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,
(Marckus Dyess 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 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 a five-day
which was imposed upon Marckus Dyess on January 5, 1999. The Commission designated
A. Gallagher and, as required by the contract, Arbitrator Gallagher mediated said dispute on
1999. Thereafter, hearing was scheduled and held on July 26, 1999, at Racine, Wisconsin.
stenographic transcript of the proceedings was made and received by August 19, 1999. The
agreed that they would file their briefs in this case on October 1, 1999, and that the
would thereafter exchange them. The parties also agreed that they would waive their right to
reply briefs herein.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
5984 Page 2
The parties stipulated that the following issue shall be determined by the arbitrator in
Did the City have just cause to impose a
five-day suspension on Grievant Marckus Dyess on
January 5, 1999? If not, what is the appropriate remedy?
RELEVANT CONTRACT 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.
rights which are normally exercised by the various department heads include, but are not
1. To direct all operations of City
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 Federal Law.
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 normal workday at the DPW is from 7 a.m. to 3 p.m. The City sends out solid
trucks as well as paper recycling trucks and hard/co-mingled recycling trucks. The recycling
are one-person routes, while the solid waste routes are two-person routes. Employes are
paid at time and one-half for overtime work. Following the 1997 holiday season, the City
to change its policy regarding garbage and recyclables pickup on holidays. As a result, the
decided to start picking up solid waste and recyclables on holidays, beginning with the July
in 1998. However, after the Union pointed out that scheduled vacations would conflict with
approach, the City decided to start holiday pickup with the Thanksgiving holiday in 1998.
City's holidays at Thanksgiving are the holiday and the Friday following the holiday.)
In October 1998, approximately one month before the Thanksgiving holidays,
of Public Works Superintendent Joseph Golden held meetings with all Public Works
wherein he advised DPW employes of the City's new holiday pickup policy and specifically
no employe would be guaranteed eight hours of work on a holiday pickup day but rather that
would go home when their work was completed. 1/ Union Steward, John Tate, stated that
present at a meeting in which Golden announced the new holiday pickup policy. Tate stated
understood that employes would not be guaranteed eight hours work on holiday pickup days.
also stated that he worked less than eight hours per day over the Christmas and New Year's
doing holiday pickup work. No employes complained about not being guaranteed eight hours
work over the Thanksgiving and Christmas holidays. It is undisputed that Dyess worked the
Thanksgiving holiday and that he worked less than eight hours that day without complaint.
worked a full eight hours on December 31, 1998.
1/ Dyess admitted that he could have been at
the October meeting where Golden made these comments.
However, Dyess stated that he did not understand from Golden's comments that he would not
be guaranteed eight
hours of work on a holiday pickup day.
Dyess became a regular full-time employe in early May, 1996, after having worked
seasonal employe for some time. Dyess is employed in the Solid Waste Division of the
of Public Works collecting garbage and recyclables.
Dyess' disciplinary history indicates that on January 27, 1997, he received a two-day,
one half hour suspension for insubordination. This suspension was upheld by Arbitrator
in her Award of October 7, 1998. Thereafter, Dyess was disciplined five times for other
activities, not involving insubordination.
On December 31, 1998, Dyess was assigned to collect paper recyclables on a
route beginning at 7 a.m. that morning. On this day, there were seven garbage routes sent
paper recycling routes were performed and three hard/co-mingled recycling routes were
Dyess' immediate supervisor, William Folstrom, finished his route for the day and returned
shop around 1:55 p.m. Folstrom went into the lunchroom at this time and told employes to
that they were done for the day. Dyess and approximately five other employes were in the
at this time. Folstrom did not make his comment directly to Dyess but directed his
comments to all
of the employes in the lunchroom. 2/ Dyess stated that he was not going to go home.
stated that it was time for everyone to go home. Dyess said he was staying because he was
guaranteed eight hours of work. At this point Folstrom explained to Dyess that he was not
guaranteed a full day's work on a holiday pickup day and that employes were expected to
holidays just until the job was done and to go home. Folstrom then turned to Union Steward
and asked, "Am I explaining this right?" Rogers replied, "Yes." Dyess then replied that he
staying and he began to clean up the lunchroom. At this point Folstrom left the lunchroom.
2/ Shortly thereafter all employes who were
present, except Dyess, punched out and left the facility.
At about 2:30 p.m. Folstrom went back out to the lunchroom and noted that Dyess
cleaning the lunchroom. Folstrom told Dyess he should go home, that he would not be paid
the lunchroom and that he was supposed to have gone home at 2 p.m. Dyess said that there
work to do and he was staying. Folstrom again left the lunchroom and went back to his
At about 2:40 p.m., Folstrom heard a solid waste truck being started up in the
Folstrom went out to the garage and found that Dyess had started the truck and was putting
in the back of it. Folstrom asked Dyess to turn off the truck, punch out and go home.
back to the lunchroom but he did not punch out at this time. Folstrom then went to his
called Superintendent Golden. Golden received the call at his home at
approximately 2:45 p.m. on December 31st. During their
conversation, Folstrom told Golden that he
had an employe who had refused to go home. Golden asked who the employe was and
stated it was Dyess. Golden asked to speak to Dyess on the phone and Folstrom went to the
lunchroom and asked Dyess to speak to Golden on the phone. Dyess refused to speak to
without a union representative. Folstrom went back to his office and told Golden that Dyess
going to talk to him on the telephone without union representation. Golden stated that he
come to the shop immediately.
By the time Golden arrived at the shop, Dyess was gone. Golden spoke to Folstrom
the full story regarding Dyess' several refusals to punch out and leave the workplace. After
found out that Dyess had refused to leave the shop at least three times, he called the
director, James Kozina, at home. Golden and Kozina discussed the situation and Kozina told
to immediately tell Dyess he would be suspended until further notice. However, as Dyess
left, Golden could not perform this duty. Golden called Dyess at home and left a message for
to call him as soon as possible. Dyess did not call Golden back. Dyess' first workday after
31st was January 2, 1999, and at this time Dyess was suspended
POSITIONS OF THE PARTIES
The City argued that the Grievant knew or should have known that he was not
guarantee of eight hours of work on December 31, 1998. In this regard, the City noted that
Folstrom asked all employes to punch out and leave, everyone but Dyess left the facility. In
no employe received more than 7.8 hours for the day of December 31st and
employes working on
recycling routes received between 6.1 and 7.1 hours that day. Furthermore, the City noted
had worked on the Thanksgiving and Christmas holidays and knew that no guarantee of eight
had been made by the City for work on holidays under the new policy. Indeed, Union
demonstrated on the stand that he understood that the pickup policy on holidays did not
guarantee of eight hours of work for employes.
The City noted that no grievances were filed regarding the City's failure to guarantee
employes eight hours of work on holiday pickup days and the contract did not require a
of eight hours of work. Thus, the City urged that Dyess should have done as he was told by
and then if he had a problem, he should have filed a grievance thereon.
In this case, Dyess was told three times to punch out and go home. On each
refused to do as he was told by his supervisor. The City urged that Dyess' actions on
constituted insubordination and on that basis, the City contended it had just
cause to discipline Dyess as he had been suspended for 2.5 days previously for a prior
involving insubordination and failure to follow work orders given by supervisors. Thus, the
urged that the grievance be denied and dismissed in its entirety.
The Union argued that the Employer did not meet the just cause standard in
Dyess. The Union noted that Dyess finished his route and returned to the shop on
December 31st and
because Dyess felt additional hours of work were needed that day, he decided to busy
himself in the
hopes of being selected for that work. Indeed, several employes were still punched in and in
lunchroom but not working, when Dyess arrived from his route. Yet Folstrom singled out
told him to punch out and leave. The Union noted that Dyess felt singled out by Folstrom
was one of the reasons why Dyess did not punch out and leave as directed. The Union noted
employes Christenson and McWhorter did not punch out on December 31st
until 2:48 p.m., yet
Folstrom specifically told Dyess to go home at 1:55 p.m., thus showing that Folstrom
At the instant hearing, the Union noted, Superintendent Golden stated that if Dyess
after talking to him (Golden) on the telephone on December 31st nothing
more would have been done
to Dyess and no discipline would have been issued. Here, Golden's objectives were met
Dyess had already left when Golden arrived to speak to him. Therefore, in the Union's
was no logical reason to discipline Dyess because Dyess left before Golden arrived at the
December 31st. The Union contended that Dyess was not insubordinate and
that the City did not have
just cause to discipline Dyess. The Union therefore sought an award sustaining the
expunging Dyess' record and making Dyess whole.
It is axiomatic that employes are required to work now and grieve later. Failure to
work or to follow instructions of supervisors can result in discipline for insubordination,
there are exceptions to this general rule. Thus, where an employe reasonably believes that a
order is either illegal or immoral, where the employe reasonably believes that obedience to
would place the employe (or others) in imminent danger of harm or where the employe (or
would suffer immediate and substantial harm and no satisfactory remedy would be available
fact, the employe may be allowed to disregard management orders.
None of the above-described exceptions is applicable to this case. In my opinion,
should have obeyed Folstrom and grieved his contention that he was guaranteed eight hours'
on December 31st. Instead, Dyess choose to flagrantly disregard the
repeated direct orders of his
supervisor to punch out and go home.
I note that Dyess' version of what occurred on December 31st is
different from that of Golden
and Folstrom. 3/ Dyess stated that he returned to the shop after finishing his recycling route
before 2 p.m. that day; that he went into the lunchroom and saw five or six people there who
not punched out; that he went to the bathroom and that he then decided to pick up the chairs
the lunchroom and sweep the floor, to continue working. Folstrom came into the lunchroom
Dyess to punch out and go home. Dyess stated that he asked Folstrom why he should punch
go home; he asked if there was anymore work for him to do and why he should go home
Keller (another supervisor) had been calling Drew Hardville on the radio to come back to the
to perform more work. 4/
3/ Where Dyess' version differs from Folstrom
and Golden's I have credited Folstrom and Golden, although
Dyess' substantive admissions render such a finding largely unnecessary.
4/ Dyess stated that
because there were other people in the lunchroom who were on the clock, he thought there
was more work for him to do and that he knew Hardville (who was more senior than Dyess)
was not available to
work more hours, as Hardville had just left the shop. Dyess stated that he believed that
condescending and short with him and that he felt singled out by
At this point, Dyess stated that Folstrom told him to punch out and go home, that
no more work for him to do. Dyess admitted he refused to leave. According to Dyess,
stated that he would call the police if Dyess did not leave. Dyess told Folstrom to go ahead
the police. Later on, Dyess admitted, Folstrom told Dyess to put the mop down and leave.
admittedly refused. Thereafter, Folstrom came into the lunchroom and stated that
Golden wanted to speak to Dyess on the phone. Dyess refused to speak to Golden on the
Shortly thereafter, Dyess decided to punch out and go home.
5/ Dyess stated herein that he felt that Golden
had belittled him in the past and he (Dyess) did not feel
comfortable talking to Golden on the phone without a witness.
Dyess specifically denied getting into a truck and starting it on December
31st and denied that
Folstrom told him to go home three times. Rather, Dyess also stated that Folstrom told him
once and thereafter "threatened" Dyess several times by telling him to put the mop down and
of there, which Dyess admittedly refused to do. Dyess stated that he did not recall a
between Folstrom and Union Steward Rogers in the lunchroom regarding the eight-hour
because he was not part of the conversation and he was cleaning up at the time.
On the basis of this record, there is no evidence to show that Dyess was confused or
the meaning of Folstrom's statements to him. Here, even by Dyess' account, Folstrom's
clear and distinct and all employes present (except Dyess) understood
them and followed them. In addition, the record demonstrated that Folstrom's orders
(and the other employes initially present) were reasonable. In this regard, I note that
stated that he did not understand Superintendent Golden's prior announcement to employes
employes would not be guaranteed eight hours' work on holiday pickup days. Even if
been wrong in directing Dyess (and the others) to punch out and go home, Dyess should
Folstrom and raised his objections later in a grievance. However, Dyess chose to ignore
directions, and to defy Folstrom by refusing three times to do as Folstrom directed.
Dyess' testimony regarding what occurred on December 31st and his
admissions that he
ignored Folstrom's direct orders to punch out and go home, support the City's arguments
Whether the City was seeking employes to perform additional services on
December 31st by calling
on the radio is not relevant. In any event, it was not up to Dyess to decide whether
of work were needed on December 31st. This was a decision properly
made by City managers.
Furthermore, whether there were employes in the lunchroom who had or had not
as of 2 p.m. on December 31st is again irrelevant. When Folstrom entered
the lunchroom and asked
employes to punch out, all employes, except Dyess, did as they were directed. The evidence
to show, contrary to Dyess' uncorroborated assertions, that Folstrom somehow singled Dyess
and asked him specifically to punch out and leave the facility. In this regard, I note that
specifically denied that he singled Dyess out. Because the Union presented no evidence to
or impeach Folstrom, I have credited Folstrom. Whether Dyess felt singled out and whether
became angry when his personal plan to stay and work additional hours failed, were Dyess'
which were not created by any statements or actions of Folstrom's.
The fact that employes Christenson and McWhorter did not punch out until 2:48 p.m.
not show that Dyess was somehow treated in a disparate fashion by Folstrom. In this regard
that Christenson and McWhorter were assigned to a regular garbage disposal route which
takes longer to perform than do recyclable routes. The City also proved herein that
employes are not
necessarily paid for every minute they are on the clock.
Close examination of Dyess' work record demonstrated that the level of discipline
the City for Dyess' insubordination on December 31st was appropriate. In
this regard, I note that
Arbitrator Mawhinney held that the City had just cause to give Dyess a two-day, five and
hour suspension for insubordination on January 27, 1997. In her Award, Arbitrator
. . .
I find that the discipline imposed was reasonable under all of the
circumstances of this case. First,
the Grievant has been insubordinate less than one year
before this incident, and he almost did not
get a full-time position with the City because of his
attitude with Golden while he was being evaluated for a
permanent position. He told Golden, "Who do you think you are
to evaluate me?" Dyess needs
to realize just who Golden is, and hopefully, he has figured it out by now that Joe Golden is
Superintendent of Public Works- the person with the authority to hire, evaluate, supervise
discipline. Golden holds a high level of authority in the Department, and if Dyess continues
challenge Golden's authority, how will he ever accept any orders from lower level
of Racine, MA-9945, (Mawhinney 10/98), slip op. at page 7.
. . .
This quote demonstrates that Dyess has had difficulty accepting authority over a period
of years and
that he has been disciplined therefor. It is also clear from the instant case that Dyess has
unwilling to accept orders from (lower level) supervisor Folstrom. Although the level of
meted out in this case is high, I cannot say it was unreasonable given Dyess' work record
prior suspension for two days and five and one-half hours which was upheld in October,
Arbitrator Mawhinney. As no evidence was submitted to show that the City was arbitrary,
or abused its discretion in setting the penalty for Dyess' actions of December
31st, it would be
inappropriate for the Arbitrator to disturb the penalty in this case.
The Union has argued that because Dyess left before Golden
arrived at the shop on December
31st, the City should not have disciplined Dyess. I disagree. Dyess'
actions demonstrate that he was
intentionally and repeatedly insubordinate to his supervisor on December
31st. Superintendent Golden
had every right to discipline Dyess on the basis of Dyess' actions on December
31st, which were
largely admitted by Dyess herein.
In all the circumstances of this case, I find that Dyess was insubordinate and blatantly
disobedient on December 31st, having failed three times to obey his
supervisor's clear and reasonable
orders, in violation of City Work Rule Q, 1(a). I therefore issue the following
The City had just cause to impose a five-day suspension on Grievant Marckus Dyess
January 5, 1999. The grievance is therefore denied and dismissed in its entirety.
Dated at Oshkosh, Wisconsin, this 7th day of December, 1999.
Sharon A. Gallagher, Arbitrator