BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 366, AFSCME, AFL-CIO, DISTRICT COUNCIL
MILWAUKEE METROPOLITAN SEWERAGE
Podell, Ugent, Haney & Miszewski, S.C., by Attorney Robert E.
Haney, 611 North Broadway Street, Suite 200, Milwaukee, Wisconsin 53202-
5004, appearing on behalf of Milwaukee District Council 48.
Attorney Harold B. Jackson, Jr., Senior Staff Attorney,
Metropolitan Sewerage District, 260 West Seeboth Street, Milwaukee, Wisconsin
appearing on behalf of Milwaukee Metropolitan Sewerage District.
Milwaukee Metropolitan Sewerage District, hereinafter Employer, and Local 366,
AFL-CIO, District Council 48, hereinafter Union, are parties to a collective bargaining
was in effect at all times relevant to this proceeding and which provides for final and binding
arbitration of certain disputes. A request to initiate grievance arbitration was filed with the
Commission on or about January 18, 2001. Commissioner Paul A. Hahn was
appointed to act as
arbitrator on January 25, 2001. The parties initially scheduled an arbitration hearing on
2001, but asked the arbitrator to hold the matter in abeyance while the parties attempted to
grievance. Following notification from the parties that they were unable to achieve
parties scheduled and held the hearing on April 30, 2001 and May 11, 2001. The hearing
at the Midway Motor Lodge in Blue Mounds, Wisconsin. The hearing was transcribed. The
were given the opportunity and filed post hearing briefs. Post hearing briefs were received
Arbitrator on October 29, 2001 (Employer) and October 30, 2001 (Union). The parties
the opportunity and declined to file reply briefs. The record was closed on
November 9, 2001.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this Award.
The Union states the issue as follows:
1. Regarding grievance 00-12, was there just cause for a
one-day suspension of the
grievant? If not, what is the appropriate remedy?
2. With regard to grievance 00-13, did
the employer violate the terms of the parties'
collective bargaining agreement by failing to provide proper notice to the Union regarding
sent by the employer? If not, what is the appropriate remedy?
3. With regard to grievance 00-14, did
MMSD violate the terms of the parties' collective
bargaining agreement by requiring the grievant to undergo a mental health fitness for duty
in the absence of any type of policy or procedures outlying the circumstances under which
of activity can be performed? If so, what is the appropriate remedy?
The Employer states the issue as follows:
1. Grievance No. 12: Employer withdraws the previous
imposed one-day suspension
2. Grievance No. 13: Failure to give
all the notices to the Union required by the
contract; since the employer has withdrawn the one-day suspension the issue as to whether
the one-day suspension should be declared null and void because the Employer failed to give
the Union notice
of the disciplinary one-day suspension renders the grievance moot. The Employer agreed at
of the grievance to provide proper notice in the future on all grievances.
3. Grievance No. 14: Whether the
absence of any language in the agreement governing
fitness for duty psychological evaluations mandates the denial of this grievance. If that
answered "no", then the second issue to be determined is whether the record in this case
that MMSD's decision to require the Grievant to submit to a fitness for duty psychological
was a reasonable exercise of its authority under the Management Rights Clause.
Whether the Employer violated the Collective Bargaining Agreement when it ordered
Grievant to take a fitness for duty psychological evaluation. If so, what is the appropriate
. . .
H. SUBORDINATE TO STATUTES, ETC.
This Agreement shall in all respects,
wherever the same may be applicable herein, be subject and subordinate to the Statutes of the
State of Wisconsin, session laws, and regulations of State agencies.
. . .
C. MANAGEMENT RIGHTS.
1. Except as otherwise specifically
provided herein, the management of the plant and
direction of the work force, including but not limited to the right of hire, the right to
or discharge for proper cause, the right to decide employee qualifications, the right to lay off
for lack of work or other reasons, the right to discontinue jobs, the right to make reasonable
work rules and regulations governing conduct and safety, the right to determine the methods,
processes and means of operation are vested exclusively in the employer. The employer in
exercising these functions will not discriminate against any employee because of his or her
membership in the Union.
. . .
A. GRIEVANCE AND ARBITRATION
. . .
Only matters involving the interpretation, application or
enforcement of the terms of this
Agreement shall constitute a grievance under the provisions set for the (sic) below.
. . .
The arbitrator shall neither add to, detract from, nor modify
language of this Agreement
in arriving at a determination of any issue presented that is proper for arbitration within the
expressed herein. The arbitrator shall have no authority to grant wage increases or wage
The arbitrator shall expressly confine
himself/herself to the precise issues submitted for
arbitration and shall have no authority to determine any other issue not so submitted to
to submit observations or declarations of opinion which are not directly essential in reaching
. . .
The arbitrator so selected shall hold a
hearing at a time and place convenient to the parties
within ten (10) working days of the notification of his/her selection, unless otherwise
upon by the parties. The arbitrator shall take such evidence as in his/her judgment is
the dispute. Statements of position may be made by the parties and witnesses may be called.
arbitrator shall have initial authority to determine whether or not the dispute is arbitrable
express terms of this Agreement. Once it is determined that a dispute is arbitrable, the
proceed in accordance with this article to determine the merits of the dispute submitted to
STATEMENT OF THE
This grievance involves the Milwaukee Metropolitan Sewerage District and Local
AFSCME, AFL-CIO, District Council 48. (Jt. 1) The Union alleges that the Employer
parties' collective bargaining agreement by giving the Grievant a one-day suspension without
from his position as a full-time lab technician for the Employer, by failure to notify District
48 Staff Representative of notices sent by the Employer to the Local and by requiring the
to submit to a psychiatric exam prior to returning to work from his one-day suspension
simultaneous 30-day paid administrative leave of absence. (Jt. 2, 3 and 4)
Grievant is a lab technician with the Employer and has been so employed since 1990.
others, Grievant worked with three women technicians: Pam Bechler, employed as a lab
for approximately 12 years; Roxanne Starks, employed as a lab analyst for approximately 18
and Nicole Wiesinger, employed as a lab technician for approximately 11 years, and
hired on the same
day as Grievant. During the course of their employment, all three of Grievant's
colleagues agreed that Grievant has been known for his "temper tantrums" and for his
about Employer management and complaints by Grievant that other employees "stole" his
failed to give him credit for ideas that made improvements in the Employer's work
and mission. While
argumentativeness among employees was not unusual, the three aforementioned
that after August of 2000 Grievant's attitude toward them, rather than being argumentative,
more personal as he directed his arguments and "rantings", which they regarded as often
of control, at them personally because they were made part of teams or felt that Grievant
them getting ahead and he was not.
On December 1, 2000, Pam Bechler was in her office and Grievant stopped by and
complain about Ms. Bechler, a conversation that Bechler testified scared her. Some of this
conversation was witnessed by acting supervisor John Wiesinger who passed on the
Roxanne Starks and Nicole Wiesinger. Nicole Wiesinger, who admitted to an argumentative
conflicting personal relationship with the Grievant since the date of their hire, had in July of
asked not to work in the same lab area as Grievant and was transferred to a different section
lab. She had little interaction with the Grievant since.
John Wiesinger suggested to Bechler and Starks that they should discuss Grievant's
with Director of Operations Sylvan Leabman. Bechler, Starks and Wiesinger met with
December 5, 2000 and related to Leabman their concerns regarding Grievant's seemingly
uncontrolled anger and more personal attacks on them, although admitting that the Grievant
never actually threatened them with any bodily harm.
Prior to that meeting, Leabman had a number of conversations with the Grievant
year 2000 regarding Grievant's attitude and interaction with employees in the lab. (Er. 11)
meeting with Leabman, Bechler, Starks and Wiesinger expressed their "fear" of the Grievant
what he might do since he could not seem to control his anger and suggested Grievant
"time off" to think about his anger and relationship with employees with whom he worked in
and try to get himself under control.
Director of Operations Leabman called a meeting with the Grievant and the Union on
December 12, 2000. The meeting was attended by the Grievant and Leabman as well as
Resource representatives of the Employer and Meredith Welling, the Union Vice President
Steward. Prior to the December 12 meeting, Welling attempted to learn the identification of
employees who brought Grievant's situation to the attention of Leabman but was told by
management that such information was not to be released ". . . out of concern for their
safety and well
being." (U. 7) The Grievant was not informed of who had complained to Leabman at the
12 meeting. He was told by Leabman that the concerns were his continual problems of
with employees and complaints by employees about his lack of control over his anger.
December 12th meeting, the Employer, by Leabman, gave the
Grievant a one-day suspension without
pay and a 30-day paid leave of absence during which the Grievant was to obtain a
paid for by the Employer and with a physician selected by the Employer to determine
whether he was
fit to return to work. (U. 8)
The Grievant, on advice of Council 48 representative Radtke, refused to take the
psychological examination, and the Union filed the three aforementioned grievances. The
has been on paid administrative leave at least through the date of the arbitration hearing.
During the course of his employment in 2000, the Grievant was involved in
a psychologist at the Wauwatosa Counseling Center in order to cope with stress he was under
worked on his Masters thesis. A December 20, 2000 to whom it may concern memorandum
the psychologist approved Grievant's return to work. (U. 17) Also during the
the Grievant saw a psychiatrist who, on March 6, 2001, stated that based on her psychiatric
evaluation of Grievant and her review of his records with the psychologist that she saw no
the Grievant could not return to work. (U. 18)
The parties processed the three grievances through the grievance procedure of the
collective bargaining agreement. The matter was appealed to arbitration and hearing in the
was held by the Arbitrator on April 3 and May 11, 2001 in Blue Mounds, Wisconsin. No
raised as to the arbitrability of the grievance prior to the hearing or at the hearing but was
the Employer in its post hearing brief.
POSITIONS OF THE PARTIES
Position of the Union
"Since the time of the arbitration, the Union has been informed that the MMSD has
its one-day suspension of the grievant; therefore, there is no need to address
grievance 00-12 in this
brief. The Union has also been informed that with regard to grievance 00-13, the
maintaining its position as expressed in the third step disposition; that is, it will provide
in the future. The Union had contended that the appropriate remedy with regard to this
was for the grievant's suspension to be withdrawn. Clearly, given the employer's position
regard to grievance 00-12, there is no additional remedy, other than the one in the third step
disposition, to be obtained. Therefore, 00-13 is moot and will not be addressed." (U. Brief
As to Grievance 00-14, the ordering of a mental health fitness for duty examination,
takes the position that the Employer did not have reasonable rules and procedures in place
mental health fitness for duty examinations and, therefore, the Employer violated the
bargaining agreement. The Employer may not order the Grievant to undergo a mental health
Citing Federal Law and the Equal Employment Opportunity Commission
Guidelines, the Union takes the position that the Employer can require a medical examination
employee only if it is job-related and consistent with business necessity. The EEOC, the
argues, has made clear that the prohibition against medical examination is not limited to
persons but covers all employees.
Citing EEOC Guidelines, the Union submits there are seven factors that an employer
follow to determine an appropriate medical examination:
(1) Whether the test is administered by a
health care professional; (2) whether the test is
interpreted by a health care professional; (3) whether the test is designed to reveal an
physical or mental health; (4) whether the test is invasive; (5) whether the test
employee's performance of a task or measures his/her physiological responses to performing
(6) whether the test is normally given in a medical setting; (7) whether medical
equipment is used.
The Union also argues that the United States Supreme Court in Meritor Savings Bank
Vinson, stated that an examination ordered by an employer must be restricted to covering
the employee can continue to fulfill the functions of the job. Federal law, the Union
submits, is also
found under the Wisconsin Fair Employment Act. The Union points out that the Wisconsin
incorporated as part of the parties' collective bargaining agreement and that therefore the
in this case could not order Grievant to undergo a mental health fitness for duty examination
because Grievant is perceived to present a possible future risk, but only if Grievant
inability to perform the essential functions of his job duties. The Union argues that no
or testamentary evidence was introduced at hearing regarding the nature of the examination
Employer would have the Grievant undergo. Further, no evidence was introduced regarding
criteria used for determining whether the Grievant, after submitting to a mental health
fitness for duty test, would be fit to work and finally that there was no documentary or
evidence introduced whether the Grievant, if found to be unfit to perform his present job,
able to return to work.
The Union argues that the collective bargaining agreement in this matter gives the
the right to establish reasonable work rules that are consistent with State and Federal Law
but, in this
case, the Employer has not established any reasonable work rules regarding when, how and
examination would be ordered of an employee, in this case the Grievant. The Union submits
without set standards, guidelines or policies established in a nonarbitrary manner by the
in its work rules, evaluation or determination of mental
health is arbitrary insomuch as there is nothing against which to measure it. Therefore
health examination in this case is an arbitrary exercise of authority by management as
opposed to the
exercise of authority consistent with established work rules.
The Union further points out that while it recognizes there may be emergency
concerns over worker safety are so paramount that an Employer must act even if that
authority is not
set down in established work rules, in this case not even the Employer submits that
situation is an emergency. Testimony established that the three women complainants did not
Director of Operations Leabman to remove Grievant from the lab or that the Employer
Grievant and the three complainants from the time the complainants met with Leabman on
5, 2000 and the time of Grievant's suspension on December 18, 2000. The Union
takes the further
position that even if the Employer were to have the authority to have an unknown person
an unspecified examination to measure an undetermined level of fitness that would qualify an
individual to be fit for duty, that there is no need for the Employer in this case to order the
to undergo such an examination because the Grievant has a letter from a physician stating
that he is
mentally fit for duty. (U. 18) The Union also submits to the Arbitrator that
there exists ample
testimony in the record to prove that there was no question regarding Grievant's work and in
Grievant was an excellent lab technician. Therefore there was no demonstrated inability
the Employer for Grievant to be able to perform his work.
In conclusion, the Union submits that as Grievances 00-12 and 00-13 are conceded by
Employer to the Union, the Arbitrator should, in his award, indicate that the Employer did
just cause to suspend the Grievant for one day and that the Employer should provide proper
to the Union in the future. In regard to Grievance 00-14, the Union requests the Arbitrator
in light of the nonexistence of reasonable rules and procedures regarding a mental health
the Employer has violated the parties' collective bargaining agreement and the Employer may
order the Grievant to undergo a mental health fitness examination. Therefore, because of the
of reasonable rules and regulations regarding a fitness for duty examination, the Employer
exercised its authority arbitrarily and has violated the collective bargaining agreement.
Position of the Employer
The Employer submits two arguments. The first is that the labor agreement between
parties reveals no language that addresses the subject of fitness for duty psychological
The Employer argues that the agreement between the parties restricts the authority of the
from modifying, interpreting or harmonizing existing provisions of the contract to the factual
presented to him. In the absence of any language in the agreement covering or referring to
for duty psychological examinations, the Employer
submits that if the arbitrator chooses to exercise his authority in this dispute he will not
the words of the parties and will not be making a determination which draws its essence from
collective bargaining agreement. The Employer argues that an action like this would be
of the contract rather than interpretation. Citing arbitration case law the Employer submits
arbitrator cannot give meaning or treat a subject that is not covered by the labor agreement,
case fitness for duty psychological evaluations, and therefore the matter is outside the grant
authority to the Arbitrator.
In the alternative, the Employer submits that the management rights clause of the
agreement, Joint 1, gives the Employer ". . . the right to make reasonable work rules and
governing conduct and safety, . . .". The Employer takes the position that it has not
its authority to regulate areas of employee conduct and safety and that the exercise of this
is subject only to the requirement of reasonableness. In the case before the Arbitrator, the
takes the position that when informed of the conduct of the Grievant, and having determined
was threatening to co-employees and then examining other troubled conduct by the Grievant
workplace, the Employer reached the reasonable conclusion that the employee should be
paid leave until the completion of a fitness for duty psychological evaluation.
The Employer argues that it has a duty to provide a safe working environment for its
employees and to create an environment where its employees feel safe. The Employer cites
testimony of employees Pam Bechler, Roxanne Starks and Nicole Wiesinger to support a
finding that Grievant during the course of his ten years of employment was known for having
tantrums and yelling and screaming at people on the job. Regarding Ms. Bechler's
Employer states that at first Ms. Bechler was merely someone that the Grievant talked to and
angry regarding work frustrations, but that it was not directed at her and that she tried to
down, but that after August 2000, when she became a team leader on the metals process
seemed to her that he resented that and became adversarial toward her.
Employer submits that Bechler became scared after a December 1, 2000 meeting with
Grievant when he stopped by her office and accused her of being an "ass kisser", trying to
of others and that his conduct upset her and that she became scared. The Employer submits
testimony of Roxanne Starks supports its argument that Starks became fearful of Grievant
August of 2000 when his anger seemed to be out of control. The Employer submits that the
testimony of Nicole Wiesinger supports its argument that employees were fearful of the
that she had been advised by a fellow employee that she should watch her back and be
The Employer submits that Director of Operations Leabman testified about several
with the Grievant regarding complaints about the Grievant creating a hostile working
for Grievant's co-workers. On that basis, the Employer submits that when it had
three employees fearful of the Grievant it felt that it had an obligation to require
Grievant to submit
to a fitness for duty psychological evaluation as the only option available to it. The
that while the quality of Grievant's work was never at issue, his conduct with his co-workers
unacceptable. Grievant's displays of emotional intensity and anger had increased to a level
threatening conduct where the three complainants feared for their safety.
The Employer submits that its action requiring the Grievant to submit to a
evaluation, by providing the Grievant with a paid leave up to the time the results of the
were available, is reasonable and that therefore the grievance is without merit and should be
This is a case involving three grievances filed by the Union for alleged violations of
parties' labor agreement. (Jt. 1) The grievances relate to a one day suspension
without pay, failure
by the Employer to provide Council 48 with notice of the suspension and placing the
administrative leave with pay for thirty days and ordering him to take a psychiatric exam to
his fitness to return to work. In its post hearing brief, the Employer advised the Arbitrator
that it was
withdrawing the one day suspension and was agreeing that it would provide proper notice to
Union as required by the parties' labor agreement. The Union in its post hearing brief
action by the Employer and therefore, I will not address these two grievances in my decision
comment on them further. Before me is grievance 00-14 relating to the administrative leave
ordering Grievant to take a fitness for duty examination. (Jt. 4)
However, I must first consider the Employer's argument and position that I cannot
remaining grievance because there is no language in the labor agreement that speaks to the
a psychological exam. The Employer argues that if I consider this issue I will be legislating
language into the labor agreement in violation of the grievance procedure that prohibits me
doing so, as well as in violation of applicable arbitration case law. The Employer raised this
the first time in its post hearing brief.
Initially, I find that by not raising the arbitrability issue before its post hearing brief,
Employer has waived its right to make this argument. I do not subscribe to the theory that
arbitrability issues can be raised at any time before the record is closed. To raise the issue
later than the hearing puts the Union in this case at a distinct disadvantage to respond. But
case there are other reasons why I find that I have the authority to decide this issue even if
psychological exams are not covered by any language in the agreement. I note in the parties'
agreement the arbitration clause authorizes the arbitrator to decide arbitrability issues; it is
to either procedural issues or substantive issues. Since the courts favor
arbitration, I interpret this clause to allow me to make a decision as to this substantive
issue. I also find it significant that the Employer in its opening statement on the record
the Management Rights clause in the contract gave it the right to order the
exam. (Tr. 1, p. 6)
Further, Director of Operations Leabman testified that he believed the Management Rights
gave him the authority to order the exam. (Tr. 2, p. 127) [Tr. 1
refers to the April 30, 2001
testimony; Tr. 2 refers to the May 11, 2001 testimony]
There are few clauses in a labor agreement that are subject to more interpretation by
arbitrators than a management rights clause. I also note that in essence the Employer made
arbitrability argument in the alternative, stating that if I determined the matter arbitrable the
was whether the Employer, given the record facts, violated the agreement by ordering
take a psychological exam. Therefore, I rule that I have the authority to proceed to decide
in ordering the exam the Employer violated the parties' labor agreement.
The Union takes the position that because the Employer did not exercise its right
labor agreement to establish a work rule providing for under specific guidelines the taking of
psychological exam (hereinafter exam) the Employer's action was arbitrary and the grievance
be sustained. The Union discusses federal law, Wisconsin law and case law to the effect that
nothing prohibits an employer from ordering an exam, it is only legal if the exam is
determine if the employee can continue to fulfill the essential functions on the job. The
EEOC guidelines as to the proper nature of a medical exam which the EEOC considers
determine an individual's mental impairment.
The first issue I need to decide is whether the Union is right that the Employer
establish reasonable rules and guidelines before it could order Grievant to take the exam in
of 2000. (Jt.8) The Employer does not argue that it established any rules for taking
the exam in this
case, and the record would not support such an argument. The Employer argues that it
right under the Management Rights clause of the Agreement to order the exam.
The Management Rights clause reads ". . . the right to make reasonable work
regulations governing conduct and safety," is invested "exclusively" in the Employer. This
is not mandatory; in other words, the Employer can make reasonable rules but is not
required to do
so. Is the Employer obligated to make a rule before it can act? I do not believe a proper
interpretation of the Management Rights clause requires that the Employer in this case must
a work rule for every matter it wishes to address related, in this matter, to conduct and
it can act. There simply is no requirement in the clause itself or in this labor agreement that
such an interpretation and finding.
I regard a management rights clause to be a clause of residual rights. 1/ It is
in the labor arbitration field that the parties to a collective bargaining relationship cannot
contract language to cover every possible eventuality of their relationship; the
same is true for work rules and regulations. I therefore find that the Employer did not
establish a work rule before it could order Grievant to take an exam. At the same time, such
cannot be ordered arbitrarily because it could be used in an improper manner against an
reasons having nothing to do with the employee's fitness for duty and everything to do with
forms of discrimination. To meet the requirements of arbitration law, the exam has to be for
there have to be legitimate and substantial reasons to order a psychological exam and that is
this case with the Grievant. 2/ In essence, I believe this is what the federal and State
1/ The Common
Law of the Workplace, Theodore J. St. Antoine editor, BNA, chap. 8, Safety and
8.9, p. 283 (1998).
2/ Caterpillar Tractor
Company, 36 LA 104, 105-106, Daugherty (1961); Conahemco, Incorporated,
55 LA 54, 57 Ray (1970); Southern Champion Tray Company, 92 LA 677, 679, Williams
(1988); City of
Monmouth, Illinois, 105 LA 724 Wolff (1995).
3/ Bucyrus-Erie Co. v.
ILHR Department, 90 Wis.2d 408, 421 (FN 6), 1979.
I also find that it would have been difficult under the circumstances in this case for
Employer to have previously established guidelines for a mental fitness for duty exam.
such exams deal with an employee's physical ability to do the essential duties of his job.
Grievant was certainly fit to do the essential duties but his interaction with fellow employees
them concerns for their safety. It would be difficult to have guidelines in place for such a
which is why "cause" seems to be the better standard. As for the criteria to establish when
Grievant would be fit to work whether found to be fit or unfit, as the Union argues, this
logically be up to a psychiatrist or psychologist to decide, setting the criteria or program
would have to follow to be able to return to work.
The Employer in this case was placed in a difficult position when three female
came to Director of Operations Leabman on December 5, 2000 and stated that they
were fearful of
the Grievant. (Tr. 2, p. 73) The incident that touched off this matter between
the parties occurred
on December 1, 2000 when Grievant had a discussion with Pam Bechler, a colleague,
in her office
at the end of the work day. (Tr. 1, p. 27) This was not an unusual occurrence
as Grievant often
talked with Bechler, mainly to complain about the workplace in general and management in
In this conversation, Grievant complained about Bechler being an "ass kisser" relating to her
participation on a team. (Tr. 1, p. 29) Grievant denied he said it, but I credit
that different than most conversations with
her, where she just listened and tried to calm Grievant, in this meeting he was
her and was losing control when their supervisor walked in for a period of time. And it was
acting supervisor John Wiesinger who recommended that Bechler talk to Leabman, which she
December 5th with the support of Starks and Nicole Wiesinger.
(Tr. 1, p. 34)
In showing whether it had cause to order the exam, I find that the Employer through
witnesses showed that Grievant had problems controlling his anger. (Tr. 1,
pp. 15, 89 & 129) Most
of that anger seemed to be directed at management though in the form of complaints to
employees rather than in face to face confrontations with Grievant's superiors. (Tr. 1,
p. 130) It is
also apparent that Grievant often argued loudly with his colleagues and clearly felt that he
superior in his knowledge and abilities. Grievant complained that others stole his ideas or
without giving him credit. (Tr. 1, p. 90) And it is clear that this verbal conduct
by the Grievant was
ongoing almost from the time that he was employed. (Tr. 1, p. 77)
Grievant also was alleged to have
a "file" at home to use in case something was done to him at work. (Tr. 1,
p. 86) To Leabman, the
three women expressed a fear for their safety as it seemed that Grievant's anger was now
at them after August of 2000 where it had not been personal to that time. The three women
that they were perhaps more concerned now about retaliation from Grievant given the length
he had been off work as of the date of the arbitration hearing. (Tr. 1,
pp. 45, 46 & 172)
It is also clear from the testimony, or lack of it, that Grievant never threatened the
women or anyone else. (Tr. 1, pp. 86, 97 & 175)
Grievant never physically assaulted or touched any
of his fellow employees. While Grievant owned guns and hunted and on occasion discussed
with fellow employees, this would hardly be unusual in any Wisconsin place of employment.
Grievant had a terrible relationship with Nicole Wiesinger who was hired on the same day as
Grievant, the two, by Wiesinger's testimony, lacked any chemistry but Grievant had never
her. (Tr. 1, p. 175) It is also apparent that in their arguments, Wiesinger gave
as good as she received
and she and Grievant often apologized to each other. (Tr. 1, p. 143)
Wiesinger further had no
contact with Grievant since July of 2000 when she moved to a different part of the lab.
also the employee who helped Wiesinger when she spilled acid on
herself. (Tr. 1, p. 167) Wiesinger
did not fear Grievant's return to work. (Tr. 1, p. 172)
I find that the testimony further establishes that it was not all that unusual for
argue with each other and complain about management. Further, Grievant's actions had
ongoing but no one had complained before, although Leabman had spoken with Grievant on
occasions in 2000 about his attitude and relationship with fellow
employees. (Tr. 2, pp. 55, 67 & 69)
The testimony also revealed that only Wiesinger asked to work away from the Grievant to
management agreed. It is also established by the record that the three women only asked in
December 5, 2000 meeting with Director of Operations Leabman, that Grievant be
given a couple
of days off to "think about it (his behavior)". (Tr. 2, p. 107)
(Tr. 1, p. 37) The women did not ask
that Grievant be discharged or that he not be returned to work.
The Employer representatives met with Grievant and his Union representatives on
December 12, 2000. At that pre-disciplinary meeting, the Grievant and his
representatives were not
told the names of the employees who complained to Leabman that brought about the
for discipline of the Grievant. While it is understandable that the Employer wanted to
three women's identities, I find that the Grievant and Union had an overriding right to know
names and the nature of the complaints in order to defend the Grievant as part of just cause
process. It is not enough to tell the Union that it should be able to figure out who the
were. Nothing that the Grievant had done or said could override his and his representative's
and need to know the names and complaints. In fact, Grievant thought he was there for
reasons. (Tr. 2, p. 203) It is not unreasonable to assume that had
Grievant and the Union been told
names and circumstances, the Grievant might have been able to offer a response that would
satisfied the Employer enough to take less drastic action than ordering an exam. As it is, the
agreed to mediation with his colleagues in an attempt to work things out, a suggestion made
December 12th meeting by a representative of the
Employer. (Tr. 2, p. 133)
It is difficult in these cases to find a standard that one could turn to for guidance.
rights law a hostile environment has been found to be one where a reasonable person would
work place hostile or abusive. The courts look to whether the actions of an employee or
are physically threatening or humiliating or merely offensive utterances and whether the
unreasonably interfered with the work performance of other employees. 4/ There is
nothing in the
record to indicate that Grievant's actions interfered with the Employer's work being
or that Grievant was anything other than a good lab technician. This last point is seized on
Union to argue that Grievant did not need a fitness for duty exam because management
he did a good job and accomplished his duties. However, there is more to being fit for a job
being able to do the tasks required of the job. An employee, in this case the Grievant, has to
to work with his fellow employees at least enough to not cause turmoil in the work place or
employees in fear of their safety.
4/ Hardin v. S.C.
Johnson & Son, Inc., 167 F.3d 340, 345 CA 7 (1999).
I find in this case before me that the Employer did not have cause to order a
for duty exam of the Grievant. The Wisconsin Supreme Court has used "reasonable
"substantial" as the necessary evidence needed to order such an exam. 5/ I do not
find that test
met in this record even under an arbitral preponderance of the evidence
standard. A significant factor in my decision is that Grievant remained on the job for
before receiving his disciplinary notice and administrative layoff. (Jt. 8) Further
there was not any
real evidence presented, other than the testimony of the three employees, that Grievant was a
to the employees in the work place and the three women only wanted the Grievant to have
off to reflect on his behavior. Grievant never made any threats, and arguments, loud voices
complaints about management were not unusual in the work place.
As I said earlier, the Employer was not in an easy situation and it is readily apparent
has some problems keeping himself under control, something that was apparent to me during
arbitration hearing. But I do not think that Grievant's actions warranted a psychiatric fitness
exam. I think in this case counseling and the Employer's first instinct of work place
have been more appropriate based on the facts the Employer had as of the December
with Grievant and the Union. I am not critical of the Employer. And I believe it is difficult
types of cases to develop guidelines as to when to determine an employee needs a mental
Indeed, the Union never cited any guidelines in its EEOC citations other than the exam must
reasonably related to fitness for duty. I believe mental exams require more justification than
physical exam to see if an employee is fit to return to work. This is so because of the
to a mental exam and the opportunity for misuse of such an exam.
5/ Bucxrus-Erie Co. v.
ILHR Department, Supra at 424.
I therefore find that the Employer violated the collective bargaining agreement by
the Grievant to take a psychiatric fitness for duty exam. The Union submitted reports from a
psychologist, who Grievant had been seeing for stress management, and a report from a
who Grievant saw once. However, if I had found the Employer to have had cause to require
exam, I would not have found either report adequate as a fitness for duty report.
(U. 17 & 18) Both
are so general and uninformative that they would have been of little use to the Employer.
The three women employees who brought the complaint testified that they were
about retribution from the Grievant given the length of time he has been off work even
though he has,
to my understanding, been in a paid status. While this is a legitimate concern from their
it seems more logical to me that Grievant would have more anger with the Employer for his
absence from work, particularly as the women did not
object to and were not concerned about Grievant coming back to work after a couple of
absence to reflect on his behavior. Grievant clearly has some control and work place issues,
recommend that the Union, Grievant and the Employer address those issues immediately
Grievant's return to work. I have not ordered any monetary relief as it is my understanding
Grievant has been in a pay status while on administrative leave. Nor am I ordering the
pay for the two aforementioned exams or reports as Grievant was already under the treatment
psychologist and the psychiatric exam was at Grievant's and the Union's initiative, not the
Based on the foregoing and the record as a whole, I issue the following
The Employer violated the collective bargaining agreement when it ordered the
submit to a fitness for duty psychiatric exam. The Grievance is sustained.
The Grievant will be reinstated to his previous position with the Employer within
calendar days of the date of this decision.
Dated at Madison, Wisconsin this 3rd day of December, 2001.