BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 150
THE SCHOOL DISTRICT OF PEWAUKEE
(Grievance of David Haberman)
Mr. Steven Cupery, Union Representative, Service Employees
International Union, Local No. 150,
8021 West Tower Avenue, Milwaukee, Wisconsin 53223-3215, appeared on behalf of the
Mr. Mark L. Olson, Davis & Kuelthau, S.C., Attorneys at
Law, 111 East Kilbourn Avenue, Suite
1400, Milwaukee, Wisconsin 53202, appeared on behalf of the District.
On November 4, 1996, the Wisconsin Employment Relations Commission received a
request from Service Employees International Union, Local No. 150 and the School District
Pewaukee for the appointment of William C. Houlihan, a member of the Commission's staff,
and decide a grievance pending between the parties. Hearing on the matter was conducted
February 25 and June 26, 1997 in Pewaukee, Wisconsin. Briefs and reply briefs were
the last of which was received on December 3, 1997.
This Award addresses a two-day suspension given to David Haberman.
BACKGROUND AND FACTS
David Haberman, the grievant, was hired as a Maintenance Technician in June of
position is a bargaining unit position, which is supervised by Patrick Acker, Director of
and Grounds, and is also subject to the supervision of the school principal where the
Technician is working.
Mr. Haberman is a journeyman electrician. In his employment application, Haberman
claimed the following among his credentials:
Experience and installation and maintenance of commercial and industrial
electrification systems; power distribution, motor applications.
. . .
Experience and installation in maintenance of building environmental systems:
. . .
Troubleshooting experience relating to the above-mentioned systems.
. . .
Developing "preventative maintenance" schedules for electrical distribution and
. . .
Experience in plumbing applications.
. . .
Mr. Haberman's application listed approximately 20 years of prior work experience.
Haberman had been employed by the District for a period of 4 ½ years prior to
giving rise to this Award. In that period, Haberman had been disciplined on four prior
On November 19, 1993, he received a written warning for leaving tools, supplies and
ladders on the
floor of the gymnasium after completing some work. When Acker asked him about it, and
someone else had to move them, Haberman's reply was "Shit happens" and that there was no
to help him. On that same day, Haberman evidently took a van to get supplies without
see if it was otherwise signed out. It caused
other people to go in search of the van, and for teachers and children to have to wait.
On March 29,
1994, Haberman was given a written warning for failing to clean a condenser coil, which
lead to a
compressor having to be replaced. Haberman had signed a preventive maintenance sheet,
that the elementary school kitchen equipment was "OK, coils cleaned". On October 17,
Haberman was given a written warning for his failure to use a proper lock out/tag out
Haberman had left equipment which was being repaired in a position where it could have
turned on accidentally. On November 7, 1995, Haberman was given a written warning for
his work station early.
Acker testified to Haberman's extensive training, specifically on HVAC systems.
testified to receiving little such training, none of which was specific to the mechanical
presented on January 31. Nothing in the record suggests that Haberman received specific
instruction on how to handle mechanical emergencies the like of which occurred on January
On March 12, 1996, Mr. Haberman was given a two-day suspension for events
occurred on January 31, 1996. The suspension letter, issued by his immediate supervisor,
J. Acker, provides as follows:
To: David Haberman
From: Patrick J. Acker
Date: March 12, 1996
This memorandum will advise you of a suspension upon which you will be placed
for the reasons which are stated below:
On January 31, 1996, you were called to the Pewaukee Elementary School, as a
result of an emergency which had occurred in the building. Specifically, there were
two broken water pipes, caused by extreme cold, and it was discovered at 7:15 a.m.
on that morning that water was running out of the broken pipes in the school. You
were called to the building, in your role as our maintenance expert, to deal with the
situation. I have received reports from various people with whom you interacted at
the elementary school that you did not handle these emergencies well.
According to the reports which I received, you were unable to isolate the leaking
coils and repair them, and, rather than dealing with the situation, you suggested that
school be closed. With the help of other persons, the situation was brought under
control, and it was not necessary to close school, despite
your insistence that such was the only way to deal with this emergency. I have also
been advised that your attitude on that date was not helpful, that you resisted
direction on that date, and stated that you did not wish to be at the Elementary
school, despite the need for your presence to deal with those emergency situations.
In addition to the events which occurred on January 31st, 1996, your
indicates a number of instances of poor work performance, failure to follow work
instructions, and attitude problems, including incidents on November 23, 1993;
March 29, 1994; October 17, 1995; and November 7, 1995. All of these incidents
have been documented and you received memoranda dealing with these issues.
These incidents, coupled with the inadequate work performance and poor attitude
which you displayed on January 31, 1996, lead to the necessity for the issuance of
You are being suspended for two days, without pay, with these days to be taken on
March 13, 1996 and March 14, 1996. It is my sincere hope that you will take some
time to think about your job performance and your attitude, in order to make some
positive changes. I will be monitoring progress in these and other areas relating to
your work as a maintenance employee. Failure on your part to improve in these
areas could result in further disciplinary action.
The events giving rise to this discipline arose on January 31, 1996. On that date, a
day, the outdoor temperature was at 0 degrees, with a significant wind chill. Due to the
cold temperature the previous night and early morning, coils on two of the heating units in
Pewaukee Elementary School; one in the teacher's lounge and one in a first-grade classroom,
The leaking pipes were discovered at about 7:00 a.m. by elementary school head custodian
Christian. Christian, and custodial co-worker Candy Miller immediately put barrels under
leaking water and began cleaning up. Christian also radioed Haberman regarding the
shortly after 7:00 a.m., and requested his assistance. Upon receipt of the message,
away the tools he was working with, got his boots, and came to Pewaukee School.
The parties offer significantly differing stories as to what occurred following
arrival at Pewaukee School. The District relied upon the testimony of Norman Bruce,
Pewaukee Elementary School, Patrick Acker and Cheryl Christian. Norman Bruce arrived in
building at approximately 7:15 a.m. It was his testimony that upon his arrival he witnessed
coming from the ceiling of both rooms. He talked with Haberman, and according to Bruce,
Haberman indicated that the building had no shut-offs. Bruce testified that he never saw
look for a shut-off. According to Bruce, Haberman indicated that the only solution to their
was to shut off the boiler and close
the school. Given the timing, it was Mr. Bruce's testimony that it was not possible to
call off school
because it was a very cold day, with many elementary school children on their way into the
or on bus stops, and no way to return them to their homes. Closing school would have been
impractical and expensive.
According to Mr. Bruce, Haberman did not join the effort to look for shut-off valves,
rather was in the hallway talking to teachers, telling them that there were no shut-offs.
Bruce and Christian went into the basement where Bruce suggested that the circulating pumps
shut down in order to slow the flow of water. That was done. Bruce testified that Mr.
called Cox Plumbing, an outside contractor, to get someone who could come and attend to
problem. According to Bruce, Haberman left the building shortly after 9:00 a.m., following
arrival of the plumbers. At that time, Haberman did not offer to help or to participate in the
up that was going on.
The plumber informed school officials that the coils had leaked and burst. Following
the plumber further indicated that the air had to be bled from the system. Bruce testified that
called Haberman back to bleed the system, and in response to his call, Haberman indicated,
not a custodian." Haberman attempted to bleed the system, but rather bled the pressure
failure to bleed the system delayed the recirculation of hot air. Bruce testified that he then
Haberman to participate in helping others move furniture. This was approximately 9:30 to
10:00 a.m. and Haberman helped move furniture following this direction.
That afternoon, Bruce testified that he saw Christian attempting to perform electrical
in the ceiling. He testified that the ceiling was wet and that she was uncomfortable doing the
He asked Christian whether she had called Haberman. She replied that she had, but he was
Following this exchange, Bruce called Superintendent Lee Wille and advised Wille that
was needed at the elementary school immediately. Wille subsequently called Haberman, who
in the midst of another project, and directed him to the elementary school. According to
Haberman stormed into the office area to perform the electrical work which he had been
to do. He performed the work, evidencing an attitude that made clear his resentment at
It was Bruce's testimony that Haberman did little or nothing to contribute to the
of the crisis. According to Bruce, Haberman did that which he was ordered to do, and
a poor attitude.
Cheryl Christian testified that when Haberman initially entered Pewaukee Elementary
School in the early morning, he advised her and Bruce that there was no shut-off, and further
indicated that school should be closed. It was her testimony that Haberman attempted to stop
the flow of water by forcing plugs into the leaking pipe. It was her testimony that
volunteered to clean up any of the mess. Christian testified that she observed Haberman
building following the arrival of the plumber.
Christian testified that she was disconnecting a ceiling fixture on the afternoon of the
She called Haberman for assistance, indicating to him that she had a light that needed
was her testimony that there was water dripping near the fixture. She testified that he
that he was in the middle of something else. She responded "okay", and indicated that she
didn't know how to do this procedure and asked him to walk her through it. He did so, and
indicated a willingness to try. It was after that exchange that Norm Bruce appeared, and
whether or not she had called Haberman. Christian, who does not like working with
was concerned over the wet conditions, indicated that she had called Haberman, but that he
the middle of something and did not have time. Bruce then called Superintendent Wille, and
Haberman was directed to assist in this project.
John Tall, a custodian, overheard radio communication regarding this crisis, and
Pewaukee School to assist. Tall went to the two affected rooms to lend assistance. He
people working in the classroom. He thereafter went to the teacher's lounge and started
ceiling tiles in search of the shut-off valves. He found the valves and turned them off. Mr.
prepared a written summary of his observations relative to January 31st, but
did not testify at the
A plumber found the shut off valve for the coil in the first grade room. The valve
to five feet from the coil and screened by a piece of sheet metal. Preventative maintenance
records indicate that Haberman had serviced the system heating coils, at least in April, 1995.
Patrick Acker was on vacation on January 31. Upon his return, he became aware
was concern over Haberman's performance on that day. Acker conducted an investigation,
consisted of talking with Haberman, Bruce, Christian and John Tall. Based upon this
he concluded that Haberman's performance had been inappropriate and issued the
memo set forth above, which summarizes his conclusions and observations relative to
The Union takes issue with many of the critical facts. The Union relies upon the
of Rick Lane, a former district employe, who at the time was a high school custodian, and
Haberman. In an effort to stem the flow of water, Haberman called Lane and asked him to
plugs to the Pewaukee School. Lane did so, and worked with Haberman, as Haberman
to force those plugs into the hole from which the water was leaking. It was Lane's testimony
the men realized they needed to find an isolation valve, and Lane
testified that he witnessed Haberman looking for a shut-off valve in the first grade
According to Lane, Haberman traced the pipe backward in his search. Lane testified that he
Christian say that she did not know if a shut-off valve existed or if it did, where it was.
testified that Tall indicated that he did not think there was a shut-off valve. It was Lane's
that a head custodian was expected to be able to handle an emergency such as a broken coil.
The Union called Randall Graborczyk, an air conditioning mechanic, as an expert
Graborczyk testified that the shut-off in the teacher's classroom was located in what he
characterized to be a "ridiculous location". The shut-off should never have been concealed
sheet metal. According to Graborczyk, the act of shutting off the circulating pump should
a last resort, in that it could lead to the freezing of other units.
David Haberman testified. It was his testimony that upon receipt of the phone call on
morning of January 31st, he grabbed his tools and boots and ran over to
help. His first stop was in
the teacher's lounge, where he asked Christian where the shut-offs were. It was his
she replied "there are no shut-offs". His second stop was the classroom, where he indicated
shut the fan off. He searched the heating unit for a shut-off and could not find one. It was
testimony that Christian indicated that she did not know whether there was a shut-off. He
pouring out of the end cap and determined to try and plug it. Haberman testified that he
went to the basement and began a search for a shut-off which lasted approximately 15
testified that he then went back upstairs to the classroom where he called Rick Lane in search
stoppers. He also called Cox Plumbing for assistance. When Lane arrived, Haberman and
went downstairs, where they were unable to find shut-offs.
It was only following this sequence of events that Haberman met Bruce. According
Haberman, he indicated that "if we can't isolate this problem, we may have to shut school
Haberman testifies that he never told Bruce there were no shut-offs, but rather that he could
It was Haberman's testimony that Christian, and not Bruce, asked him to bleed the
Haberman testified that neither he, nor Christian, knew how to bleed the system. Haberman
that he helped move furniture without being so directed. It was Haberman's testimony that
not leave Pewaukee School and subsequently come back, but rather, that he remained and
to work and did not leave until approximately 9:30 a.m. No one suggested that he
stay and clean
up. It was Haberman's testimony that he never told Bruce there was no way to remedy the
Haberman's account of the conversation with Christian relative to the light fixture
parallels Christian's. The one significant discrepancy in their recollections is that Haberman
testified there was no water running near the fixture. It was his testimony that he was in the
of installing a water fountain in the High School. In order to clean up old and new water
tools, etc., and to clean up the area involved significant disruption and time. Nevertheless,
as directed, returned to Pewaukee Elementary School, and performed the electrical work
comment to anyone.
Haberman denies that he stood around talking to teachers. He further denies telling
that he was not a custodian in response to a Bruce directive.
During the winter of 1993, a pipe broke in another wing of the Pewaukee Elementary
Acker and Haberman worked to identify and repair the leak. They had trouble isolating the
had to tear bookshelves out to get to a broken pipe. They subsequently found a shut-off
across the hall, in an unlikely place. Both men knew some shut-off valves existed and that at
some were in unlikely places. The men had a conversation in December, 1995, and talked
creating a valve chart. Acker committed to creating such a chart, but that did not occur
prior to the
The parties stipulated on a non-precedential basis that the standard against which this
discipline is to be measured is just cause.
The Employer believes the issue to be:
Did the District have cause to impose a two-day unpaid disciplinary suspension upon
grievant David Haberman on March 12, 1996, as a result of his poor work
performance, poor attitude, and failure to follow direction during an emergency
which occurred at the Pewaukee Elementary School on January 31, 1996?
The Union believes the issue to be:
Was the grievant, David Haberman, disciplined for just cause by way of the March
12, 1996 suspension, and if not, what should the remedy be?
POSITIONS OF THE PARTIES
The Employer, pointing to
the testimony of its witnesses, characterizes Mr. Haberman's
conduct as unacceptable, and argues that Haberman was aware of the probable
consequences of his conduct. The Employer argues that Haberman's job requirements
establish that he should have been able to locate the shut-off valves and bleed the heating
and that he should have handled the whole situation without an attitude. The Employer
Haberman's job application, to his training, and notes that a part of his regular job duties
him to service the very units that leaked on a regular basis.
The Employer contends that Haberman failed to locate the shut-off valves and bleed
heating system, and throughout the incident exhibited an unacceptable attitude. His inability
locate the shut-off valves, which were no more than three feet from the respective heating
allowed water to leak into the building for an hour and forty-five minutes longer than
causing considerable additional damage. The Employer notes that the individuals who found
shut-offs did so after spending a relatively short period of time in the search.
The Employer contends that Haberman aggravated the situation in a variety of ways.
Employer claims that Haberman's suggestion that the only solution was to shut down the
to close the elementary school presented both a financial and logistical nightmare. Second,
Haberman did nothing to help his supervisors and other staff to locate the shut-off valves.
argues the Employer, he spent the morning either complaining to teachers or attempting to
corks in the leaking heating system. The Employer contends that he demonstrated an attitude
unwillingness to assist in handling this emergency. The Employer contends that Haberman
be called back to the scene of the emergency to help. He demonstrated a poor attitude,
characterized by his "I'm not a custodian" remark to Bruce.
The Employer emphasizes that Haberman did not perform any clean-up work until he
directed to do so, even though all other employes did so willingly and without direction.
Employer points to the afternoon of January 31. Haberman's presence was requested by
the head custodian, wherein he promptly informed her that he was too busy to help her
electrical fixtures, even though it involved a hazardous situation with water in the vicinity,
required electrical skill which she did not possess. The Employer contends that Haberman
be ordered back to the building by the Superintendent. Upon his return, he gave his
silent treatment demonstrating extreme agitation.
The Employer cites Haberman's prior disciplinary record and concludes that
knew, or should have known, that the probable consequence of his poor work performance,
to follow direction and his poor attitude would be further discipline.
It is the District's contention that it is no more than requiring that Haberman perform
and not exhibit an uncooperative attitude in this matter. The District further argues that it
a fair and objective investigation into whether Haberman engaged in the conduct, and that
investigation reveals substantial evidence that he did so.
The Union, relying upon the testimony of its witnesses, contends that the weight of
demonstrates that Haberman's work performance on the morning of January 31 was above
and superior to that of his co-worker, Ms. Christian. The Union notes that Christian was not
disciplined for her work performance, even though she could not find shut off valves,
more work than Haberman, and in some cases, took less initiative.
When Haberman was given direction to assist Christian, he complied forthright. The
contends that Haberman never told Bruce that there were no shut-off valves, and that he
to close down the school. The Union contends that Haberman had never been expected to
heating coils and had not been trained to do these repairs. However, he was disciplined in
his failure to repair heating coils. The Union contends that while Haberman was upset with
when he came back to the elementary school to remove the light fixtures, that did not rise to
point of discipline. The Union contends that the Employer failed to conduct a proper
Witness Lane was known to the Employer to be present at the scene, working with Mr.
yet he was not asked about his observations.
The Union contends that the responsibility for isolating the leak did not rest solely
Haberman. The Union points to the testimony of Graborczyk, who indicated that the
was not in plain view. Several employes, including Lane, Tall, Bruce and Haberman
looked for the shut-off valve in the first grade classroom, but none were able to find it.
The Union points out that Acker could have, and should have, completed a valve
Following the emergency of 1993, he promised such a chart, but had failed to deliver. The
points out that the head custodian had troubleshooting responsibility with respect to the
system. Yet Christian was not disciplined, nor was her performance found lacking when she
not find shut-off valves nor bleed the system.
The Union contends that Haberman did look for shut-off valves, and participated in
resolution of the crisis. The Union points to the testimony of Lane, who indicated that he
Haberman kneeling in water, frantically attempting to stop the water coming from the pipe,
contrast to Ms. Christian, who spent her time attempting to catch cascading water. The
contends that Haberman was not responsible for repairing the damaged coil. The record
supports the contention that outside contractors had historically repaired broken or damaged
The Union contends that Haberman did not insist nor suggest that school be closed. The
on to argue that Haberman and Lane's testimony indicate that Haberman made a full effort
morning of the emergency. The Union contends that Haberman did not refuse direction from
Christian. Both accounts of Christian's conversation with Haberman indicate that Christian
indicated that she would try, per Haberman's instructions, to attempt to disconnect the fixture
It is my reading of the March 12, 1996 disciplinary memorandum that Mr. Haberman
disciplined for (1), being unable to isolate the leaking coil, (2), being unable to repair the
coil, (3), suggesting that the sole resolution to this crisis was the closing of schools, and (4),
demonstrating a poor attitude on that date.
The Union contends that Mr. Haberman did not bear sole responsibility for locating
the shut-off valves. I agree with that assertion. It seems to me that all maintenance and
were under a common-sense-driven obligation to search for shut-off valves. However, Mr.
Haberman is paid for his greater mechanical skills. Additionally, it was his assignment to
the system, and he had done so for a four-year period. His responsibility is greater than
in this area, and certainly surpasses that of Bruce. At a minimum, this background and his
assignment would seem sufficient to permit him to conduct an intelligent search for shut-off
This is particularly so under crisis circumstances. It does not appear that anyone conducted a
serious search for a shut-off valve in the teacher's lounge until Mr. Tall searched.
According to all
accounts, it took Tall a matter of moments to locate and turn off the valve.
It does appear that several people, including Mr. Haberman, searched for the shut-off
classroom. That shut-off was covered by a piece of sheet metal. Haberman testified that he
searched on the unit. Lane testified that he witnessed Haberman trace the pipe backward.
search was abandoned. In its stead, Haberman spent time attempting to force plugs into the
from which water leaked. While I recognize the event to have been an emergency and panic
situation, I do not believe that was a constructive course of action. Graborczyk testified
the circulating pump was a last resort measure. The implication was that it was an unwise
made by principal Bruce. All accounts indicate that Mr. Haberman was physically present
decision was made, and his expertise should have suggested that such was an unwise course.
I believe his efforts fell short of what might reasonably have been expected from the
technician, I do not believe that Haberman can be held absolutely liable for failing to find the
shut-off in the classroom. By all accounts, it was located in an unlikely position.
The second basis for discipline was Haberman's failure to repair the leaking coils.
is no record support for this contention. It was the uncontradicted testimony of Lane that the
had suffered broken coils on three prior occasions. On each occasion, an outside contractor
been called upon to perform the repair. Haberman testified that he had never previously
coils. There is no suggestion that he was trained and/or expected to perform such work.
There is a dispute as to whether Haberman suggested that school be closed. Whether
or did not, I do not believe that constitutes an independent basis for the imposition of
Assuming, arguendo, that he did so, such a comment was borne of his
apparent belief that there
were no shut-off valves. The underlying problem is that Haberman either believed there to
shut-off valves, or was incapable of locating those valves. As noted, I believe he should
a far more constructive contributor in that crisis, given his position as maintenance
his assignment to maintain the system for the four previous years.
The final basis of discipline is Haberman's alleged attitude during the course of
1996. I believe the weight of the evidence suggests he did have a poor attitude. I credit
Christian's testimony that Haberman spent time talking to teachers while water flowed
I further credit their testimony that he did not participate in the clean-up effort until so
believe that when the plumber arrived, Haberman left, believing that he had discharged
obligation he owed the District. His departure served to prolong the crisis. The plumber
the need to bleed the system. Apparently, no one knew how to do that. Had Haberman
been on the
scene, he could have so indicated, and been directed, averting further delay. When directed
to assist Christian in replacing a light fixture ballast, I believe Haberman reacted angrily and
her, and whoever else was there, the silent treatment.
Standing alone, I do not believe that Haberman's attitude as manifested on
January 31, 1996
would justify the imposition of time off discipline. However, that attitude does not stand
Haberman has been disciplined on four prior occasions relative to his attitude toward his job.
believe that during the course of a crisis an employer has a reasonable expectation that its
will come forward and make an effort to help contain the crisis. That is particularly the case
the skills needed to address the crisis are those for which the individual was hired. Mr.
was paid as a skilled maintenance technician. The troubleshooting of the HVAC system is
skilled dimension of his job that sets him apart from his colleagues. He is a journeyman
His colleague was reluctant to do electrical work under circumstances which she described as
involving running water. Her concern is understandable.
Haberman's marginal work performance during the crisis set the background against
to measure his attitude. On balance, he came up short in both areas. This is the fifth
discipline invoked in a 26-month period. All involve work performance and attitude toward
I do not believe that a two-day suspension is excessive in that context.
The grievance is denied.
Dated at Madison, Wisconsin this 28th day of January, 1999.
William C. Houlihan /s/
William C. Houlihan, Arbitrator