Vito issued a Notice of Release from Employment on April 9 confirming the
Union filed a grievance on April 20, 1999, which was not successfully resolved through the
process, and the matter proceeded to arbitration.
POSITIONS OF THE PARTIES
The City had just cause for terminating the Grievant. He admitted falsifying official
on March 31, 1999, despite two previous warnings, in 1991 and 1995, that falsification of
would result in termination. Further, he used a City truck for personal business on the same
direct violation of City policy.
Many arbitration awards uphold the right to terminate an employe for falsifying
State of Ohio Dept. of Rehabilitation and Correction, 104 LA 579 (1995); Star Tribune, 100
LA 1106 (1993); Bi-State Development Agency, 96 LA 1090 (1991); Western Auto Supply
Co., 96 LA 644 (1991); Leaseway Transco Service, 96 LA 823 (1991). Moreover, in each
these cases the infractions were much less serious than the Grievant's conduct here. The
was responsible for inspecting and maintaining equipment which prevents pollutants from
released into Lake Superior. He failed to perform his proper duties and attempted to conceal
by falsifying the records of his inspections. His dereliction risked harm to the environment,
cost to the taxpayers and legal liability to the City. The importance of keeping accurate
stressed to the employes and particularly to the Grievant, because he had been previously
reprimanded for falsifying records in 1995 and was warned that any further infractions would
in termination. Further, his conduct violated Sec. 283.91(4), Wisconsin Statutes, which
falsification of records required to be filed or maintained under Chapter 283, the Pollution
Under the circumstances, termination is the only appropriate response to the
conduct. The plant operators' function with little or no oversight and the City must be able
them implicitly. The Grievant violated that trust and compounds his misconduct by
deny his repeated wrongdoing and maintaining against all logic and reason that the night in
was the only time he engaged in misrecording his inspection times. Failure to terminate the
for his wrongdoing would undermine the City's ability to require honesty and accuracy from
employes, would cause the City to potentially lose its Wastewater Treatment permit and
expose the supervisors who sign his reports to possible criminal sanctions. The City cannot
required to run such risks by retaining a dishonest employe in such a responsible position.
The City's right to terminate under the circumstances is not impeded by the
seniority. Length of service does not immunize an employe from discipline for violations of
rules or State law. Many arbitrators have upheld terminations despite many years of
service. Here, the Grievant's conduct would merit termination even if he had an
which he does not. His falsification of records, combined with his unapproved personal use
equipment, more than justifies his termination and the grievance should be denied.
For several reasons, the City's termination of the Grievant was without just cause. In
place, the City did not apply progressive discipline. The Grievant is a 22-year employe with
work history. Other than some problems which occurred in 1995 as a result of his diabetes,
were resolved, he has no history of problems at work. For the City to terminate him under
circumstances, without any previous less severe disciplinary action taken, was unwarranted.
With respect to the alleged misuse of a City truck, this matter was overblown by the
Employer. The City originally claimed that the Grievant was concealing the truck in a
it came out at the hearing that the truck was parked in a driveway. This is an example of the
exaggeration of the facts and failure to conduct a proper investigation, which challenges the
credibility of the City's entire case. It should be also noted that the deviation was one block
the Grievant's way, a minor violation at worst and hardly worthy of more than a letter of
[cf., Winnebago County, MA-4246 (Engmann, 1987)].
The allegations regarding the misrecording of time records are also questionable. The
argues that the Grievant's admission that he recorded the times of certain monitoring rounds
beforehand raises suspicions that the Grievant did not do his work and is untrustworthy. The
produced no evidence of this, however, and there is nothing to suggest that the Grievant did
fact, do his job. The supervisors at the facility clearly were not doing their jobs, however,
they never investigated to see whether the Grievant was doing his work or whether his time
actually reflected the times he was performing the prescribed tasks. They also did not
the time records they were approving, despite the fact that the City stresses the great
placed on accuracy and compliance with State standards. The supervisors never questioned
Grievant's time records previously which implies that they either aren't as important as the
contends, or that the supervisors were derelict in their duty. The City failed to perform an
investigation or develop clear evidence, and has failed to prove its case.
The recording of the same time on the timelogs does not establish intent to defraud
Employer. The Grievant had nothing to gain by doing so and there is no evidence that his
not, in fact, being done. Also, if the Grievant truly had a desire to deceive he would have
different times rather than recording the same time every day, which would eventually draw
to himself. Again, this was never previously questioned by management, which suggests
did not review the sheets or did not care. In the absence of proof of intent to deceive or
termination for falsification of records is
unwarranted (citations omitted). The Grievant testified that he is so punctual "you can
set your watch
by him" and that, due to the proximity of the rooms and his many years of experience, it
him as long to complete his rounds. The City failed to refute this.
Finally, the City never adequately communicated the supposed importance of accurate
records to the employes. The Grievant was generally aware that the City had some trouble
State, but was unaware of the specifics and certainly never saw the pleadings and other
which the City entered into the record. He testified that he was never told that accurate time
were so critically important. The failure to give notice of that which is later alleged to have
violated undercuts the existence of just cause. The failure to warn prior to termination
propriety of the penalty. Carbide Corporation, 100 LA 763 (Felice, 1993). For all the
reasons, therefore, the grievance should be sustained and the Grievant be returned to work
whole for all lost wages and benefits.
The Union argues that the City failed to prove that the Grievant engaged in
that, even had it done so, the misconduct did not warrant termination. The Union is wrong
The City proved conclusively that the Grievant falsified inspection records, did not
necessary inspections, and could not do his job adequately in the time stated. Accurate
keeping of inspections is a necessity. The Grievant did not do this, however, because he was
doing the inspections. This was borne out by proof that the Grievant recorded impossibly
inspection times, recorded being in two places at the same time, recorded the same
every day and pre-recorded his inspections. This is more than adequate evidence to support
The Grievant claims to be so regular "you can set your watch by him," but it defies
suppose he could do the same inspections at the exact same times every day for two years.
to account for changes in weather, duties and unplanned interruptions. It is impossible to
he could do this at identical times day in, day out for that period without deviating once.
Grievant's ability to do his rounds so quickly is also doubtful. He claimed this was because
experience allows him to listen to the sounds of the plant and, thus, ascertain if anything is
which saves a lot of time. The Grievant's duties often require visual inspection of equipment
gauges, and recording of information, which cannot be accomplished by just listening and
recording inspections which were not done.
The Union attempts to shift the blame to the Grievant's supervisors by suggesting that
failed in their duty of oversight. It is not the Grievant's fault for shirking his duty and lying
it is the City's fault for not catching him sooner. The alleged misconduct of other employes
a defense to the Grievant's misconduct and has no bearing on whether the Grievant was
disciplined here. The City may discipline employes differently, or
not at all, even for the same misconduct, and the burden is on the Union to show
treatment. It was established that plant operator is a responsible position and the City must
to trust these employes. It cannot be expected to provide additional supervision to
There is no question that the Grievant falsified crucial plant records. This has been
consistently found to be "just cause" for termination (citations omitted). There is also no
merit to the
Union's argument that the Grievant had nothing to gain in falsifying the records. His gain
ability to claim credit, retain his job and get paid for work he did not do, in effect defrauding
Even if there were not pecuniary benefit to the Grievant, however, the misconduct would still
termination due to the seriousness of the infractions.
Finally, it is not true, as the Union alleges, that the Grievant was not informed of the
importance of accurate record keeping. Numerous exhibits establish the City's efforts to
operators on this point and the Grievant was, in fact, reprimanded in 1995 for failure to
inspection log. There is no way that he could not have known the importance the City
accurate record keeping or the severity of the consequences for not doing so. Furthermore,
the Grievant's misconduct constituted a violation of Wisconsin law, his termination would be
even without prior notice.
The Union takes issue with several points raised by the City. First, the City
contends that the Grievant knew that inaccurate record keeping would jeopardize its
Treatment Permit. Prior to the hearing, the Grievant had not seen any of the documents
the State's past action against the City, nor had management informed the operators as to the
or status of the matter. The failure of the City to give the operators this information
argument that the information was vital to the operation of the facility.
The City also attempts to use the 1995 incident to suggest that the Grievant has a poor
record. In fact, the Grievant's problems at that time were directly related to his diabetes and
sought and received a change in medication, which corrected the problem. The City
the Grievant's health problems did not interfere with his work after that point and even used
a rationale for not supervising him more closely thereafter.
It is also clear that the supervisors were not exercising proper oversight. If they had
the timelogs they would have noticed the pattern in the Grievant's time entries, but they did
Despite the importance the City supposedly places on these records and the fact that false
can allegedly lead to imprisonment, the supervisors never reviewed the logs.
Much of the City's case is based on the theory that the Grievant falsified records to
fact that he was not doing his work. This was never proven. No investigation was done to
see if the
Grievant was actually doing his work. Rather, the City merely reacted precipitously to the
after discovering the incident of the Grievant's using the truck to haul a kerosene heater to a
residence. The City tries to elevate this act to the level of a crime by likening it to stealing,
charges have been filed for either incident and neither would stand up in a court of law.
allegations are made, the City must prove its case for just cause beyond a reasonable doubt.
and Elkouri, How Arbitration Works, 5th Edition, p.
907 (1997). The City's evidence consists of
conclusions drawn by Supervisor Beattie that the Grievant was only performing half his
inspections. This is not evidence, it is speculation and cannot support the termination of an
with 23 years experience.
The City cites cases upholding terminations for falsifying records, but these cases are
point and, in fact, as often as not, arbitrators have reduced or overturned discharges based on
falsification of records. Some of the cases involved theft or attempts to conceal illegal
Others involved employes who had been working only a short time and/or had poor work
None of those circumstances apply here. The Grievant did not attempt to defraud the
hide illegal conduct and had a long and good work history. He is entitled to reinstatement
opportunity to correct his behavior.
Burden of Proof
In a discharge case, such as this, where just cause is the standard, two questions
arise. In the first instance, it is necessary to determine whether the employe committed the
which he was discharged. If that is established, then the analysis turns to whether the
appropriate to the offense. In both cases, the burden is initially on the Employer to bring
evidence sufficient to prove its case. Assuming that is accomplished, then the Union must
Employer's prima facie case with evidence of its own.
Discharge is, of course, the "capital punishment" of labor relations. For this reason,
arbitrators frequently impose a higher burden of proof than the typical "proof by a
the evidence" standard. While not directly arguing the point, the Union has cited awards in
the arbitrator has applied the "proof beyond reasonable doubt" standard in evaluating
discharge cases. This standard, however, is generally reserved to criminal felony cases
consequences of conviction may be a loss of life or liberty. I am not persuaded that such a
is appropriate here and adopt, instead, what is familiarly known as the middle burden, which
by clear and convincing evidence." Ultimately, however, whatever phraseology is used to
the standard, what it boils down to is that
the Arbitrator must be satisfied in his own mind that a) the employe did that of which
he is accused
and b) the conduct was of a severity meriting discharge and the onus is on the Employer to
The Grievant is accused of two offenses. The first is the unauthorized use of a City
truck to deliver a kerosene heater to his ex-wife on the evening of March 31, 1999. This
observed by Mike Beattie, the Assistant Supervisor for Operations for the Waste Water
department, who saw the truck parked at the Grievant's ex-wife's residence. When Beattie
confronted the Grievant about the matter, he readily admitted it, so as to this offense there is
question that the Grievant committed the acts of which he is accused.
Unauthorized personal use of City property is prohibited. This was made clear to the
employes in a memo issued by Dan Romans, Wastewater Treatment Administrator, on
1994, as follows:
. . .
We do not authorize the use of City
(WWTP) Equipment or our facility for personal gain on City
Time. Examples might include, but are not limited to, working on personal vehicles or other
such as trailers or boats.
We do not authorize the use of City
(WWTP) Equipment or our facility for personal gain, even
on the employee's own time, unless they receive permission from the appropriate supervisor,
or Dan for the Main Plant and CSO #2) or (Mark or Neil for CSO #5, CSO #6 and the
system). This also applies to the borrowing of tools or equipment from the Superior
Please post one set for two (2) weeks and
place the other sets in the Operational Manual. One
set goes under MEMOS while another set goes under POLICIES.
The Grievant testified that he was familiar with the document, although he had never
discussed the subject of personal use of City property with management. Thus, it is clear
Grievant did use a City vehicle for personal business on the date in question and was aware
was a violation of City policy.
As far as the record shows, however, the City's Operational Policies do not establish
penalties for commission of the proscribed acts. It becomes necessary, therefore, to evaluate
seriousness of the conduct in light of the punishment imposed. In this case, the Grievant's
uncontroverted testimony was that he had brought the heater to work in his personal vehicle,
the intention of dropping it off at his ex-wife's house after work. That afternoon, however,
had left instructions that the Grievant should go turn on the pumps at Lift
Station #1 on the South side of the City. The Grievant's direct route between the plant
and the lift
station took him within one block of his ex-wife's house, so he decided to drop the heater off
way. He loaded the heater into the City truck and went to the lift station. After turning on
he called his ex-wife to determine if she was home, then dropped the heater off on his way
the main plant. The deviation took 3-5 minutes, but it happened to coincide with the time
Having determined that the Grievant's conduct was a technical violation of the City's
Operational Policies, it must be said that this is somewhat less than the type of egregious
would expect to result in the termination of a 23 year employe with a good work record. It
that the Grievant was not attempting to take advantage of the Employer, or to use City
personal gain. He simply considered dropping the heater off on his way between the two
be the most expeditious plan. In all probability, had he discussed his idea with his
beforehand, permission for the side trip would have been granted, however, the supervisor
already left for the day. Standing alone, therefore, I agree with the Union that this offense
in nature and would have merited little more than a written reprimand.
Now, however, we must turn to the second, and more complicated, set of events. As
been recorded, it was while he was looking for the Grievant on March 31 to discuss his
of the truck that Beattie discovered the discrepancies in the maintenance logs at the Waste
Treatment Plant. The Grievant admitted checking off the second inspection round on some
log sheets early. His explanation was that he fully intended to perform both inspection
thought it would save time to just check off the rounds all at once. He could not account for
the first inspection round had not been checked on some sheets, although he typically
first round by 4:45 p.m. and it was then after 7:00. As a result of this conversation Beattie,
the Grievant and sent him home for the remainder of his shift. The next day the Grievant
a Notice of Intent to Release from Employment from Jeff Vito, the Public Works Director,
took effect on April 7.
The City maintains that the Grievant's conduct constitutes a falsification of records, in
the Grievant recorded inspection times for inspections that were not performed. The
corollary to this,
of course, is that the falsification was intended to cover up the fact that the Grievant was not
his job. That is, he recorded times for two inspection rounds, but only performed one. The
further maintains that this was not an isolated incident, but reflects a pattern of conduct
been occurring for at least two years. Due to the importance of keeping accurate records,
caused by improper maintenance and the need to rely on the honesty of its employes, the
that termination was the only reasonable response to the Grievant's actions.
The Union asserts that this was an isolated incident, which had never occurred before,
the Grievant would have completed both rounds had he been given the opportunity and that
had never stressed the importance of accurate time recording on the inspection logs in the
Given the Grievant's long history of employment and good work history,
summary termination without any warning or prior discipline is unwarranted. The
that the Grievant should be reinstated and made whole. Obviously, there is a wide gulf
The evidence supporting the City's position is as follows. After discovering the
in the March 31 logsheets, Beattie went back over inspection logsheets retained by the City
several years. He discovered that for nearly two years, with very few exceptions, the
filled in the exact same times for his inspection rounds. For instance, if he was working the
the Grievant would invariably inspect Heat Exchanger #1 at 7:35 a.m., the Sludge
Transfer Room at
7:37 a.m., Heat Exchanger #2 at 7:39 a.m. and so forth. (Employer Ex. #22) Beattie
given changing weather conditions, varying tasks and unforeseen interruptions, it is
an operator could conduct two inspections per day of 15 separate stations for two years and
be at the
same stations at the same times, to the minute, every day. He also noted that on at least two
occasions the Grievant logged phone calls in the main plant building at the same time the
logs indicated he was in another building. Finally, Beattie, along with Assistant
Timothy O'Brien, testified that the Grievant's log times indicate that he was completing his
rounds in much less time than that allotted, and that he could not do a thorough and adequate
inspection in the amount of time he was reporting.
The Grievant testified that he had never pre-recorded inspection times prior to
March 31 and
that it was a total coincidence that Beattie should happen to arrive on the one day he did so
notice the discrepancies. He further indicated that he intended to complete both inspection
and would have done so had he been allowed to complete his shift. As to his habit of
exact same inspection times every day, the Grievant testified that he has a reputation for
and that people say they could "set their watch by him." He asserted that, notwithstanding
recorded never vary, his inspection logs are accurate. As to the occasions where the
to have been two places at once, he testified that the clocks in the various buildings aren't
synchronized and sometimes differ from each other by several minutes. Thus, he could have
the same times in two different places. With regard to the shortness of his inspection
Grievant asserted that his 22 years of experience enable him to complete his rounds in less
to his familiarity with the plant and machinery, he can often walk through a building and tell
looking around and listening whether everything is working correctly, without needing to
each piece of equipment.
I have to say that, on the whole, I find the Grievant's version of events to be
incredible. Based upon the record, and the various intervening factors raised by the City, it
reasonable to believe that the Grievant is so punctual and regular in his habits that he could
his inspection rounds at the exact same times, twice a day, every day, for two years. I do
therefore, that the times he entered in the inspection logs were always accurate. This
buttressed by the evidence of the occasions on which the records show the Grievant to be two
at once. His explanation was that the clocks in the various buildings aren't always set at the
time, creating the possibility for recording the same time in two
different places, but he also testified that he recorded the times for his inspection
would dictate that if he relied on his watch for one, he would do so for the other. It is also
unlikely that March 31 was the first time the Grievant preemptively entered inspection times
logs. Again, it would be an enormous coincidence that the one time he did do, as he
be on the same day that a supervisor showed up unexpectedly and checked the logs.
is a pattern of record keeping irregularities by the Grievant dating back to at least 1997.
This is, undoubtedly, a serious matter, and the Grievant should have known it. The
testified to his familiarity with the Operators' Rounds Manual, and, in fact, the operators
involved in its creation. The Inspection Check List contained therein states, in part, as
. . .
2) Each check list consists of a variety of tasks the operator must
perform at each location. The
first item the operator is required to fill in on each check list is the time the inspection takes
This is important because it provides an accurate time line for responding to an emergency
us to determine the events leading up to it. (Jt. Ex. 6)
. . .
This clearly apprises the operators of the importance of, and rationale behind, accurate
on inspection logs. Further, the 1995 incident, wherein the Grievant was initially
entering log times after the fact, should have indicated to him the importance management
to this practice. 1/ The Grievant can hardly argue, therefore, that he had no notice that
recording was expected.
1/ It was determined that the Grievant's failure to initially record
the inspection times was due
to an episode of disorientation caused by the Grievant's diabetes. The medical problem was
and there has been no recurrence. For this reason the initial written reprimand was
arbitrator draws no inference of intentional wrongdoing from the episode, nor is it considered
blemish on the Grievant's work history.
I also note, however, that the evidence is conflicting as to just how much of a
City places on accuracy in maintaining inspection logs. In the first place, the fact that the
unvaryingly recorded the same times on his inspection logs every day went undetected for
although these logs are supposedly reviewed by supervisors before they are filed. Secondly,
is apparently no practice of routine spot checking by supervisors to determine if the plant
are performing their inspections and other duties
as outlined in the Operator Rounds Manual, despite the fact that there are potentially
consequences for violating the WWTP permit and that the Superior facility had quite recently
sanctioned by the State for noncompliance. 2/ This leads me to conclude that standards for
timekeeping on inspection logs may not have been as stringently enforced as other records of
sampling, chemical values, etc. Thus, while important, the inspection logs may not be as
as closely scrutinized as other records specifically referenced and required by the permit.
2/ It is also not clear from the record that the
inspection logs qualify as the types of records the State requires
to be maintained or, in the alternative, whether strict timekeeping is a necessary component.
The permit requires
retention of " . . . records of all monitoring information, including all calibration and
maintenance records and all
original strip chart recordings for continuous monitoring instrumentation, copies of all
reports required by the
permit, and records of all data used to complete the application for the permit for a period of
at least 3 years from
the date of the sample, measurement, report or application." (Employer Ex.
The City, however, would have me conclude that the Grievant was falsifying records
attempt to hide the fact that he was consistently not performing two inspection rounds per
he was supposed to. I am not prepared to make that leap. What the evidence establishes,
and all it
establishes, is that the Grievant was slipshod in his timekeeping practices on his inspection
even to the point where he may have regularly been recording his second round before the
evidence does not indicate what, if any, purpose lay behind the Grievant's recording
and to ascribe any particular motive on this record would be speculative. I would note the
facts from the record, however, which militate against the City's theory. Prior to March 31,
there is no evidence of anyone discovering the Grievant not performing his inspections, as
Other than the incorrect log sheets, there is no evidence that the Grievant was not performing
duties on March 31. There is no evidence that operators on shifts subsequent to the Grievant
more problems due to improper or insufficient inspection and maintenance of equipment by
Grievant. The Grievant, in fact, had a higher incidence of problems with equipment, which
indicate that he was at least as diligent in his inspections as other operators, if not more so.
conclude, therefore, that the record supports a finding that the Grievant did not accurately
times of his inspection rounds, but no more.
According to the City, however, the falsification alone is enough to support the
Cases are cited where falsification of records has warranted the summary discharge of even
employes with good work histories. For various reasons I find these decisions not to be on
State of Ohio Dept. of Rehabilitation and Correction, 104 LA 579 (1995) involved an
who falsified travel records in order to obtain reimbursement for unincurred expenses.
Development Agency, 96 LA 1090 (1991) involved an employe who falsely included his
and her children as dependents on his health insurance application. Western Auto Supply
LA 644 (1991) involved an
employe who falsely filed a workers compensation claim for a non work-related injury.
In each case
the discharge was sustained largely because the falsification was part of a scheme to defraud
employer. The City argues here that such was the Grievant's intent, as well, because he was
paid for work not done, but, as I have noted above, I do not believe the record supports that
conclusion. Star Tribune, 100 LA 1106 (1993) involved an employe-driver who falsified
Department of Transportation logs to conceal excess driving time. The discharge was
because the Grievant had previously received a warning regarding such conduct and the
bargaining agreement made falsification of records and ignoring of warnings subject to
discharge. In this case, there was no previous warning or progressive discipline of any kind
agreement doesn't provide any specific penalty for violation. In Leaseway Transco Service,
LA 823 (1991), the Grievant deliberately falsified production records because he had been
disciplined for failing to meet specified quotas and wanted to avoid being disciplined again.
the Grievant had no past history of discipline.
It is also noteworthy that the 1995 episode only warranted a written reprimand, which
subsequently rescinded, for essentially the same offense. Admittedly, this was an isolated
whereas the present case apparently involves record inaccuracies over an extended period of
but it is a long reach from a written reprimand to summary discharge. The City asserts,
there is precedent in that other employes have been dismissed in the past for the same
Again, I am not persuaded that these cases are necessarily close enough in kind or degree of
to support the termination here. On one occasion an operator and a supervisor were
failure to report a problem with a piece of equipment, which ultimately caused damage to a
cost the City tens of thousands of dollars in repairs. There is no record of any damage or
incurred by the City as a result of negligence by the Grievant. In the other case, an employe
terminated for falsifying records and improper use of City equipment. The record does not
the circumstances of the falsification, but apparently the employe was using a City truck to
another employe, which was considered to be the more serious offense. As previously
Grievant made a short route deviation in a City truck to deliver an item to his ex-wife.
I conclude, therefore, that although the Grievant did commit the acts of which he is
using a City truck for personal business and falsely reporting times on inspection
logs these acts
were not onerous enough to warrant summary discharge. Nevertheless, they are serious
particularly that of wrongly recording inspection times over an extended period of time. I
the City that reliability is an important characteristic in being a plant operator, inasmuch as
work alone and much depends on them performing their duties competently and responsibly.
reason I conclude that the Grievant's actions warrant a suspension of 60 days without pay. I
this level of discipline demonstrates the seriousness of the violation, both to the Grievant and
other employes, and adequately sanctions him for his irresponsible behavior. Further,
is to be reinstated, his reinstatement is subject to a last chance agreement, which will result
immediate discharge for any future infractions.
Based upon the foregoing, and upon the record as a whole, the undersigned hereby
The City did not have just cause to terminate the Grievant and, therefore, violated the
collective bargaining agreement by doing so. The Grievant did, however, commit the acts of
he was accused and, therefore, a suspension of 60 days is warranted. It is ordered,
the City shall reinstate the Grievant as a plant operator at the Waste Water Treatment Plant,
pay him back pay, along with any other attendant benefits, from May 31, 1999. The
will be subject to a last chance proviso whereby any future violations by the Grievant may
The arbitrator will retain jurisdiction over this matter for a period of six months in
resolve any issues surrounding the implementation of the remedy.
Dated at Eau Claire, Wisconsin this 19th day of July, 2000.
John R. Emery, Arbitrator