BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 67, AFSCME, AFL-CIO
THE CITY OF RACINE
(Markus Dyess Suspension)
Mr. Michael J. Wilson, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 8033 Excelsior Drive, Suite B , Madison, Wisconsin 53717-
1903, appeared on behalf of the Union.
Mr. Guadalupe G. Villarreal, Assistant City Attorney, City of
Racine, 730 Washington Avenue, Room 201, Racine, Wisconsin 53403, appeared on behalf
of the City.
On December 7, 1999, Local 67, AFSCME, AFL-CIO filed a request with the
Employment Relations Commission seeking to have an arbitrator appointed to hear and
dispute pending between it and the City of Racine, Wisconsin. On March 20, 2000, the
the City requested the Commission appoint William C. Houlihan, a member of its staff, to
decide the captioned matter. The matter was set for hearing and postponed several times.
the matter was heard on May 31, 2001, in Racine, Wisconsin. A transcript of the
made and distributed on June 13, 2001. Briefs and a reply brief were submitted and
October 18, 2001.
This Award addresses a 30-day suspension involving employee Markus Dyess.
BACKGROUND AND FACTS
Markus Dyess, the grievant, has been employed by the City of Racine, as a truck
driver in the
solid waste operation, since September of 1995. As of the date of the events giving rise to
proceeding, Mr. Dyess had accumulated a lengthy disciplinary record. There are 13
incidents listed in Mr. Dyess' file in the four-year period between his date of hire and
Notably, Mr. Dyess has two oral reprimands, two written reprimands, and a one-day
"failure to notify of absence from work". Additionally, Mr. Dyess served a two-day,
suspension in January of 1997 for insubordination. That suspension was grieved and
sustaining the suspension, the arbitrator found Dyess to have behaved in an insubordinate
found that he had challenged a supervisor's authority, that he was angry, and that he was
not listen. Mr. Dyess also served a five-day suspension in May of 1999 for
suspension was grieved and arbitrated. In sustaining the five-day suspension, the arbitrator
the grievant had on three separate instances refused a directive to go home on an overtime
On August 4, 1999, the grievant arrived late for work. The next day, August 5,
grievant arrived at work approximately 50 to 55 minutes late. Joe Golden, the
Streets, determined to issue Dyess a three-day suspension for "failure to notify of absence
work". The City has a work rule requiring employees who will be late to work to notify
supervision in advance. Dyess had failed to do so. Golden directed Jeff Fidler, who is the
Supervisor for the Department of Public Works, to issue the discipline. At the conclusion of
workday on August 5, Fidler called Dyess into a conference room where he had arranged to
Union steward John Tate present. Fidler handed Dyess the following disciplinary letter:
. . .
ON WEDNESDAY AUGUST 4, 1999 YOU CALLED THE
FIELD OFFICE AT APPROXIMATELY 7:28AM TO NOTIFY SUPERVISION THAT
OVERSLEPT BECAUSE YOUR ALARM CLOCK DID NOT GO OFF. THE
THURSDAY AUGUST 5, 1999 YOU WERE NOT PRESENT FOR THE START OF
SCHEDULED 7:00AM WORK SHIFT. AT APPROXIMATELY 7:58AM YOU
WORK AND TOLD YOUR IMMEDIATE SUPERVISOR THAT YOUR ALARM CLOCK
BEEN SET FOR THE WRONG TIME.
BOTH OF THE ABOVE INCIDENTS
ARE VIOLATIONS OF WORK RULES "A. TIME
CARDS, SEC. 3" AND "B. NOTIFICATION OF ABSENCE, SEC. 1."
I HAVE DISCUSSED THIS SITUATION
WITH THE PERSONNEL DIRECTOR AND
WE ARE IN AGREEMENT THAT YOU ARE TO RECEIVE A 3 DAY SUSPENSION
WITHOUT PAY BEGINNING ON FRIDAY AUGUST 6, 1999 AND CONTINUING FOR
MONDAY AUGUST 9, 1999 AND TUESDAY AUGUST 10, 1999.
PLEASE BE ADVISED THAT YOU
HAVE DEVELOPED A VERY POOR WORK
RECORD WHICH INCLUDES NUMEROUS REPRIMANDS AND SUSPENSIONS. I
STRONGLY SUGGEST THAT WHILE YOU ARE SERVING THIS SUSPENSION YOU
EXAMINE YOUR COMMITMENT TO REMAIN AN EMPLOYEE WITH THE CITY OF
RACINE AND UPON YOUR RETURN TO WORK YOU TAKE WHATEVER STEPS
NECESSARY TO IMPROVE YOUR WORK RECORD. FAILURE TO DO SO WILL
IN THE APPROPRIATE DISCIPLINARY ACTION.
The form is dated 8-5-99 and signed by Joe Golden. During the course of the
took issue with some of the representations in the disciplinary memo. Fidler advised Dyess
had not written the memo and was in no position to modify its terms. According to Fidler,
became angry and wanted to discuss the memo and have it rescinded. Dyess persisted, and
continued to remark that he was in no position to change anything. According to Fidler,
interrupted him to tell him that he (Fidler) had a bad attitude and needed to change his
advised Dyess that he had his recourse, and ended the meeting.
The meeting ended, and the three men exited the conference room. Once in the
office area, Dyess went to another supervisor, Bill Folstrom, and attempted to engage
the reprimand. Folstrom testified that he did not understand what Dyess was attempting to
him about. Folstrom had no part in the discipline, though he was aware of it. According to
Tate urged Dyess to leave, and Dyess responded that he would not leave, and that he did not
they threw him out. Folstrom described Dyess' attitude as defiant. According to Folstrom,
again urged Dyess to leave, and the two started to walk out.
Dyess then walked toward Fidler's desk and in response to Fidler indicating that
be entitled to a meeting, Dyess told Fidler that he had a bad attitude, and needed to change
attitude. His demeanor was confrontational and intimidating. Dyess pointed his finger at
told him "Don't look at me that way." Ultimately, John Tate persuaded Dyess to leave the
The supervisors believed Dyess behavior to be unacceptable in the workplace. They
the matter to James Kozina, the City's Human Resource Director. In response to the
description of Dyess' behavior on August 5, Kozina issued Dyess the following letter:
August 9, 1999
Mr. Markus Dyess
. . .
Dear Mr. Dyess:
This letter is intended to officially notify
you that you are being placed on a 30-calendar day
suspension without pay effective Friday, August 6, 1999 through September 4, 1999 (your
latest 3-day suspension for absenteeism and tardiness is included in the 30-day suspension).
This suspension is based on the totality of
the work record you have compiled with the City
of Racine which includes numerous disciplinary notices, including suspensions, for tardiness,
to notify of absences, insubordination, vehicular accidents and work performance.
In addition to and coupled with these work
rule violations, you have exhibited a blatant
hostility toward and lack of respect for supervision and your fellow employees. You have
a disruptive, intimidating and hostile work environment; such behavior can no longer be
This suspension is intended as a "last
chance" opportunity for you to reassess your
employment status with the City of Racine. You will be expected to comply with the
Good attendance and punctuality.
Compliance with all
supervisors' instructions and/or directives
Civility and common
courtesy with fellow employees and supervisors
Adherence to all
departmental and City work rules.
You should understand that any sub-performance in the above
areas or other work rule
violations will result in your termination from City employment.
You will be expected to return to work on
Tuesday, September 7, 1999 and any questions
concerning this letter may be directed to the undersigned.
C. Kozina /s/
Although the letter was prompted by Dyess' behavior of August 5, there is no
reference to that behavior.
The parties stipulated to the following issue:
Did the Employer violate the collective bargaining agreement
when it disciplined the grievant
with a 30-day suspension on August 9, 1999? If so, what is the appropriate remedy?
RELEVANT PROVISIONS OF THE
COLLECTIVE BARGAINING AGREEMENT
Management and Union Recognition
. . .
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 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 cause.
. . .
POSITIONS OF THE PARTIES
It is the Employer's contention that the grievant's actions and tirade on August 5,
unprovoked, uncalled for and was insubordinate in nature. The Employer contends that the
is undisputed that the grievant failed to call in on two consecutive days, August 4 and
5, 1999. By
failing to address the merits of the 3-day suspension, the Employer contends that the Union
grievant have conceded the work rule infraction of notification of absence, which
the grievant had no real issue with the 3-day suspension, and thus the grievant's actions and
on August 5, 1999 were without any merit or justification. Similarly, it cannot be argued
somehow the grievant was confused about the work rule requirement to call in, since he had
disciplined on five separate occasions for the same infraction, including a one-day
Employer contends that the grievant's actions on August 5, 1999 are exactly the same type of
behavior for which he was disciplined with a two-day, 5.5 hour suspension and another
suspension for insubordination.
It is the position of the Union that the Employer bears the responsibility for writing a
notice of discipline. The disciplinary process followed in this case is most noteworthy for
failed to convey. The 30-day suspension contains no fresh charge of insubordination.
nor Golden ever met with the grievant or his representative before invoking discipline. Due
was not followed. The Employer did not conduct a fair investigation because it never
grievant an opportunity to be heard prior to determining discipline.
The Union contends that the actual reasons cited in the notice of discipline were
nature and cumulative. The three-work day suspension was incorporated as a part of the
day suspension. Whereas there were no new or additional incidents cited, the ultimate
constituted double jeopardy. By not meeting with the grievant, the Employer not only failed
obligation to conduct a fair investigation, afford the grievant an opportunity to be heard and
confront his accusers, but also failed to follow the concept of corrective discipline.
The Union cites authority for the proposition that discipline must stand or fall upon
reasons stated in the notice of discipline. The Union cites further authority for the
employees are entitled to a precise statement of charges when facing discipline. Surprise and
adequate notice about the basis for disciplinary action generally prejudice the Union and the
in investigating the charges and preparing a defense. Notices that do not describe the type,
or nature of the alleged misconduct are also considered to be flawed.
The Union contends that due process requires a fair investigation. One component of
is that the employee be given an opportunity to tell his version of the incident. The Union
authority for the proposition that this opportunity must occur prior to the administration of
Hearing the employee's side of the story may clear up misunderstandings and even exonerate
employee. Requiring an employer to take this step before imposing discipline can give
an opportunity to slow down impulses and arbitrary decisions. In this case, prior to the
hearing, the grievant was never allowed to tell his side of the story. At no time prior to
was the grievant or his Union afforded an opportunity to confront those who had accused him
There is no dispute in this proceeding as to the propriety of the three-day suspension
for the grievant's failure to provide notification of his absence.
The testimony of Fidler and Folstrom as to the events of August 5 stands unrebutted.
behavior described was inappropriate to the workplace, confrontational and threatening.
refused to listen, as Fidler attempted to explain that he had no authority to modify the text of
discipline. He challenged his supervisors openly and in the workplace. Mr. Dyess is
Mr. Tate was able to diffuse the situation. No supervisor ever directed Dyess to leave.
failure to leave was not, in and of itself, insubordination. However, his behavior bore strong
to that for which he has been disciplined in the past.
30 calendar days is a long suspension. The record suggests that the Employer has
such discipline in the past in the context of "last chance" warnings. In light of
Mr. Dyess' dismal
disciplinary history, I would be inclined to defer to the Employer and sustain even this
suspension. However, I do believe the disciplinary process was flawed.
The Union contends that the 30-day suspension letter is vague. The Union is
noting that the letter contains no fresh charge of insubordination. The August 5 incident
the 30-day suspension, but is not mentioned in the disciplinary letter. The absence of any
to the event is troublesome. The Employer contends that the intent of the
letter was to put Dyess on notice that his entire performance was unacceptable. It is in
that the Union's second claim, that there was no meeting with Mr. Dyess prior to the
discipline, must be considered.
The Union accurately points out that there was no meeting afforded Mr. Dyess prior
imposition of the 30-day suspension. I agree with the Union's contention that minimum
due process demand that the grievant be confronted with the allegation, and afforded an
to respond. Here, the incident of August 5 prompted the letter. Dyess was entitled to
charges relative to his behavior of August 5, and either admit, deny or explain what
is particularly true given the gravity of the discipline imposed, a 30-day suspension. The
accompanying the suspension describes this as a "last chance" warning. The Employer put
notice that the totality of his work performance was lacking. He was directed to modify his
in numerous and sweeping areas. His failure to do so would lead to his termination. I
Dyess was entitled to have the Employer's expectations articulated, clarified and reviewed.
The Union contends that the imposition of a 30-calendar day suspension on top of a
day suspension constitutes double jeopardy, in the absence of noted intervening behavior. I
The 3-day suspension was in response to Mr. Dyess' failure to call in advance of his
30-day suspension was prompted by his insubordinate behavior of August 5 and the totality
work record. The disciplines were served concurrently.
I am reducing the 30-calendar-day suspension to a 5-day work suspension. 5 work
the suspension imposed for insubordination in January, 1999. Due to the significant
in the imposition of the discipline, I am unwilling to allow the City to "progress" beyond the
disciplinary standard previously issued. If it was the City's intent to put the grievant on a
notice of his termination, the City had an obligation to confront the grievant with the totality
unacceptable behavior, allow the grievant to respond, and to explain the performance
required of Mr. Dyess to continue as a City employee.
I am unwilling to void the discipline entirely. Mr. Dyess' behavior was entirely
to the workplace and the same type of behavior previously exhibited. Mr. Dyess did
supervisory accounts of the events of August 5. Mr. Tate, who was not called to testify,
what transpired. Mr. Tate's presence eliminated the potential for surprise to the Union.
Under the totality of circumstances, it would send a terrible message to workers and
supervisors for Mr. Dyess' August 5 conduct to escape discipline. The 5-day work
be served in addition to the 3-day work suspension for absenteeism.
The grievance is sustained.
The Employer is directed to reduce the 30-calendar day suspension to a 5-work day
suspension. The Employer is further directed to refund to Mr. Dyess the monies he lost in
5 work days (and the additional 3 work days for tardiness), and to modify his personnel file
Dated at Madison, Wisconsin this 5th day of November, 2001.