BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF OSHKOSH EMPLOYEES UNION, LOCAL
796B, AFSCME, AFL-CIO
CITY OF OSHKOSH
(Rebecca Berndt Grievance)
Mr. Richard C. Badger, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, on
behalf of the Union.
Davis & Kuelthau, S.C., by Mr. William G. Bracken,
Employment Relations Services Coordinator,
on behalf of the City.
At all times pertinent hereto, the City of Oshkosh Employees Union, Local 796B,
AFL-CIO (herein the Union) and the City of Oshkosh (herein the City) were parties to a
bargaining agreement covering the period July 1, 2001, to June 30, 2003, and providing for
arbitration of certain disputes between the parties. On October 23, 2002, the Union filed a
with the Wisconsin Employment Relations Commission (WERC) to initiate grievance
the grievance of Rebecca Berndt (herein the Grievant) concerning a 35-day disciplinary
which was imposed on her by the City, and requested the appointment of a member of the
staff to arbitrate the issue. The undersigned was designated to hear the dispute and a hearing
conducted on October 29, 2002. The proceedings were transcribed and the transcript was
November 13, 2002. The parties filed briefs on December 17, 2002, and reply briefs on
2003, whereupon the record was closed.
The parties were unable to stipulate to the framing of the issues. The Union would
issues as follows:
Did the City violate the collective bargaining agreement when
required the Grievant to
waive her rights to the grievance procedure as a condition of her continued employment with
If so, what is the appropriate remedy?
Did the City violate the collective
bargaining agreement when it suspended the Grievant for
If so, what is the appropriate remedy?
The City would frame the issues as follows:
Is the grievance arbitrable?
If the grievance is arbitrable, did the City
violate the agreement when it suspended the grievant
for 35 days for violating department rules, regulations and policies?
The Arbitrator frames the issues as follows:
Is the grievance arbitrable?
If so, did the City violate the collective
bargaining agreement when it suspended the Grievant
for 35 days?
If so, what is the appropriate remedy?
SECTION 1. Except to the
extent expressly abridged by a specific provision of this
agreement, the City reserves and retains, solely and
exclusively, all of its Common Law, statutory, and inherent rights
to manage its own affairs, as
such rights existed prior to the execution of this or any other previous agreement with the
SECTION 1. The employer
may adopt and publish rules and regulations concerning the
operation of its facility and conduct of employees. Such rules and regulations may be
periodically, provided reasonable notice is given to affected employees and the local Union
SECTION 1. Each party to
this Agreement expressly retains the rights and authority
possessed by it or them under Wisconsin or Federal Laws, regulations or statutes. In the
any clause, provision, or portion of this Agreement is held invalid or inoperative such
inoperativeness shall not affect other clauses, provisions, or portions of this Agreement. The
hereby declare their intent that all clauses, provisions, and portions of the Agreement are
. . .
. . .
Step 1. The aggrieved
employee or the Union may present the grievance orally to his
management's supervisor. The employee or the Union and the supervisor shall attempt to
the grievance. The supervisor shall state his position to the employee and the Union within
consecutive work days. Within three consecutive work days after the supervisor has stated
position, the employee shall advance his grievance to Step 2, or the matter shall be
by all parties.
. . .
Step 4. If the Union does not consider the
grievance to be resolved, it may request that the
grievance be submitted to arbitration. The Union shall give written notice of its request for
arbitration within ten (10) days after the receipt of the City Manager's statement. Upon
such notice, the Union and the employer shall endeavor to select an impartial arbitrator by
agreement. In the event the parties are unable to agree upon an arbitrator, they shall each
(3) arbitrators from the Wisconsin Employment Relations Commission staff. From those six
arbitrators, five (5) names shall be drawn. The parties shall then proceed to alternatively
that panel until an arbitrator is selected. The striking order shall be determined by a coin
decision of the arbitrator shall be final and binding. The arbitrator shall have no right to
modify, ignore or add to the provisions of this Agreement. The decision of the arbitrator
based solely upon his interpretation of the "express language" of the Agreement.
If the WERC or its successor agency no
longer provides arbitrators from its staff the following
language shall apply:
Step 4. If the Union does not
consider the grievance to be resolved, it may request that the
grievance be submitted to arbitration. The Union shall give written notice of its request for
arbitration within ten (10) days after the receipt of the City Manager's statement by
Wisconsin Employment Relations Commission to furnish a panel of independent arbitrators
which the parties shall select one arbitrator to hear the matter set forth in the grievance. The
shall proceed to alternately strike from that panel until an arbitrator is selected. The striking
shall be determined by a coin toss. The losing party, based on the decision of the arbitrator,
all costs of the arbitrator. The Employer will be deemed the losing party if the grievance is
in whole or in part. The decision of the arbitrator shall be final and binding. The arbitrator
no right to amend, modify, ignore or add to the provisions of this Agreement. The decision
arbitrator shall be based solely upon his interpretation of the "express language" of the
The purpose of discipline is to correct job
behavior and performance problems of employees.
Employees shall be informed of standards of conduct and performance. Rules and
be fairly and consistently applied.
Penalties shall be uniform and shall match the infraction. Persons
administering discipline shall
systematically document the case. Records of verbal reprimands shall be maintained in the
department files. Copies of written reprimands, demotions, suspensions and terminations
provided to the employee, the Director of Personnel, the employee's supervisors or
and placed in the employee's file. Demotions, suspensions or terminations shall be discussed
the Director of Personnel before such actions are taken. In the event that immediate
is required and the Director of Personnel cannot be reached, the employee shall be suspended
SECTION 14. GROUNDS
FOR DISCIPLINARY ACTION
A. Dishonesty or falsification
B. Insubordination (refusal to
obey reasonable orders, insolence, talking back, arguing, verbal
abuse or assault of a supervisor).
C. Theft or destruction of City equipment or
D. Unauthorized use or abuse of City equipment or
E. (1) Use of intoxicants while on duty
(2) Intoxication to a degree
which would make continued presence a menace to safety or
production or interfere with discipline or efficiency.
F. (1) Use of drugs while on
duty, other than prescribed by a physician.
(2) Abuse of prescription or other
(3) Condition brought about
from use of drugs away from work which interferes with job
performance, efficiency or discipline.
G. Fighting or creating a
disturbance among fellow employees, resulting in an adverse effect on
morale, production or maintenance of proper discipline.
H. Disorderly or immoral conduct:
(1) Notorious off-duty
conduct which brings disrepute or which reflects on the City as an
(2) Conviction of a
(3) Unavailability for
work because of incarceration.
I. Absence without leave (any
absence from work which has not been approved).
J. Leave used for a purpose
other than for which it was requested and granted.
K. Disregard of the public's interest.
L. Habitual tardiness or abuse
of sick leave.
M. Refusing or willfully
neglecting to contact or try to make arrangements with creditors after
being directed to do so by management which is consistently receiving complaints that an
employee will not attempt to reach a solution regarding indebtedness.
N. Use of official position or
authority for personal profit, sexual purposes or political advantage.
O. Disregard or repeated
violation of safety rules and regulations.
P. Sexual harassment.
Q. Discrimination or abusive
conduct because of race, color, creed, national origin, ancestry,
age, marital status, sex or other criteria protected by equal employment opportunity laws.
R. Knowingly make false or
malicious statements with intent to harm or destroy the reputation,
authority or official standing of individuals or organizations.
S. Acceptance of any gift,
favor or service that might reasonably tend improperly to influence
an employee in the discharge of their official duties.
T. Any employee who is found to be in violation of
this personnel policy.
U. Failure to perform assigned work in an efficient
V. Being wasteful of material, property or working
W. Failure to carry liability insurance on a private
vehicle used for City business.
X. Failure to report work injuries.
Y. Other circumstances may warrant disciplinary
action and will be treated on a case by case
It is expected that you will work in a
competent and conscientious manner which will reflect
favorably upon you, your department, and your employer. Instances
may occur, however, when an employee has exhibited
questionable behavior and corrective
action is necessary. The purpose of discipline is to correct job behavior and performance
of employees. The action taken to discipline and employee may include a verbal reprimand,
reprimand, suspension without pay, demotion, and discharge. Rules and regulations will be
consistently applied and penalties shall be uniform and will match the infraction.
The Grievant has been a Telecommunications Officer for the Oshkosh Police
since September 17, 2000. In that capacity, she is responsible for, among other things,
and communicating information received from the public to department officers and civilian
employees for further action. In so doing, she is frequently exposed to sensitive and
On May 5, 2001, the Grievant, while on duty, received a report from a member of
whose daughter attended the high school, that there were to be two upcoming post-prom
which underage drinking was likely to occur. The Grievant then called her father, passed on
information about the parties to him and warned him to prevent her brother, who was
also a high school student at the time, from attending the parties. The Grievant's father
warning on to her brother, who, in turn, warned his friends, with the result that no underage
was discovered at the parties in question.
Later, on prom night, the Grievant's brother and his friends allegedlyappeared, with alcoholic
beverages, at another party also attended by the daughter of the woman who had made the
report. The brother there supposedly revealed that the other parties were cancelled because
been warned by a relative who was a police dispatcher that the parties were to be raided.
reported this to her mother, who subsequently contacted school officials about the incident.
Ultimately, the Principal of Winneconne Middle School contacted the police department with
The department conducted an investigation which revealed the Grievant's conduct.
5, 2001, the Grievant was interviewed by Captain Randy Van Ness and Captain Jay Puestohl
the incident. She admitted her conduct and stated she felt she had a moral obligation to warn
brother if she felt he was in danger. Van Ness and Puestohl reported the results of the
Police Chief David Erickson, who initially considered a summary discharge. Erickson met
Grievant on June 13, 2001, to discuss the incident, at which time she also admitted her
him. At that time, she acknowledged that her actions were wrong and stated that under the
circumstances she would not do the same thing again. On the basis of this interview and
consultation with his officers, Erickson decided not to discharge the Grievant, but to issue a
suspension instead. On Friday, June 15,
2001, Erickson and Van Ness met with the Grievant again. The Grievant, at her
accompanied by Geraldine Haverty, a fellow employee and bargaining unit
member, at all the
meetings. At that meeting, Erickson informed the Grievant that he had determined to
for 35 days. He also gave the Grievant a document summarizing the incident and setting
discipline (Joint Ex, #3). The document also included an acknowledgment to be signed by
Grievant and witnessed, which included a waiver of grievance rights under Article XXI of
collective bargaining agreement. Erickson asked the Grievant to review and sign the
Grievant and Haverty met alone for 15 to 30 minutes, during which time they unsuccessfully
attempted to contact the Union President and Union Representative for advice. At the end of
time, they signed the document and returned it to Erickson.
On June 29, 2001, Union President Paul Poeschl filed a grievance on the Grievant's
alleging that the discipline administered to her was too severe and asking that it be rescinded
Grievant be made whole. The City denied the grievance and the matter proceeded through
of the contractual grievance procedure to arbitration. Additional facts will be referenced, as
necessary, in the discussion section of the award.
POSITIONS OF THE PARTIES
The City argues at the outset that it was justified in disciplining the Grievant due to
wrongful conduct. The Grievant admitted her acts and there is no question that a breach of
confidentiality such as she committed warrants discipline. Furthermore, although in this case
discipline would be warranted under a just cause standard, the collective bargaining
applies a just cause standard to discharge cases. Thus, the City's decision here must be
whether it was arbitrary and capricious, a much higher standard. Under this standard, there
question the City was justified in its action.
The City also asserts that it was justified in the severity of the discipline imposed.
Grievant breached confidentiality and compromised an ongoing police investigation, which is
serious matter, warranting the lengthy suspension imposed. Furthermore, there are
why the arbitrator should not substitute his judgment for that of the employer. First of all,
of punishment is within the City's discretion and the Arbitrator's inquiry should only be
City acted in good faith and conducted a fair investigation and did not act arbitrarily or
Also, the 35-day suspension was in keeping with the seriousness of the Grievant's offense.
penalty would trivialize the serious nature of her actions, which is borne out by the level of
upheld by other arbitrators under similar circumstances. It should also be noted, in
severity of the penalty, that the Grievant was only an eight-month employee, not a longtime
with an exemplary record, and that, in fact, she was permitted to use compensatory time to
part of the suspension, reducing it, in effect, to 27 days.
The Union maintains that, although the Grievant concededly committed a rule
violation, a 35-day suspension was unwarranted under the circumstances. At the outset, the
Union maintains that
just cause is the appropriate standard for evaluating employee discipline. This standard is
the contract and the City's Personnel Manual and Employee Handbook and should be applied
Arbitrator. Further, the Arbitrator's authority is not bound to merely reviewing whether the
acted in good faith, but extends to review of the relative severity of the discipline, as well.
arbitrator should exercise that power top remit the discipline in this case.
The City engaged in speculation in predicting the possible consequences of the
acts. In fact, there is no evidence that the information she released led to the teenagers
party elsewhere and, indeed, her action may have served to prevent the parties from taking
serving a laudable purpose. Arbitrators have tended to categorize offenses into extremely
which usually merit summary discharge, and less serious, which merit lesser, progressive
action. This case falls clearly into the second category and should, therefore, warrant a
Some other factors should also be considered in mitigation of the Grievant's acts.
City failed to conduct a thorough investigation, resulting in errors regarding several factual
An improper or inadequate investigation usually undercuts an employer's credibility in
Also, the Grievant, although a relatively new employee, had an excellent work record, which
serve to mitigate her penalty. Finally, the evidence shows that the employer has not
applied the rules regarding confidentiality in the past. Under the circumstances, therefore,
a 35-day suspension on the Grievant was unreasonable.
The City in Reply
The City disputes the propriety of the just cause standard. The collective bargaining
agreement restricts that standard to discharge cases and places no limitation on the City's
in other disciplinary actions. The appropriate standard is whether the City's actions were
and capricious. Further, most arbitrators hold that determining the appropriate level of
a management function, therefore, even if the Arbitrator would have handled the matter
he should not substitute his judgment for the City's and reduce the penalty.
The penalty in this case was appropriate to the offense. The Union attempts to argue
harm resulted from the Grievant's action, so the penalty should be minor. What is important
potential harm caused by the act, for which a 35-day suspension was warranted. Other
awards support similar discipline, and even discharge, under like
circumstances and the Grievant's discipline is mitigated by the fact that her suspension was,
reduced by eight days. The Arbitrator should also take into account her relatively short
Contrary to the Union's contention, the City performed a thorough investigation,
no less than three meetings between the Grievant and management personnel. As a result,
Grievant acknowledged her wrongdoing. Any errors in the investigation report are,
irrelevant. Further, there is no evidence that the City ever discriminated against the Grievant
applied its rules differently in other like cases. The Grievant compromised an ongoing police
investigation. The only other case cited by the Union did not involve release of confidential
information, nor is there evidence that management was aware of the matter. Finally, the
wrongly asserts that the Arbitrator ruled that the City acted inappropriately by asking the
to sign a waiver. The Arbitrator made no such ruling, but only held that the waiver was not
The Union in Reply
The Arbitrator should rule according to facts, not speculation. The fact is that there
evidence that lawbreakers were able to avoid arrest because of the Grievant's actions. She
error, but there is no indication that any harm resulted. Further, most arbitrators imply a
standard into collective bargaining agreements that don't contain them and that should be
Also, arbitrators often reserve to themselves the authority to review the severity of discipline
as the justification for it, to prevent unjust or unreasonable penalties even where some level
discipline is deemed appropriate. In this case, a 35-day suspension was too severe and must
The penalty imposed in this case is excessive for a number of reasons. The offense
sufficient to merit such a harsh punishment. If the City wished to "send a message" that the
was serious, a lesser suspension of two or three days would have been sufficient. As it is,
suspension of this length has been issued against a member of this bargaining unit,
unnecessary severity. Further, the cases cited by the City are not on point and should not be
support the discipline issued here. The City's position is untenable and the grievance should
The grievance is arbitrable. At the hearing, the City argued that by signing the
acknowledgment and waiver on June 15, the Grievant had effectively waived her right to
discipline. The Union argued that the waiver was coerced and, therefore, was ineffective.
hearing, the Arbitrator ruled that there was no evidence of coercion, but that the waiver was
nonetheless ineffective. The basis for the ruling is that at the time she signed the waiver, the
reasonably believed she was under pressure to do so and was unable to obtain assistance
Union prior to making her decision. Her decision was
based, in part, on the fact that her superiors impressed on her the feeling that there
was some urgency
to resolving the matter quickly and that, being a new employee, she was vulnerable and in an
position of power. She attempted to reach members of the Union leadership for advice, but
unavailable and so she was required to decide the matter alone. Thus, she acted in what she
to be her best interests, but without, perhaps, a complete appreciation of her rights or the
consequences of her acts.
An equally important question in this regard is whether, under these circumstances,
employee can waive the Union's grievance rights. I find that they cannot. A collective
agreement is a contract between the Employer and the Union. The individual bargaining unit
members are not parties to the contract and are not in privity with either the Employer or the
Thus, a collective bargaining agreement may create rights for individual bargaining unit
it does not generally give the members power to waive the Union's rights under the
the current agreement, Article XXI sets out the grievance procedure, which bestows authority
both the employees and the Union, disjunctively, to process grievances. Thus, arguably,
circumstances an employee could waive his or her individual grievance rights under the
this would have no effect on the Union's rights to grieve the same event, especially where,
the Union has no notice of the waiver beforehand, nor has it joined in it. The Union has
separate from those of the individual members which it, alone, must decide whether to
enforce or not.
An employee cannot, therefore, by waiving his or her individual grievance rights, bind the
the waiver absent its knowledge or consent.
The Merits of the Grievance
In this case, the Grievant's conduct is not in dispute. Nor is the fact that her conduct
some level of discipline. The Union conceded as much at the hearing and in it's briefs.
What is in
dispute is the level of discipline imposed upon her, which includes a number of sub-issues,
the appropriate standard of review to be applied to the City's decision and whether a 35-day
suspension was warranted under all the surrounding circumstances. These include the
of the offense, the thoroughness of the investigation, the Grievant's work history and the
handling of discipline issues in other cases.
The Union argues that the City's action must be evaluated under a standard of just
the premise that a just cause standard is implied in the contract and other City employment
and that, even if it is not, arbitral precedent supports imposing such a standard in the interest
justice. The City argues that the correct standard is whether its decision was arbitrary and
It points out that the contract only imposes a just cause standard in discharge cases. Other
have refused to imply a just cause standard in such cases and rules of contract interpretation
language to its terms.
I decline to read a just cause standard into the contract in this case. I am mindful
arbitrators will imply a just cause standard for discipline where the contract is silent, but this
such a case. Article V, Section 1 of the contract states that discharge of an employee may
for good cause, but makes no reference to standards applicable in other discipline cases.
to Article III of the contract, the City may unilaterally adopt rules and regulations concerning
conduct of its employees as it sees fit. Accordingly, lesser forms of discipline, such as
written reprimand and suspension, are referenced in the Police Department Policies and
Manual and the City Employee Handbook. These make no reference to a just cause
simply state that "(r)ules and regulations will be fairly and consistently applied and penalties
uniform and will match the infraction." (Jt. Ex. 20, p.3) This, in my mind, does not equate
to a just
cause standard, but merely requires that enforcement of the rules by the City not be
discriminatory or done in bad faith. The fact that the contract specifies a just cause standard
discharge cases indicates that the issue has been addressed in bargaining, but suggests that
was unsuccessful in negotiating a more comprehensive provision. Under the circumstances,
therefore, I am unwilling to extend by fiat what the parties have limited by contract.
The question then remaining is, was the City's issuance of a 35-day suspension to the
so unreasonable under the circumstances as to be arbitrary and capricious? I find that it was
Union contends that the nature of the offense did not merit such severe discipline, pointing
no harm resulted from her offense, but I disagree. The evidence indicates that her warning
brother may have resulted in the underage drinking parties being moved, since the report to
department indicated that the Grievant's brother and his friends showed up, with alcohol, at
party and announced that they moved the parties because they had been warned about the
of a raid (City Ex. #4, Tr. pp. 103-105). Whether or not it did happen, however, it could
have happened. At the very least, her act compromised an ongoing police investigation. At
it could have put either the officers or the teenage youths at risk, or both. In either event,
violated department rules and disclosed confidential information. While it is true, as the
out, that the incident did not have a tragic result, this was a function of good fortune rather
design. Once the information was released, the Grievant lost control of how it would be
used or what
results would follow. Apart from the possible consequences listed above, once the disclosure
known to the informant the department's reputation and credibility became suspect, impairing
ability to obtain and utilize sensitive information in the future. The person who filed the
report did so with the reasonable expectation that the information would be forwarded to the
responsible authorities and acted upon appropriately. The knowledge that it was used instead
and protect the possible offenders predictably damaged the department's credibility with the
informant and, presumably, with anyone else who became aware of the incident. Indeed,
Captain Puestohl attempted to follow up on the report, he was unable to obtain the name of
informant or speak directly to her because she feared further breaches of confidentiality and
want her daughter to experience reprisals from other students so she wished to remain
Clearly, this was a serious breach of security meriting significant discipline.
The Union argues that the discipline should also be remitted on other grounds. First,
maintains that the City failed to conduct an adequate investigation. I disagree. The basis for
claim is that some of the facts contained in the disciplinary report and waiver about the
post-prom party were incorrect, notably that the Grievant was the aunt of one of the youths,
than his sister. I would note that the reference in the report merely indicates that this was
information received second hand after the post-prom party. At that point, knowing the
name of the
youth, an investigation was done and it was determined through a records check and
process that the Grievant was the youth's sister. The Grievant was interviewed on three
occasions by members of management and admitted that she committed the acts in question
at the time she considered her duty to protect her brother from possible arrest to supercede
to follow departmental rules. She later admitted her mistake and stated that she would not
same choice again. The City's discipline decision, therefore, was made after a satisfactory
investigation and was based upon true and salient facts.
The Union further points to the Grievant's good work record as a mitigating factor in
assessing the appropriateness of the discipline imposed on her. This was, apparently, her
infraction since being employed by the City. It should be noted, however, that she had only
employed for eight months at the time and had only been off probation for two months, so
had a lengthy career within which to establish a positive work history. Given the short term
employment, I give no weight to the fact that she had not been subjected to prior discipline.
acknowledge that the discipline imposed was steep for a first-time offense. Ordinarily,
proceeds through a graduated progression beginning with lesser penalties, such as an oral or
reprimand. In this case, however, as previously noted, the City's authority is not limited by
or practice to either a just cause standard or a progression of discipline. Absent a finding
conduct was arbitrary, capricious or in bad faith, therefore, which I decline to make, the
Finally, I am not persuaded that the Grievant's suspension was a departure from the
policy in dealing with similar work rule violations in the past. The Union cited one instance
a former employee had been in the habit of informing his father, who was a photographer,
were traffic accidents so that he could photograph the accident scenes. So far as the record
the employee was never disciplined for this practice. However, it was also not established
management was made aware of this conduct, nor that it was necessarily a violation of City
rules. Assuming the facts to be true, the employee was giving his father no more
he could have received listening to a police band radio and nothing that would have
police in their efforts to interdict criminal activity. That is a significantly different case than
situation here and does not support a claim for greater leniency to the Grievant.
For the foregoing reasons, and based upon the record as a whole, I hereby enter the
1. The grievance is arbitrable.
2. The City did not violate the collective bargaining agreement when it suspended
Grievant for 35 days and the grievance is, therefore, denied.
Dated at Fond du Lac, Wisconsin, this 28th day of April, 2003.
John R. Emery, Arbitrator