BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 67, AFSCME, AFL-CIO
CITY OF RACINE
Mr. John P. Maglio, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. Guadalupe G. Villarreal, Deputy City Attorney, appearing
on behalf of the City.
Local 67, AFSCME, AFL-CIO, hereinafter referred to as the Union, and the City of
hereinafter referred to as the City, are parties to a collective bargaining agreement which
the final and binding arbitration of disputes arising thereunder. The Union made a request,
concurrence of the City, that the Wisconsin Employment Relations Commission designate a
of its staff to act as an arbitrator to hear and decide a grievance over a discharge. The
was so designated. Hearing was held on February 29, 2000, in Racine, Wisconsin. The
transcribed and the parties filed post-hearing briefs which were exchanged by May 31, 2000.
The grievant has been employed at the City's public library for thirteen years as a
The grievant works Monday through Friday from 4:00 p.m. to midnight and is assigned to
second floor including the second floor men's room. On October 11, 1999, Daniel Schultz,
Library's Business Manager, reported to work at 8:00 a.m. and was approached by an
the Grunau Mechanical Company, who was doing some
maintenance work for the Library, and said that Schultz should look at the second floor
Schultz did and observed that a toilet had overflowed and there was excrement, toilet paper
over a good third of the bathroom floor. The employe from Grunau Mechanical plunged the
and unplugged it. Schultz then called Marianne's Janitorial, who is responsible to clean the
room on Saturday and Sunday and Valerie Bernal from Marianne's came and cleaned the
room. After cleaning the men's room, Valerie spoke with Schultz and told him that she had
to the library on Friday night October 8th at about 7:15 or 7:30 p.m. with
two persons she was
training and they observed in the second floor men's room that a toilet was plugged and they
because they were not working and figured the grievant, who was, would take care of it.
stated that she cleaned the men's room at 6:00 p.m. or 6:30 p.m. Saturday October
9th, and the toilet
was in the same condition she observed the previous evening. Bernal figured that
about it so she cleaned the rest of the men's room but left the toilet as she found it. Schultz
Ed Doonan, Building Maintenance Complex Supervisor, to come to the library and take a
look at the
situation. When the grievant reported to work, Schultz asked the grievant to come to the
librarian, Jessica McPhail's office, and they told the grievant what had transpired and
the grievant to write his side of the story. The grievant wrote the following:
On 10/8/99 Friday in making my rounds of the bathrooms about
5:10 or 5:15 I checked the mens
bathroom in adult department, and found spotting on the rim and large blob on the floor. As
were hardened and we were about to close, I soaked the stains with wet toilet paper to make
up easier, and locked the stall because we were closing soon anyway. Later, I went to clean
and the stains were easily removed, threw the paper in the toilet and flushed it
working fine, no clogs at all.
Schultz talked about the matter with Doonan but left it in personnel's hands to handle
personnel did not solicit his opinion on the amount of discipline.
Doonan spoke to Bernal on Monday, October 10, 1999 and accepted her version of
and never spoke to the grievant or read the grievant's statement and recommended the
terminated. Prior to terminating the grievant, the Personnel Director sent the grievant the
letter dated October 18, 1999:
This letter is intended to officially notify you that it is the
of Racine's intention to
terminate your employment as a Stationary Engineer at the Racine Public Library.
The reason for this anticipated action is
your continuing violation of the City's work rules and
your continued failure to perform your assigned duties.
You have been suspended without pay since October 13, 1999
and will have until the close
of business on Friday, October 22, 1999 to submit to this office, in writing, any mitigating
circumstances as to why the City should not carry out its intended action.
Upon review of the written
if any, the City will inform you of its final
determination as to your employment status.
Any questions concerning this letter may
be directed to the undersigned.
The grievant responded on October 21, 1999 with the
This letter is in response to your letter of termination of my
employment with the City of Racine,
dated October 18, 99. I am requesting clarification of the work rules I have violated, and
explanation and clarification of assigned duties I have not performed. I would appreciate a
on or before October 29, 1999.
On November 3, 1999, the grievant was sent a termination letter which provided, in
This letter is intended to officially notify you that your
employment relationship with the City
of Racine as a Stationary Engineer at the Racine Public Library is terminated effective
You have not submitted any reasons that
would mitigate the City's intention to terminate your
employment as outlined in the letter to you dated October 18, 1999.
The termination was grieved and appealed to the instant arbitration.
The parties stipulated to the following:
Did the City have just cause to terminate the grievant on
November 3, 1999? If not, what is the
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
. . .
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
. . .
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.
POSITIONS OF THE PARTIES
The City contends it had just cause to terminate the grievant for his failure to
up or unplug the toilet in the library on Friday, October 8, 1999. The City points out the
long history of failing to perform or complete assigned duties and the progressive
measures meted out to the grievant. It observes that the grievant admitted he saw the
and decided to clean it up later when the library closed for the day. It argues that a plugged
not something that should be left for later and the grievant's version of the plugged toilet's
is worse than that described by Bernal. It submits that the
grievant's version does not fit the facts as related by Bernal as Bernal and her trainees
would not have
been able to observe the toilet had the grievant locked the stall door as he claims. It points
the grievant's version was written at a time when he did not know what, if anything, Bernal
on Friday evening or the weekend. It claims that Bernal's observations are more credible
consistent with the interests of the parties. It notes that the private firm is not required to
toilet bowls and it would have performed its job without addressing the plugged toilet's
Friday or Saturday. It asserts the grievant had a duty to clean up the mess when he saw it
unplug the toilet. It maintains that the grievant's conduct is consistent with his attitude that if
ignores something, someone else will take care of it. It concludes that the termination is the
of the grievant's continued failure to abide by the work rules and the City has reached the
end of a
long, progressive disciplining of the grievant which failed to do what it was intended to do
grievant refused to understand.
The Union observes that if the contracted service sees a clogged toilet, City
to be contacted, yet neither Doonan nor Schultz were contacted by Bernal on Saturday or
The Union points out that the library is open from 9:00 a.m. to 5:00 p.m. on
Saturdays, and on any
given Saturday, 300 to 400 visitors come to the library and hundreds of people could have
restroom in question. Also, the Union notes that 12 to 15 library staff are on duty, yet not
complaint about the toilet either by the public or staff was made on Saturday, October 9,
Sunday, October 10, 1999.
It argues that the grievant's work record is less than stellar; however, the burden of
on the City to prove its case and it clearly did not. It contends that no members of
the mess, no staff member reported any mess, no members of the public notified library staff
problem with the toilet and no calls were made by the janitorial service reporting the
argues that the entire case revolves around the testimony of Bernal who admitted she did not
grievant. It claims there is absolutely no proof that the grievant did not clean the restroom
October 8, 1999 or that the mess Bernal saw on Saturday was the same seen by her on
It submits that Doonan recommended discharging the grievant without even talking to
hearing his side of the story or even talking to other staff and the termination was based on
The Union asserts that the grievant does not work on Saturday or Sunday and the
have been created on Saturday or Sunday when it is the contracted service's responsibility to
the restroom. It claims that Bernal's accusations are self-serving and appear to be a public
to justify the shoddy work performed by the contracted service.
The Union argues that the City fell woefully short in its burden of proof and the
not terminated for just cause. It asks that the grievant be reinstated with no loss of seniority
be made whole for all lost wages.
It argues in the alternative, that if there was just cause to discipline the grievant,
too severe a penalty and in at least three instances, the City issued long-term suspensions of
days for other employes, but the grievant has never been given a 30 or 45 day suspension. It
that in the unlikely event it is determined that the City met its burden of proof, then a
would be in order and the grievant made whole for lost wages and benefits in excess of the
The issue presented is whether the City had just cause to discharge the grievant. The
that precipitated the grievant's discharge was a toilet that overflowed in the library's men's
located on the second floor. The only evidence tying the grievant to this incident is the
Valerie Bernal, the Assistant Manager for Marianne's Janitorial, the private contractor, who
responsible for cleaning the men's room on Saturdays and Sundays. Bernal testified that she
the toilet on the evening of October 8, 1999 when she was showing two new janitors their
96-98). The two new janitors did not testify nor did they show up for work on Saturday, so
had to clean up on Saturday and she observed the toilet and testified that it was the same
saw on Friday night (Tr. 99). Bernal did not contact anyone and left it as she found it. (Tr.
Bernal testified that her Sunday janitor put an "out an order" sign on the bathroom door on
after the toilet overflowed. (Tr. 112). The Sunday janitor never cleaned the overflow up
and did not testify in this mattter. It is unclear why she did not clean it up or report it to
Monday when the overflow was discovered, there was no indication of any sign having been
anywhere. Additionally, no one from Marianne's contacted the City. Bernal apparently told
that no calls were made to City management because she was tired of the grievant not doing
On an average Saturday, three to four hundred people visit the library. (Tr. 88).
also 12 to 15 employes who work on a Saturday. (Tr. 89). Not one of the public or staff
complaint about the men's room on either Saturday or Sunday (Tr. 91).
Bernal is the only person other than the grievant to testify about the condition of the
Friday, October 8, 1999. Bernal's testimony was not corroborated in any way. She testified
observed the problem on Friday which was still there on Saturday and yet she did not call
management as she was supposed to do. Bernal testified she observed the toilet at 6:00 p.m.
p.m. on Saturday, which was after the library had closed for the day. The toilet could have
plugged up anytime during the day on Saturday. It had not overflowed
and Bernal did not put up an "out of order" sign. Had Bernal observed the toilet
before the library
opened on Saturday and it was in the condition she described, it would have been easy to call
to verify its condition which would then clearly prove that it was the grievant's fault.
her Sunday janitor did not clean up the overflow as she should have, but merely left it.
Doonan testified that you don't leave a toilet in a public building where the public can get at
up; you clean it. (Tr. 115.). Perhaps Bernal is protecting her employe and the
contract and perhaps she was attempting to cause trouble for the grievant. Bernal admitted
mad on Saturday when she saw the toilet (Tr. 99), and she testified that she did not like the
(Tr. 107). There were too many intervening factors between Friday evening and Monday
The toilet could have been plugged Friday, Saturday or Sunday. No one from City
it, no one either from the public or staff had a complaint, and no one reported it to
janitors from Marianne's could have been called to corroborate Bernal's version of events.
were not. The grievant's testimony and his written statement indicate that the toilet was
properly working on Friday night. (Tr. 143, Ex. 15). Bernal's testimony is not sufficient
that the grievant was responsible for the overflowing toilet. The grievant's past record
that he has failed to carry out his assignments in the past but his past record is not evidence
failed to do his job in the instant case. This factor, coupled with Bernal's testimony, simply
sufficient to establish that the grievant failed to clean the toilet on Friday, October 8, 1999.
The preponderance of the evidence presented in this case fails to prove the grievant
unplug and properly clean the toilet on October 8, 1999, and therefore, the City did not have
cause to discharge or discipline him. Thus, the discharge must be set aside and the grievant
and made whole.
Based on the above and foregoing, the record as a whole and the arguments of
undersigned makes the following
The City did not have just cause to terminate the grievant on November 3, 1999.
shall immediately reinstate the grievant to his prior position and make him whole for all back
benefits less any interim earnings or unemployment compensation received, if any. If the
received Unemployment Compensation which is offset from back wages, the City shall
Department of Workforce Development the amount offset. The
letter of discharge shall be expunged from the grievant's file. The undersigned will
for a period of thirty (30) days from the date hereof solely for the purpose of resolving any
with respect to the remedy herein.
Dated at Madison, Wisconsin this 29th day of June, 2000.