BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 150, SERVICE EMPLOYEEES
INTERNATIONAL UNION, AFL-CIO, CLC
Mr. Darryl Evans, Union Representative, 6427
West Capitol Drive, Milwaukee, Wisconsin 53216-2198, appearing on behalf of Local 150,
Service Employees International Union, AFL-CIO, CLC,
referred to below as the Union.
Mr. Jeff Kipfmueller, Assistant General Counsel, East Hall,
185, P.O. Box 1881, Milwaukee
Wisconsin 53201-1881, appearing on behalf of Marquette University, referred to below as
The Union and the Employer are parties to a collective bargaining agreement which
effect at all times relevant to this proceeding and which provides for the final and binding
of certain disputes. The parties jointly requested that the Wisconsin Employment Relations
Commission appoint an Arbitrator to resolve a grievance filed on behalf of Charles
is referred to below as the Grievant. The Commission appointed Richard B. McLaughlin, a
of its staff. Hearing on the matter was held on August 19, 1998, in Milwaukee, Wisconsin.
hearing was not transcribed. The parties entered their positions at the hearing, and chose not
The parties were not able to agree on the issues for decision. I have determined the
poses the following issues:
Did the Employer have just cause to discharge the Grievant?
If not, what is the appropriate remedy?
ARTICLE I B MANAGEMENT RIGHTS
Section 1. The Management of the
Facilities Services operation by the Employer and
the direction of the working force, including the right to hire, assign, discharge for just
cause, and the
right to reduce the work force because of lack of work or budgetary constraints is vested
. . .
ARTICLE III B NO DISCRIMINATION
Neither Marquette University nor the Union shall
discriminate against any applicant
or employee on the basis of sex, race, color, religion, age, marital status, veteran's status,
origin, or disability as defined in any Federal or State law, statute or administrative rule.
ARTICLE IV B PROBATIONARY
Section 1. New employees shall
remain probationary and shall not become regular
employees until the completion of ninety (90) calendar days of service from the date of the
Upon completion of ninety (90) calendar days of probationary service, employees shall enjoy
from the last date of hiring.
shall have no seniority rights during the probationary period
and their employment may be terminated at any time in the sole discretion of the Employer.
discharged during the probationary period, such discharge shall not be subject to the
procedure. A probationary period may be extended, based upon the employee's work
not to exceed sixty (60) days. . . .
ARTICLE V B SENIORITY
. . .
Section 3. Seniority is defined as the
period starting from the first (1st) day the
employee is hired by the Employer and continuing until the employee: (a) quits, (b) is
just cause . . .
ARTICLE VI B GRIEVANCE PROCEDURE
Section 3. AUTHORITY
AND SCOPE OF ARBITRATOR: The decision of the
arbitrator shall be in writing and shall be final and binding upon the Employer, the Union,
employee or employees involved and all other affected employees. The arbitrator may
decide only the particular grievance presented in the written stipulation and the decision shall
solely upon the application or interpretation of the provisions of this Agreement. The
not have the right to alter, modify or change this Agreement, nor shall render an award
to a date earlier than the date of the grievance submitted in writing to the Employer . . .
arbitrator shall not have the right to consider, rule or enter any award with respect to
action imposed upon an employee for refusal or failure to perform assigned job tasks, except
the employee can positively establish that the performance of such task would have created a
health hazard to him/her. . . .
ARTICLE XVIII B DISCIPLINARY
. . .
Any and all written reprimands and/or memos of
reprimands for disciplinary action
shall be effectively removed from the employee's personnel file eighteen (18) months after
of each reprimand. Suspensions of five (5) or more days shall be removed from the
personnel file twenty-four (24) months after the date of the reprimand(s). Once removed,
disciplines shall not be raised or referenced in any future discipline(s) or arbitration hearings.
The grievance form, dated January 6, 1998, states the background of the grievance
Mrs. Welch violated my probationary period. She let me
work 92 calendar days, then she
gave me a letter telling me I didn't make my probationary period. I worked from Oct. 6,
January 6, 1998. I do believe I have the right to file a grievance under the Union contract.
The grievance form cites Employer violations of Articles III, IV and Aany other
and seeks that the Grievant be reinstated with back pay.
The Grievant punched in for his first day of work at 11:59 p.m. on October 6, 1997.
scheduled shift was October 7, 1997. Judy Welch is a Service Manager of Facilities
was the Grievant's immediate supervisor. She issued the Grievant a letter of termination
January 6, 1998, which states:
You have come to the end of your 90 day
probationary period. I regret to inform you
that you have failed to meet the requirements of a Custodian I at the University and that I am
recommending your continued employment. I have reached this decision based on the
1. While you have demonstrated
the ability to perform the basic custodial tasks assigned, you
continue to have difficulty in your judgement and flexibility.
This has resulted in areas of your assignment being
neglected or done poorly.
2. You have difficulty in following
instructions when it is necessary for you to cover areas
for absences or vacations of co-workers. This has also resulted in areas not being covered or
3. You have had one occasion of
tardiness and two absences in an eight week period. This
is considered to be frequent to excessive.
At this point in time, you
should be able to determine and adapt to the changing use
of your assigned area by University students. You have not demonstrated an ability to do so.
Because of this inflexibility, resulting poor work quality, and frequent occurrences of absence
tardiness, I am terminating your employment with the University. . . .
Prior to issuing this letter, Welch discussed the matter with her
immediate supervisor, Jerry Kohn.
Welch documented her concerns to Kohn in a memo dated January 5, 1997, which treated
Grievant as a probationary employe and which recommended terminating him as a function
The Grievant did not testify. Welch, Kohn, Melanie Lontkowski, Jackie Roob, and
Duffy did. The remaining background is best set forth as an overview of their testimony.
Judy Welch's Testimony
Welch walked the Grievant through his duties on his first day of work. She worked
for his first three days of employment and oversaw his orientation as a new employe.
things, this orientation included a review of his job description and a review of Employer
For a brief period during his initial training the Grievant worked day shift hours. He then
a shift ending at 6:00 a.m. Throughout his first few weeks of employment, Welch would see
Grievant roughly three times a week, typically at the end of his shift.
Welch testified that she observed problems in the Grievant's work performance soon
he was hired. She discussed those problems with him. She also put those concerns into
a memo dated November 17, 1997, headed "PROBATIONARY EMPLOYEE; SIX WEEK
REVIEW." That memo states:
. . .
Custodian I, you are expected to know and effectively utilize basic custodial techniques.
You have demonstrated such knowledge in your job assignment to date. In this area, you
have met the requirements of your position to date.
concerned about your ability to complete your job assignment in the allotted time. A
review of your time card shows that you frequently take longer than six hours to complete
your assigned duties during the routine work day. Improvement is needed in this area. I
suggest that you be more aware of how much time you devote to each task during your
routine and determine if you are using your time effectively.
QUALITY OF WORK:
The quality of
your work is effected (sic) by your use of time. The cleaning of your
classrooms is very good. However, you have needed to be reminded to do your stairs and
hallways at Cudahy. You have made improvement in those two areas in the past two weeks
and I would like to see this continue. The area in which you need to improve is in balancing
quality with quantity in your assignment. You focus on the cleaning of classrooms, which is
important, but you do not allow enough time to complete your other tasks.
ATTENDANCE AND PUNCTUALITY:
absence and one tardiness, you have two occasions of time lost from work since
your start date. If this pattern continues, this would be a cause for termination of
for failure to meet attendance requirements. Reliability, as demonstrated by good attendance
and punctuality is critical to your position.
Your job description, which
you have been given a copy of, states that standing for
prolonged periods of time, climbing of stairs, bending, etc. are requirements of this position.
observed that at the end of your shift, you frequently massage and/or favor your right
have not indicated that you require any accommodations to meet the requirements of this
Nor have you indicated that the required standing, climbing of stairs, etc. would adversely
any medical condition you may have. Your action, however, would indicate that your are
difficulty with your knee and/or leg. If there is a problem, and accommodations must be
I ask that you discuss this with me and/or the Human Resource Department prior to the end
Your goals in the next six
weeks . . . are as follows.
1. Complete your assigned duties
within the allotted six hours. To do this, you will need to
develop a routine that incorporates alternate or rotation cleaning.
2. Monitor your attendance and
I will review your work in another three weeks. At that
time, I will evaluate your success in
meeting these goals. Please be aware that should you fail to meet the above two goals that I
the option of terminating your employment with the University.
At this time, please consider
what additional training or assistance would help you
meet the requirements of your position. I am available to you for any additional training and
work one on one if you so request.
In a handwritten memo to the Grievant dated November 24,
Welch stated the following concerns:
No classes Wed. Tues. pm & Wed use time to get
dusting done in classrooms.
Also do upper level stairs more
frequently -- dust balls!
Give Varsity a good cleaning tonight -- if you sweep
leaves away from front doors of Var.
you'll have less problem with them blowing inside.
Cudahy -- Reminder @
trash/recycle in hallway -- pick up & wipe off cabinet also -- inside of
Welch stated she had observed these problems more than once prior to issuing the
In a handwritten memo dated December 1, Welch stated:
What's happening @ Varsity -- Last 2 wks
Leaves entry/lobby have not been
cleaned up. This should be done for classes next Wed (the
3rd). Next week Varsity used Mon 8-10 Wed 1-3 & Thur. 8-10 for
exams -- Be sure it is cleaned for
these three days.
Welch stated she attached this memo, as all of her handwritten
memos, to the Grievant's time card.
Sometime after this memo, Welch wrote the Grievant another handwritten memo,
Improvement is needed in the following areas:
- Steps -- check all stairs -- not just
from 2 down!
- 101 & 108 -- these are also
classrooms -- do daily!!
- Trash bins -- check inside &
damp wipe off tops
Reminder bathroom floors are
mopped daily -- not just swept -- check by urinals & toilets!
Varsity -- when did . . . last dust
mop stage -- vacuum steps up & down -- check upstairs --
mop floors in entry on women's bathroom ?? Mirrors & door glass need work!
Classrooms should not take as
much time during exam week & there are no classes the
following week -- I expect problems taken care of!
Questions ?? -- See me!
She noted her reference to AClassrooms@ was a response to the Grievant's assertion
presence of students made it hard for him to keep classrooms cleaned within his schedule,
students dirtied his area after he had cleaned it.
In a handwritten memo dated December 13, Welch informed the Grievant of his
schedule and concluded with the following reminders:
One more thing -- Rooms 101 & 108 (Computer
Rooms on 1st Flr) & Varsity Theater -- These
areas need to be vacuumed better than they have been. Please look them over. Computer
Varsity leave till Sunday Night. Be
sure to check upstairs @ Theatre.
Welch issued the Grievant another handwritten memo, dated December 18, which
Now that classes are no longer in schedule -- You
should be using this time to attend
to such cleaning . . .
Dusting Mini-blinds -- window sills
-- radiator tops in classrooms (get gum out of radiators)
also chair rail
Wipe down desks -- chairs -- tables
Sweep & vacuum corners
Dust lights -- stall tops -- pipes etc.
Wash out trash (inside & out)
I went thru your area
& it does not appear you have started on this as yet.
The Grievant did not report for work on December 18. Welch
inspected the Cudahy facility on
December 20, and determined the Grievant had not complied with her instructions. She
had determined, by December 23, that she would terminate his employment. She was,
reluctant to advise the Grievant of her decision during the holidays.
On December 23, Welch broke her ankle. The break precluded her reporting for
January 5, 1998. In her absence, two of her fellow supervisors, Jackie Roob and Melanie
Lontkowski, assumed oversight of the Grievant. Each of these supervisors reported difficulty
the Grievant. Welch determined that she would discharge the Grievant as soon as she
Welch acknowledged that she did not give the Grievant the formal, three week review
in her November 17 evaluation. She stated that her periodic discussions with the Grievant
handwritten memos served the same purpose. She noted she did not want to
fire him, and kept him on past the end of classes to determine if his performance
would improve. She
also noted that prior to the Grievant, she had never discharged an employe for poor work
performance. She acknowledged that those employes she has discharged for poor attendance
received a verbal and a written warning prior to the discharge.
Lontkowski filled in for Welch on December 30. She testified that she relayed
the Grievant which Welch had previously given her. Specifically, Welch wanted the
remove trash from all office areas and clean the restrooms in the Cudahy facility. The
Lontkowski for extra hours to perform this duty and Lontkowski agreed.
Because of a then upcoming children's play, Lontkowski informed the Grievant he
need to cover his assignment at Varsity Theatre, because her crew would. She stated that
found Varsity Theatre to be Apretty well trashed,@ and documented her assessment of the
in a memo to Welch dated January 5, 1998, which states:
(W)hile we were covering Varsity Theatre, we
discovered the poor condition of the area. The
balcony area had not been attended to in quite some time. We also had to vacuum both sets
in addition to providing regular cleaning. It was evident, that (the Grievant) is Askipping@
a lot of
his responsibilities there.
Roob filled in for Welch on December 31, 1998. She documented her experience
Grievant in a memo dated December 31, which states:
(The Grievant) did not show up at timeclock to punch out
at 4:30 a.m. Being concerned, I
took Stan Clayton with me to find (the Grievant). I knew Joe had done Varsity so we went
Cudahy. We started on west side of 2nd fl., I found trash in hallway cans
and trash in offices that leave
their cans in hallway. Next we went into Lab 240, lights were all out, did not hear anyone.
been too loud, out of the far south east office (the
Grievant) appeared. I introduced myself
and asked him if he knew what time it was. He replied 5:00 it was 4:35. I inquired how
long he was
working. He replied until 6 because he was covering entire building. I then asked if he had
completed the other side of 2 (West). He replied he had finished. I then notified him that I
gone thru area and saw lots of trash. He then changed his answer and said he was not done
going there next. . . .
Roob advised Welch of her concerns by voice mail on December 31.
Kohn reviewed Welch's January 5 memo, then discussed it
with his immediate supervisor and
with Stephen Duffy, the Employer's Director of Human Resources. That discussion
resulted in a
consensus decision to accept Welch's recommendation. Kohn acknowledged that Welch's
added an unusual element to the discipline, but he stated that the decision to discharge stood
or not the Grievant was considered a probationary employe.
Kohn was unaware of Welch's adverse opinion of the Grievant's performance until
received the January 5 memo. He acknowledged that the Employer attempted to precede a
with a verbal and a written warning. He could not recall any prior instance of discipline in
Employer imposed discipline on a unit employe based on conduct during the employe's
period. He could not recall any prior instance in which the Employer felt compelled to do
Duffy noted that although the grievance form cites Article III,
he was aware of no allegation
of discrimination by the Grievant prior to his discharge. The Grievant, as all other
informed, at or shortly after their hire, of the procedure to file a complaint of discrimination.
Duffy stated that the Employer has historically attempted to issue a verbal and a
warning prior to the discharge of an employe. He added, however, that the Employer
right to accelerate or decelerate this process based on the behavior at issue and on the
involved. He acknowledged he could not recall any prior instance of the Employer seeking
or using, employe conduct during a probation period to justify discipline of a unit employe.
Further facts will be set forth in the
THE EMPLOYER'S POSITION
The Employer contends that the only reason the grievance reached this stage is the
coincidence of the close of the Grievant's probation period with an injury to his immediate
supervisor. Had Welch not been injured, the Grievant would never have passed his
That the Grievant survived his probation period has, however, no interpretive
this case. The Employer rigorously and consistently applied standards to the Grievant which
be considered to satisfy the requirements of just cause. The Employer reserves the right to
discipline based on the facts of each case, but does attempt to offer an employe a verbal
a written warning before imposing the sanction of discharge. The Grievant received several
during his probation period, and cannot assert otherwise unless it is assumed that by passing
probation period, his disciplinary slate was wiped clean.
No clause of the contract will support the cleansing of the Grievant's performance
No unit employe could expect to retain a position by working as the Grievant did. His
rated him as a A1@ or a A2@ on a A10@ point scale, if A10@ is considered the highest
That Welch was injured, and did not wish to terminate the Grievant during the Christmas
cannot lead to the result sought by the Union without eviscerating contractual standards
THE UNION'S POSITION
The Union contends that the application of the contract, in light of past practice,
considered in doubt. The Employer could have terminated the Grievant for any reason or no
at all during his probation period. If he was as poor a worker as the Employer asserts, it is
why the Employer elected to retain him throughout and beyond his probation period. That
Employer did this has, however, significant contractual implications.
At the close of his probation period, the Grievant acquired all of the rights and
the collective bargaining agreement. Consistent practice developed under the just cause
of the contract requires the Employer to precede a discharge with progressive discipline.
Grievant was discharged as a unit employe, but received no discipline as a unit employe.
Employer's attempt to refer to events falling within the probation period must be rejected.
to do so renders an employe's completion of the probation period meaningless, and reads
protection of just cause out of the contract. The Grievant, no less than any other unit
entitled to the benefit of the contract.
To remedy the Employer's violation of the agreement, the Grievant should be
his former position and made whole for lost wages and benefits.
The parties did not stipulate the issues for decision, and the issues I have adopted
the issue of the just cause standard stated in Article I, Section 1 and in Article V, Section 3.
applying that standard, however, it is necessary to touch on certain prefatory issues to
is not in dispute.
There is no persuasive evidence of discrimination under Article III. None of the
indicates the Grievant made any claim of discrimination at any point in his employment. The
evidence on the point is in Welch's November 17, 1997 evaluation of the Grievant. There
evidence that he has asserted a medical disability. The testimony establishes a consistent
work performance issues by his supervisors.
During witness testimony, the Employer asserted that the final sentence of Article VI,
3 may bar arbitral consideration of the grievance. To read that sentence to apply to the
incompetence and negligence at issue here would, however, read the just cause provision out
existence. The Arefusal or failure to perform assigned job tasks@ covered by that section
restricted to willful or insubordinate conduct. That the sentence limits its bar of arbitral
cases which do not create Aa serious health hazard@ underscores this. The final sentence
a Awork now, grieve later@ rule. An employe refusing a direct order to perform a task can
on arbitral review only if the dispute poses Aa serious health hazard.@ The Arefusal@
posed here is
not of that type. The Grievant may have failed to completely or competently carry out
is, however, no allegation he deliberately refused to obey a direct order.
Article IV, Section 1 is the contractual basis of the Union's assertion of the just
standard. Section 1 establishes that Athe completion of ninety (90) calendar days of
the probationary period. There is no dispute that the Grievant's January 6, 1998 discharge
beyond ninety calendar days from his date of hire. He was, with one potential exception,
the benefits of the contract as of the date of his discharge.
The exception is stated in the final sentence of Article IV, Section 1. That sentence
an extension of the probationary period Abased upon the employee's work performance@
more than sixty days. The parties have not extensively argued how, if at all, this sentence
applied to the grievance. They have extensively argued the application of the cause standard.
Against this background, it is unpersuasive to conclude that the Employer extended the
This focuses the parties' dispute on the determination of just cause. This is not,
a typical just cause case. In my opinion, the determination of just cause typically requires
elements be addressed. First, the Employer must establish the existence of conduct by the
in which it has a disciplinary interest. Second, the Employer must establish that the
imposed reasonably reflects that interest.
Here, the dispute does not turn on whether the Employer could, with just cause,
the Grievant for the type and frequency of misconduct alleged against him. Rather, the issue
whether the contract will permit the Employer to base discipline on misconduct occurring
This issue primarily poses a contractual, not a factual issue. The Union did challenge
Employer's factual allegations, but that challenge cannot obscure the fundamental strength
Employer's case. That Welch did not repeat her formal review of the Grievant's
stated in her November 17, 1997 evaluation can be noted, but does little to undercut the
force of her
concerns with the Grievant's performance. She testified, without rebuttal, that she regularly
with the Grievant regarding the deficiencies of his performance. Her issuance of all but one
handwritten memos is undisputed. That she did not discharge the Grievant prior to her
establishes no more than that she gave him the opportunity to prove he was worthy of
probationary period. This cannot be faulted under the labor agreement. The final sentence
IV, Section 1 underscores that the parties have mutually agreed that an employe should be
long as reasonably possible to prove their abilities.
A review of the testimony establishes that the Grievant received the verbal and
warnings which are afforded unit employes prior to discharge. Thus, the interpretive issue is
those warnings must be given to the unit employe after the probationary period to be
under the application of the just cause standard.
The Union's assertion that the Grievant's prior warnings cannot be considered in
application of the just cause standard is the strongest argument which could be made on the
Grievant's behalf. That argument is, however, insufficient to undercut the conclusion that
Employer had just cause to discharge the Grievant.
Initially, it must be noted that the Union's argument rests on the assumption that
probationary period voided the Grievant's disciplinary history. This assumption has no
contractual basis. That the contract afforded the Grievant its benefits upon his completion of
calendar days of service establishes that he acquired the rights of any unit employe. This
of establishing that he acquired any right beyond that granted any other unit employe. The
assertion presumes he acquired a right beyond those granted other unit employes and is, for
Seniority, under Article V, is a valuable benefit and is dated not to the point of
the unit but to the date of hire. This undercuts the assertion that time spent in the
probationary period has no contractual significance. Beyond this, Article XVIII
establishes how unit
employes can cleanse their disciplinary records. The second paragraph of that article does
distinguish between probationary and non-probationary service. Standing alone, this cannot
the Union's argument. However, it does indicate that the Union must contend that the
unlike any other unit employe, can remove reprimands from his file without putting in
months@ of service. This puts the Union in the difficult position of arguing that a
employe acquires rights not otherwise granted unit employes.
The Union's contention that this undercuts the application of the just cause provision
forcefully argued, but cannot change the conclusion stated above. Permitting the Employer
discipline on conduct occurring within the probationary period does not eliminate the
just cause. Article IV, Section 1 permits the Employer Athe sole discretion@ to terminate
employment of a probationary employe. Its action cannot be challenged through the
procedure. What the Grievant gained by passing the probationary period was not a Afree
the ability to challenge the Employer's conduct. This is a valuable right granted only to
employes. Because the Union has no right to grieve Employer actions within the
it acquires the ability to challenge all of the probationary period conduct the Employer asserts
establish just cause. More significantly, the Union acquires the right to challenge the basis
Employer's conduct. If the Employer had chosen not to employ progressive discipline; if it
chosen not to document its conduct; or if it had chosen to discharge for reasons not based on
performance, then its actions could be overturned through the application of the just cause
Thus, the Grievant's completion of the probationary period secured for him the
challenge, in arbitration, the exercise of Employer discretion in exercising its authority to
This is what any other unit employe acquires through the just cause standard. Thus, the
attempt to assert the contract as a defense to the Employer's action cannot be accepted.
Grievant has no factual defense to the Employer's proven allegations of poor attendance and
work performance establishes that the Employer acted with just cause in discharging him.
The Employer did have just cause to discharge the Grievant.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 16th day of September, 1998.
Richard B. McLaughlin, Arbitrator