BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF OSHKOSH
OSHKOSH CITY EMPLOYEE UNION, LOCAL NO. 796,
Mr. Richard C. Badger, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, P.O. Box 2825, Appleton, WI 54913, on behalf of the Local
Davis & Kuelthau, S.C., Mr. William G. Bracken, Employment
Relations Services Coordinator, 219 Washington Avenue, P.O. Box 1278, Oshkosh, WI
54903-1278, on behalf of the City.
City of Oshkosh (City) and Oshkosh City Employee Union, Local No. 796,
AFSCME, AFL-CIO (Union) are parties to a collective bargaining agreement covering
2001-03, which provides for
final and binding arbitration of grievances. Pursuant to a joint request of the parties to the
Employment Relations Commission, Sharon A. Gallagher was requested to hear and decide a
regarding the discharge of employee R.D. 1/ Hearing in the matter was held on November
at Oshkosh, Wisconsin. A stenographic transcript of the proceedings was made and received
December 10, 2002. The parties agreed to submit their initial post-hearing briefs directly to
other with a copy to the Arbitrator postmarked January 10, 2003. The parties reserved the
file reply briefs and did so by February 24, 2003. The record was then closed.
1/ The initials of the Grievant will be used in
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 were unable to stipulate to an issue or issues before the Arbitrator. The
suggested the following issue:
Did the City discharge the Grievant, R.D., for cause when he
had the passenger endorsement
to his driving license revoked as a result of being convicted of driving under the influence of
If not, what is the remedy?
The Union suggested the following issues for determination:
1. Did the City violate the collective bargaining agreement
when it terminated the
Grievant? If so, what is the remedy?
2. Did the City violate the collective
bargaining agreement when it refused to recognize
the Grievant's bargaining unit seniority for the purpose of applying for vacant bargaining unit
positions? If so, what is the remedy?
The parties stipulated that the Arbitrator could frame the issues based upon the
evidence and argument as well as their suggested issues. Based upon the above, the
that the Union's issues more reasonably describe the dispute between the parties and they
SUSPENSION DEMOTION -
employee shall be discharged except for cause. An employee who is dismissed,
except probationary and temporary employees, shall be given a written notice of the reasons
action and a copy of the notice shall be made a part of the employees [sic] personal history
and a copy sent to the Union. An employee who has been discharged may use the grievance
procedure by giving written notice to the steward and the department head within five
after dismissal. Such appeal will go directly to the appropriate step of the grievance
Procedure: The progression of disciplinary action shall be oral
written reprimand, suspension, demotion and dismissal. The union shall also be furnished a
any written notice or reprimand, suspension or discharge. A written reprimand sustained in
grievance procedure or not contested shall be considered a valid warning. A warning shall
for a two (2) year period, provided no additional infractions occur. In the event additional
occur that violation and the original violation are in effect for three (3) years from the date
second warning. After the above time periods have been met, evidence of the discipline
removed from all records. The employee and steward shall have the right to witness such
. . .
RELEVANT RULES AND
GENERAL RULES, REGULATIONS AND
2.01 Personal Status
2.03 Laws and Ordinances
. . .
All employees must supply the office with
their current address and telephone
number. Any change in address or telephone number must be reported as soon as the
change is made.
All operators must carry a valid
commercial drivers license (CDL), with class b, c, d
and p endorsements, while on duty.
It is the employee's responsibility to
his/her commercial driver's license when
When a commercial driver's license has been refused,
suspended, or lost,
it must be reported to the Director immediately.
2.03 LAWS AND
The operation of OTS equipment is
governed by all traffic laws and regulations of the
State of Wisconsin and all municipalities in which the OTS operates.
Employees are required to cooperate with
law enforcement agencies and fire departments at
. . .
Violations which will subject employee to
1) Valid customer complaints.
2) Improper operation of bus.
3) Cutting trips.
4) Absent without leave.
5) Voluntary neglect to collect fares.
6) Excessive absenteeism.
7) Passing up passengers.
8) Running off the fixed route.
9) Exchanging work without authorization.
10) Smoking on vehicles.
12) Failure to turn in lost articles.
13) Running ahead of schedule.
14) Failure to notify the office of an accident.
15) Failure to make complete stop at railroad crossings.
Severe violations requiring special discipline:
1) Rear-end preventable accident.
3) Conduct unbecoming a city
4) Fighting on city property.
5) Stealing fares.
6) Padding overtime.
7) Stealing city property.
8) Physical aggression towards the
unauthorized person to drive OTS vehicle.
10) Driving without a proper license.
11) Failure to make an accident
12) Off route for personal business.
13) Sleeping while on duty.
14) Taking drugs or alcohol while on
15) Reporting to duty under the
influence of alcohol or illegal drugs.
16) Refusing to promptly
take a drug and/or alcohol test when directed to do so by a
17) Tampering with results of any drug
and/or alcohol test.
18) Failure to cooperate
with lab or medical personnel while undergoing drug or alcohol
Because of the seriousness of some rule and
conduct offenses, the four step procedure of discipline
will not necessarily be followed. The degree of seriousness of each violation and the
work record and years of service will have an effect on disciplinary action taken.
. . .
The Grievant, R.D., was employed by the City as a Transit Operator from October
until his discharge on June 24, 2002. R.D. did not have any prior disciplinary actions on his
record before he was discharged on June 24th. City officials stated herein
that R.D. was a good
Transit Operator prior to his discharge. The position description for the position R.D. held
his discharge reads in relevant part as follows:
. . .
Operates a public bus in the transportation
of persons according to a predetermined route and
Works under close supervision of the
Transportation Supervisor and Transit Coordinator.
Maintains order on board city bus.
ESSENTIAL DUTIES AND
The following duties are normal for this
position. These are not to be construed as exclusive or
all inclusive. Other duties may be required and assigned.
Operates a large passenger vehicle in
moderate to heavy traffic.
Issues and collects transfers.
Boards and discharges passengers at
Loads and secures wheelchair bound
passengers at established stops.
Gives clear and detailed directions to
passengers in response to questions.
Maintains order in the vehicle and at the
Prepares clear and detailed written reports.
Follows all safety practices and standards.
Performs related work as required.
May serve as member of various employee committees.
Education and Experience:
(A) Graduation from high school
diploma or GED equivalent.
(B) Previous driving experience with
buses or trucks.
(C) Any equivalent combination of
education and experience.
(D) Ability to work flexible work
schedules involving split shifts.
(E) Successful completion of bus
KNOWLEDGE, SKILLS AND ABILITIES
Working knowledge of public bus
operations and minor maintenance repairs.
Working knowledge of defensive driving
Working knowledge of motor vehicle laws.
Knowledge in the use and operation of radio communications
Working knowledge of work hazards and
safe driving techniques.
Working knowledge of first aid techniques.
Ability to operate a large transit vehicle on
schedule and in all weather conditions.
Ability to cope with stress, make
independent decisions and exercise sound judgement in stressful
or emergency situations.
Ability to withstand local weather
Ability to pass the pre-employment physical
and drug screen.
Ability to maintain effective relationships
with other employees and the public and to deal with
the public in a courteous and tactful manner.
Ability to comply with the City Drug and
Ability to effectively deal with ADA service
requirements in a safe effective manner.
Reliability in attendance and promptness in
reporting to work.
Ability to follow oral and written
Valid Commercial Drivers License, (Class
BDC), with passenger and air brake endorsements.
Good driving record.
. . .
The other Transit Division positions, Transit Mechanic, Service Technician and Transit
Operator/Mechanic all require a valid CDL with passenger and air brake endorsements and a
driving record. 2/
2/ The City's Transportation Department
includes the Transit Division, Sign Division, Electric Division and
also a Street Lighting Division, all under the direction of Transportation Director Mark
Huddleston, who has been
Director of this department for past 25 years.
Prior to his hire in October of 1999, R.D. was arrested for Operating While
(OWI) on December 5, 1992. He was convicted of this offense on January 16, 1993, and
was suspended for seven months. On October 2, 1993, R.D. was again arrested for OWI.
convicted and sentenced on November 9, 1993, for this incident. R.D. appears to have paid
$500 fine and to have spent ten days in jail for this second OWI.
On his City employment application, question 15 asked R.D. "have you ever had
suspended?" to which R.D. responded "yes." In response to the question "when and for
reason?" R.D. responded "OWI-1994." At the instant hearing, R.D. stated that he had been
about the date in writing the 1994 reference on his employment application, that the
occurred in 1993.
Transit Supervisor Thomas Hansen stated that as is his normal procedure, in late
of 2000, he requested that the Department of Transportation run a license check on R.D., as
all other City Bus drivers and that this check indicated the above-described two prior OWI's.
time, the City did not counsel or discipline R.D. concerning his driving record or his failure
his complete driving record on his employment application. The City merely put a copy of
document in his personnel file.
On November 29, 2001, R.D. was arrested for OWI. That morning, after his arrest,
called Supervisor Hansen and told Hansen he had been arrested for OWI that night and that
not drive his normal p.m. route that day. 3/ At this time, Hansen asked R.D. if he was
resign because R.D. would be terminated following his conviction. R.D. did not respond.
3/ During his employment with the City, R.D.
drove a City Bus Monday through Saturday, 12:15 p.m. to 6:24
p.m. each work day.
On November 30, 2001, R.D. had procured a 30-day temporary license (with a
endorsement) under which he could drive a City Bus. That license was to expire on
2001. R.D. drove a City Bus on his regular work schedule from October 30 until December
which he time he took a sick day. Between December 31, 2001, and January 15, 2002,
either sick leave, floating holiday or vacation time off and did not drive a City Bus.
On January 16, 2002, R.D. took leave without pay and went to the Department of
Vehicles where he procured an Occupational License which included a passenger
which was good from January 16 through July 2, 2002. Between January 16 and June 9,
drove his regular bus routes for the City.
On June 10, 2002, R.D. was scheduled in court on his OWI charge for the incident
occurred November 29, 2001. On June 10th, R.D. took a floating holiday
to be present in court. That
day, R.D. was represented by Attorney Robert Vander Loop at his hearing before Judge
this time, R.D. did not contest his third conviction for OWI. Although R.D. was convicted
10th, all parties agreed that R.D.'s license revocation would not be reported
out by the State until June
21, 2002. Attorney Vander Loop submitted a written statement by stipulation herein in
confirmed that license revocation was withheld in R.D.'s case,
. . . to allow time for D. to secure an occupational license on his
CDL and also to find another
job at the City of Oshkosh where the P endorsement would not be necessary. This was done
the State of Wisconsin has been telling us up until June 10th that D. would
be able to continue with
this P endorsement, but then suddenly indicated there was federal law recently passed that
allow this to happen. . . .
Immediately following his court proceedings on June 10th, R.D.
received a "Court Order of
Revocation/Suspension" signed by the Clerk of Court, which indicated that R.D.'s license
revoked effective June 10, 2002 for a two year period. This document also indicated that
have to serve a 45-day jail term in connection with his OWI conviction; that he had been
and had waived his rights regarding his conviction; that he had been convicted of OWI; and
had to pay $1,184 in fines and costs. The document also showed that he would have to go to
assessment and treatment as well as counseling and that an ignition interlock would be placed
vehicle. The document also stated that R.D.'s conviction report would be "withheld" until
2002. On June 10th, R.D. was also issued a document entitled "Judgment
of Conviction and Sentence
to the County Jail/Fine/Forfeiture" which essentially confirmed the above information.
It should be noted that R.D. worked for the City as a Bus Driver from June 11
June 22, 2002, without speaking to any of his supervisors concerning his OWI
R.D. admitted that he never tried to contact City supervisors and made no effort to contact
Department after he received his Court Order of Revocation/Suspension from the Clerk of
indicating that this license would be revoked for two years effective June 10, 2002, but that
conviction would be withheld until June 21st.
On Monday, June 24, 2002, Supervisor Hansen heard rumors that R.D.'s license had
revoked and that he was driving without proper endorsements or a proper license. Hansen
the City Attorney's office and spoke with an Assistant City Attorney asking her to get
regarding the status of R.D.'s license. The Assistant City Attorney checked R.D.'s license
Hansen that R.D.'s license had been revoked on June 10, 2002. Hansen asked the Assistant
Attorney to fax him documentary proof of this fact. The Assistant City Attorney then sent
a copy of the Consolidated Court Automation
Program (CCAP) Circuit Court Report regarding the status of R.D.'s license, which
showed that he
had had a third incident of OWI on November 29, 2001, and that he had been sentenced and
convicted on June 10, 2002, having plead guilty/no contest before Judge Carver on
June 10th when
he received a sentence of 45 days in jail, an ignition interlock and a license revocation for a
period from the sentence date, June 10, 2002, as well as a fine of $1,184. Nowhere on this
did it indicate that R.D.'s license revocation had been withheld until June 21, 2002, by
Later on the morning of June 24th, R.D. called Hansen and told him
he could not drive for the
City. Hansen said that he had already found out that R.D. did not have a valid driver's
that the City was terminating R.D. from his employment. R.D. responded, "Okay." Hansen
asked R.D. to turn in his gear. R.D. stated herein that after this conversation with Hansen,
down to the Department of Motor Vehicles and applied for an occupational license. He
occupational license on June 24th but it did not have a passenger
endorsement. That license was valid
for the period June 24, 2002, through January 2, 2003.
R.D. stated herein that he received the following formal notice of his license
the Wisconsin Department of Transportation by regular mail (which arrives at his home in
afternoon) on Saturday, June 22, 2002, after he drove his regular City bus route, 12:15 to
. . .
Your privilege to drive a motor vehicle is
Effective June 10, 2002
Time Period: 2 Years reduced to 567
day(s) for the time already served
Reason: Operating while intoxicated
Convicting Court: Winnebago County
Circuit Court Br 5
Court Telephone No:
If you have any questions about the
violation, contact the convicting court.
You may be eligible for reinstatement on
December 30, 2003.
If you have other revocations or
suspensions, your actual reinstatement date may be later.
Please see the back of this letter for
reinstatement requirements and other licensing information.
Information For You
Do not drive until you reinstate and you
have a valid license in your possession.
A court order which vacates, appeals or reopens the conviction(s)
referred to in this letter
may change the status of this withdrawal.
The penalty for driving while suspended or
revoked may include jail time and a fine up to
. . .
You may be eligible for an occupational
license. Complete an application at any DMV Service
Center, except express offices. If your operating privilege is also revoked as a Habitual
Offender, file a petition with a circuit court in your county of residence. A $40
nonrefundable fee and
SR22 insurance certificate are required. Applying does not guarantee issuance of an
R.D. stated herein that he believed his license was not revoked
until he received the above document
and that he had the right to drive a City Bus until he received the above document. R.D.
however, that on June 10th he knew that the above-quoted DOT document
was going to be sent to
him, yet he continued to work for the City and said nothing to City supervisors about the fact
his license would be revoked; and that because his sentence had been withheld until June 21,
that he would not be able to drive a City Bus after sentence was imposed by his receipt of
On June 25, 2002, Transportation Supervisor Hansen sent the following letter of
. . .
It has come to my attention that your
commercial drivers license (CDL) with passenger
endorsement has been revoked on 6-10-2002 for a period of two years (Wisconsin Circuit
01CT001160, filed 12-28-2001).
One of the conditions of your employment
as a Transit Operator is that you must carry a valid
CDL, with class b, d [sic], d, and p endorsements (Rule #2.02). Therefore, you are
employment with Oshkosh Transit.
. . .
Hansen stated herein that the reason he terminated R.D. was because R.D. should have
on June 10th when his license was revoked and because R.D. violated
Section 2.02, paragraphs 1 and
3 of the Rules and Regulations of the Transit Division. Hansen
stated herein that he was unaware that R.D.'s license revocation and conviction had
until June 21, 2002, when he terminated R.D. Transportation Director Huddleston admitted
never heard of withholding a conviction report as was done in R.D.'s OWI case, which
the convicted person to continue operating motor vehicles prior to the imposition of their
The Union asserted herein that R.D. had been treated unfairly compared to prior
cases of the
same type and that based on past practice, the City had an obligation to allow R.D. to use his
seniority to get a new City job after he had been terminated from City employment. On this
the Union offered the following prior cases between the Union and the City. The first case
a prior Transit Operator J.S. 4/ J.S. had his license revoked after an OWI incident in 1997.
went to the City before his license was revoked and requested leave without pay as well as
accommodation by the City to apply for other City jobs where he would not need a driver's
with a passenger endorsement. The City agreed to this approach and entered into two
agreements with J.S., both of which contained the following language:
It is further agreed between the parties that this action is in no
way meant to establish a precedent
to be used for this or other positions in the future.
In these agreements, the City agreed to place J.S. on leave without pay status for a
period of up to
six months, during which time J.S. would have the right apply for other positions in the City
he was qualified. J.S. was also responsible to pay for the cost of continuing any benefits
leave without pay. Also, the City agreed to allow J.S. to work as a seasonal employee and
the same hourly rate and benefits as other seasonal employees as of April 2, 1997.
4/ The City employees described in this
section will not be named, although their initials will be used herein.
The City argued that in the case of J.S., the agreement regarding his treatment by the
following his OWI conviction and license revocation were not precedent setting and should
allowed into the record in this case nor should they be considered as a part of any "past
argued by the Union. The City also stated that J.S. approached City Managers before his
revoked and requested accommodation.
Another case concerned Transit Operator R.M. and occurred between eight and ten
Union President Vienola stated that he believed that R.M. had been involved in a Worker's
Compensation case, that R.M. lost his driver's license and could no longer drive a bus and
City had accommodated R.M. by allowing him to use his seniority to get a
position in the Sign Division of the Transportation Department where he would no
longer need a
license with a passenger endorsement. The City provided evidence to show that R.M. had
passenger endorsement problems. Rather, the City had encouraged R.M. to take the Sign
position because he was having problems interacting with bus passengers. R.M. met the
for the Sign Division job, used his seniority and transferred to the Sign Division job.
Employee J.G. had posted into an Operator III position in the Streets Department and
worked in that position for between one and two years, certainly longer than his probationary
in that job. The Union stated herein that the City decided to demote J.G. to his prior
Operator II and that J.G. did not resist this action by the City. The Union asserted that J.G.
seniority after his demotion. City witness Yvonne Molinski, a personnel assistant for the
years at the City, stated that J.G. had himself decided that he could not handle the Equipment
Operator III position and that the City had allowed him to return to his Equipment Operator
even though he had already completed his probationary period in the Operator III job and
had no right to return to his prior position. J.G. had had no problems with his CDL.
Employee J.K. was a Transit Mechanic with the City when he had an incident of
approximately three years ago and lost his passenger endorsement. The Union asserted that
accommodated J.K. by allowing him to keep his Transit Mechanic position and that he in
buses from time to time even after his license and passenger endorsement were revoked.
stated herein that regarding the Transit Mechanic position, driving a bus is a non-essential
part of this
job and when J.K. lost his passenger endorsement for two years, it was not a problem for
continue doing his mechanic work, as he merely had to road test buses after he fixed them.
did admit that J.K. occasionally drove a City bus route in emergency situations when there
one else to perform the work. The City stated that J.K. drove passenger buses for the City
the two-year period of his license revocation perhaps for about 1% of his work time.
Approximately two years ago, employee D.V. was arrested for OWI and lost his
at least 60 days. He was then an Electrician for the City. The Union stated that the City
accommodated D.V. by having another employee drive him around and that D.V. was
keep his job without any penalty. City witnesses indicated that D.V. lost his license for 30
D.V. did not need a passenger endorsement on his CDL; and that he normally worked with a
who was able to drive D.V. whenever the need arose during his City employment.
The last case concerned employee C.B., a Transit Operator who is still employed by
In May of 2002, upon arrival at work, C.B. underwent random drug testing under the City's
alcohol policy and tested positive for one of the prohibited drugs. The Oshkosh Transit
and Alcohol testing policy was placed into effect on May 8, 2001. It provides as follows
employee tests positive for a first incident:
VI. REQUIRED TESTING SITUATONS AND PROCEDURES
. . .
Testing - All employees in safety-sensitive positions will be subject to random
testing. The testing may be conducted immediately before, during or immediately after the
performing of the employee's safety-sensitive duties. Employees of Oshkosh Transit and
employers who contract with Oshkosh Transit will be placed in a pool of employees subject
testing. The individuals who will be tested will be selected from a pool of employees subject
testing. The testing dates and times will be unannounced and will occur with random
throughout the year. Random alcohol tests will equal 25 percent of all employees in the
drug tests will be 50 percent of employees in the pool. These testing levels are base upon
Transit Administration requirements. Testing levels willchange if
required Federal Transit
Administration Testing levels change.
Occupational Health Systems will select
employees for random testing using a scientifically
valid method of random number generation. The method will consist of computer based
random number generation which will match with individual's Social Security numbers.
employees will have an equal possibility of being selected on each occasion that
selections are made. Hence, some employees will be required to take more than
during a year, while others will not be tested at all during a year.
. . .
VIII. DRUG TESTING PROCEDURES
. . .
C. RESULTS OF A POSITIVE DRUG
This procedure applies only for the first positive alcohol or drug
test within a thirty six-month
period. If a drug test is determined to be positive and the split test process has been
waived, the following actions will occur.
1. The employee will be
immediately removed from any safety-sensitive position pending the
determination of the Medical Review Officer regarding the drug test results.
2. The employee will be
directed to meet with a Medical Review Officer to determine if the
positive test resulted from the authorized use of a controlled
substance. If the Medical Review Officer determines that the
positive test result occurred as
a result of authorized use of a controlled substance, the results of the test will be cancelled.
A determination that the positive test result is not the result of an authorized use of a
controlled substance will fully validate the results of the positive test and further action will
3. The employee will be
subject to immediate termination UNLESS he/she agrees to enter into
a last chance agreement involving mandatory completion of a Substance Abuse Treatment
Program as deemed appropriate for the individual by the Substance Abuse Professional
(SAP). A referral to the SAP will take place regardless of disciplinary action brought against
4. The Substance Abuse
Professional will develop the appropriate treatment program. The
employee will be required to fully follow the designated treatment program.
5. The Substance Abuse
Professional will determine when the employee is ready to return to
work. They will forward that written authorization to the Medical Review Officer and the
Oshkosh Transit Drug/Alcohol Coordinator.
6. The employee will able to
return to work after receipt by the employer and Medical Review
Officer of a negative drug and alcohol test result m their return to work tests. They will be
subject to a minimum of six random follow-up drug and alcohol tests in the next twelve
. . .
Following this employees' first positive test, the Union and the City entered into an
whereby the employee was suspended for 30 days without pay and returned to work after
signed a last-chance agreement and having received AODA treatment at the employee's cost.
grievance was filed regarding this incident.
Union President Keith Vienola, who provided the past practice evidence from the
perspective, has worked for the City for the past 30 years and has held union office for
12 of those years, the last 6 years as Union President. Mr. Vienola asserted herein that the
always accommodated employees who have drivers licensing problems prior to the R.D.
Vienola stated that R.D. was treated differently from the beginning of his case; that R.D.
provided a pre-disciplinary meeting with the City in order to determine whether his behavior
be corrected by discipline; and that the City violated its own personnel policy manual by its
of R.D. at Chapter 1, Section 3, which reads as follows:
SECTION 3. AFFIRMATIVE ACTION.
In order to implement the aforementioned policy of Equal
Opportunity, and to correct effects
of past inequalities, the City reaffirms its commitment to Affirmative Action.
The goal of the Affirmative Action plan
for the City is to establish the necessary steps
for insuring equal employment opportunity for all persons. It is further recognized that
implementation of this policy is the active responsibility of managerial personnel to assure
everyone is afforded equal treatment regardless of race, creed, color, sex, national origin,
economic status, age, handicap or marital status, or other criteria protected by equal
. . .
POSITIONS OF THE PARTIES
The City argued that it did not violate the labor agreement when it discharged the
In this regard, the City noted that the contract requires just cause for discharge, but that just
not defined in the labor agreement. Under the facts of this case, there is no question that
convicted and lost his "P" endorsement for a period of two years and there is no question
therefore could not perform the necessary job duties of a Transit Operator after his license
revoked. The City noted further that City Policy 2.2 required R.D. to have a commercial
license (CDL) with a "P" endorsement and that when an employee's "CDL has been refused,
suspended or lost, it must be reported to the Director (of the transit division) immediately."
Furthermore, the City argued that the Grievant mislead the City on his employment
he failed to disclose two OWI's prior to his hire by the City as a Transit Operator. This
alone, the City
argued, would have given it just cause to discharge the Grievant. In addition, the City
because the Grievant's convictions substantially relate to his position as a Transit Operator, it
unreasonable to conclude that R.D. might drive a bus under the influence of alcohol and put
at additional risk for liability. The City urged that it should not have to bear such heavy
risks of loss.
The City argued that the Grievant failed to timely notify it of the revocation of his
endorsement after his conviction on June 10, 2002. In this regard, the City noted that on
R.D. received a paper essentially saying that his CDL was revoked as of that date. Yet,
R.D. did not
notify the City or even attempt to notify the City of this circumstance. Rather, R.D. drove
his City bus
between June 10th and through Saturday, June 22nd. Had
any accidents occurred during this period of
time, the City pointed out, that it would have been
liable because R.D. had already lost his P endorsement and his CDL on June
10th. Thus, the Grievant's
actions in continuing to drive and failing to notify the City of the loss of his license further
City's decision to discharge him.
The City argued that the Arbitrator should not substitute her judgment regarding the
in this case for that of the employer, where as here the City was not arbitrary, capricious,
discriminatory or unfair in imposing the discharge penalty upon the Grievant. In this regard,
noted that R.D.'s conduct was extremely serious and that it had in fact previously terminated
Department employee because he could not perform the essential duties of his job due to his
sick from the motion of the emergency vehicle each time he went to work.
Furthermore, the City argued that it has not violated the contract by refusing to give
preferential treatment for vacant City positions. On this point, the City argued that the
failed to prove a clear past practice of allowing employees who lose the qualifications for
positions to gain preferential treatment for other vacant positions in the City. Regarding the
the City urged that the fact situation and the settlement in that case cannot be used in any
way as a
precedent in any other case due to the specific language of the documents which the parties
support of that settlement.
In regard to the other cases, the City urged that these involved distinct factual
were not applicable to this case. In regard to Transit Operator R.M., the City noted that
R.M. had had
problems with job performance, specifically passenger interaction, and that the City
to post into another position. Concerning J.G.'s case, the City noted that J.G. did not lose
endorsement and that he was essentially demoted from an Operator III to an Operator II job
performance problems. Concerning the J.K. situation, although J.K. was a mechanic in the
Division and lost his P endorsement for two years due to an OWI, driving a bus was not an
function of his mechanic position and he was allowed to remain in his mechanic position
because of this
fact. Concerning the D.V. case, the City noted that D.V. was an Electrician who lost his
an OWI off-duty and that again, D.V.'s position did not require him to drive as an essential
of his position and that D.V. did not need a P endorsement to retain his position at the City.
The City argued that even if the Arbitrator finds that a past practice of
the City is not responsible to extend that past practice to the Grievant given the facts of his
Furthermore, no contract language supports the Union regarding its argument that R.D.
been allowed to use his seniority, despite his termination, to post into open City positions.
In all the
circumstances, the City urged that the grievance be denied and dismissed in its entirety.
The Union argued that the City had treated R.D. unfairly in terminating him and that
treated him unfairly by refusing to accommodate him as the City had done with other
similar situations who had drug and alcohol problems. In this regard, the Union
urged that R.D. should not have been terminated because his off-duty problems did not
affect his work
performance. The Union urged that R.D. did keep the City abreast of his driver licensing
that he did not hide his situation. However, R.D. did base his actions on what his attorney,
and the Court told him. Indeed, R.D. believed that his license would not be revoked until he
the DOT Letter of Revocation (Joint Exhibit 21) and the Union noted that R.D. did not drive
after he received that document. In these circumstances, the Union urged that the City had
arbitrarily and capriciously in discharging R.D.
The Union contended that other employees, including one who had reported to work
had received less severe punishments than R.D. In this regard, the Union noted that in the
Employer has accommodated "drug addicts, alcoholics and even employees who could not
critical parts of their job." In these circumstances, the Union urged that the City has given
employees the "realistic expectation" that the City will work with the Union and employees
to find an
accommodation in these kinds of situations.
The Union noted particularly the C.B. case, which it felt demonstrated that R.D. was
disparately. In C.B.'s case, C.B. reported to work as a Transit Operator under the influence
and only because the City conducted a random drug test on C.B. did the City find out that
then under the influence. In that case, the City allowed C.B. to take a suspension, to enter
into a last
chance agreement and to attend drug counseling in order to retain City employment. The
that the City did not offer R.D. such accommodations.
If the Arbitrator finds that the loss of R.D.'s P endorsement is cause for his
Union urged that R.D.'s "seniority should not have been discounted." In this regard, the
that R.D. should have been allowed to take one of the ten openings that were available
Summer of 2002 after his discharge, if he proved qualified, and that R.D. would have likely
a position had the City allowed him to use his seniority to gain such a position. Therefore,
asked that R.D. receive back pay from the date a job he is found qualified for was filled
outside and that the Arbitrator place R.D. in that job.
In sum, the Union urged that other City employees were offered accommodations and
"not expected to grovel for their jobs." Here, the City treated R.D. differently and made no
accommodation and gave him no pre-disciplinary hearing, as was the Personnel Director's
In these circumstances, the Union urged that the grievance be sustained and the Grievant be
The City argued that there was no dispute that R.D. lost his license and "p"
therefore no longer had the necessary qualifications to be employed as a Transit Operator by
giving the City no alternative but to discharge him. The City
noted that it had made an error in stating that R.D. had been convicted of OWI three
times in the past
five years, noting that R.D.'s convictions were three OWI convictions since 1993. The City
the Union's arguments that R.D. should be given preferential treatment for any openings at
by allowing him to use his seniority to apply for these, as follows. The examples cited by
of transfers and reassignments, the City noted, all occurred by mutual agreement of the
Union and City prior to the discharge or any adverse action against the employee. In
addition, the City
argued that the Union's examples of a "past practice" were distinguishable on their facts,
there was no proven practice to guarantee employment to employees in a situation like
R.D.'s. In all
the circumstances, the City urged the Arbitrator to deny the grievance in its entirety.
The Union argued that the facts clearly showed the R.D. kept his supervisors
informed of his
driver license status; that he did not drive a bus after revocation; that R.D. had a good work
the City; and that the City hired R.D. knowing he had an OWI in 1993. Thus, the Union
the Grievant had been straight forward with the City in all respects. The fact that the
Grievant did not
tell the City that he could not drive until June 24th was because the
Grievant had been mislead to believe
that he could get a license with a "p" endorsement on June 24th. The
Union noted that R.D. notified
the City immediately when he discovered that he could not get a license with a "p"
The Union urged the Arbitrator to look at R.D.'s testimony and his employment
and she would conclude that the Grievant had not mislead the City on his employment
regarding his OWI in 1993. In this regard, the Union noted that the application did not ask
appropriate question to get the answer that the City was looking for. In any event, the City
of R.D.'s OWI conviction and it was not prejudiced thereby.
The Union argued that the Grievant's conduct does not warrant discharge. On this
Union noted that R.D. only received official notice of the revocation of his license on
22nd, and that he did not drive a City Bus thereafter. The City's claim that
it was subjected to
additional legal liability is therefore not supported by the record. The Union found
inapposite the Fire
Department employee case noted by the City at hearing. In this regard, the Union noted
there was no
evidence in the record to show that the Fire Department employee had just cause in his labor
agreement. The Union also argued that there were no jobs in the Fire Department where
sickness would be allowable for a line employee. In this bargaining unit, however, there are
positions and many of these positions do not require a "p" endorsement. Therefore, the City
alternatives and did not have to terminate R.D.
The City violated the contract and past practice when it denied R.D. preferential
job openings. In this regard, the Union noted that prior cases show that the City went to
to retain employees who were in similar or worse situations than R.D.
Thus, the Union urged that the City abused its discretion by treating R.D. worse than
others the City
had accommodated in the past and the Arbitrator should step in in this case to remedy the
In addition, the Union noted that the City gave no examples of employees who had been
harshly as R.D. was treated. Thus, the Union queried if the "p" endorsement is a
would the City allow a mechanic to keep his job and terminate R.D.; why would the City
R.D. for off-duty conduct and retain an employee that reported to work high on drugs; how
City justify driving an employee who lost his license around for over one month and
another Transit Operator to post into another position because he had problems being polite
passengers and yet terminate R.D.
As there was no just cause for the termination of R.D., the Union sought
reinstatement for R.D.
but noted that if the Arbitrator finds that the loss of R.D.'s license and "p" endorsement
termination, that R.D. should be allowed to use his seniority to apply "retroactively" for
positions for which he is qualified.
The record in this case demonstrates that from October, 1999, when he was hired as
Transit Operator until his discharge in June, 2002, R.D. had never been disciplined by the
had a good work record. R.D.'s discharge was essentially caused by his own off-duty
resulted in the loss of the "p" endorsement on his CDL. However, the facts of this case do
a conclusion that because of his alcohol problem, R.D. was likely to or had ever in fact
driven a City
Bus under the influence. On this point, I note that no evidence was presented to show that
drove his bus under the influence while employed by the City.
Also, although R.D. waived all rights and accepted his conviction for his third OWI
10, 2002, sentencing was clearly withheld by the Court until June 21, 2002. This fact is
evidence that showed that R.D. was unable to get a replacement license until after June
22nd, as his
original license had not been revoked. In addition, the formal notice from the Wisconsin
of Transportation was dated June 21, 2002, and was effective upon receipt. The fact
that this notice
indicated that R.D.'s license had been revoked "effective June 10, 2002," does not
that R.D. drove without a license between June 10th and June
22nd. Rather, the effective date of
revocation appears to have been important for purposes of calculating when R.D. could
a new (unrestricted) license. Thus, although R.D. drove his regular City Bus route from
through June 22nd, he neither intended nor did he drive that bus
without a valid license and "p"
It is also absolutely clear that R.D.'s Transit Operator position required him to
maintain a valid
driver's license with a "p" endorsement. As of June 22, 2002, when he received the DOT
revocation, R.D. no longer had a valid driver's license with a passenger endorsement. Thus,
R.D. had a good work record or not, the question arises whether
the City had any responsibility to continue to employ him after R.D. lost his driver's
license and "p"
endorsement as of June 22nd. In addition, another question remains
whether the City had any
responsibility to transfer R.D. or allow him to use his City seniority to post into vacant City
following his discharge for his failure to maintain a valid license and "p" endorsement.
Initially, I note that in regard to the latter question, there are no provisions of the
agreement which require the City to give R.D. any such preferential treatment. The Union
in this case that there is a long-standing past practice whereby the City has consistently
employees who have had alcohol and drug related problems by allowing them to transfer out
positions or post into other City jobs using their seniority in order to avoid a discharge. In
Transit Operator J.S.'s case, I note that the documents surrounding the settlement of that
indicate that the parties intended the settlement therein not to set a precedent "to be used for
other positions in the future." Therefore, the J.S. example cannot be used in this case as a
basis for an
alleged past practice and I have disregarded it.
In to regard the other examples of accommodations which the Union submitted, I
these cases were distinguishable on their facts. For example, the case of Operator III, J.G.,
involve any problems with J.G.'s CDL. Rather, the City either accommodated J.G.'s
request to return
to his former position of Equipment Operator II after he had passed his probationary period
Operator III position or it demoted J.G. 5/ In regard to Electrician D.V., although D.V.
for OWI and lost his license for at least 60 days, as an Electrician, he did not need a
endorsement to perform his electrician duties and he worked with a partner who could drive
he was on duty for the City. Thus, D.V. did not become disqualified to perform his City
being convicted of OWI. In regard to Transit Mechanic J.K., I note that although he had
of OWI and lost his passenger endorsement, his job as a Mechanic did not require him to
drive a City Bus and driving a bus was a non-essential part of his mechanic job. In regard to
Operator R.M., R.M was not shown to have had any difficulty with his passenger
fact that the City encouraged R.M. to transfer to a Sign Division position because he could
properly interact with bus passengers, supports a conclusion that R.M.'s case is
R.D.'s. Finally, the case of Transit Operator C.B. who tested positive for drugs in a
random drug and
alcohol test at work, is also distinguishable as C.B.'s situation was covered by the Drug and
Testing Policy, in effect in the City in May of 2001. There, according to Section VII, C3 of
and Alcohol Policy, C.B. agreed to a last change agreement involving mandatory completion
substance abuse treatment as well as an unpaid suspension in order to retain her position.
5/ I need not determine the reason why J.G.
returned to his Operator II position in this case.
Thus, the only case that would have truly supported the Union's past practice
was the case of J.S., which the parties agreed should not set a precedent. One prior case is
to establish a true past practice. In addition, I note that in each situation, the involved
asked City Managers for accommodations or assistance in dealing with their problems prior
discharge or discipline. Significantly, R.D. did not approach either the Union or City
advance of his license revocation in order to request any kind of special treatment or
The bottom line in this case is that on June 24th, R.D. no longer
a valid driver's license with
passenger endorsement and he was unable obtain a license with a passenger endorsement on
June 24th. 6/ As the City's termination letter clearly stated that the reason
for his termination was
because R.D. lacked a necessary qualification for the job a valid driver's license
endorsement the City had a valid basis to discharge R.D. 7/ Although R.D. was a
Operator, he had a relatively short tenure with the City and he failed to go to his Union or to
Managers to request assistance with his driver's licensing problem prior to his discharge.
simply no remedy that the Arbitrator could properly craft for R.D. in this situation because
is silent thereon and the Union failed to prove a clear, long-standing, mutually agreed-upon
practice to support the unusual remedy it has requested.
6/ The City argued that R.D. had lied on his
employment application when he listed only one OWI in 1994.
Technically speaking, R.D. had already received two OWI license revocations by 1994 and
he should have revealed
both of them on his application. However, I note that Transit Supervisor Hansen became
aware of both prior OWI's
in November, 2002, when he requested a routine Department of Transportation license check
on R.D. As Hansen
failed to take any action against R.D. regarding his failure to disclose both OWI's on his
following Hansen's discovery thereof and because the termination letter did not list R.D.'s
failure to disclose full
information on his employment application as a reason for discharge, I find this issue
irrelevant to this proceeding.
7/ The fact that the City
was wrong in its apparent assumption that R.D. had driven a City Bus after license
revocation on June 10, 2002, does not detract from the above
Union President Vienola stated that Chapter 1, Section 3 of the City's Personnel
have protected R.D. The Arbitrator believes that there is absolutely no basis upon which to
provision of the City's Personnel Policy manual based on the facts of this case. Chapter 1,
of the City's Personnel Policy was intended to be applied to specific classes of people
"equal opportunity laws." R.D. was not a member of such a class based on the evidence
herein. Finally, the Union argued that R.D. should have been afforded a pre-disciplinary
the City Personnel Director. I note that the labor agreement does not require such a hearing.
event, R.D. had not engaged in any on-the-job misconduct and he could not have been
any hope of improving his behavior as he could no longer perform the essential functions of
after he lost his "p" endorsement. Thus, the purpose for such a pre-disciplinary hearing was
Based upon all of the relevant evidence and argument in this case, I issue the
The City did not violate the collective bargaining agreement when it terminated the
The City did not violate the collective bargaining agreement when it refused to recognize the
bargaining unit seniority for purposes of applying for vacant bargaining unit positions after
termination. Therefore, the grievance is denied and dismissed in its entirety.
Dated at Oshkosh, Wisconsin, this 25th day of March, 2003.
Sharon A. Gallagher, Arbitrator