BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF SHEBOYGAN
and
SHEBOYGAN CITY HALL EMPLOYEES,
LOCAL 1564, AFSCME, AFL-CIO
Case 102
No. 58208
MA-10881
Appearances:
Davis & Kuelthau, S.C., Attorneys at Law, by Ms. Mary S.
Gerbig,
P.O. Box 1534, Green Bay, Wisconsin 54305-1534, appearing on
behalf of the City of Sheboygan.
Ms. Helen Isferding, Staff Representative, Wisconsin Council
40,
AFSCME, AFL-CIO, 1207 Main Avenue, Sheboygan,
Wisconsin 53083,
appearing on behalf of Sheboygan City Hall Employees, Local 1564,
AFSCME, AFL-CIO.
ARBITRATION AWARD
The City of Sheboygan, hereinafter referred to as the City,
and Sheboygan City Hall Employees, Local 1564, AFSCME, AFL-CIO,
hereinafter referred to as the Union, are parties to a collective
bargaining agreement which provides for final and binding
arbitration of grievances. Pursuant to a request for arbitration
the Wisconsin Employment Relations Commission appointed Edmond J.
Bielarczyk, Jr., to arbitrate a dispute over the discipline and
discharge of an employee. Hearing on the matter was held in
Sheboygan, Wisconsin on May 31st, June 1st,
6th, 7th, 28th, 29th,
and July 12th, 2000. A stenographic transcript of the proceedings
was prepared and received by the arbitrator by September 13th,
2000. Post hearing arguments and reply briefs were received by the
undersigned by January 12th, 2001. Full consideration has been
given to the evidence, testimony and arguments presented in
rendering this Award.
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ISSUES
During the course of the hearing the parties agreed upon the
following issues:
1. Did the City have just cause to discipline the
grievant with
an eleven (11) day suspension on February 4th, 1999 for
actions committed on January 4 and 5, 1999?
2. If not, what is the
appropriate remedy?
3. Did the City have just cause
to discipline the grievant on
June 15th, 1999 for actions committed on April 6th,
1999?.
4. If not, what is the
appropriate remedy?
5. Did the City have just cause
to issue a warning letter to the
grievant on June 29, 1999?
6. If not, what is the
appropriate remedy.
7. Did the City have just cause
to discharge the grievant on July
2, 1999 for actions committed on June 30th, 1999?
8. If not, what is the
appropriate remedy.
PERTINENT CONTRACTUAL
PROVISIONS
ARTICLE IV
MANAGEMENT RIGHTS
Except to the extent expressly abridged by specific provisions
of this Agreement, the City reserves and retains solely and
exclusively all of its Common Law, statutory law, and inherent
rights to manage its own affairs.
The Union recognizes the City's right to
manage its affairs
and direct its work force. Furthermore, the City has all the
customary and usual rights, powers, functions, and authority of
management, including but not limited to the right to decide the
number and location of its facilities, work and services to be
performed, amount of supervision necessary, methods, means, and
number of personnel needed, the amount and quality of work, and the
right to change existing methods, utilize temporary and part-time
employees, or purchase the services of others.
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MA-10881
It is further recognized that the
responsibilities of the management of
the City for the selection and direction of its work force
including the right to hire, suspend, or discharge for cause,
assign, promote, or transfer, to determine the amount of overtime
to be worked, to relieve employees from duty because of lack of
work or other reasons is vested exclusively in the City. The Union
recognizes the exclusive right of the City to establish reasonable
rules and regulations.
It is understood by the parties that every
incidental duty connected
with a job is not always described in the job description.
Nevertheless, it is intended that the employees shall perform all
duties of their job.
The Union pledges cooperation in
accomplishing the above.
. . .
ARTICLE XII
OVERTIME
. . .
Section 2. Compensatory Time Plus
Hours. The first sixty (60) hours
(converted to a dollar amount) of overtime worked in each calendar
year shall be accumulated as plus hours unless the employee
notifies the Payroll Department in writing by November 1 that
he/she does not elect to accumulate said plus hours for the
succeeding year. The employee may request said sixty (60) hours
off in accordance with the following provisions:
(a) All requests for plus
hours
usage must be approved by the
employee's supervisor and must be made forty-eight (48) hours in
advance of the day wanted off. No plus hour usage will be granted
during any period when in the judgment of the employee's
supervisor, the employee's services are needed.
(b) Said accumulated
plus hours not used shall be paid out on
the first pay day in November of each year. Compensatory time for
the following year shall start accumulating immediately after the
November payout.
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PERTINENT CIVIL SERVICE
RULES
SECTION XIX. STANDARDS OF CONDUCT
A. Purpose.
1. Probationary employes are
employes at will and are not
subject to progressive discipline. As such, they may be terminated
without cause at the discretiion of the appointing authority and
without recourse to the Civil Service Commission.
2. The rules and regulations set forth
herein are
established to inform employes who have successfully completed
their probation period.of the City's standards of conduct, to
promote safe employe work practices and to improve the public
service. The City's philosophy is that discipline should be
corrective insofar as possible, not punitive. Discipline, when
necessary, is intended to benefit the employe and the City.
B. Procedures.
Discipline should be administered by the
employe's supervisor
when it becomes necessary. Depending on the seriousness,
magnitude, or repetition of rule violations, an employe may be
subject to any of the following types of discipline. Disciplinary
procedures and hearings will comply with applicable labor
agreements or Civil Service Rules.
Employe Counseling/Verbal Warning. The
supervisor talks to an
employe following a minor offense in an effort to eliminate
possible misunderstandings and to explain what constitutes proper
conduct.
Written Warning. The employe is issued a
written notice of
disciplinary action following misconduct.
Suspension. Disciplinary time off without
pay.
Final Written Warning. The employe is
issued a final notice of
predischarge disciplinary action which may include suspension
following serious misconduct or accumulation of minor offenses.
Discharge. The employe is terminated as a
result of serious
misconduct or after a Final Written Warning has been given.
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Grounds for Discipline.
Violations of City rules and regulations
shall be deemed
grounds for disciplinary action. Examples of just causes for
dismissal, suspension and warnings are grouped below although
discipline may be administered for other just causes.
GROUP I RULES.
The following example is an illustration of
progressive
discipline for Group I offenses; however progressive discipline may
be changed depending on the seriousness or repetition of rule
violations:
* Employe counseling/verbal
warning.
* Written warning
* Written warning and suspension
* Final written warning
* Discipline up to and including
discharge.
1. Violation of safety
rules and/or procedures or failure to
report an accident or failure to report any serious
violation of rules or laws.
2. Unexcused Absence.
3. Tardiness or failure
to begin work at designated time.
4. Inefficient or careless
performance of duties, failure to
maintain reasonable job standards or perform required
duties.
5. Failure to observe
work schedules including starting,
quitting, and break times.
6. Leaving the assigned
work area without authority while on
duty or loitering.
7. Interfering with
another employe's work performance.
8. Reckless or careless
use of equipment or damage to City
and/or private property.
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9. Engaging in personal
work or outside business activities
on City time, or unauthorized use of City property or
privileged information for personal work or outside
business activities.
10. Offensive conduct or
language toward the public, City
officials, or other City employes during working hours
and official City meetings.
11. Gambling or
unauthorized soliciting of any kind for any
purpose during work hours or on City work premises.
12. Soliciting or
receiving anything of value from any person
for services rendered or in the hopes or expectation of
receiving a favor or special treatment in the course of
City employment.
13. Unauthorized posting
of any material or removal or
altering of any official material on City work premises.
14. Failure to report for
overtime work without a valid
reason after being scheduled to work according to the
overtime policy.
15. Breach of statutory
confidential materials: example,
divulging confidential matters to an unauthorized person.
16. Harassment on the
basis of sex, national origin, color,
age, handicap, religion, or sexual preference.
II. GROUP II RULES
An employe will be subject to discipline up
to and including
discharge for the following Group II offenses; specific warnings
need not precede discharge.
1. Consumption of
alcoholic beverages or being under the
influence of intoxicants on City work premises.
2. Use, possession, or
sale of illegal controlled substances
or illegal drugs during work hours or on City premises or
in City vehicles.
3. Unauthorized
possession or use of a weapon or explosives
during work hours or on City work premises or in City
vehicles.
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4. Falsification of
records, including timecards, or making
false claims for personal gain, including misuse of paid
sick leave, or falsifying testimony.
5. Theft or unauthorized
possession of property belonging to
the City or to another employe or the commission of any
other crime while on duty.
6. Absence from work
for three consecutive workdays without
notifying the department unless it was impossible for the
employe to do so.
7. Instigating or
participating in any walkout, slowdown,
strike or refusal to return to work at the scheduled
time, or other concerted curtailment or restriction of
production or interference with City work in or about the
City's work stations.
8. Deliberate
misconduct including horseplay or fighting
which results in injury to any person or damage to
equipment or property or sleeping on duty.
9. Insubordination or
failure to follow any lawful order,
directive, regulation, or law.
10. Threatening,
intimidating, coercing or harassing
employes, supervision, or the public during working hours
and official City meeting.
D. Removal of Disciplinary
Warnings. The clearing and removal of
disciplinary records shall be as follows and consistent with
the terms of any labor agreement.
1. Documented verbal
warnings and written warnings not
involving a suspension except Final Written Warnings
shall be removed from the file and destroyed after two
years of a clean record.
E. Demotion.
The City may use demotion when
disciplinary action would not
prove appropriate and/or effective in enabling an employe to
perform satisfactorily in his/her position. Demotion may be made
upon the recommendation of the Department Head and approval of the
Personnel Director consistent with any labor agreements.
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F. General Information.
1. Sexual Harassment Complaint
Procedure.
Victims of sexual harassment may file an
informal or formal
complaint pursuant to Resolution No. 461-84-85. For further
information, contact the Personnel Department.
2. Outside Employment.
Outside employment shall not conflict with
the interest of the
City. Employes of the City may not engage in outside job
activities while on duty nor may City property be used for any
but approved City functions.
3. Reporting Absences.
When you are unable to come to work as
scheduled, it is
essential that you promptly report your absence to your
immediate supervisor prior to the start of your shift or
schedule. Report the reason for your absence and keep your
supervisor advised if absences must continue.
4. Address and Phone Numbers.
All employes must immediately report any
change of address
and/or phone number to the Personnel Department and their
immediate supervisor.
5. Supervisor's Role.
All supervisors should refer to the City's
Supervisor Manual
for Personnel Management before administering discipline. All
actions which may result in discharge must be authorized by
the Personnel Director and/or City Attorney. Supervisors are
responsible for maintaining standards of conduct among their
employes so that the work force remains effective and
efficient. Most employes know that there are basic standards
of conduct in every organization and they expect the
supervisor to enforce them.
6. Distribution of Rules.
A copy of this section shall be given to
each employe and
shall be posted for thirty days by each department head in
such a manner as it will bring to the attention of all his/her
employes.
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BACKGROUND
The City has employed Eilene Ribbens Rhode, hereinafter
referred to as the grievant, as a Public Works Inspector in the
City's Department of Public Works, hereinafter referred to as the
Department, for approximately nine years. After she was hired, and
on various occasions thereafter, the grievant has approached the
City with concerns that she believed she was underpaid in
comparison with other City employees. During December 1998 the
grievant engaged the Union President Mike Keppel and Union Vice-President Tom Horness
in a loud verbal argument about seeking her
a pay raise in the current collective bargaining negotiations. The
grievant's immediate supervisor, Ryan Sazama, intervened informing
the employees they should not talk in that manner in the office and
that Union business should be kept out of the office. Sazama
specifically informed the grievant she should not shout, scream or
disrupt the office in the manner that she was conducting herself.
During the latter part of December, 1998, the grievant took
vacation and her first day back was January 4th, 1999. On that day
she made comments to Horness about a puppy mill in the Sheboygan
area. The grievant is an animal rights activist. On various
occasions on January 4th and 5th, 1999 co-workers
observed the
grievant engage in various activities concerning the puppy mill.
Co-workers observed a letter on her word processor and overheard
her make phone calls to the media and a State of Wisconsin
legislator. The grievant also left for several hours on January
5th, 1999, and was observed at the Sheboygan County Sheriff's
Department. Sazama was informed of the matter and he raised it
with City Engineer Thomas Holton. They brought the matter to the
attention of Director of Human Resources and Labor Relations John
Becker. Becker, Sazama and Holton investigated the matter
including interviewing several employees. Becker also had City
Police Officer Robert Wojs investigate how much time the grievant
spent at the County Sheriff's Department on January 5th, 1999 on
her puppy mill complaint. Wojs concluded his report on January
20th, 1999 and thereafter it was submitted to Becker. Wojs
concluded the grievant spent over two hours at the Sheriff's
Department. On February 3rd, 1999 Becker, Sazama and Holton met
with the grievant to obtain her version of her work production on
January 4th and 5th, 1999. The grievant acknowledged
she had spent
some time on her puppy mill complaint although she did not agree it
was a significant amount of time. She informed them she had worked
over her lunch hour in December, her last work day prior to leaving
on vacation, and kept an informal compensatory time and she used
this time when she went to the Sheriff's department. The
grievant also stated she had left the office to check some north
side sidewalk crossings as part of a resurfacing program.
Becker, Sazama and Holton concluded that the grievant
falsified her time cards, and, because there had been a snow storm
of over a foot of snow on January 2 and 3, 1999, they concluded the
grievant could not of possibly been able to check sidewalk
crossings on January 5h, 1999. They then determined to issue the
grievant an immediate suspension of eleven (11) days. The grievant
was given the following letter of suspension and work rules to
govern her activities upon her return to work:
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Re: Suspension and remedial Action
Dear Ms. Ribbens-Rohde:
This letter is in reference to the activities
you reported on your time
cards and your actual activities on January 4, 1999, and January 5,
1999, and your personal use of City work time and equipment
including the telephone. You reported specific projects that you
were working on in the field and in the office on the above dates
when, in fact, you were at other locations other than reported,
conducting personal business. Specifically, you were at the
Sheboygan County Sheriff's Office and the County Court House
conducting personal business for a period of two (2) hours on
January 5, 1999, during a time you reported that you were working
on City projects. Additionally, you were witnessed, for a great
deal of the time that you report working in the office, making
personal telephone calls and writing personal letters regarding
some concerns that you had about an alleged puppy mill.
I discussed the above dates with you and
the City's belief that you
were conducting personal business on City time. You denied having
taken any personal time that could not be accounted for by your
self-authorized time-shifting from occasions in which you claim to
have worked more time than you reported. I also discussed with you
the personal long-distance phone calls that you made at, not only
at the expense of the City, but at times that you should have been
working. You claimed not to know that phone calls to Plymouth, WI
were long distance, and that calling neighbors was just like
calling home which you believed to be ok.
Your conduct, as noted above, violates
various City of Sheboygan rules
and policies, including, but not limited to: the City of Sheboygan
Civil Service Rules, Section XIX, Standards of Conduct, Subsections
C(I)(4), C(I)(5), C(I)(6), C(I)(9), and C(II)(4).
Considering the seriousness of your
conduct in using City time for
personal business, falsifying records to conceal that use of
personal time, and having submitted time cards for payment that
indicate eight hours of compensable time worked, for which you were
paid, and having had an opportunity to be heard, it is my decision
that based on all of the evidence gathered, you are hereby
suspended without pay for a period of eleven (11) work days
effective February 5, 1999. You are to immediately turn in your
Cellular Telephone, your radio, and your keys to the premises.
During the term of your suspension you are not to be on City
premises, and are to have no contact with any City employee outside
of the Human Resources office.
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Upon your return from your period of
suspension you will be required to
abide by the following corrective actions:
1. Your duties shall be
confined to the office (non-field) until
further notice.
2. Once deemed eligible to
handle field assignments, and until
further notice, said assignments shall, at all times, be
conducted in the presence of another employee of the
department as assigned by supervision.
3. You are to conform to all
City of Sheboygan and Department of
Public Works office rules and policies.
4. Breaks must be authorized
in advance by supervision and shall
not exceed one in any four hour period.
5. You are to conduct no
personal business on City time.
6. Personal use of the
telephone shall be kept to a de minimis
level.
7. In accordance with City
policy, there is to be no further
personal long distance calls made that are not reimbursed to
the City on a monthly basis.
8. Comply with any further
corrective action delineated upon your
return from your suspension.
Your progress in attaining reliability and
trustworthiness will
be reviewed on a monthly basis until such time as confidence in you
is restored in those aspects.
It is necessary to take the above remedial
measures in an attempt to
help you address your deficiencies in honesty, reliability and
trustworthiness, and become a reliable City employee. Your
cooperation is necessary and expected in achieving these goals.
Upon her return to work the grievant filed the instant
grievance. The City initially took the stance the grievance was
untimely and refused to process the matter. The Union filed a
Prohibited Practice Complaint with the Wisconsin Employment
Relations Commission. Thereafter the mattered was voluntarily
resolved and the matter was processed to arbitration. The City did
not raise a timeliness issue at the hearing.
The grievant also upon her return to work took issue with the
work rules the City placed upon her. On several occasions the
grievant had discussions and arguments with Sazama about their
fairness and continuation. The grievant continued to complain
about the unreasonableness of the imposed work rules up until her
termination on July 2, 1999.
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On June 6th, 1999, the grievant received a three (3) day
disciplinary suspension for allegedly giving the "finger" to Human
Resources Director Becker on April 6, 1999. Becker and the
grievant both park in the same parking lot, Becker in space 1 and
the grievant in space 14. The parking lot is a north/south
rectangular shape with an exit to the west at the middle of the
rectangle. At the conclusion of the work day both Becker and the
grievant got in their vehicle's and approached the exit lane at the
same time. Two vehicles were ahead of them and Becker motioned
with his hand for the grievant to proceed ahead of him. Becker
alleged the grievant responded by giving him the "finger".
Plumbing Inspector Larry Hilbelink was sitting in his vehicle and
observed the incident. On April 12th, 1999 Becker sent the
following to City Attorney Steve McLean:
To: Stephen G. McLean, City
Attorney
From: John
C. Becker, Director of Human Resources
Subject:
Harassing and hostile behavior of Eilene Ribbens-Rohde
Date: April
12, 1999
On Tuesday, April 6, 1999 at approximately
5:03 p.m., I was
exiting the employee parking lot in which my parking is assigned.
Two cars were cued-up to enter traffic onto ninth street in front
of my auto. Eilene Ribbens-Rohde and I were in equal position to
be the third car in the cue. I politely gestured for Ribbens-Rohde
to proceed ahead of me. The gesture was made with my left hand,
palm turned up, all fingers and thumb together, with a slight
horizontal motion from left to right indicating that she could
proceed. Almost immediately Ribbens-Rohde raised her right hand,
arm fully extended, and made an obscene gesture, extending her
middle finger vertically with her other fingers curled back. The
action of this gesture is commonly known as "giving someone the
bird," "the finger," "flipping me off," etc. This action on the
part of Ribbens-Rohde was witnessed by Larry Hilbelink, Plumbing
Inspector, and possibly other employees who were exiting the
parking lot at that time.
I have no doubt in my mind that
Ribbens-Rohde knew it was me to
whom she was gesturing. Recently I have had many dealings with
Ribbens-Rohde regarding disciplinary matters. This behavior
violates, in my opinion, the City's Civil Service Rules Standards
of Conduct. The City's Policy on Sexual Harassment and other forms
of Harassment, and the sixth (6th) minimum qualification on the
Public Works Inspector Job description which requires the "Ability
to create and maintain effective public and employe relationships."
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Prior to this specific incident, Ribbens-Rohde has glared at me
on several occasions. She has also made sarcastic comments and has
refused to respond to common cordialities such as saying "hello"
when I have seen her, as I do with all employees. Similar outward
hostility has been displayed to her superiors as well as her co-workers. This may possibly
amount to retaliation against those
people who have reported or assisted in the investigation of her
misconduct.
Thereafter McLean asked Hilbelink for a statement and on April
15th, 1999 Hilbelink gave the following written statement:
On April 6, 1999, at 5:05 p.m., I was leaving the parking lot
south of DPW. I had backed into my parking space so my truck was
facing west. As Eilene Rohde drove past the front of my truck she
made an obscene gesture at John Becker who was waiting in his car
to leave the parking lot.
On May 28th, 1999, McLean sent the following to Risk
Administration
Officer Mike Hotz:
Dear Mr. Hotz:
Shortly after providing me with the
enclosed attached memo, dated
April 12, 1999, Mr. Becker asked that I investigate the incident,
which I did on April 14 and 15, 1999.
After investigating the matter, I made the
following findings:
1. That on Tuesday, April 6, 1999, at
approximately 5:03
p.m., Director of Human Resources John C. Becker was exiting the
employee parking lot behind the Public Works/Engineering office in
his private auto.
2. That two cars were queued-up to
enter traffic onto Ninth
Street in front of Mr. Becker's auto. That Eilene Ribbens Rohde
was in her private auto and in equal position with Mr. Becker's
vehicle to be the third car in line.
3. That Mr. Becker politely gestured to Ms. Ribbens Rohde
to
proceed ahead of him.
4. That almost immediately, Ms.
Ribbens Rohde raised her
right hand, arm fully extended, and made an obscene gesture,
extending her middle finger vertically with her other fingers
curled back, commonly referred to as "giving the finger."
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5. This gesture by Ms. Ribbens Rohde
was also clearly and
directly observed by Mr. Larry Hilbelink, City Plumbing Inspector,
who was also in the process of exiting the parking lot at the time.
Mr. Hilbelink has no doubt as to the nature of the gesture having
been "the finger."
6. That Ms. Ribbens Rohde's
statement to this investigator
that she merely flashed the "peace sign," being an upright "V" with
the index and middle fingers extended, with the back of her hand
facing outward away from her is not credible in light of the clear
independent observation by both Mr. Becker and Mr. Hilbelink.
7. That Item I.10. of the Group I
Civil Service Rules lists:
"Offensive conduct or language toward the
public, City
officials or other City employees during working hours and official
City meetings."
8. That the listed Civil Service Rules
are provided as
examples of just causes for discipline, although discipline may be
administered for other just causes.
9. That the obscene gesture occurred
on the City employee
parking lot at the immediate conclusion of the work day, was
directed at Mr. Becker, and was obviously business related as Mr.
Becker, as Director of Human Resources, had had many recent
dealings with Ms. Ribbens Rohde regarding disciplinary matters.
10. That the City's Code of Ethics,
Section 2-261, et. Seq.,
Sheboygan Municipal Code, Code provides in relevant part that the
conduct of public employees in both their official and private
affairs should be above reproach so as to foster respect for all
government.
Determination:
That Ms. Ribbens-Rohde violated the
Group I Civil Service Standards of
Conduct and the City's Ethics Code in making a blatantly obscene
gesture toward a City department head on City premises as employees
were exiting at the end of the work day and that Ms. Ribbens Rohde
denied making this gesture in order to avoid the consequences of
her wrongful conduct.
McLean did not seek to find any other employees who may have
observed the incident. During direct examination McLean
acknowledged there is no specific work rule governing off duty
conduct that the grievant may have violated. On June 15th, 1999
Turner sent the following suspension letter to the grievant:
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Dear Ms. Rohde:
The City of Sheboygan has conducted a
formal investigation
regarding your conduct on Tuesday, April 6, 1999, directed toward
former Director of Human Resources John C. Becker. In the course
of the investigation, witnesses were interviewed. You were also
afforded an opportunity to present a statement to the investigator
regarding your position with respect to the alleged conduct.
The investigation discloses that on April 6,
1999, at
approximately 5:03 p.m. while waiting to exit the City's parking
lot in your automobile, you made an obscene gesture toward Mr.
Becker, commonly described as "giving the finger."
Your crude, offensive, and highly
unprofessional conduct
contravened Item I.10. of the Group I Civil Service Rules, as well
as Section 2-261 of the City Code of Ethics. This is unacceptable
on the part of any employee of the municipal government of the City
of Sheboygan. The seriousness of your misconduct was exacerbated
through being directed toward a City official who exercises
management authority over you.
For your conduct on April 6, 1999, you are
hereby suspended
without compensation for three days. The suspension will occur on
June 16, 17, 18, 1999.
You are further advised and warned that
any future conduct of
an identical or related character will result in further and more
severe disciplinary action, to include discharge from your
employment. Govern your actions accordingly.
As noted above, commencing with her return to work from her
eleven (11) day suspension the grievant challenged the
reasonableness of the City's imposed work rules. On June 10th,
1999 during a discussion with Sazama, the grievant informed him
that she was no longer going to tell a supervisor when she was
going to take a break because no one was ever in the office to
tell. Thereafter the grievant received the following written
warning:
Dear Ms. Ribbens-Rohde:
According to the letter sent to you on
February 4, 1999, from
the Human Resources Office, you were required to abide by a set of
corrective actions (copy of letter is attached).
Specifically, item #4 in the letter states:
"Breaks must be
authorized in advance by supervision and shall not exceed one in
any four-hour period." No one has told you anything to the
contrary. On June 10, 1999, at 3:41 p.m., you told your
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supervisor Ryan Sazama, that you were not
going to tell your
supervisors when you were taking a break because no one was ever in
the office to ask to take a break. This is unacceptable. You must
continue to have your breaks authorized by supervision in advance.
When none of your four supervisors, i.e., Ryan Sazama, Tom Holtan,
David Biebel, or Lloyd Turner is in the office, you shall tell the
engineering secretary that you are taking a break.
For your conduct, you are hereby formally
warned. You are
further advised and warned that any future conduct of this nature
or related character will result in further and more severe
disciplinary action, up to and including discharge from your
employment. Govern your actions accordingly.
There is no evidence that after June 10th, 1999 that the grievant
took a break without seeking permission first.
On June 30th, 1999 the grievant, at approximately 8:00 a.m.,
confronted Sazama about the warning letter and the unreasonableness
of the work rules. The grievant became loud and disruptive.
Sazama told the grievant she should return to her office and they
would discuss the matter there. Sazama testified at the hearing
that in the grievant's office she continued to be loud and
disruptive, to the point Sazama thought, she was attempting to
provoke him into hitting her. Sazama informed the grievant she was
to follow the work rules until further notice. He turned to leave
and as he was walking out of the grievant's office, the grievant,
speaking in a low tone to herself muttered, "You're such an
asshole." Realizing that Sazama had heard her comment the grievant
went to his office and apologized. Thereafter the grievant
received the following termination letter:
Dear Ms. Ribbens-Rohde:
On June 30, 1999, at approximately 8:15
a.m. you appeared at
the office of your immediate supervisor, Assistant City Engineer,
Ryan Sazama, to present a complaint regarding a formal disciplinary
warning from the undersigned, which you received regarding a
previous work directive. You raised your voice in a
confrontational manner, disrupting the work environment of other
employees present. Because of this, Mr. Sazama asked that you
accompany him to your office. You did this and then resumed your
comments in the same loud, confrontational manner, challenging a
series of work directives, previously issued to you. As you made
these comments, you stood only inches away from Mr. Sazama. After
listening, Mr. Sazama advised you that the matters which you raised
had been reviewed with you at length on prior occasions, and that
he did not wish to discuss the matter further. You were instructed
to continue to comply with the directives. Mr. Sazama then turned
and walked out of your office. As he did this, you stated: "You
are such an asshole."
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MA-10881
Approximately fifteen minutes later, you
again appeared at the
office of Mr. Sazama and stated that you wished to apologize. You
then resumed discussing your complaint, using the same loud and
confrontational approach, further disrupting the department. Mr.
Sazama again listened. He then stated that he had heard enough and
repeatedly directed you to go back to work. You then complied.
You have been previously disciplined for
insubordinate conduct,
as well as disrespectful conduct directed toward a management
official of the City. You were clearly advised that conduct of
this type is unacceptable on the part of any employee of the City.
You nonetheless repeated this conduct, demonstrating to the City
that you have learned little, if anything, through prior
progressive disciplinary action. It is also evident that you place
little value upon your employment with the City.
For your conduct on June 30, 1999, viewed
in light of your
disciplinary record as a whole, you are hereby discharged from
employment, effective immediately.
Thereafter the matters were processed to arbitration and per
the parties' agreement consolidated into the one case before the
undersigned.
City's Position
The City contends it had just cause to suspend the grievant
for misuse of city work time and falsification of time cards on
January 4th and 5th, 1999. The City points out that the
January
misconduct was preceded by the grievant's disruptive behavior
concerning pay discussions with Keppel and Horness. The City
further points out that on or about January 3rd, 1999 and on other
occasions the grievant discussed with Sazama the possibility of
getting a pay raise. The City asserts the grievant used sixteen
(16) hours of work time on January 4th and 5th, 1999 to
deal with
her puppy mill complaint. The City argues that when the matter was
brought to management's attention they investigated the matter.
The City points out that Horness advised the grievant she was under
investigation and not to falsify her time cards for work performed
on January 4th and 5th, 1999. The City asserts the record
demonstrates the grievant spent the majority of her time over the
two (2) days on personal matters. The City points out even the
grievant acknowledged she spent an hour and a half on January 5th,
1999 on personal business and the City stresses her time card does
not reflect this time. The City contends it spent a significant
amount of time investigating the matter and on February 3rd, 1999
met with the grievant and gave her an opportunity to explain her
actions. The City points out she acknowledged making personal
phone calls, printing out letters, faxing materials and going to
the Sheriff's Department. The City acknowledges employees spend a
minor amount of time on personal business. However, the City
argues the time spent by the grievant was a significant part of her
total workday.
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MA-10881
The City contends the grievant violated City Civil Service
Rules and Department Office Policy/Procedures. The City points out
any compensatory time claimed by the grievant was not documented
nor was it approved by supervision. The City concludes that based
upon the investigation the misconduct merited an eleven (11) day
suspension.
The City also contends not only did the grievant spend hours
of her time writing personal letters, making personal phone calls,
and lobbing employees on a personal matter, the grievant abandoned
her job and undertook a personal crusade. The City asserts the
grievant can not make any argument to justify her actions. The
City argues the grievant's contention she used compensatory time is
not acceptable as it fails to comply with the usage requirements of
the collective bargaining agreement. The City asserts the grievant
attempted to deceive her supervisors as to her whereabouts. The
City contends her actions violated the City's Civil Service Rules,
that falsification of time cards is a form of theft, and that her
actions destroyed any trust the City could place in her. The City
also contends the work rules placed upon her were reasonable and
that the majority of these rules are to be followed by all
employees.
The City also points out that Becker met with the grievant's
bargaining representative Helen Isferding and promptly relaxed the
work restriction concerning being on the City's premises and having
contact with other employees. The City points out that Horness
also informed the grievant about the relaxing of the directive.
The City concludes it had just cause to discipline the
grievant for eleven (11) days for her conduct on January 4th and
5th, 1999.
The City also contends it had just cause to suspend the
grievant for three (3) workdays for displaying an obscene gesture
to a City management official on April 6th, 1999. The City argues
the grievant's attitude in the workplace was poor from December
1998 to June of 1999. The City points out she had a confrontation
with Holtan when she returned to work from her eleven (11) day
suspension about the configuration of her office. The City asserts
the grievant threatened other employees with attorneys and would
frequently say, "My attorney is going to love this." The City
argues that the grievant knew on April 6th, 1999 that Becker was a
management official. That when Becker waived for her to proceed
first she responded by raising her right hand into plain view and
extended the middle finger up with the back of her hand facing him.
The City points out this was observed by Plumbing Inspector Larry
Hilbelink. Hilbelink immediately pulled his vehicle up to Becker
and asked Becker, "Did I just see what I think I saw?" The City
points out that Hilbelink did not have any reason to lie. The City
asserts McLean did a timely and thorough investigation into the
grievant's conduct. The City contends that McLean's reasonably
concluded that the grievant's statement was not credible that she
flashed the peace sign not the finger. The City also contends its
Civil Service Work Rules and arbitral precedent were applicable to
the incident. The City concludes it had just cause to give the
grievant a three (3) day suspension.
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MA-10881
The City also asserts it had just cause to issue the June
29th, 1999 written warning to the grievant. The City points out
Horness testified he did not believe the grievant was accurately
reporting her breaks. The City also argues that the grievant
failed to demonstrate she was trustworthy and that it reviewed her
compliance with the February 4th, 1999 work rules on more than a
once a month basis. The City points out that Horness told Sazama
a member of the Union was violating the contract's break provision.
Thereafter, Sazama verbally warned the grievant about taking too
many breaks and he informed her if no supervisor was in the office
she was to tell the office secretary she was taking her break. The
City points out that on June 10th, 1999 the grievant informed
Sazama she would no longer adhere to the work rule to verbally
inform her supervisor of an intent to take a break. The City
concludes this is a refusal to comply with a work directive. The
City argues the grievant should have worked and grieved the rule.
The City concludes the warning letter was reasonable in light of
the grievant's insubordinate conduct.
The City contends it had just cause to terminate the grievant
based upon her conduct in directing profanity towards her
supervisor on June 30th, 1999 and in light of her entire
disciplinary record. The City points out that the grievant
confronted Sazama in his office in an hour-long tirade about her
warning letter. Concerned that the grievant was disrupting other
employees Sazama calmly asked the grievant to discuss the matter
privately in her office. The City avers that the grievant angrily
stepped forward to Sazama at one point so that their faces were
only inches apart. Sazama quickly backed away and directed the
grievant to comply with the work rules. At this point he turned to
leave the grievant's office and as he was going through the doorway
he heard the grievant say "You're such an asshole." Although the
grievant went to Sazma's office and immediately apologized, the
City asserts her actions were abusive towards her supervisor. The
grievant was complaining to her supervisor about a formal work
directive. The City concludes that in light of the grievant's
disciplinary record involving theft of time, falsification of time
cards, an obscene gesture toward a manager, refusal to comply with
work directives, and a general pattern of confrontational
disruptive behavior, the City had just cause to terminate the
grievant's employment. The City also asserts there are no facts to
support any assertion of Union animus or retribution for filing a
sexual harassment complaint or any other complaint.
Union's Position
The Union stresses that the grievant has been discipline free
since 1993. The Union argues that there was an undercurrent of
matters that preceded the events leading to disciplining the
grievant. In the Fall of 1998 she commenced seeking a pay raise
because she believed she was underpaid. The Union asserts that as
a result of the requests the City sabotaged her relationship with
fellow employees to bolster hostile testimony from them. The Union
argues that during the grievant's eleven (11) day suspension the
Department had their first staff meeting in six (6) to eight (8)
months and informed employees the grievant was keeping track of
employees conduct. Becker sent the following letter to the
grievant:
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MA-10881
During your due process hearing on February 3, 1999, you
made
allegations that the matters for which you were investigated were
also matters some or all of your co-workers were involved in. You
indicated that you were keeping records at your home with regard to
misconduct on the part of your co-workers.
YOU ARE HEREBY
ORDERED: to provide a copy of any notes or
other proof that substantiates your claims that your co-workers are
behaving in violation of City rules or policies with respect to
conducting personal business on City time, or any other misconduct,
to the Director of Human Resources and Labor Relations not later
than Monday, February 22, 1999, or withdraw the allegations if they
were false. Failure to provide your notes and other substantiating
materials on or before the above date shall subject you to
disciplinary action up to and including discharge. You are further
ordered to cease and desist making notations or keeping records of
employees behaviors on City time.
The Union contends these actions tainted fellow employees to
negatively view the grievant's past and future actions. When the
grievant returned to work she found her work area had been
rearranged, no one greeted her and no one spoke to her. The Union
points out it had to file a prohibited practice complaint because
the City would not let the grievant file a grievance. After her
eleven (11) day suspension the grievant in effect worked in a fish
bowl doing grunt work. The Union argues this all began because the
grievant asked for a pay raise.
The Union also argues that poor supervision led to a
dysfunctional Department. The Union points out Sazama would turn
on his heels and just walk away form the grievant. Sazama never
discussed the grievant's loudness with her nor did he ever put
anything about being loud in the grievant's personnel file. Sazama
was the grievant's supervisor for three years but didn't know if
she was assertive and did not know all the job duties the grievant
was responsible for. The Union points out that Sazama never
disciplined the grievant for yelling or screaming. The Union also
points out Holton gets a record of phone calls monthly but during
this matter questioned the grievant about phone calls that occurred
over five (5) years ago. The Union points out that the day the
grievant asked that Turner be investigated for harassment was right
before the finger incident and that she asked that Becker recuse
himself from the investigation, which Becker did not do.
The Union acknowledges that upon the grievant's return to the
work on January 4th and 5th, 1999 the grievant engaged in
personal
business. The Grievant made some personal phone calls, printed out
two letters she had typed at home and brought to work to print
because her printed had broken, and she stopped at the Sheriff's
office. The Union points out that it was not until later in the
week that she learned she may be in some trouble. The Union points
out that doing personal business at the office was tolerated, yet
the grievant was the only employee
Page 21
MA-10881
punished. The Union points out the City acknowledged it was not
enforcing the number of breaks employees took; yet the grievant was
the only employee punished. The Union points out the City allowed
employees to use office equipment for personal use, yet the
grievant was the only one punished.
The Union also asserts Becker did not do a fair investigation.
The Union argues Becker did not compare the grievant's phone usage
with other employees. The Union points out Becker never
investigated to see if the grievant did extra work on December
18th, 1998. The Union points out it took a month to investigate
the matter without approaching the grievant. The Union argues it
is very difficult to remember what one did one (1) month ago. The
Union also asserts the grievant was not given sufficient time to
prepare a response to the City's allegations.
The Union again points out the grievant had not been
disciplined since 1993. The Union asserts the grievant at most is
guilty of carelessness for not filing her time card out properly.
The Union also asserts the grievant had a degree of flexibility in
meeting with contractors and all she did was exercise that
flexibility. The Union also points out the City had no idea of how
long the grievant may have worked on the letters and thus failed to
meet its burden of proof except for the two hours the grievant was
at the Sheriff's office.
The Union also points out other smokers took more than two (2)
breaks and none were penalized or required to seek approval prior
to taking breaks. The Union avers that the penalty imposed by the
City was not corrective but punitive and demeaning. The Union also
argues the rules imposed upon the grievant were penalties that went
on for months with no measurable criteria for review.
The Union also points out the grievant was not disciplined for
the 'finger' incident until two (2) months after the incident. The
Union points out McLean received Becker's statement on April 12th,
1999 and Hilbelink's on April 15th, 1999. McLean made a
determination on the matter on May 28th, 1999. The Union argues
both Becker and Hilbelink give conflicting testimony as to the
position of the vehicles and how they viewed the grievant's hand.
The Union argues the City bases the discipline on a rule governing
on duty behavior and the incident was off duty. The Union also
argues a timely thorough investigation was not done pointing out
the City waited weeks until it talked to the grievant.
The Union contends the City did not have just cause to issue
the grievant a written reprimand on June 29th, 1999. The Union
avers that the grievant continuously attempted to talk to Sazama
about her breaks but she would only get in response that she had
been observed taking more than one break in the morning and receive
another copy of the February 4th, 1999 work rules. The Union
asserts the preauthorization of breaks only applied to the grievant
and was unreasonable work rule. The Union also asserts the City
never investigated to see if the grievant was taking unauthorized
breaks.
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MA-10881
The Union acknowledges that the grievant and Sazama had just
completed a meeting whereat he informed her that she was to do as
the City told her what to do until she was told otherwise and she
was to get back to her plumbing permits. At this point Sazama
turned around, opened the door and as Sazama was walking out the
doorway she muttered under her breath, "You're such an asshole."
The Union points out that the statement the grievant made was made
in frustration and that the grievant immediately apologized for it.
Further, the Union points out the letter of discharge makes no
reference to yelling and screaming. The Union also points out that
the grievant was telling Sazama she was going to file a grievance
over the written reprimand and that raised and loud voices are not
unusual when grievances are filed. The Union also points out that
managers and other employees have used profane words in the office
and no one has ever been disciplined for it. The Union concludes
that discipline is not warranted because the remark was not
directed toward the supervisor.
City's Reply Brief
The City asserts it took a reasonable amount of time to
investigate the grievant's conduct on January 4th and 5th,
1999.
The City also asserts that the grievant's creation of and use of
compensatory time was contrary to the collective bargaining
agreement. The City also asserts the office work assigned to the
grievant were all tasks which were a part of her normal work
functions and important to the entire Department. The City also
asserts that the grievant continued to take more than her allotted
breaks after her February suspension. The City argues this
demonstrated her trustworthiness had not improved. The City
contends the only reason the grievant was disciplined was because
of her own misconduct and that each of these misconducts was
seriously sufficient to warrant an immediate discharge. The City
also asserts it did not intentionally turn co-workers against the
grievant. The City contends it was the grievant's negative
behavior and complaints that caused other employees to avoid her.
The City also asserts Becker never harassed the grievant. The City
avers it did not make the grievant work in a fish bowl but that it
did expect her to work in a professional manner in accord with
office rules and policies. The City also asserts it was not the
grievant's request for a wage increase that caused problems, but
rather, the grievant's misconduct. The City also asserts that
contrary to the claim of poor supervision the grievant was given
the benefit of the doubt throughout this matter and provided with
progressive discipline and corrective measures.
The City also argues that the grievant was not a subject of
poor management but rather that the grievant was a poor employee
who chose to be aggressive and defiant. The City also asserts that
the grievant's pattern of behavior belies any argument that she was
a model employee unfairly portrayed by the City. The City points
out the grievant had the opportunity to work now and grieve later
but chose to disrupt the work environment. The City points out
that the grievant's creation of comp time highlights the fact she
had multiple inaccurate timecards and that she did not receive
authorization to use compensatory time. The City also contends
that the grievant did give Becker "the finger" and that Hilbelink
observed this event. The City argues the discrepancies in their
testimony are the result of the different angle they viewed the
event, but does not discredit the fact they both saw the obscene
gesture.
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MA-10881
The City also contends the June 29th, 1999 warning letter was
warranted based upon the grievant's refusal to inform supervisors
when she was going to be taken a break. The City argues the
grievant had a history of disrespectful comments and gestures to
employees and managers. The City further argues her disruption of
the office on June 30th, 1999 and insubordinate conduct
demonstrated her contempt for her supervisor and complete disregard
for the work environment. The City concludes the grievant fully
earned and merited her discharge from employment.
Union's Reply Brief
The Union stresses that the grievant did not direct profanity
towards Sazama. The Union points out even Sazama acknowledged his
back was to the grievant and the comment was in a muffled voice
(Tr. p. 300). The Union also points out the City took an unfair
amount of time to investigate "the finger" incident. The Union
also points out no one monitored the grievant's total actions over
January 4th and 5th, 1999 and the City did not prove the
grievant
used sixteen (16) hours of City time to do personal business. Nor
did the City prove she did not make up the time on the days in
question. The Union also points out there is no evidence the City
took any action to demonstrate the grievant was being disruptive
after December of 1998. The Union points out she was not
reprimanded for any outburst. The Union points out this is not a
case of violence, threats of violence, failure to obey a work
related order or repeated acts of insubordination. Finally, the
Union points out the grievant was never confronted with any
allegations that she was taking more than her contractual breaks.
When she was directed to go back to work she did.
DISCUSSION
The record demonstrates that prior to January 4th and
5th,
1999 the grievant had an acceptable work record with no
disciplinary acts for several years. The record also demonstrates
that on January 5th, 1999 the grievant left her workplace for at
least two (2) hours to conduct personal business. The grievant's
defense that she had accumulated undocumented compensatory time, as
the City points out, does not alter the fact she left her work
place without permission. The collective bargaining agreement and
the Department's work rules do not give the grievant the authority
to create or use compensatory time without the approval of her
supervisor. Thus when the City became aware that the grievant left
the work place to conduct personal business without permission the
City had just cause to discipline the grievant. Therefore the City
had just cause to direct the grievant to cease accumulating and
using undocumented compensatory time and had cause to discipline
the grievant. However, as noted above, the grievant had a clean
work record and there is no evidence in the record that the
grievant had left her work place without permission in the past.
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MA-10881
The directive the City issued concerning the grievant's breaks
is clearly unreasonable. The record demonstrates that when the
City commenced a "no smoking" policy, Department managers choose
not to enforce a strict break policy allowing employees to go
outside to smoke more that twice a day. Thus, when the grievant
acknowledged she had been taking up to as many as eight (8) smoke
breaks a day, the breaks she had taken were in clear view of
managers who chose to ignore her actions as well as the actions of
any other employee who smoked. Thus, for the City to single her
out as a violator of contractual work breaks is disparate
treatment. The City would have some basis for singling out the
grievant if the entire Department had been put on notice that
breaks would be strictly enforced and the grievant continued to
take more than the contractual breaks. However, given the City's
laxness in enforcing breaks it's decision to require the grievant,
and only the grievant, to seek approval prior to taking a break is
clearly unreasonable. The undersigned also notes here that given
the fact that there are times when there is no management in the
building, to require the grievant to receive management approval
prior to her taking her contractual break violates the terms of the
parties agreement. The grievant is entitled to one (1) ten (10)
minute break every four (4) hours. For the City to place into
being a rule that could have the effect of preventing the grievant
from taking a contractual break because no supervisor was present
is clearly unreasonable.
The undersigned further notes that the record demonstrates
Sazama was informed by employees that the grievant was not limiting
herself to her contractual breaks after the issuance of the
February suspension. However, Sazama chose to ignore such
information because he failed to discipline the grievant for
failing to comply with the directive. The City offered no rational
reason why, if Sazama believed the grievant was not complying with
the written directive concerning her breaks, he did not discipline
her for it. When a supervisor contends there was misconduct by an
employee and the supervisor does not promptly correct the action or
chooses to ignore the misconduct, the employer can not then claim
that whatever the employee did is demonstrative of the employee's
failure to comply with written directives. The City has correctly
pointed out that if an employee believes a rule to be unreasonable
the employee grieves the rule but still follows it. Herein, if the
City believed the grievant was not complying with the rule
concerning the grievant's breaks, the City chose to ignore such
actions if they occurred. Having chosen to ignore such misconduct
the City can not claim the grievant's actions were a continuing
example of the grievant's untrustworthiness.
The record also demonstrates the City asserts the grievant
could not have done a check of walkway crossings on January 4th or
5th, 1999 because there had been a major snowstorm prior to those
dates. However, there is no evidence that would demonstrate the
grievant did not go to those crossings, only supposition by the
City. Supposition does not meet the City's burden of demonstrating
the grievant did not do as she said. While the record demonstrates
the grievant spent at least two (2) hours at the Sheriff's Office
there is no evidence that she did not go to the crossing worksite.
Had the City immediately confronted the grievant with questions
about what she was doing on January 4th and 5th, 1999
and the
grievant informed the City that she checked crossways the City
could have gone to the worksite and determined whether she could in
fact
Page 25
MA-10881
have been able to check the wear on the crossings. However, the
City waited until February to obtain the grievant's version of what
she did on the days in question. To conclude one month after the
fact that the grievant could not have done what she claimed because
of a snow storm prior to her work dates is insufficient to meet the
City's burden of demonstrating the grievant falsified her timecard
and did not do as she claimed. The undersigned concludes the City
has no direct evidence she did not check the crossways. Having no
direct evidence that the grievant did not check sidewalk crossings
on the days in question the undersigned finds the City directive to
confine her to office work was unreasonable, particularly as the
Union pointed out, there is no ending date to the confinement.
The record demonstrates that the City has allowed employees to
do some personal work on City time. The record also demonstrates
that when the City became aware that employees were exceeding
practical limits on personal business it discussed the matter with
the employee to correct their actions. Herein the record
demonstrates that Sazama was aware on January 4th and
5th, 1999 of
employees' concerns that the grievant was doing too much personal
work (TR p.49). There is no evidence in the record as to why
Sazama did not immediately confront the grievant about doing
personal business on City time. While the grievant's questionable
conduct is compounded by the fact she left the office to do
personal business without seeking approval first, nevertheless, the
City has not demonstrated why it chose to treat the grievant's
actions differently then other employees who did personal business
on City time. There is no record that employees after being
confronted by management that they were doing too much personal
business on City time that they received a written warning for
doing personal business on city time. At most they were at first
talked to. There is no evidence the City has ever had to
discipline an employee for failing to stop doing personal work on
City time. The City offered no reason as to why Sazama ignored the
complaints of employees on January 4th and 5th, 1999,
why he failed
to confront the grievant immediately and why he took the matter up
with his supervisor rather than direct the grievant to cease what
he believed to be too much personal business. The grievant was not
hiding her activities. Anyone passing by could see her letter on
her computer monitor, overhear her conversations or see her fax a
letter. It is clear to the undersigned after watching the grievant
during the several days of hearing and her testimony that she can
be direct, overbearing and intimidating. It is also clear that she
is a zealous animal rights activist. However, there is no evidence
that had Sazama immediately informed and directed the grievant on
January 4th, 1999, or to at least on January 5th, 1999, to
cease
doing her personal business on City time that she would have
refused to comply with such a directive. Had the grievant
continued to do personal business concerning the puppy mill on the
City time the City would have had cause to discipline the grievant.
However, the record demonstrates the City has knowingly allowed
other employees to conduct personal business on City time. The
record also demonstrates Sazama knowingly allowed the grievant to
continue doing personal business on the City time after employees
informed him of her activities. The undersigned therefore
concludes the City did not have just cause to discipline the
grievant for making personal calls, sending personal faxes and
writing letters on January 4th and 5th, 1999.
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MA-10881
The record demonstrates that Isferding contacted Becker about
the work restrictions concerning prohibiting the grievant being on
City premises or contacting other City employees. Becker
acknowledged that he informed Isferding the grievant could talk to
her Union steward and use public facilities. These restrictions
imposed by Becker on their face would seem to violate not only the
grievant's contractual rights but some constitutional rights as
well. Becker never directly informed the grievant in writing about
the revisions. Thus even though Isferding and Horness contacted
the grievant separately and told her that portion of the written
directive had been relaxed she chose to comply with the directive
as written. The record also demonstrates that Becker never
corrected the matter in writing.
The undersigned notes here that Becker in his letter of
reprimand informed the grievant her performance would be reviewed
on a monthly basis. It is not unusual for an employer to increase
the evaluations of an employee to help them improve their
performance. However, the undersigned also finds there is nothing
in the record that would demonstrate the City on a monthly basis
reviewed the grievant's performance. The only evidence in the
record that the City ever reviewed the grievant's performance are
Sazama's negative responses to the grievant's requests that the
work rules be lifted. The undersigned notes here that Becker
imposed the work rules. He acknowledged they could not be lifted
without his input (Tr. p.84-85). There is no evidence Becker ever
met even once with Holtan, Turner or Sazama to review the
grievant's work performance and that such a review was transmitted
to the grievant.
Therefore, based upon the above and foregoing and the
testimony, arguments and evidence presented the undersigned finds
the City had just cause to discipline the grievant for leaving her
workplace without authorization to go to the Sheriff's Department
and for creating and using compensatory time without management
approval. The Union has pointed out this is the grievant's first
disciplinary offence since 1993. However, leaving work without
permission to conduct personal business, as pointed out by the
City, is a serious offense. Creating and using compensatory time
without the approval of the City is a serious offense.
Particularly when an employee has as much flexibility over their
workload as the grievant does. The undersigned therefore concludes
a disciplinary suspension is warranted. However, given the
grievant's work history and the City's failure to demonstrate that
the grievant did not drive to the sidewalk crossings or to take any
action to curb the grievant's performing of personal business on
January 4th and 5th, 1999, the undersigned reduces the
grievant's
suspension to a three (3) day suspension. The undersigned directs
the City to make the grievant whole for the loss of pay and any
benefits for the other eight (8) days she was suspended. If the
City has suspicions the grievant is not performing her duties in
the field nothing herein is meant to prevent the City from
monitoring her field activities.
The City has also alleged it had just cause to discipline the
grievant for allegedly giving a manager the "finger" as she left
the City's parking lot on April 6th, 1999. In its brief the City
cited two cases, Mead Packaging Company, 74 LA 881 (1980) and
Houston Grinding &Manufacturing Co., 106 LA 875 (1996), neither of
which are on point. Both dealt with on
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duty performance and insubordination. While the grievant was in a
City parking lot, it was after work hours and there was no
insubordination involved. There is also no evidence that the City
has any rules governing the off duty actions of employees in
situations such as the instant matter. However, the City can expect
a certain amount of respect and decorum from employees in their
actions with management officials when employees are off duty.
Herein, the grievant's actions were observed by Becker and
Hilbilink. However, Becker and Hilbilink gave conflicting
testimony as to what they saw and the positions of the vehicles
that Becker and the grievant were driving. Further, Hilbilink
testified the grievant could have had a cigarette lighter in her
hand (June 1st, Tr. p. 17). At the Unemployment compensation
hearing Hilbilink testified she gave "the finger" out the window
(Em. Ex. 27). While the City has attempted to give credence to
what Becker and Hilbilink think they saw by providing the
undersigned with a video reenacting the incident, this does not
overturn the discrepancies in their testimony. Further, there is
no evidence that McLean ever attempted to find out if the grievant
did give the "peace sign" to other employees. There is no evidence
that McLean investigated by asking either Becker or Hilbilink
whether the grievant may have been lighting a cigarette at the time
or whether she had a cigarette and/or cigarette lighter in her hand
when she flashed a response to Becker. Hilbilink testified that
other than the testimony he gave at the unemployment compensation
hearing, he never had a conversation with McLean (Tr. June 1st,
p.15).
Even if the City can demonstrate the grievant did in fact give
Becker "the finger", the question is whether such off duty conduct
of the type alleged to have been performed by the grievant is
grounds for discipline the City imposed. To be so the City would
have had to at least demonstrate that somehow the grievant's
alleged action of disrespect impacted on the way the City or the
grievant perform their functions. Herein there has been no such
showing with the City relying for the most part on a work rule that
governs on duty conduct.
Becker was insulted and Becker believed the grievant should be
disciplined for an act of flagrant disrespect. However, the
undersigned cannot ignore the discrepancies in Becker's and
Hilbilink's testimony concerning the position of the vehicles,
whether the grievant was in the act of turning or not, and how the
grievant presented her arm. Further, the fact the grievant was a
smoker and that one of the first things she could have been doing
is lighting a cigarette lend credence to her defense that she may
have been in the act of lighting and smoking a cigarette.
Finally, McLean's failure to timely investigate the grievant's
defense that she was waving a peace sign, with no rational reason
in the record why it took until May 28th, 1999 for McLean to
complete his investigation in the matter and the fact this was off
duty conduct the undersigned concludes the City did not have just
cause to suspend the grievant for three days.
Based upon the above and foregoing, and the testimony,
evidence and arguments presented by the City the undersigned
concludes the City did not have just cause to discipline the
grievant for allegedly giving a manager the "finger" on April 6th,
1999. The City is directed to make the grievant whole and to
cleanse her work record.
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MA-10881
The undersigned would note here that contrary to the City's
assertions, that fact the grievant was aggressive in trying to have
what she believed to be unreasonable rules overturned does not lead
to the conclusion the grievant was a poor employee. Nor is the
fact that the grievant complained about the rules on a regular
basis demonstrative that she was insubordinate. There is no
evidence that when Sazama directed her to go back to work that she
failed to do so. There is evidence that the grievant informed
Sazama she was no longer going to comply with the City's directive
that she obtain supervisory approval prior to taking her breaks.
Even though there is no evidence the grievant followed through on
her statement, her threat not to do so is grounds for discipline.
As the City has noted, work and grieve later is the standard
procedure. The undersigned finds the City's letter of warning that
such conduct is not tolerable is warranted and clearly placed the
grievant on notice she was to comply with the work rule or face
discipline.
The record also demonstrates that the morning after receipt of
the warning letter the grievant confronted Sazama about the matter.
The discussion became heated and Sazama directed the grievant to go
to her office where they could complete the discussion in private.
The record demonstrates they did go to her office where Sazama
informed the grievant she was to comply with the work rules. As
Sazama was leaving her office the grievant made a profane statement
about him, muffled and to his back.
At the hearing Sazama asserted that although swearing in the
office occurred on occasion, it was not prevalent (Tr. p. 73).
This assertion was contradicted by the Union and the City attempted
to resurrect this defense by claiming if such language occurred it
had never been directed at a supervisor. Herein the record
demonstrates the statement was made in a muffled voice and to
Sazama's back as he was leaving the grievant's office. Sazama
further testified he directed the grievant to go to the grievant's
office so that their discussion could be more private (Tr. p. 73).
That another employee, Horness, overheard any comments made by the
grievant is cause for concern. However, as the City cited in
Freightliner Corp., 95 LA 302 (1990), mere cursing in and of itself
is not sufficient basis for discipline and the grievant was not
refusing to follow a directive. The manner, spirit and exact
language used, the extent to which profanity is used and/or
tolerated all come into the decision. Herein the grievant had
continued to express her feelings about the unreasonableness of the
City's work rules. In five months of arguing this was the first
profane word the grievant had uttered. As in Freightliner Corp.,
the grievant was frustrated and being asked to do something she
found unreasonable. The statement was also made in private and
there was no intent on belittling Sazama in front of other
employees. Horness testified the comment was muffled and said to
Sazama's back (Tr. p. 300).
Based upon the above and foregoing the undersigned concludes
the grievant's actions do not rise to a dischargable offense. It
is evident profanity does occur in the office on occasion. While
the grievant used a profane term in describing her supervisor, the
comment was not directed towards him nor is there any evidence it
was an attempt to belittle him in front of other workers. The fact
the grievant continued to argue about the unreasonableness of the
break rule also does not rise to a dischargable offense. From the
date of its issuance to the date of her
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termination the City never disciplined the grievant for alleged
infractions of the rule, even though some employees reported they
thought she had been violating the break policy. Therefore, based
upon the above and foregoing and the testimony, evidence and
arguments presented the City is directed to reinstate the grievant
to her former position and to make her whole for any lost wages
and/or benefits.
AWARD
1. The City did not have just cause to discipline the
grievant with an eleven (11) day suspension on February 4th, 1999
for actions committed on January 4 and 5, 1999?
2. The City did have cause to discipline the grievant with
a three (3) day suspension and is directed to make her whole for
the other eight (8) days. The City is also directed to cease the
unreasonable work rules of confining the grievant to office work
and requiring her to seek supervisory approval prior to taking her
contractual breads.
3. The City did not have just cause to discipline the
grievant on June 15th, 1999 for actions committed on April
6th,
1999. The City is directed to make the grievant whole for any lost
wages and/or benefits and to cleanse her work record.
4. The City had just cause to issue a warning letter to the
grievant on June 29th, 1999.
5. The City did not have just cause to discharge the
grievant on July 2, 1999 for actions committed on June 30th, 1999.
The City is directed to reinstate the grievant to her former
position, make her whole for any lost wages and/or benefits, and to
cleanse her record.
The undersigned will retain jurisdiction of the instant matter
for ninety (90) days pending implementation of this Award.
Dated at Madison, Wisconsin this 6th day of April, 2001.
Edmond J. Bielarczyk, Jr., Arbitrator
EJB/gjc
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