BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF HORICON
WISCONSIN COUNCIL 40, AFSCME,
Lindner & Marsack, S.C., by Attorney Alan M. Levy, 411 East
Wisconsin Avenue, Milwaukee, Wisconsin 53202, on behalf of the City.
Mr. Lee Gierke, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, P.O. Box 2236, Fond du Lac, Wisconsin 54936-2236, on behalf of the
According to the terms of the 1999-2000 collective bargaining agreement between
Horicon (City) and City of Horicon Public Works, Local 1323-H, AFSCME, AFL-CIO,
Council 40 (Union), the parties requested that the Wisconsin Employment Relations
designate an arbitrator to hear and resolve the dispute between them regarding the discharge
Kolb. Sharon A. Gallagher was designated by the Commission as arbitrator. A hearing was
August 30, 2000, at Horicon, Wisconsin. No transcript of the proceedings was made. The
agreed that they would post-mark their briefs to the Arbitrator on October 20, 2000, and that
Arbitrator would thereafter exchange those briefs. The parties agreed to waive reply briefs
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 stipulated that the following issues shall be determined in this case:
Did the City of Horicon violate the labor agreement when it
terminated John Kolb? If so,
what is the remedy?
ARTICLE III MANAGEMENT
Section 3.01 The management
of the work and the direction of the working forces, including
but not limited to the right to hire, promote, demote, suspend, discharge or otherwise
just cause, layoff, transfer, subcontract (provided no employee is laid off), classify and
and determine the table of organization is vested exclusively in the Employer.
3.02 The Employer shall have the right to establish reasonable work
Section 6.01 The specific
objective of this provision is not to discipline and/or penalize
employees but to correct violations of work rules, working instructions and/or working habit.
6.02 The City shall have the right to establish and amend reasonable rules
regulations for the conduct of the City's business and of its employees in accordance with
6.03 Employees shall comply with all reasonable work rules. Said rules
shall be in writing and shall be posted on the City premises at a designated location where
be visible to all employees. A copy of said rules and regulations and any changes thereof
shall be sent
to the Union.
6.04 Discipline may take the form of oral reprimands, written warnings,
suspensions, or discharge from employment and will be progressive in nature. The following
guidelines shall be followed:
Every type of disciplinary
action taken against [sic] non-probationary employee shall be for
just case and administered in a fair and impartial manner.
In determining the penalty to be imposed, the City
shall consider the severity and gravity of
the offense and the employee's work record, including length of service and disciplinary
In imposing discipline, the City will not take into
account any prior infraction which occurred
more than three (3) years previously without intervening disciplinary action. After a
written warning has been on file for one (1) year without any intervening disciplinary
action, it will be removed from the employee's employment record.
For each disciplinary action, excluding discharge,
the City will indicate the desired
correctional action(s) for the employees to take.
. . .
All employees shall be entitled to
annual vacation leaves with pay on the anniversary date of their
employment in accordance with the following schedule:
Upon completion of 1 year, but less than 8
years of service = 10 workdays
Upon completion of 8 years, but less than
15 years of service = 15 workdays
. . .
Vacation leave earned in the preceding year shall be
taken within one calendar year of the employee's
anniversary date. Any employee terminating employment will be paid prorated vacation pay
in lieu of vacation leave.
Selection of vacation time shall be
by seniority within the department and must be made by April 1
of each year. The most senior employee shall select his first and second weeks of vacation
if he so selects, two weeks at once, and then the next most senior employee, etc., until all
personnel have made their selection. For additional vacation weeks, the same procedure
Normally no more than two (2) employees from the
Street Department may be on vacation at any one
time. Notwithstanding the above, at the sole discretion of the Department Head, a third
employee may be granted vacation. Normally no more than one (1) employee from the
Department and one (1) employee from the Wastewater Department may be on vacation at
any one time. Notwithstanding the above, at the sole discretion of the Department Head, a
second (2nd) employee from each department may be granted vacation. All scheduling and
taking of vacations will be subject to the prior approval of the Department Head and at their
Employees will be allowed to take singe days of vacation
if they so elect, with the approval of their
. . .
Section 14.02 Sick
Employees shall earn sick leave at
the rate of one (1) day per month accumulative to one hundred
twenty (120) workdays. Sick leave may be taken in the event of personal illness or injury up
to a maximum of the total number of days accumulated.
An employee who exhausts his sick
leave credits and is still unable to return to work due to a
continuing illness or injury shall be granted a medical leave of absence without pay until such
time as his physician or chiropractor certifies his fitness to return to work. Such leave shall
not exceed one (1) year unless extended by the Employer and the Union.
Illness of Member of Family: Employees shall be
allowed to use up to a maximum of five (5)
days of sick leave in any twelve (12) month period in case they must be absent due to a
family emergency or to severe illness in their family. Such leave will be deducted from
accumulated sick leave. The term "family" as used in this Section shall be defined to
include the employee's current spouse, parent, son, or daughter. Leave granted under this
section shall run concurrent to and not in addition to any leave to which the employee
would be entitled under the Wisconsin or Federal Family and Medical Leave Acts.
Probationary employees shall be
entitled to accumulate sick leave while on probation but will not be
allowed to use it until completion of probation.
The Employer shall have the right to require that a
doctor examine said "sick person" in his or her
home; however, the cost of the such examination shall be paid by the Employer.
. . .
Section 14.04 [sic]
Personal Leave A non-probationary employee, upon written application,
may, in the sole discretion of the City, be granted an unpaid leave of absence for personal
to exceed three (3) days. No employee shall be allowed in excess of three (3) unpaid
days in any calendar year.
The Grievant, John Kolb, Jr., was hired by the City in April, 1998 and employed
discharge on April 12, 2000. At hire, Kolb's position was operator-in-charge of the Water
the City of Horicon. Effective September 13, 1999, Kolb was demoted from
a regular operator of the Water Department. Kolb was given a written notice of his
September 13, 1999, from Utility Supervisor Jerry Herman. However, that written notice
contain the reasons why Kolb was being demoted. Indeed, prior to his demotion, Kolb had
been disciplined in any fashion by the City of Horicon. On September 16, 1999, Utilities
Herman issued a written statement containing seven reasons for Kolb's demotion, which read
relevant part as follows:
. . .
On 1-29-99, we were notified about
a hydrant hit by a truck on Division Street. I told you to remove
the 2 ½" damaged threaded fitting so it could be replaced. You asked me how to do
I told you with the torch and melt the lead holding it in. I asked you later if you did this and
you told me, "I had Dave DePlover do it." The City paid two people to do one job.
On 4-27-00, I asked you to rebuild
a deduct meter for a homeowner. According to your time card,
you spent one-half hour testing the meter. The meter had stopped and needed to be rebuilt,
not tested. Russ did this job in less than one hour.
After water bills were mailed from the June 1999 meter
reading, I gave you a note to do a flow test
for Dave Meier, 610 Horicon Street, and to call between 10:00 a.m. & 2:00 p.m. first.
week later I had to give you a second note to do this job.
Damage to pumps at Mill Street Pumphouse caused
because you forgot to turn the deepwell pumps
back on after a static, residual, and pumping test on April 8, 1999. Over $12,000 in damage
On August 20, 1999, you failed to notify Russ &
Jim about the closed valves at Mill Street
Pumphouse after you left early from the valve replacement job on Mill & Hubbard
This could have resulted in more damage to the pumps. As it was, they pumped against
closed valves until Mike Kasten discovered some sort of problem the next day during
weekend duty. He contacted Russ Poritz and together they remedied the problem. This also
resulted in a two hour callout for Russ.
On September 1, 1999 you failed to resample the raw
water after you knew the sample was
contaminated. Instead, you wrote a note on the sample form indicating how the sample
became contaminated. This resulted in an unsafe sample.
Meter rechecks from June, 1999 meter reading were not
given to Rose as requested. As we
discussed, the meter readings for billings need to be on time every quarter. As Rose stated,
she went to the Mayor with this meter reading problem.
Kolb's demotion entailed his loss of 20 cents per hour premium pay for
Kolb did not grieve his demotion.
Sometime in May, 1999, the City arranged for mandatory training needed by all
employees under OSHA and DNR regulations. The City arranged for training to be done
on three separate dates -- September 13, 20 and 27, 1999, by Advanced Safety Technology,
Sometime in May, 1999, Utilities Supervisor Herman posted the dates of training on the
plant calendar used by employees to record their vacation requests and keep track of plant
with a notation on each date "Training. No vacation" in large letters. 1/
1/ The Grievant stated that it was not until the
calendar was turned over (apparently in early September) that
he became aware that there would be training scheduled for September 13, 20 and 27, 1999.
I note that September
1, 1999, fell on a Wednesday. Therefore, the Grievant had approximately 19 days prior to
his attendance at the
Green Bay Packer game on September 19, 1999, when he knew that he would not be allowed
to take vacation on
In approximately mid-August, 1999, the Grievant spoke about attending a Green Bay
game in Detroit, Michigan, sometime in September. Supervisor Herman was present during
conversation. Sometime during the week of September 13, 1999, Kolb asked
Herman what repercussions there would be if he failed to attend the mandatory training
September 20th. Kolb told Herman that he planned to go to the Packer
game in Detroit and fly back
on Monday, September 20th. Herman responded that if Kolb missed the
September 20th training, he
(Herman) would reveal this to the Personnel and Finance Committee and they would decide
discipline would be necessary.
After this conversation occurred, employee Russ Poritz reported to Herman that after
and Herman had spoken regarding the September 20th training, Kolb had
been very upset. Kolb had
then stated to Poritz that "if Herman thinks I'm coming back for (training) he is f'-ing
crazy." 2/ On
September 17, 1999, Herman hand-delivered the following memo to all employees including
2/ The above quote is from the testimony of
Russ Poritz whose recollection of Kolb's comment to him is
. . .
This 2nd notice
(1st notice was posted on vacation calendar 5-99) is a reminder that
training will take place on Monday, 9-20-99 at 8:00 a.m. & Monday 9-27-99 at 8:00
a.m. Failure to
attend this training will result in disciplinary action, up to & including termination.
. . .
On Friday, September 17, 1999, Kolb made a late afternoon appointment with his
Assistant (PA), Thomas Hawkins. 3/ Thereafter, Hawkins saw Kolb who came in
dizziness and that he felt stressed due to work. Kolb asked that Hawkins write him a
so that he could be off work for five work days, stating that the stress that he was having
would end at that time. 4/ Kolb said he was undergoing counseling and Hawkins took him
word. Hawkins authorized the time off Kolb requested and asked the clinic doctor to issue
prescription for an antidepressant that also attacks symptoms of anxiety.
3/ PA Hawkins stated
herein that the first time he saw Kolb as a patient was on March 26, 1999, when Kolb
complained to him about dizziness that he had been having for approximately two months.
Hawkins saw Kolb on
several occasions thereafter but stress was not involved in those
4/ On September
17th, Hawkins took Kolb's weight but did not take his pulse, blood pressure
Kolb's blood pressure was normal on September 17th.
PA Hawkins stated herein that on September 17th, Kolb did not tell
him that he would be
attending a Packer game over the weekend and that he would be flying in a small plane to
Hawkins stated that given Kolb's symptoms, it would have been inappropriate for him to
travel in a
small plane, as dizziness can be worsened by changes in air pressure and that a person with
problems might have difficulty with the crowds and noise of a football game. Hawkins
there were no follow-up visits with Kolb for six months after the September
After receiving the medical excuse from Hawkins, Kolb took that excuse to the home
David Pasewald (City Clerk/Treasurer), as the Water Department was then closed for the
Pasewald called PA Hawkins and asked him to elaborate on what he meant by "illness" in
excuse. Hawkins stated that the he could not expand upon the excuse given without a
from Kolb, but stated that Kolb's condition was not contagious. Pasewald asked Hawkins
long Kolb should be off work and Hawkins stated that the period of time needed for Kolb to
recuperate was stated on his medical excuse.
Kolb attended the Green Bay Packer football game in Detroit, Michigan, on
1999, and flew back from Detroit in a six passenger plane with his wife and some friends
during the day on September 20, 1999. 5/ Therefore, Kolb missed the mandatory training
which was held on September 20th.
5/ During the time he was on medical leave,
Kolb worked for his grandmother, attended a banquet he had paid
for in advance and went bow hunting (according to Poritz).
After Kolb failed to attend the mandatory training session on September
20th, he could not
perform certain duties covered by that training under State and Federal regulations. After
returned from the medical leave authorized by Hawkins, Herman spoke to him and told him
did not have enough sick leave and that he would have to use vacation for the period of time
been off between September 20 and September 26, 1999. The City took no other action
at this time and Herman did not counsel Kolb in any way or warn him regarding this
Herman set up another training session on January 26, 2000, at City expense,
so that Kolb
could get the training he had missed. Herman gave Kolb a receipt the City had received for
training class indicting the date of the training and the place it was to occur, but the training
was not marked on the Water Department calendar as the mandatory training had been for all
employees in September.
On November 9, 1999, Chief Glamann of the City Police Department questioned
regarding his attendance at the Green Bay Packer game in Detroit on September
19th and the medical
excuse he gave for his absence from September 20 through September 26, 1999.
Chief Glamann asked Kolb for a medical release to investigate his medical records
"illness" during the week of September 20th. Kolb and his wife asked
Chief Glamann if Kolb would
be terminated if he failed to sign the release and Glamann stated he would not be terminated.
then declined to give Glamann such a release. Chief Glamann concluded his investigation, as
it went, on November 9, 1999. As Chief Glamann had been unable to obtain a medical
Kolb, Glamann could not investigate Kolb's medical records or speak with his physicians'
6/ Glamann testified that he wrote up his notes
from his investigation and submitted them to the Mayor within
a week of November 9, 1999. During the past four to five years, Chief Glamann has
nine charges against employees and department heads at the Mayor's request. None of these,
except Kolb's, have
ended in discipline or termination. Two of the people investigated were bargaining unit
On November 15, 1999, Herman posted the following notice at the Water and
. . .
Violations By Union Employees
Any City of Horicon Public Works and
Utilities employees not complying with the union
contract will receive:
First incident Verbal
Second incident Written
Third incident Warning
With Time Off
The City Council is in full support of the
disciplinary procedures listed above.
. . .
On December 6, 1999, Kolb's wife was scheduled for pre-operative tests as well as
consultations with her surgeon at St. Agnes Hospital in Fond du Lac. Over the weekend
December 6th, Kolb and his wife discussed whether she felt she needed him
at her doctor's
appointments on December 6th. Mrs. Kolb decided that she needed her
husband with her on
December 6th. Therefore, on December 6th at
6:30 a.m., Kolb called the Water Plant and spoke to
Russell Poritz and stated he was taking sick leave for that day. On that same day,
Kolb was scheduled to be in court at 9 a.m. regarding a domestic abuse charge filed
earlier in the year. At approximately 10:00 a.m. to 10:30 a.m., Kolb called the City
and asked if he had sufficient sick leave to accompany his wife for her pre-operative
Deputy Clerk/Treasurer Miller checked Kolb's sick leave and stated that Kolb had
eight hours of sick leave remaining but that her records were not up-to-date. Also sometime
the morning, Kolb called the Water Plant and spoke to Union Representative Larry Michael
how much sick leave he had accumulated. Shortly thereafter, Kolb called the Water Plant
spoke to Michael indicating that he would be off all day on sick leave giving the reason that
was having an operation and there was a pre-operative conference on December
6th. 7/ At no time
did Kolb tell the City that he had a court appearance on December 6, 1999.
7/ The City did not ask Kolb whether he
placed any calls to the Water Department or to the Clerk/Treasurer's
office on December 6th regarding his sick leave before he left for Fond du
Lac with his wife.
After Kolb returned to work, Herman stated that he (Kolb) did not have enough sick
to take a sick day on December 6th and that the City would not pay him to
be sick when he was in fact
in Court on another matter. Thereafter, the City changed Kolb's timecard to leave without
December 6, 1999. Herman did not counsel or warn Kolb regarding his actions on
December 6th and
Kolb was not otherwise disciplined therefore.
Kolb missed his re-scheduled training session on January 26, 2000, because he forgot
it. Kolb worked at the Water Department for his entire shift on January
26th. It was not until after
his re-scheduled training had taken place that Kolb (and Herman) discovered that Kolb had
this mandatory training a second time. The City paid $75.00 for the
January 26th training. The City
did not warn, counsel or otherwise discipline Kolb for missing this re-scheduled training
On March 8, 2000, the City met with Kolb and indicated that Kolb should resign. At
meeting, the City first raised the December 6th incident with Kolb and
asked again for a medical
release regarding his medical leave of September 20-26, 1999. Kolb signed a medical
release at this
time. The City also discussed issues surrounding Kolb's September, 1999 demotion at this
At this time, no City representative either warned or disciplined Kolb. For the first time, at
meeting, Kolb mentioned his mental health problems regarding stress and anxiety.
After Chief Glamann received the medical release, he interviewed Physicians'
Hawkins and got Kolb's medical records from the doctor's office. Kolb's medical records
that in August, 1999, Kolb sought counseling for anger management due to problems
he was having at home and a domestic abuse charge which had been filed against
March 26, 1999, Kolb went to the doctor complaining of dizziness. From March,
1999, through the
Spring of 2000, Kolb was prescribed a variety of anti-stress/anxiety and/or anti-depressant
At Kolb's request, PA Hawkins issued the following letter to the City dated March
. . .
I saw Mr. John Kolb Jr. on September 17,
1999 and suggested with his health problem at that
time that he be off work from September 20, 1999 through September 26, 1999. He could
work on September 27, 1999. At the time of that office visit, he was not advised on any
of travel. His health problem was such that he did not need to be homebound.
. . .
The City took no action against Kolb until April 12, 2000, when Mayor Richard
issued Kolb the following termination notice:
. . .
Having carefully reviewed the investigation
reports concerning your conduct since late summer
of 1999, I have concluded that you must be, and hereby are, terminated effective as of
The investigation, including the independent
work of the Chief of Police, our conference with you
on March 8, 2000, and the subsequent review of medical records and interview of health
providers which you authorized during that meeting, has determined that:
You did not attend a mandatory
training session in September 1999, even though you had clear and
ample notice that you were required to be present.
You misrepresented and falsified a
health condition for the purpose of justifying that September 1999
You knowingly and intentionally disobeyed clear and
direct instructions from your supervisor as to
the attendance at the September 1999 training session and a subsequent make-up session in
January 2000. In the course of this conduct, you indicated your refusal to accept the
instructions and orders of your supervisor.
You gave a false explanation for an absence in December
This conduct constitutes just cause for discharge pursuant to the
collective bargaining agreement
under which you worked. Your actions in falsifying the reasons for absences, disregarding
disobeying assignments and orders, and refusing to follow the orders of your superiors
dishonesty, insubordination, and dereliction of duty. Your prior work record has been
but is not sufficient merit and longevity as to warrant mitigation of the penalty.
. . .
After his discharge on April 12th, Kolb took the mandatory training
course he had missed twice, at
his own expense. Kolb thereafter filed the grievance regarding his termination.
On May 10, 2000, the City issued the following letter to Kolb which denied his
. . .
Your union representative, Mr. Lee Gierke,
presented several issues which the committee has
reviewed in detail. Here are the conclusions of the committee:
The committee understands that it
will have the burden of proof in the event the claim goes to
The reasons for the discharge are
all four items stated in the letter of Mayor Greshay dated April 12,
2000. The note you received at the time of the last personal meeting with Mayor Greshay
was not the official notice of discharge, but was an outline he used only to prepare himself
The reason for the September 1999 absence is deemed
unacceptable. There was ample notice that
the second training session (which the grievant missed) was mandatory. Nevertheless, the
grievant was intent on being absent that day regardless of instruction. An excuse from
Physician's Assistant Hawkins was presented, but the City believes the information given
Hawkins was neither accurate nor complete, and the activities of the grievant during the
of his absence were inconsistent with the claim of medical need to miss work. (While the
contract does allow the City to send a doctor to the absentee's home, this is not a mandatory
prerequisite for discipline.) The investigation file (a copy of which was given to the union
two weeks before the May 2, 2000 meeting) contains
evidence that Mr. Kolb was
deceptive, inaccurate, and dishonest in the way he elicited the medical excuse and the reasons
he gave for the absence.
The combination of deception, dishonesty, activities
during the absence, and comments to others
about true motivation for absence constitute a firm basis to conclude that Mr. Kolb was
dishonest and insubordinate in his actions surrounding that absence.
While the City is committed to a system of progressive
discipline, that system does not require
limiting employers to lesser penalties where the issues are dishonesty and insubordination.
The union has questioned why no
action was taken about the September absence until the following
March. The grievant knew the matter was being investigated by the Chief of Police (to
both the expertise of professional investigator and the objectivity of someone outside the
Department of Public Works) because he was notified of an interview as early as November
8, 1999. The committee sees nothing wrong with taking time for a careful and complete
The union argued that the December 1999 absence was
not properly part of these proceedings. The
committee notes that it was mentioned as point four of the official discharge letter, and that
it was also mentioned in the employer's Step 1 response to the grievance. That episode was
another example of incomplete and inaccurate reporting by the grievant because he never
mentioned that one of his activities during his working hours was a court appearance
unrelated to his wife's medical treatment. This not only confirms the grievant's tendency to
misrepresent his conduct by deliberately offering incomplete information, but also is an
independent incident of an untruthful explanation for absenteeism.
The union said it also felt this case presented issues of
disparate treatment because other employees
have been treated differently. No detailed information was offered by the union to support
this claim, and the committee cannot act on that basis without specific proof of other
employees being treated less severely for comparable misconduct.
. . .
POSITIONS OF THE PARTIES
The City noted that Article VI gives its right to discharge employees for just cause
Section 6.04, allows the City to consider disciplinary actions which have occurred within the
three years and written warnings issued within the year prior to the incident being adjudged.
also noted that there was no reason to mitigate the penalty of discharge in this case as John
a short-term employee who had been demoted just before the Packer game incident on
In assessing this case, the City argued that Kolb had been guilty of insubordination,
and deceitfulness. In regard to the insubordination, the City noted that Kolb's refusal to
September 20th mandatory training session, when he knew full well that it
was required of all
employees, and his later statement to Poritz referring to Herman, constituted insubordination.
City's view, the fact that Kolb misrepresented himself to PA Hawkins in seeking a medical
and also misrepresented himself to the City in taking a medical leave of absence constituted
dishonesty. In addition, when Kolb asked for paid sick leave to make a court appearance
fully explaining the situation to the City, this too, was dishonesty. In the City's opinion,
seeking a letter from PA Hawkins for his file, which he knew was based on his omissions of
relevant information, was an additional act of deceitfulness. Thus, for his acts of
insubordination and dereliction of duty" the City urged that it had just cause to fire John
The City argued that Kolb knowingly presented "an improper medical excuse" to
attending the mandatory training session and to receive paid sick leave for September
20th. The City
argued that there was "no doubt" that Kolb had "manufactured a false medical excuse" so
could skip the mandatory training session on September 20th to attend a
Packer football game and
surrounding festivities. In this regard, the City noted that Herman had made it clear to Kolb
employees, both verbally and in writing, that the September 20th
training session was mandatory for
all employees. The City noted that in the summer of 1999, Kolb attempted to get Herman to
him from the September training but Herman refused. Thus, Kolb clearly knew that he was
to attend the September 20th training session. In the City's view, Kolb's
defiant statement to Poritz
after his conversation with Herman further indicated that Kolb not only had no intention of
the September 20th training session, but also that he knew that it was
a requirement of his job. The
City noted that Kolb worked all day on September 17th without complaint
and that at his visit with
PA Hawkins, Kolb failed to tell Hawkins relevant facts and sought an excuse for September
1999, to be off work when in fact Kolb intended to go to a banquet during the week and to
hunting. In addition, the City argued that Hawkins did not fully examine Kolb and that
and/or his failure to disclose relevant information to Hawkins constituted deliberate conduct
was the same as an affirmative misrepresentation.
Kolb's misrepresentations and omissions in seeking paid sick leave for his December
absence are further evidence of Kolb's dishonesty and his intent to profit therefrom. In this
the City noted that Kolb requested sick leave in order to accompany his wife for
appointments but used a portion of the day to attend a court proceeding. In the City's view,
constituted misrepresentation and dishonesty on Kolb's part, establishing a pattern of
which the City should not have to put up with in the future.
The fact that Kolb missed the make-up class that Herman had scheduled for him in
2000, further indicated that Kolb was willing "to cheat the system" by telling inconsistent
this regard, the City noted that at his interview with the City, Kolb had indicated that he had
the notification of the date of the training on his refrigerator door, while at trial, Kolb stated
had placed the notification of the date on the window sill at work. The City also noted that
attendance at a make-up class for this training at his own cost came far too late, after he had
terminated by the City.
The City contended that Kolb's dishonesty could not be offset by claims that the City
do enough to save him. The City noted that the Union had suggested that the City owed
counseling and progressive discipline prior to discharging him for the reasons it gave on
2000. The City argued that dishonesty is too serious an offense to allow second chances and
counseling. Concerning the Union's argument that the City should have sent a doctor to
residence to corroborate Kolb's illness during the week of September 20th,
the City noted that Kolb
only bragged about the football game, bow hunting and attending a banquet after he returned
on September 27th. Furthermore, the City observed that the second opinion
doctor's visit is an option
in the collective bargaining agreement, not a requirement. Without further information than
on September 17th, the City argued that it had a responsibility to take
Kolb's medical excuse at face
Finally, the City urged that its investigation was fair and regular and that if it was
all, it was due to Kolb's attempts to hide his dishonesty, which the City dealt with as quickly
could upon receiving Kolb's medical release. In the City's view, the only reasonable
can be reached in this case is that Kolb deliberately defied his supervisor, mislead PA
mislead and cheated the City. Therefore, the City urged that the grievance be denied and
in its entirety.
The Union argued that in order to analyze this case, one must analyze the reasons for
discharge as well as how the City "handled the disciplinary procedure." In regard to the
discharge, the Union noted that the first reason the City gave was that Kolb missed the
training session on September 20th. However, the Union noted that under
Article XIV, Section
14.02, the City could have gotten a second opinion regarding Kolb's health and it chose not
to do so.
The Union observed that City Treasurer Pasewald was
suspicious on September 17th, when Kolb handed him his
medical excuse, so suspicious that he talked
to PA Hawkins in order to validate the excuse. Thereafter, the City did nothing in regard to
medical excuse until it mentioned the issue on March 8, 2000, at an investigatory meeting
The Union observed that the City failed to put in any evidence to prove that Kolb
falsified a health condition to justify his absence on September 20 - 26, 1999. In the Union's
as of September 20th, Kolb had a valid medical excuse which did not
contain any travel restrictions.
The Union noted that the City does not have a policy requiring employees on medical leave
home and that Kolb was embarrassed to admit his mental illness to the City.
The Union urged that the City's claim that Kolb had attended counseling only because
court ordered was untrue, as Kolb did not have a court appearance outside his initial
December 6, 1999. In regard to Kolb's illness, the Union noted that in January, 1999, and
on March 26, 1999, Kolb had gone to the doctor and complained of anxiety symptoms; and
were done by Dr. Luy Tan which indicated that there were no physiological reasons for his
Thereafter, Kolb engaged in individual counseling sessions, three each in August, September
October, 1999, one in November and two in December of 1999 and then two in January and
February of 2000. In addition, Kolb attended group counseling sessions, three in January,
in February, 2000; and, five in March, 2000. Thereafter, on September 17, 1999, Kolb
doctor again with anxiety symptoms for which he received a prescription and a medical
March 9, 2000, Kolb visited the doctor again complaining of an anxiety attack for which he
a prescription. Finally, on April 10, 2000, Kolb revisited the doctor for the same reason and
on May 5th, Kolb visited the doctor for anxiety symptoms. In these
circumstances, the Union argued
that Kolb's mental condition was real and was not simply a ruse so that Kolb could get away
misconduct as the City claimed.
The Union defended Kolb's statement to Poritz, stating that Kolb made this statement
frustration and that it was not intentional. Indeed, the evidence demonstrated that Kolb could
changed his travel plans if he had wished. In the Union's view, Kolb's demotion could have
the September 17th anxiety attack, as no discussion was held with Kolb to
explain why he had been
demoted prior to September 17th.
The second reason for discharge listed by the City was Kolb's request for sick leave
December 6, 1999. In this regard, the Union asserted that the facts are not disputed that at
Kolb called the City and explained that he needed to be off on sick leave to attend his wife's
pre-operative appointments; that at 9:00 a.m. and for approximately 30 minutes thereafter,
a court appearance regarding a domestic abuse charge; that at 9:30 a.m. Kolb left with
this wife for
St. Agnus Hospital in Fond du Lac and that at 10:30 a.m. Kolb called City Hall
accumulation of sick leave, which he hoped to use that day. It was not until two weeks later
Herman told Kolb that he could not have sick leave for December 6th, that
he would be given leave
without pay for the day because the City would not pay him sick leave to attend court. The
urged that this action by the
City showed that Herman "authorized the leave" under the contract as being leave
Therefore, the Union argued that the City is attempting to discipline Kolb twice for his
December 6th when it has already docked his pay for that day as a
The third reason listed by the City for termination of Kolb is his having missed his
2000, make-up of the mandatory training session he missed on September
20th. The Union argued
that both Herman and Kolb simply forgot about the rescheduling of this training session and
Herman did nothing in regard to counseling Kolb or disciplining him for missing this
session. Indeed, it was not until March 8, 2000, that the City raised this as a problem issue.
Although the City claimed that Kolb could not perform all of his duties because he had
mandatory training session, the Union noted that the City failed to prove that it was harmed
way by Kolb's having missed the training make-up on January 26, 2000. In addition, there
evidence offered by the City to support its claim that Kolb missed the training knowingly and
willfully. In short, the Union urged that the City's case was made up of its suspicions rather
evidence and that at hearing, Kolb had stated plausible explanations for each incident.
The Union argued that the City failed to follow its own policies and the labor
Kolb's case. In this regard, the Union noted that the City failed to follow progressive
principles which were stated in its written policy posted on November 15, 1999, at the Water
Department. Furthermore, the Union urged that discipline, as general matter, should be
prompt. In the Union's view, holding the threat of a penalty over the head of an employee is
punishment in and of itself, which essentially doubles the penalty for each offense and is
concepts of justice and fairness.
Indeed, in this case the City offered no excuse for the extreme delays in processing
discipline that was meted out against Kolb. In this regard, the Union observed that although
September 17th incident made the City immediately suspicious, it did
nothing. It was not until six
weeks later that the Chief of Police questioned Kolb (November 8, 1999) regarding this
Then, another four months elapsed before the March 8, 2000, meeting with Kolb and his
Representative in which the City urged Kolb to resign. Thus, in the Union's view, the City
follow the axiom that an employee should receive discipline within a reasonable time after
In regard to the December 6, 1999, incident, the Union noted that the City delayed in
processing any charge against Kolb for this incident. Indeed, it was not until December 20,
Herman changed Kolb's sick day to a day without pay. Yet, the City raised this issue among
reasons for the City's displeasure with Kolb on March 8, 2000. Finally, in regard to
the fact that Kolb
missed the January 26, 2000, make-up training session, the Union noted that no investigation
made of this incident and that no penalty was given to Kolb for this incident until this too
at the March 8, 2000, meeting with Kolb, the City and the Union wherein the City expressed
displeasure with Kolb's actions. Therefore, from September 20, 1999, to his April 12, 2000
termination 199 days elapsed; from the
December 6, 1999, incident to his termination was 122 days and from the
January 26, 2000, incident
to Kolb's termination was 72 days. These timeframes, in the Union's opinion, were too
constituted a violation of Kolb's due process rights.
In addition, the Union argued that the City's decision to use the Chief of Police as
investigator of Kolb's misconduct amounted to prejudging Kolb and that the City should have
either the immediate supervisor or department head (referred to in the grievance procedure)
of employing the Chief in this unusual manner. In conclusion, the Union argued that the
to prove that Kolb had been insubordinate or that he had ever refused to follow a direct
Union, therefore, asked that Kolb be reinstated with full back pay and that his record be
of all reference to the discipline.
The City is correct in its assertion that Article VI gives it the right to consider
actions up to three years old and written warnings up to one year old in assessing new
against employees. Thus, the City had a right to consider Kolb's September 16, 1999
disciplining him for conduct thereafter. Certain facts in this case are not disputed: that the
20, 1999 training session was mandatory for all Water Plant employees and necessary for
perform their jobs; that Kolb knew he could not take vacation on September
20th and that he was
expected to attend the training session on that date; and that Herman would ask the City to
Kolb if Kolb failed to attend the training.
However, there are overwhelming problems in this case which center around the
to take action against Kolb, over many months, following Kolb's misconduct on September
December 6, 1999, and January 26, 2000. Under classic concepts of just cause, discipline
in cases of serious offenses) should be progressive, not punitive. Therefore, discipline
generally be given in increasing amounts to encourage the employee to improve his/her
course, if increasing amounts of discipline do not result in improvement, discharge is
However, an employer is not free to sit back and allow the employee's offenses to pile up
the employer's intervention in order to justify issuing the employee a severe penalty.
This record makes it clear that the City should have given Kolb lesser appropriate
for his first offense and escalated the discipline for each successive offense. Had the City
approach, Kolb might have realized the error of his ways long before January, 2000. The
and failure to take prompt action against Kolb for his offenses may have given Kolb the
impression that the City did not believe his misconduct warranted discipline or that the City
it. In this regard, I note that on November 15, 1999, approximately one week after Police
Glamann interviewed Kolb regarding his misconduct in September, Herman posted the City's
regarding progressive discipline.
The posting of this notice and its timing cannot be ignored. This notice (and the City's
disciplining Kolb) could have lead Kolb to believe he would receive no discipline for his past
misconduct, despite Chief Glamann's November 9, 1999, investigation of that conduct.
In its April 12, 2000, termination letter, the City lists as its first reason for
that he failed to "attend a mandatory training session in September, 1999" although Kolb had
and ample notice" that he was "required to be present." There is no question in this case
knew (through both written and oral notices) that he was expected to attend the September
training session and that if he failed to do so he would be subject to discipline. Kolb
his comprehension of these notices when he angrily told Russ Poritz he had no intention of
the September 20th training. Indeed, he did not attend the training. Thus,
it is clear that the City
provided sufficient proof to support the first reason for discharge. However, although Kolb's
on September 17th and September 20th would clearly have
warranted discipline, the fact that the City
waited seven months to discipline Kilb for his misconduct makes this charge against Kolb too
to be relied upon herein by the City.
The second reason for discharge listed in the City's April 12th letter
misrepresenting and falsifying a health condition to justify his September
20th absence. There is no
doubt in this Arbitrator's mind that the City met its burden of proof on this point. Having
does not mean that this reason for discharge can stand against the inordinate delay which
to the necessary conclusion that this charge is also too stale to stand scrutiny in a case where
cause must be shown.
In this regard, I note that the City offered no evidence to explain why it waited from
September 27, 1999, to April 12, 2000, to complete its investigation and terminate Kolb.
implied in its answer to the grievance that it had not delayed its investigation of Kolb's
but that to do a thorough investigation required the time spent. It is clear on this record that
Chief finished his initial investigation (begun on November 9th) in one day
and that the Chief had his
report typed and sent to the Mayor within a week or two thereafter. The City's investigation
apparently resumed (for reasons unknown) on March 8, 2000, and concluded for a second
time prior to April 12, 2000. In these circumstances, it cannot be said that the City needed
the seven-month period from September 27, 1999, to April 12, 2000, to fully
investigate Kolb's misconduct.
In its April 12th termination letter, the City stated that Kolb
"knowingly and intentionally"
failed to attend the make-up training session in January, 2000, thereby refusing "to accept the
instructions and orders" of his supervisor. The evidence of record failed to show that Kolb
and intentionally failed to attend the make-up training session in January, 2000. In my view,
Kolb's responsibility (not the City's) to make sure he attended this make-up training session.
(Herman stated, without contradiction, that he never reminded employees of individual
sessions they were expected to attend.) Kolb testified credibly that although he received
the January 26, 2000 make-up session, he
simply forgot all about the training session and worked the entire day at the Water
Plant. In these
circumstances, I cannot find that Kolb "knowingly and intentionally" disobeyed Herman's
attend the make-up training session on January 26, 2000. 7/ Thus, although this
have formed the basis for minor discipline by the City (an oral or written warning), it is
to support just cause for Kolb's termination and is also quite stale, coming 2.5 months prior
7/ I note that Kolb's statements on this point
were essentially corroborated by Russ Poritz.
The last reason for termination stated in the City's April 12th letter
was that Kolb "gave a false
explanation for an absence in December, 1999." It is undisputed that there is nothing in the
bargaining agreement which requires employees to give a reason for their request for sick
Section 14.04 [sic], the contract allows employees "upon written application" and within the
discretion of the City, to be granted an unpaid leave of absence for personal leave not to
days. Thus, Kolb could have sought an unpaid personal leave day for December 6, 1999.
he chose to use his wife's pre-operative appointments in Fond du Lac, Wisconsin, as a cover
30 minute attendance in court on a purely personal matter.
However, I agree with the Union that Herman essentially disciplined Kolb and
Kolb's leave on December 6, 1999, when Herman (on December 20, 1999) changed Kolb's
from paid sick leave to leave without pay for December 6th. For the City
to further discipline Kolb,
as a part of his termination, for Kolb's unauthorized use of sick leave to attend court on
6th would violate rules against double jeopardy. Therefore, the City's use
of the December 6th
incident as a reason for Kolb's termination was improper and inappropriate.
The Union has argued that the Mayor's decision to have the Police Chief investigate
misconduct was improper and amounted to prejudgment of the case. I disagree. Although as
general rule, it may be preferable for supervisors who are designated in the chain of
the grievant to investigate their employee's misconduct, this does not mean an employer
reasonably determine that an investigation would be better handled by a supervisor outside
The City made an elliptical reference to insubordination -- Kolb's "refusal to accept
instructions and orders" of his supervisor -- in paragraph 3 of the April 12th
termination letter. It
appears from the City's arguments herein that this reference is to Kolb's statement to Poritz
Herman thinks I'm coming back for (training) he is f'--ing crazy." In my opinion, Kolb's
does not constitute insubordination. In this regard, the statement was made by Kolb in
Poritz, not to Herman. The statement was certainly disrespectful and intemperate but it did
to the level of insubordination.
The City argued herein that Kolb was dishonest in asking PA Hawkins to write the
explanation dated March 10, 2000. As this letter was not referred to in the April
letter as grounds for Kolb's termination, it has not been considered herein.
Based on all of the relevant evidence and argument herein, I issue the following
The City violated the labor agreement when it terminated John Kolb. The grievance
therefore, sustained. The City is ordered to expunge Kolb's personnel record of any
reference to the
discharge and to reinstate him with full back pay and benefits from the effective date of his
termination, April 7, 2000, forward.
Dated at Oshkosh, Wisconsin, this 6th day of December, 2000.
Sharon A. Gallagher, Arbitrator