BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF RACINE
LOCAL 67, AMERICAN FEDERATION OF STATE,
AND MUNICIPAL EMPLOYEES, AFL-CIO, Affiliated
WISCONSIN COUNCIL 40, AFSCME,
(Randall Maurer Grievance)
Mr. John Maglio, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, P.O. Box 624, Racine, Wisconsin 53401-0624, on behalf of the
Mr. Guadalupe G. Villarreal, Deputy City Attorney, City of
Racine, 730 Washington Avenue, Racine, Wisconsin 53403, on behalf of the City.
According to the terms of the 1998-99 collective bargaining agreement between the
Racine (City) and Local 67 American Federation of State,County, and
Municipal Employees, AFL-CIO (Union), the parties requested that the Wisconsin
Employment Relations Commission designate
a member of its staff to hear and resolve a dispute between them regarding whether the City
cause to impose a five-day suspension on Randall Maurer on December 15, 1998. The
designated Sharon A. Gallagher to hear and resolve the dispute, and, according to contract,
Gallagher mediated said dispute unsuccessfully on June 16, 1999. Thereafter, hearing was
and held on July 21, 1999, at Racine, Wisconsin. A stenographic transcript of the
made and received on August 11, 1999. The parties agreed that they would file their briefs
case on September 15, 1999, and that the undersigned would thereafter exchange them. The
also agreed that they would waive their right to file reply briefs.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties stipulated that the following issue shall be determined by the arbitrator in
Did the Employer have just cause to impose a
five-day suspension on Randall Maurer
on December 15, 1998? If not, what is the appropriate remedy?
PROVISIONS AND RELEVANT WORK RULES
ARTICLE II MANAGEMENT AND UNION
E. Management Rights. The City possesses the sole right to operate
City government and all
management rights repose in it, but such rights must be exercised consistently with the other
provisions of this contract and the past practices in the departments covered by the terms of
Agreement unless such past practices are modified by this Agreement, or by the City under
conferred upon it by this Agreement, or the work rules established by the City of Racine.
which are normally exercised by the various department heads include, but are not limited to,
1. To direct all operations of City government.
2. To hire, promote, transfer, assign and
retain employees in positions with the City and to
suspend, demote, discharge and take other disciplinary action against employees for just
3. To lay off employees due to lack of work
or funds in keeping with the seniority provisions of
4. To maintain efficiency of City
government operations entrusted to it.
5. To introduce new or improved methods
6. To change existing methods or facilities.
7. To contract out for goods or services,
however, there shall be no layoffs or reduction in hours
due to any contracting out of work.
8. To determine the methods, means and
personnel by which such operations are to be
9. To take whatever action which must be
necessary to carry out the functions of the City in
situations of emergency.
10. To take whatever action is necessary to comply with State or
11. Overtime: The City has the right to
schedule overtime work as required in a manner most
advantageous to the City and consistent with the requirements of municipal employment and
public interest. Part-time and seasonal employees shall not be assigned overtime unless all
employees are working overtime or are unavailable. This shall not apply to full-time or
recreation supervision employees in the Recreation Division of the Park and Recreation
In addition to the Management Rights listed
above, the powers of authority which the City has
not officially abridged, delegated or modified by this Agreement are retained by the City.
recognizes the exclusive right of the City to establish reasonable work rules. The Union and
employees agree that they will not attempt to abridge these Management Rights and the City
that it will not use these Management Rights to interfere with rights established under this
or the existing past practices within the departments covered by this Agreement, unless such
practices are modified by this Agreement, or by the City under rights conferred upon it by
Agreement, or the work rules established by the City of Racine. Nothing in this Agreement
construed as imposing an obligation upon the City to consult or negotiate concerning the
of discretion and policy.
. . .
. . .
Q. Work Performance
1. Following is a list of prohibited
conduct which may result in disciplinary action ranging from
written or oral reprimands to immediate discharge, depending upon the specific form of
and/or the number of infractions.
a) insubordination including
disobedience or failure to carry out assignments or instructions.
b) tardiness, loafing, loitering, sleeping or
engaging in unauthorized City and personal business.
c) abusive use of sick leave benefits
d) failure to comply with health, safety, and
sanitation rules and regulations.
e) negligence in performing assigned duties
. . .
The Veteran's Plaza is a large paved area with benches and trashcans, which abuts on
city streets, and is lit by between 10 and 20 lights in the evening. An east-west arterial
street dead-ends at the Plaza. It is undisputed that in the Winter, leaves blow into the Plaza
from this east-west
arterial street; that homeless people often sit in the Plaza area during good weather and that
leave trash and, at times, sleep in that area when it is not too cold.
Randall Maurer has been employed by the City since 1987 as a custodian. At the
time of the
instant discipline, Maurer was employed at the Racine Public Library, working the second
p.m. to midnight) each workday. His immediate supervisor is Dan Schultz, Public Library
Manager. Schultz's hours of work end at 5 p.m. Monday through Friday, therefore he is
only at the
Public Library to direct Maurer between 4 p.m. and 5 p.m. each day. Schultz has been
direct supervisor for approximately 3.5 years. After Schultz became Maurer's supervisor,
instituted a daily work log/checklist of duties which Maurer is expected to complete each
daily work log/checklist specifically lists "clean outside plaza" as one of Maurer's daily
Maurer admitted that he is aware that he should clean any leaves, debris, and/or garbage and
from Veteran's Plaza, as stated above in Maurer's daily work log/checklist. As for other
Schultz generally gives Maurer a work order, indicating the special work (not done on a
which Schultz expects Maurer to perform. Maurer does not need a work order to perform
cleaning services at the Veteran's Plaza on a daily basis.
Ed Doonan, Building Maintenance Supervisor for the City for the past 20 years, is
upper-lever supervisor. 1/ On occasion, Doonan has issued Maurer warnings regarding
work and the relevant warnings, which occurred between May 4, 1995, and December 15,
1. Oral warning issued 5/4/95 by Doonan and Working Supervisor Vascquez for
failure to clean Veteran's Plaza on 5/3/95. This warning stated that Maurer had been told in
to clean the Plaza nightly.
2. Written warning issued on 7/21/95 by Doonan for Maurer's failure to promptly
a sewer backup problem at the Library.
3. One-day suspension issued 11/27/95 by Doonan for Maurer's failure to clean the
Plaza on 11/22/95.
4. One-day suspension issued on 5/22/96 by Doonan and Schultz for failure to clean
second floor Men's Room at the Library.
In each instance listed above, the City found that Maurer had violated Work Rule Q,
(Article e or Articles d and e). Maurer did not grieve any of the warnings listed above.
1/ It is not unusual for employes in the employ
of the City to have more than one supervisor. Indeed, employes
in the departments of Parks and Recreation, Solid Waste, Street Maintenance also have
As a general matter, Maurer's duties are to clean the second floor of the Library,
lockup of the building at night, clean the Veteran's Plaza every night and to call Doonan if
a problem at the building between 4 p.m. and midnight. Maurer is the only employe
assigned to clean
the Veteran's Plaza.
Over the years that Schultz has been Maurer's immediate supervisor, Schultz has
told Maurer to clean the Veteran's Plaza. Schultz has also given Maurer memos and has
the responsibility Maurer has to make sure that the Veteran's Plaza is cleaned each day.
also received complaints from time to time regarding the conditions in the Veteran's Plaza
talked to Maurer to urge him to improve his work in that area. After having spoken to
Schultz has noted that Maurer's work in the Plaza has improved for a short period of time
eventually deteriorate again if Schultz did not continuously check up on Maurer's
performance in the
Plaza. Schultz, however, has not documented his verbal discussions with Maurer regarding
failure to clean the Plaza over the past 3.5 years. Schultz stated that Maurer never asked
him for a
rake or other tools to remove leaves from the Plaza. 2/
2/ I have credited Schultz on all of these
Maurer admitted that during his employment under Schultz, Schultz has told him that
the outside of the Library, including the Veteran's Plaza and raking leaves therein, were his
responsibility, and that he understood that he was responsible to clean up the Veteran's Plaza
whenever leaves, debris or garbage were in the Plaza. Maurer admitted that he has had to
the Veteran's Plaza the day after he cleaned it due to winds blowing leaves and debris into
and trash and debris left by homeless people. Maurer stated that he has never cleaned the
Plaza after dusk when the lights in the Plaza are lit.
On December 14, 1998, Building Maintenance Supervisor Doonan received a call
Department of Parks and Recreation wherein a private citizen stated that litter and leaves had
in Veteran's Plaza for three weeks. Doonan then went down to Veteran's Plaza sometime
afternoon and looked at the area. Doonan found a large amount of trash, leaves, debris and
glass in the area which he stated appeared to have been there for at least one week. On
14th Doonan met with Personnel Director Jim Kozina to determine what
level of discipline should be
meted out to Maurer regarding his failure to clean the Veteran's
Plaza on December 14th. Kozina and Doonan reviewed Maurer's
work record and determined that
a five-day suspension was appropriate. Also on December 14th, Doonan
spoke with Dan Schultz, the
Public Library Business Manager, about the condition of the Plaza.
Around 3 p.m. on December 15th, Doonan went to the Department
of Public Works and
picked up then-Union Steward John Mulhavich and took him to Veteran's Plaza to show him
which Maurer had failed to clean. Doonan stated that on December 15th
the same trash, debris,
broken glass and leaves were still in the Veteran's Plaza area. 3/ Doonan took pictures of the
this time. Doonan later spoke with Maurer regarding Maurer's failure to clean Veteran's
delivered the five-day suspension to Maurer. After the meeting with Doonan, Maurer went
Veteran's Plaza and cleaned the leaves, debris, trash, and broken glass with a broom and
Maurer admitted that the conditions depicted in the Veteran's Plaza pictures taken by the
demonstrated that the Plaza needed to be cleaned up.
3/ Neither the private
citizen who complained about the condition of the Plaza nor Union Steward John
Mulhavich testified herein. Maurer testified herein that he cleaned the Veteran's Plaza on
December 14th between
4 p.m. and 5 p.m. and that the leaves and trash found there by Doonan on December
15th must have blown into the
area or been left there by homeless people during the evening, after 5 p.m. on December
14th, but prior to 3 p.m.
on December 15th.
Maurer also stated that
approximately three days prior to December 14th his City-issued rake was
he had asked Schultz for a new rake at that time. Maurer stated that Schultz must have been
lying when he stated
herein that Maurer never asked him for a rake. I find Maurer's testimony incredible, given
the photographs of the
Plaza submitted by the City and based upon Maurer's demeanor under oath (including his
assertion that he picked
up the debris in the Plaza on December 15th on this hands and
POSTIONS OF THE PARTIES
The Union argued that the City failed to afford Grievant Maurer due process in
him. Before Maurer was confronted by his supervisor, before he was given an opportunity
himself and before a full investigation was done, Supervisor Doonan had decided to
Maurer. Doonan admitted at the time he decided to discipline Maurer that he believed the
go to arbitration. In the Union's view, this type of treatment does not rise to the level of due
and is reason enough to reverse the City's actions in disciplining Maurer. In the Union's
Maurer should have been given a chance to explain himself before any decision to suspend
made by the City. The City simply did not give Maurer this consideration.
The Union noted that Maurer is an employe with 12 years of seniority. Maurer's
Schultz never told Maurer on or before December 14, 1998, that Veteran's Plaza required
attention. Indeed, when Doonan received the citizen's complaint on
December 14th, neither Doonan nor Schultz spoke to Maurer about it.
The Union observed that the
citizen who complained did not testify in this proceeding. Furthermore, the Union argued
although Doonan stated that he checked out the Veteran's Plaza on December
14th after receiving the
citizen's complaint, there was no independent evidence that he had done this and no
witnesses on this point. Thus, the Union urged that the City failed to prove that anything
with Veteran's Plaza on December 14th.
Indeed, the Union noted that Maurer stated herein that he cleaned Veteran's Plaza on
December 14th before 5 p.m., 21 hours before Doonan inspected the
plaza on December 15th. As
Doonan took his pictures on December 15th and brought the Steward to
observe Veteran's Plaza at
or about 3 p.m. on December 15th, the Union asserted that the City
failed to show that the debris and
trash found in Veteran's Plaza on December 15th was, in fact, due to
Maurer's negligence. Rather,
the Union contended that the area must have been littered by 3 p.m. on December 15, 1998,
wind had blown debris and trash into Veteran's Plaza after Maurer had cleaned it on
The Union noted that weather reports from December 14th and
15th would tend to support this view.
In addition, evidence showed that homeless people often left debris and piled leaves in
Plaza. City witnesses all admitted that they were aware that homeless people stayed in
Plaza when the weather was not too cold.
Therefore, the Union sought an award sustaining the grievance, making Maurer
lost wages and benefits and expunging his record of any reference to the discipline meted out
The City noted that Maurer has been employed by it since November, 1987. The
out that from May, 1995, to May, 1996, the City disciplined Maurer four times for failure to
areas within his responsibility. These disciplinary actions included two one-day suspensions
of them was grieved by Maurer.
The City argued that the evidence showed that a large amount of debris, leaves,
and trash had accumulated in Veteran's Plaza by December 14th which the
Union failed to explain
away. In the City's view, the Union's arguments were unpersuasive: that debris was blown
Veteran's Plaza while Maurer was not at work; that homeless people must have engaged in
and sleeping in the Plaza; that Maurer complained that he did not have the proper tools to
debris from Veteran's Plaza; and that Maurer could not remove debris after dark because the
was not properly lit. Rather, the City argued that Grievant Maurer had disregarded the
consistent directives to clean Veteran's Plaza daily. In this regard, the City noted that it had
Maurer a check list (for at least the past three years) which indicated that Maurer should
Veteran's Plaza daily. In addition, Supervisor Doonan's view of the area on December
14th and 15th
and Doonan's testimony thereon was not effectively challenged by the Union. Indeed, the
observed that the Union conceded that
debris was in Veteran's Plaza on December 15th and the Union's
attempt to place blame elsewhere
fell short as the Union failed to provide any tangible proof of its theories in this regard.
City noted that Supervisor Schultz stated he never received a request for additional tools
Because the City had warned and disciplined Maurer in the past for failure to keep
Plaza and other areas of his responsibility clean, Maurer's failure to clean Veteran's Plaza on
December 14th clearly warranted the discipline given by the City in this
case. As this was the fifth
violation of a work rule involving Maurer's work performance, the City sought an award
dismissing the grievance in its entirety.
The Union has argued that the City failed to afford Maurer due process when it
him for his alleged failure to clean Veteran's Plaza on December 14th. I
disagree. The fact that
Doonan decided to discipline Maurer without first seeking Maurer's side of the story does
not, in the
circumstances proven here, amount to a violation of due process. The evidence herein
Maurer had been disciplined four times since July, 1995, for failure to properly perform his
duties. The most recent warnings, on November 27, 1995, and May 22, 1996, each resulted
in one-day suspensions. Maurer failed to grieve these prior disciplinary actions. In addition,
it is undisputed
that Maurer knew that it was his responsibility to clean the Plaza daily, based upon his daily
log/checklist, formal discussions with Doonan over the years and his own admissions herein.
4/ Maurer admitted that Doonan spoke to him
and disciplined him twice before December 14th regarding his
failure to clean Veteran's Plaza properly. However, Maurer denied that Schultz ever spoke
to him regarding his
alleged failure to clean Veteran's Plaza prior to December 15, 1998. For reasons stated
herein, I have credited
Schultz, not Maurer in these areas.
As this case involves severe discipline (a five-day suspension), proof of Maurer's
be clear in order to sustain the discipline against this long-term employe, even though
Maurer has a
less than desirable work record.
The Union has argued that the City failed to offer evidence to corroborate Doonan's
testimony that he viewed the Plaza on December 14th and that he found the
Plaza in an unacceptable
condition. Generally, such corroboration would not be required unless Doonan's testimony
impeached by the Union herein. Here, Doonan's statements and his credibility were never
successfully attacked by the Union. Therefore, I credit Doonan's testimony in its entirety
that fact that he went to the Plaza on December 14th; that he observed the
condition of the Plaza on
December 14th; that he found the condition of the Plaza unacceptable. The
City also offered
photographs showing the condition of the Plaza on December 15th in the
afternoon before Maurer's shift began. From the original photographs proffered,
the volume of leaves, trash, debris and broken glass and the compacted appearance of the
is more reasonable to conclude that the leaves, etc., were in the Plaza for more than one
Doonan testified than it is to conclude that all of the leaves, debris, trash and broken glass
into the Plaza between 5 p.m. on December 14th and 3 p.m. on December
15th or were placed there
by homeless people. Indeed, the possibility that homeless people brought leaves into the
sleep in and that they also left trash, debris and broken glass there during the evening of
14th was suggested by the Union. However, these suggestions are
insufficient basis upon which to
conclude that homeless people were in fact responsible for the mess Doonan found in the
December 14th and 15th. Here, the Union failed to offer
specific proof that homeless people used the
Plaza on December 14th and/or 15th. Therefore, the
Union's suggestions in this regard must be
discounted. Similarly, the Union offered weather reports to show that the wind blew leaves,
the Plaza on December 14th and 15th.. Again, the Union
failed to offer specific proof as to the
condition of the Plaza on December 14th and 15th
requiring a conclusion that the Union's suggestions
in this regard were based on conjecture.
The fact that the City failed to call the citizen who complained about the condition of
Plaza does not require a conclusion that the grievance should be sustained. Here, the City
Doonan's testimony which showed that Doonan took care to view the area, to show the Plaza
Union Steward on December 15th and to take photographs of the Plaza
before Doonan disciplined
Maurer. The Union's failure to call the Union Steward involved in viewing the Plaza to
dispute Doonan's testimony is significant, as a presumption is then raised that the Steward
have provided evidence in support of Maurer. In all the circumstances of this case and given
that Maurer received two one-day suspensions for failure to properly perform his assigned
1995 and 1996, it was not unreasonable for the City to issue Maurer a five-day suspension
failure, a third time, to properly perform his duties and clean Veteran's Plaza on December
I therefore issue the following award
The Employer had just cause to impose a five-day suspension on Randall Maurer on
December 15, 1998. The grievance is therefore denied and dismissed in its entirety.
Dated at Oshkosh, Wisconsin, this 11th day of November, 1999.
Sharon A. Gallagher, Arbitrator