BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN COUNCIL 40, AFSCME,
THE SCHOOL DISTRICT OF STURGEON
(James R. Southard Grievance)
Mr. Neil Rainford, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, on behalf of the Union.
Davis & Kuelthau, S.C., Attorneys at Law, by Mr. Clifford B.
Buelow, on behalf of the District.
The above-captioned parties, herein "Union" and "District", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Sturgeon Bay, Wisconsin, on October 12, 2001. The hearing was transcribed and the
agreed that I should retain my jurisdiction if the grievance is sustained. Both parties filed
were received by December 26, 2001.
Based upon the entire record and arguments of the parties, I issue the following
Since the parties were unable to jointly agree on the issue, I have framed it as
Did the District have just cause to discharge grievant James R.
Southard and, if not, what is the
Grievant Southard, a combination bus driver/custodian, was employed by the District
1993 and up to the time of his December 11, 2000 termination.
Prior to the December, 2000, incidents leading to his discharge, Southard was
his work and he received a January 27, 2000, letter of reprimand from District Administrator
E. Grimmer (Joint Exhibit 7) which stated in pertinent part:
. . .
On January 19, 2000, the parent of a fifth grade student
contacted the school alleging that on
January 18, 2000 you kicked a crutch from under their son causing him to fall down two
steps of the
bus you were driving. An investigation and interviews conducted by the Administrative
Elementary Principal confirmed that this incident occurred. What was not firmly established
whether or not the kicking of the crutch was a deliberate act.
In the course of interviewing student
from your bus, other serious issues became
known. Specifically, students complained about your use of language and swearing on the
particularly referring to students as "assholes" and "shitheads". Some complained about you
slamming on brakes when students were standing on the bus causing them to fall into seats
individuals and some complained that you did not respond or help them when they reported
or verbal assaults to you. It was discovered in the course of the investigation that there is a
lack of discipline on your bus and that you have not filed discipline or behavior reports about
physical or verbal assault incidents.
The following corrective actions and job
reassignment will be implemented immediately upon
your return to work as a bus driver on January 27, 2000. (1) You will be assigned to
a different bus
route as determined by the Administrative Assistant. (2) You will be required to assign
students to specific seats on the bus to aid
in learning the identity of the students and to aid in
maintaining discipline. (3) A video camera will be installed and made operational on your
record student conduct and your disposition of disciplinary measures. (4) You may not
question students about any handicapping conditions. You must accommodate students with
handicaps. (5) You must operate your bus in a safe and prudent manner at all times. (6)
document and report all incidents of misconduct on your bus that endanger the physical or
health of a student(s) or that affect your ability to safely operate the bus.
You are hereby placed on notice that if
you repeat any of the unacceptable actions referred
to above, perform any unacceptable actions of a similar nature to those cited above or fail to
satisfactorily perform the corrective actions specified in this letter, you shall be liable for
of employment with The School District of Sturgeon Bay.
. . .
Southard did not grieve that letter of reprimand or file a rebuttal to it.
Southard was subsequently counseled over his work via a September 27, 2000, letter
Grimmer (Joint Exhibit 10), which did not constitute formal discipline.
Grimmer issued a memo on November 13 (Joint Exhibit 12), which stated:
November 13, 2000
TO: All Bus
Beginning this afternoon, the downtown
bridge is scheduled to be closed for approximately three
weeks. We are taking the following steps to assure the safety of the students.
1. All drivers on the west side are advised to
use the light at Duluth to cross the highway
to reach the east side.
2. Please make sure the
two rear seats are left empty due to the increased possibility of
a rear end collision.
If you run late on any given day, please
notify Carol who will give your bus # to the principals.
On December 7, 2000 (unless otherwise stated, all dates hereinafter refer to 2000),
caused about $920 in damage to the District's dump truck he was driving out of the District's
when the truck's rear, swinging doors hit the side of the garage. The door repair involved
hours in labor. On December 8, Southard was responsible for helping clear the snow at
School. On December 8, he disregarded Grimmer's November 13 memo by turning left
Highway 42/57 bypass, rather than driving to Duluth Avenue and using the light there as
Grimmer in his November 13 memo.
Maintenance Supervisor Russell Cross testified about some of the concerns he had
Southard's work in September, 2000 and said that Southard had the worst evaluation of all
maintenance employees. He also testified about the new snow removal policy he
Exhibit 11) which called for Southard to help clear the snow at the Sunset School and said
Southard on December 7 did not follow that policy. Cross added that bus drivers were told
the November 13 memo relating to the closing of the downtown bridge at an employee
Southard attended. He also explained how Southard on December 7 had damaged the rear,
door of the dump truck.
On cross-examination, he testified that another employee was not disciplined over her
to report for early snow removal duty on November 20.
Building Engineer John Sullivan testified that he was not disciplined when his truck
a private vehicle and bus mechanic/bus driver Brian Sargent testified that about 15 drivers
fault over the years in accidents, and that none of them were ever disciplined. He said that
asked by Bruce Webster to ask Superintendent Grimmer whether employees could use the
Street entry to the Highway 42/57 bypass at different times of the day and that Grimmer
"absolutely not." He also said that he had seen Southard use the Lansing Street entrance
improperly turned onto the Highway 42/57 bypass; that he never spoke to Southard about
incident; and that he instead reported it to William Buechner, the Director of Buildings,
Maintenance/bus driver Bob Konrad testified that he saw Southard drive by his house
December 8 while Southard may have been going to the Sunset School to perform his
duties; that there was only a "dusting of snow" at the Sunset School that day; that he did not
any trouble clearing it off in time to perform his bus driving duties; and that "there wasn't a
lot to do, really."
Buechner testified that Southard in 2001 received the worst evaluation of any
supervised; that he was told on December 7 that Southard on that day had made a left-hand
Lansing Street onto the Highway 42/57 bypass; that he personally saw Southard do the same
the next day when there were children on his bus; and that he that day reported what he had
Grimmer (Joint Exhibit 19). On cross-examination, Buechner said that he could have
Southard on December 7 not to make that left hand turn, but that he chose not to do so.
Sturgeon Bay Police Chief Dennis McIntosh testified about the safety hazards faced
Highway 42/57 bypass because of its very heavy traffic. He said that there have been 13
the City of Sturgeon Bay since 1983, nine of which were on the 42/57 bypass. He explained
bypass was dangerous because it was originally a 55 mile an hour bypass in 1978 and that:
Since then, we have had several
single-family subdivisions develop on the corridor, multi-family home developments on the
corridor, a tremendous amount of commercial properties have
opened on the corridor, as well as our industrial park, which has expanded tremendously
The highway was never intended to handle
the traffic that it is currently handling out there,
and I think that's evidenced not only by the number of fatalities we have out there as well as
number of accidents in general that we have on that corridor.
It's very dangerous. It's not just my
opinion; it's recognized by the Wisconsin Department
of Transportation. I want to say it was about 7 years ago when they looked at that and
speed limit to 45 miles an hour because of all the growth and development along there and
increase in traffic.
It's always dangerous out there whether the
bridge is open or closed, the Michigan Street bridge.
But it gets worse when the Michigan Street bridge is down.
You have to keep in mind that we are doubling the amount of
traffic that has to cross the only
bridge that has been available. We are putting all of the traffic onto one bridge and on one
of road in the city.
He also said it was a "wise move" for Grimmer to have issued
his November 13 memo (Joint Exhibit
12), which directed all bus drivers not to turn left onto the Highway 42/57 bypass.
particularly dangerous, said he, because "you've got several factories getting out and an
park also trying to get out on that highway." Asked whether a school bus with children
to turn left, he replied: "that's inappropriate and dangerous when you have less than a half
an intersection that's protected by traffic lights."
District Administrator Grimmer testified about Southard's work record, the events of
December 7 and 8, and why he fired Southard. He explained that he issued the November
banning left-hand turns onto Highway 42/57 because:
We became aware of the fact that the Michigan Street bridge, the
downtown bridge, was going
to be closed for repairs. This happened a number of times in past years or months perhaps,
knew that when that bridge went down there was a substantial increase in the volume of
We were very concerned about that
because we also knew the number of accidents that
occurred out there. And we wanted to protect the safety of our students as best we could so
advised drivers who were on the west side that they need to use the light at Duluth Avenue
to enter the highway and proceed back to the east side of the school district.
He also said that he and others met with Southard on December 11 and that Southard
then was given
the chance "to attempt to change my mind about this", i.e. terminating him, and that
Southard did not
do so. Grimmer then hand-delivered the termination letter to him (Joint Exhibit 17) at the
end of their
meeting. It stated:
. . .
As a result of the incidents of December 7,
2000 and December 8, 2000 you are hereby being
terminated from employment with The School District of Sturgeon Bay effective
On Thursday, December 7, 2000 your
careless operation of a school district truck resulted in
damages in excess of $900 to the vehicle plus labor charges to repair the damages. The
reckless driving of the vehicle, as you exited the maintenance area, posed a potential
to persons and property in the middle school parking lot.
On Friday, December 8, 2000 your disobeyed a written directive
from your supervisor dated
October 27, 2000 with respect to snow removal duties at the Sunset elementary school.
On Friday, December 8, 2000 you disobeyed a directive from the
District Administrator, dated
November 13, 2000, advising all bus drivers to use the signal lights on Duluth Avenue when
Highway 57 to proceed in an easterly direction. This directive was also reinforced by verbal
communication from Director of Transportation, William Buechner to all bus drivers. On
8, 2000, you were observed by Mr. Buechner leaving Sawyer Elementary School, turning
Lansing Street and turning left from Lansing onto Highway 57.
Your action on December 8, 2000 is also in
disregard of corrective action #5 contained in a letter
to you dated January 27, 2000 from the District Administrator requiring you to "operate your
a safe and prudent manner at all times." The January 27, 2000 letter also informed you that
fail to "satisfactorily perform the corrective actions specified in this letter, you shall be liable
termination of employment with The School District of Sturgeon Bay."
You are hereby terminated from
employment with The School District of Sturgeon Bay and you
are prohibited from entering any building or property belonging to The School District of
. . .
Southard testified that he was given new duties in 2000 which
sometimes caused him to run
late; that he never had a vehicle accident before December 7; and that he thought Cross was
to close the rear doors on his truck that day rather than the overhead doors, which is why he
off with the rear doors still open. He added that he reported for snow shoveling duties at the
School at about 5:30 a.m., and that he returned home because he assumed another employee
be able to shovel the snow without him. He said that he disregarded Grimmer's November
and turned left from Lansing Street onto the Highway 42/57 bypass on December 8 because
safe to do so and because he earlier "had a near accident when I was at the stop light at
with a tanker truck coming through. . ." the green light at Duluth Avenue. He said that he
that incident to Cross that day who told him "well, you got to do it the safe way", which is
decided to turn left at Lansing Street.
Southard also said that when he met with Grimmer and others on December 11,
handed him a letter of termination at the very outset of the meeting and that there were no
at that time relating to his December 7 accident, the December 8 snow shoveling incident, or
left onto the Highway 42/57 bypass on December 8. On re-direct examination, he said that
turned onto the Highway 42/57 bypass because he was running a little late that day and that
he took that short cut.
On cross-examination, Southard testified that he never spoke to Buechner about the
truck incident and that he on December 11 never told Grimmer about that incident or
that Cross had
told him to "do it the safe way".
Cross was recalled as a witness and testified that Southard never told him about the
truck incident and that he never told Southard to "do it the safe way". Buechner was
recalled as a
witness and testified that Grimmer on December 11 gave Southard his letter of termination at
of the meeting, rather than at the beginning.
Southard grieved his termination on January 3, 2001 (Joint Exhibit 2), hence leading
POSITIONS OF THE PARTIES
The Union claims that the District lacked just cause to terminate Southard because
"Accidental damage to truck does not warrant termination"; because Southard's "decision not
engage in unnecessary overtime duty [not shoveling the snow at the Sunset School] does not
any form of discipline"; and because his "Choice of route. . . is not a terminable offense."
the Union asserts that the City failed to follow some of the procedural requirements
the just cause standard and which are set forth in such cases as Enterprise Wire Co., 46 LA
(Daugherty, 1966). As a remedy, the Union requests a traditional make-whole order that
Southard's reinstatement and a backpay award.
The City, in turn, contends that it had just cause to terminate Southard because he
negligent on December 7 when he drove the dump truck out of the garage with its rear doors
because he failed to help shovel the snow at the Sunset School; because he placed children in
when he turned onto the Highway 42/57 bypass; and because his actions here were not
capricious and thus must be sustained. The City also states that the Union has "not satisfied
burden of proving unfair treatment" since it, in fact, conducted a fair investigation; since the
has "failed to prove discriminatory treatment"; since the Union has "failed to prove
factors"; and since its discharge of Southard was "neither arbitrary nor capricious."
In agreement with the Union, I find that Southard's December 7 dump truck accident
subsequent December 8 snow shoveling incident are insufficient to warrant Southard's
Hence, they need not be discussed any further.
This case turns entirely on Southard's flat-out refusal to follow Grimmer's
November 13 letter
(Joint Exhibit 12) and his turn from Lansing Street on to the Highway 42/57 bypass on
The need for Grimmer's memo and its prohibition on turning onto the bypass was established
Police Chief McIntosh's testimony on pp. 5-6 above which explained why Grimmer's memo
"wise move" and why any such turn is "inappropriate and dangerous. . ."
By turning onto the bypass on December 8, Southard therefore
deliberately placed all of the
children in his school bus in a dangerous situation. Moreover, he did so after Grimmer
in an earlier January 27, 2000, written warning (Joint Exhibit 7), that he would "be liable for
termination of employment. . ." if he did not properly perform his bus driving duties in the
That warning satisfied the District's need to follow progressive discipline under the unique
this case because the District did not have to wait until Southard had an accident on the
42/57 bypass before it took more serious disciplinary action and because Article 24 of the
entitled "Discipline", does not mandate that an employee must be suspended before he/she
Here, by gambling with the lives of the school children on his bus, Southard on
most certainly did not perform his bus driving duties properly, which is why the District had
to terminate him for that offense.
I therefore find without merit Southard's claim that he did what he did on December
because of the tanker truck incident and because he thought it was too dangerous for him to
the Duluth Avenue light as directed by Grimmer. For, even if the tanker truck incident did
Southard had no right to disobey Grimmer's November 13 directive even if, as claimed, he
subsequently spoke to Cross who told him to "do it the safe way". The "safe way" here, as
by Chief McIntosh, was only one way i.e. to turn at the Duluth Avenue
light. On re-direct
examination, Southard also claimed that he was running late on December 8 and that is
why he took
the shortcut on Lansing Street. This excuse, too, is without merit, as the safety of the bus
was far more important than any possible lateness.
The Union also claims that Grimmer did not talk to Southard before he was
that the District did not follow all of the procedural requirements encompassed by the just
standard and as set forth in Enterprise Wire, supra.
Arbitrable law is clear: an accused must "have an opportunity, before a sentence is
to be heard in his own defense. . . This is the process, not the
result which is at issue." See Elkouri
and Elkouri, How Arbitration Works, (BNA,
5th Ed., 1997) p. 919, quoting McCartney's Inc., 84
LA 799, 803-04 (Nelson, 1985). See too, St. Antoine, Ed., The Common Law
of the Workplace
The View of Arbitrators, (BNA, 1998), p. 190, which states:
. . .
6.13 Notice of Charges and
Just cause requires that
employees being disciplined or discharged are entitled to be
given notice of the charges against them and a meaningful opportunity to be heard
. . .
That same work also states:
Most arbitrators require that an employer's decision
to discipline or discharge an
employee be based on a meaningful, more-than-perfunctory factual investigation.
in original).Id., at 192.
. . .
The District therefore should have fully investigated and should have fully spoken to
all of the
individuals involved in all three incidents, including Southard, before he was terminated.
not appear to have happened for the vehicle accident and the snow shoveling incident. As
above, however, it is unnecessary to address these two incidents since they were insufficient
warrant Southard's discharge.
Moreover, I credit Grimmer and Buechner's testimony that Grimmer gave Southard
December 11 letter of termination only after Southard was given the opportunity
to speak. In
addition, it is undisputed that Southard, in fact, turned onto the Highway 42/57
Grimmer earlier spoke to Buechner who personally witnessed that incident, there was little,
need for any further investigation at that time.
Nevertheless, Grimmer should have spoken to Southard before he wrote his
letter of termination, as it is not enough for an employer to give an employee the chance to
the employer's mind, which is what we have here via Grimmer's testimony that: No, we had
meeting. We asked questions. When that was concluded, since there had not been anything
up to change my mind, then I hand-delivered the letter."
The Union rightfully objects to such a procedure because it is often more difficult to
one's mind than it is to make it up in the first place. The District thus acts at its peril if it
conduct a proper investigation and if it does not give an accused the chance to speak
decision to discipline has been made.
Here, though, Southard was not prejudiced by the District's actions since his own
explanations here as to why he turned from Lansing Street onto Highway 42/57 are so
merit. Hence, it is clear that Grimmer would have terminated Southard even if he had
Southard before he made up his mind and before he prepared his December 11 termination
Absent any prejudice, and absent any sensible reason for engaging in such deliberate,
conduct, his discharge must be sustained. See Beatrice/Hunt-Wesson, 89 LA 710 (1987),
arbitrator Mei Bickner sustained a suspension after she found that the grievant was not
by the employer's failure to speak to him before he could explain his position.
In light of the above, it is my
That the City had just cause to terminate grievant James R. Southard.
That his grievance is therefore denied.
Dated at Madison, Wisconsin, this 29th day of March, 2002.