BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GENERAL TEAMSTERS UNION, LOCAL
CITY OF PRESCOTT
(Jerry Killian Grievance)
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Jill M. Hartley,
appearing on behalf of the Union.
Olson & Wertheimer, S.C., by Attorney Robert A.
Wertheimer, appearing on behalf of the City
At all times pertinent hereto, General Teamsters Union, Local 662 (herein the Union)
City of Prescott (herein the City) were parties to a collective bargaining agreement covering
period from January 1, 1999, through December 31, 2001, and providing for binding
certain disputes between the parties. On July 6, 2001, the Union filed a request with the
Employment Relations Commission (WERC) to initiate grievance arbitration over discipline
to bargaining unit member Jerry Killian (herein the Grievant), and requested the appointment
member of the WERC staff to arbitrate the issue. The undersigned was designated to hear
and a hearing was conducted on September 19, 2001. The proceedings were not transcribed.
Union filed a brief on October 24, 2001, and the City filed a brief on October 29, 2001,
the record was closed.
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 decision.
The parties stipulated to the following framing of the issues:
Was there just cause for the suspension and probation of the
If so, what is the appropriate remedy?
1. The Employer retains the right to operate and manage its affairs in its
The rights, power, and authority which the Employer has not modified by the Agreement,
solely by the Employer.
Without limiting the foregoing, the
Employer expressly retains the right to direct the working
forces; to plan, direct, and control all of the operations and services of the Employer; to
determine such methods, means, organization, and number of personnel by which such
operations and services of the Employer are to be conducted; to assign and transfer
to schedule working hours and to assign overtime; to hire, promote, demote, suspend,
discipline, discharge or other just cause; to change or eliminate existing methods, equipment,
or facilities; and to make and enforce reasonable rules and regulations. However, the
of any of the above rights shall not conflict with any of the expressed written provisions of
Section 1. Disciplinary
Action. It is the Employer's responsibility to offer and provide
reasonable training and supervision, and to establish reasonable work rules.
Disciplinary action may only be imposed
on an employee for failing to fulfill his/her
responsibilities as an employee. Any disciplinary action, or measure imposed upon an
may be appealed through the regular Grievance Procedure.
If the Employer has sufficient reason to reprimand an
it shall be done in a manner
that will not embarrass the employee before others or the public.
Section, 2. Just Cause
Notification. Employees shall not be disciplined or discharged without
cause. If the Employer feels there is just cause for suspension or discharge, the employee
steward shall be notified in writing within twenty-four (24) hours following the discharge or
suspension, that the employee has been discharged or suspended and the reasons therefore.
Procedure. The normal procedure for discipline and/or discharge shall
(A) ORAL REPRIMAND
(B) WRITTEN WARNING
The number of written warnings and the length of suspension
shall be determined by the Employer
in accordance with the gravity of the violations, misconduct, or dereliction involved; taking
consideration that such steps are intended as corrective measures.
. . .
DISCIPLINE AND WORK
To ensure orderly operations and provide
the best possible work- environment, the City of
Prescott expects employees to follow rules of conduct that will protect the interests and safety
employees and of the City of Prescott.
It is not possible to list all the forms of
behavior that are considered unacceptable in the
workplace. The following are examples of infractions of rules of conduct that, in most
will result in termination of employment for the first offense:
. . .
c. Stealing or attempting to steal property from any
individual on City premises, or stealing or
attempting to steal property from the City, or the inappropriate removal or possession of City
. . .
g. Insubordination to
supervisor, refusal to perform supervisor's assignments, or directing
abusive or threatening language at any City supervisor, City employee or City representative.
. . .
n. Reckless endangerment of
self or another employee.
. . .
r. Unsafe operation of
equipment in a negligent manner or destruction of City material or
property or the property of fellow employees.
. . .
The Grievant has been an employee of the City of Prescott
Department of Public Works
for over 31 years. In March, 2001, he underwent surgery to repair a torn rotator cuff in his
left shoulder and was off work for a period of time thereafter. In April, 2001, pursuant to
inquiry from the City, the Grievant's doctor certified him able to return to work subject to
light duty restrictions. On April 23, 2001, the Grievant met with the City's Personnel
Committee to discuss his return to work. The Grievant requested that he be allowed to
off work and use accrued sick time while undergoing physical therapy. The Committee
the request and ordered the Grievant back to work on light duty. There was discussion at the
time about what duties the Grievant could perform and he indicated that he could drive City
vehicles that had an automatic transmission, which included the pickup truck and end loader.
As a result of the meeting, the Grievant was told he could perform duties that did not require
use of his left arm, but could not engage in strenuous activities, including operating heavy
equipment. The Grievant returned to work on April 24 and performed a variety of tasks,
including repairing City equipment and removing construction stakes.
On May 11, 2001, the Grievant was assigned to monitor the
City's compost site, which
is a collecting point for brush, leaves and other compostable materials. While there, he
the Public Works Director, Jeff Kittleson, if he should burn the brush and Kittleson indicated
he should. At 10:00 a.m. on that day, the Grievant left the compost
site for a physical therapy
appointment, which he was entitled to do. After his appointment, the Grievant went to the
City garage, picked up the end loader and drove it to the compost site in order to pile the
brush for burning, which was normal procedure for this task. At approximately 11:30 a.m.,
the Grievant was returning the end loader to the City garage when he was seen by the City
Administrator, Lloyd Mathes, who followed him to the garage and accosted him there.
inquired whether the Grievant had been released from his restrictions. The Grievant
responded "not per se" and Mathes subsequently learned from Kittleson that the
not received permission to use the end loader.
As a result of the Grievant's unauthorized use of the end loader,
Mathes and Kittleson
suspended him and brought charges against him before the City Personnel Committee seeking
further disciplinary action. Specifically, the Grievant was charged with numerous violations
of City work rules, including:
1. Failure to obey a direct legal order by leaving the
2. Inappropriate removal of
3. Refusal to perform the
supervisor's assignment, i.e. leaving the compost site unattended.
4. Reckless endangerment of
himself and the public.
5. Unsafe operation of City
equipment in a negligent manner.
6. Insubordination by failing to
obey the directives of the Director of Public Works, the
Personnel Committee and the City Administrator.
On May 15, 2001, the Personnel Committee conducted a disciplinary hearing to
consider the charges
against the Grievant. As a result, the Grievant was given a 30-day suspension without pay
placed on probation for a year, during which time any further disciplinary action would
termination. A grievance was filed disputing the suspension and probation and the matter
to arbitration. Additional facts will be referenced, as necessary, in the discussion section of
POSITIONS OF THE PARTIES
Under arbitral precedent, the City is required to prove that the Grievant committed
charged and that the penalties it imposed were justified. The City has failed to meet its
contract does not allow for probation as a form of discipline and the Grievant was not guilty
work rule violations charged by the City.
The Grievant did not violate orders by operating the end loader and, therefore, this
constitute insubordination. The evidence is not clear that the Personnel Committee informed
Grievant that he was forbidden to drive the end loader. Insubordination involves
willful defiance of authority. Because of the seriousness of the charge, the City is
required to prove
that the Grievant was given orders by his superiors, which he refused to obey. Further, that
orders were clear and were understood, that they were reasonably related to the Grievant's
that he was informed of the possible and probable consequences of violating them. None of
elements were proven.
The evidence is not clear that the Grievant was ordered not to drive the end loader.
claims the Personnel Committee ordered the Grievant to not operate heavy equipment, but
Grievant recalls being asked if he was able to operate the end loader and answering in the
He believed, therefore, he was permitted to use it. The Grievant's testimony was credible
entitled to belief absent conclusive evidence to the contrary. The Personnel Committee
the April 23 meeting reference a restriction from operating heavy equipment, but make no
of the end loader, although both the Grievant and the City Administrator remembered it
discussed. Thus, the evidence is inconclusive as to whether the end loader was included in
proscription. This is buttressed by the fact that the Public Works Director testified that the
was permitted to do whatever he felt were within his limitations. This is an equivocal order
the Grievant believed he could operate the loader, which had an automatic transmission, he
believed he had permission to use it. Assuming such an order was given, the Grievant was
informed of the consequences of violating the order. There was no mention of potential
or probation, in any conversation about the Grievant's restrictions and they cannot stand.
The City also failed to prove the other allegations against the Grievant. He did not
a direct legal order when he left the compost site because he had permission to leave for a
therapy appointment and also was permitted to leave for lunch and scheduled breaks.
Kittleson admitted that the Grievant was not required to be at the compost site at all times.
undercuts the charge of leaving the compost site unattended. The charge of inappropriate
of City property also stems from the Grievant's use of the loader. Kittleson testified that the
was normally used for piling brush for burning and since the Grievant believed he was
use the loader his action in using it for this purpose was reasonable. The charges of reckless
endangerment and negligence are also specious. Mathes testified that he did not observe the
driving recklessly or violating traffic regulations. The charge stems from the Grievant's
restrictions, but the City did not prove that the Grievant violated his restrictions by operating
loader or that the restrictions prevented the Grievant from operating it safely. At the
Grievant demonstrated that he could get in and out of the loader and operate its controls with
the use of his right arm. The City never asked the Grievant's doctor whether he could
loader and Union Exhibit #1 established that the doctor believed he could, thus he did not
The Grievant was not guilty of insubordination. At most he was
mistaken about the
scope of the Personnel Committee's restrictions on his operation of City equipment. His
that the proscription from operating heavy equipment did not include the end loader, was in
good faith and was reasonable under the circumstances. The penalties
imposed by the City
far outweighed the severity of the Grievant's error. They must be lifted and the Grievant
be made whole.
The facts are not in dispute. The Grievant was under light duty restrictions and was
use his left arm per instructions from his doctor. He was, therefore, placed on light duty by
Personnel Committee and directly ordered to not operate heavy equipment. There is no
the end loader is heavy equipment or that the Grievant operated it without seeking permission
By using the loader in direct violation of the lawful order of the Personnel
Grievant was insubordinate. By not obtaining prior approval, the Grievant violated the rule
inappropriate removal of City property. Further, despite the fact that it has an automatic
transmission, there is no way that the Grievant could have operated it in a way that was safe
himself and others. First, he could only use one arm in climbing in and out of the vehicle,
violated clearly posted safety provisions. He also could not steer and operate the turning
the same time, since the signal switch is on the right hand side of the steering column. To
the switch, he would have to steer with his left hand, which would violate his physical
Otherwise, he would have to not steer altogether, which would be clearly reckless and unsafe
public. In either event, the Grievant took an unacceptable safety risk in operating the end
which clearly warrants the discipline imposed by the City. The grievance should be denied.
On April 23, 2001, the City Personnel Committee ordered the Grievant back to work
following shoulder surgery on light duty restrictions. On May 11, 2001, the Grievant was
driving an end loader, allegedly in violation of his work restrictions. On May 15, 2001, the
Committee suspended the Grievant for 30 days as a result of the May 11 incident, which it
constituted six separate violations of the City work rules, any one of which warranted
The City Council ratified the Personnel Committee's action on June 11, 2001. I will address
the violations as they are set forth in the Cause of Action brought against the Grievant by the
(City Exhibit #5).
Failure to obey a direct legal order by leaving the
This charge stems from the Grievant's act of leaving the City compost site on the
May 11. The evidence is undisputed that the Grievant left the compost site for a 10:00 a.m.
therapy appointment. City Administrator Mathes and Public Works
Director Kittleson admitted that a medical appointment is a legitimate reason for
leaving the worksite.
The charge arose from Mathes' assumption that the Grievant had left the worksite to get the
loader. Inasmuch as the Grievant had an approved reason for leaving the worksite, his doing
not a work rule violation and the City did not have just cause to discipline him for that
Inappropriate removal of City property.
This charge is based upon the Grievant's unauthorized use of the end loader. The
of the work rule in question here is instructive:
c. Stealing or attempting to steal property from any
individual on City premises, or stealing or
attempting to steal property of the City, or the inappropriate removal or possession of City
By linking "inappropriate removal" with theft and attempted theft, it is clear that the
by this rule to prohibit the taking of City property for personal use. By adding
or possession" the City is thus able to address situations where an employee is in wrongful
of City property, but there is insufficient proof to establish that it was stolen rather than
This is made even clearer by the fact that the City has a separate group of minor work rules,
of which result in lesser discipline, including the following:
l. Unauthorized possession or use of any City property,
equipment or materials.
This lesser infraction is clearly intended to address the situation where an employee
City property, but not with intent to convert it to his own purposes or possession. It is
that the Grievant's use of the end loader was for City business, not his own and, but for his
restrictions, would have been authorized. This conduct falls, if anywhere, within the scope
lesser rule and, therefore, I find that the City did not have just cause to discipline the
the more stringent rule. It is also clear from the testimony of Kittleson that under normal
circumstances the Grievant would not have needed permission to use the end loader for the
described and has not been required to obtain permission in the past for this purpose. As
discussed later in this award, however, the City did not clearly advise the Grievant of the
additional authorization and, therefore, I find his use of the loader under the circumstances
a violation of the less serious rule either.
Refusal to perform the supervisor's assignment, i.e. leaving the
compost site unattended.
This charge is a corollary to the first charge, in that it is based on the Grievant's
the worksite, in this case leaving the compost site unattended. As has been previously
the Grievant did have permission to leave the compost site for his
medical appointment. Further, both Mathes and Kittleson testified that employees are
leave the compost site unattended, if necessary, while on breaks or attending to other
Indeed, typically the end loader is used in the process of burning brush, which would require
employee to leave the worksite in order to get it from the City garage and later leave to
Furthermore, Kittleson did not testify that he ordered the Grievant to not leave the worksite,
charge implies. I find, therefore, that the City did not meet its burden as to this charge and
have just cause to discipline the Grievant thereunder.
Reckless endangerment of himself and the public.
This charge is based upon the City's contention that under his restrictions the
not safely operate the end loader. What's more recklessness implies something beyond mere
negligence, as where a person does not use proper care, but rather behavior that suggests
disregard for the safety of one's self or others. This charge cannot be based upon any
conduct of the Grievant's behavior. The only person who saw the Grievant driving the
City Administrator Mathes, who testified that he did not observe the Grievant violating
regulations or otherwise driving dangerously. He stated that the charge arose from the
that for the Grievant to drive the loader at all with his restriction was, per se, reckless.
The record shows that at the April 23 Personnel Committee meeting, the Grievant
point blank, whether he could safely operate the end loader with his restrictions. He stated
inasmuch as the loader had an automatic transmission and the bucket controls were operated
right hand, he felt he could do so. He testified that nothing more was said about the end
the meeting and he assumed that, since he was permitted to use the pickup truck, which had
automatic transmission, he was authorized to use the loader as well. The Personnel
meeting minutes (City Exhibit #1) reflect that the Grievant was authorized to perform a
tasks, but was not to operate heavy equipment. Although the loader is not specifically
Mathes testified that it was understood that the loader was considered heavy equipment.
testified, however, that the Grievant was not provided with either a written copy of his work
restrictions or a copy of the meeting minutes.
I am persuaded that on May 11, the Grievant believed, in good faith, that he could
operate the end loader, since he clearly believed this to be the case on April 23. I am also
that the Grievant's belief was not unwarranted, inasmuch as he described the process of
loader to his doctor, who stated that such was within his capabilities under the doctor's
restrictions (Union Exhibit #1, City Exhibits #2 and #12). 1/ Furthermore, the Grievant
demonstrated at the hearing that it is possible to enter and operate the end loader with just
of one's right arm. Also, despite the posted notice regarding the proper method of entering
exiting the end loader, Kittleson, who is the Grievant's direct supervisor, testified that there
requirement in this regard and he would not discipline an employee for using only one arm
or drive the loader.
1/ Union Exhibit #1 was prepared on June 1,
2001, subsequent to the discipline, and was not available to the
Personnel Committee when it met on May 15 to consider the charges against the Grievant.
Nevertheless, it was
available to the City Council when it met on June 11 to ratify the Personnel Committee's
action and is, therefore,
relevant to this proceeding.
Inasmuch as there is no evidence that the Grievant's conduct while driving the loader
reckless or dangerous, and inasmuch as the objective evidence provided by the Grievant's
supports the view that he was capable of operating the end loader safely with just his right
without undue danger of harm to himself or others, I find that the City did not have just
discipline the Grievant under this charge.
Unsafe operation of City equipment in a negligent
This charge is predicated on the same basis as that for reckless endangerment, that
the end loader by the Grievant was, in itself, negligent because of his restrictions. Again,
not observe any negligent or unsafe driving, so the charge must proceed from the City's
that the restrictions placed on the Grievant at the April 23 meeting created a standard of care
conduct in violation of those restrictions violated that standard. This assumption is incorrect.
Negligence arises when a person acts unreasonably under the circumstances with which he is
presented, and an objective, or "reasonable person," standard is applied to make that
Negligence also typically becomes an issue when an injury has occurred and an attempt is
assign fault for the loss. There was no injury here, so there is no need for such an analysis.
driving the loader was, in itself negligent, depends on whether the Grievant's assumption that
could do so safely was reasonable. The only expert evidence offered on the point was the
of the Grievant's doctor, whose report supported the Grievant's action. The only opinion
offered by the City came from Public Works Director Kittleson, who stated that it is possible
operate the loader with one hand. On this basis, I cannot find that the City had just cause to
the Grievant under this charge.
Insubordination by failing to obey the directives of the Director of
Public Works, the Personnel
Committee and the City Administrator.
In actuality, this charge is subsumed within the other five. The bottom line is that
contends that the Grievant was told by the Personnel Committee and the Administrator on
that he was not to operate heavy equipment and in doing so he willfully disobeyed his
record reveals problems with this assertion, however. First, it is unclear exactly what the
the Personnel Committee's directive to the Grievant was. He came away from the April 23
believing that he was authorized to operate the end loader, but not other heavy equipment
required the use of both arms. The City believed he was precluded from operating any
equipment. This miscommunication was compounded by
the fact that the Grievant was not provided with a written copy of his work restrictions
Committee's meeting minutes, which would have clarified the issue. 2/ At best, it is clear
was no meeting of the minds on April 23 as to what the Grievant could or could not do.
Insubordination, however, implies willful defiance, which this record does not support. In
most that can be said is that the Grievant misunderstood the Personnel Committee's directive,
is not enough to establish a charge of insubordination.
2/ The City points out that the purpose of the
April 23 meeting was to consider the Grievant's request that he
not be required to return to work immediately in that he was not sufficiently recovered from
his surgery. The City
argues that this request is inconsistent with the Grievant's assertion that he was physically
able to operate the end
loader. The City does not deny, however, that the Grievant did make such an assertion at
the meeting. Further,
it is a measure of the Grievant's credibility that, under those circumstances, if he felt he
could not operate the
loader he would have said so and if he were told not to he would have remembered
There is also no evidence that the Grievant disobeyed the Public Works Director.
testified that he told the Grievant to work at the compost site on May 11 and to burn the
which the Grievant did. Kittleson was aware that employees typically use the end loader to
brush as part of the burning process, but did not tell the Grievant he should not use it. In
told the Grievant to burn the brush if the Grievant thought he could do so without harm to
and never discussed his restrictions with him at all. Under the circumstances, the Grievant
reasonably have believed that using the loader was a necessary part of the task he was given
In fact, had he not burned the brush as instructed he could have been open to discipline, as
the whole, therefore, I cannot find that the Grievant's behavior in this incident was
therefore, find that the City did not have just cause to discipline him on this basis. The
For the reasons set forth herein, and based upon the record as a whole, I hereby
The City did not have just cause to suspend the Grievant and
place him on probation.
Therefore, the City shall make the Grievant whole by paying him backpay for all time lost
to the suspension, as well as any other benefits affected by the suspension, shall lift the
probation, and shall expunge the incident from the Grievant's work record.
Dated at Eau Claire, Wisconsin this 30th day of January, 2002.
John R. Emery, Arbitrator