BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 67, AFSCME, AFL-CIO
CITY OF RACINE
(Markus Dyess Termination)
Mr. Michael J. Wilson, Staff Representative, Wisconsin Council
40, AFSCME, AFLCIO, 8033
Excelsior Drive, Suite "B", Madison, Wisconsin 537171903, appeared on behalf of
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,
AFLCIO filed a request with the Wisconsin
Employment Relations Commission seeking to have Arbitrators assigned to hear a series of
disciplinary cases involving employee Markus Dyess. David Shaw, a member of the
Commission's staff was assigned to hear, heard, and decided, a five-day suspension
involving Mr. Dyess. William C. Houlihan, a member of the Commission's staff was
assigned to hear, heard, and decided, a 30-day suspension involving Mr. Dyess. Houlihan
was subsequently asked by the captioned parties to hear the termination case involving Mr.
Dyess. That hearing was conducted on July 12, 2001, in Racine, Wisconsin. A transcript
of the proceedings was made and distributed. Briefs, and reply briefs were submitted and
exchanged by November 12, 2001. Further submissions were rejected on January 28,
This Award addresses the termination of 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. Dyess is required to hold a Commercial
Drivers License (CDL) to maintain his position. As of the date of the events giving rise to
this proceeding, Mr. Dyess had accumulated a lengthy disciplinary record. There are 15
disciplinary incidents listed in Mr. Dyess' file in the four-year period between his date of
hire and October 1999. Notably, Mr. Dyess has two oral reprimands, two written
reprimands, and a one-day suspension for "failure to notify of absence from work".
Additionally, Mr Dyess served a two-day, 5½ hour suspension in January of 1997 for
insubordination. That suspension was grieved and arbitrated. In sustaining the
suspension, the arbitrator found Dyess to have behaved in an insubordinate fashion, that
he had challenged a supervisor's authority, that he was angry, and that he was prone not to
listen. Mr. Dyess also served a five-day suspension in May of 1999 for insubordination.
That suspension was grieved and arbitrated. In sustaining the five-day suspension, that
arbitrator noted that the grievant had on three separate instances refused a directive to go
home on an overtime day.
On August 5 the grievant received a three-day
suspension for failure to notify of absence
from work. He had arrived 50 minutes late. Dyess took issue with the suspension in a loud,
confrontational, and threatening manner. He was issued a 30-calendar day suspension for
his behavior on that date, as well as the totality of his workplace performance and
behavior. The suspension was characterized as a last chance opportunity and indicated
that any further transgression would result in his discharge. The suspension was
arbitrated before me. I reduced the suspension to a five-day suspension because the letter
of suspension failed to reference the August 5 incident, the City failed to meet with the
grievant before imposing discipline, and the lack of clarity relative to the City's
expectations of Dyess.
The City has a Drug and Alcohol Testing Policy,
which has been in effect since 1994. On or
about April 30, 1999 the grievant was selected to take a random drug test. He failed to do
so, and was given a five-day suspension for refusing to submit to a drug test. He grieved
the suspension, claiming that he was unable to produce a sample. The matter was taken to
arbitration, and the arbitrator denied the grievance and sustained the discipline. The
refusal to submit to a test is treated as a positive result.
The grievant was requested to submit to a drug test on
September 16, 1999 as part of the
random testing policy of the Drug and Alcohol Testing Policy. His drug test results were
positive for a prohibited controlled drug. The grievant's urine sample was submitted as a
split sample on September 16, 1999 and confirmed as positive for cocaine on September 29,
1999. Mr. Dyess was terminated by letter dated October 18, 1999, which provided in
. . .Upon review of the totality of your work record which was
set forth in the City's letter to you
dated August 9, 1999 and the additional serious work rule violation of September 16, 1999,
it is the
City's intention to terminate your employment status effective November 1, 1999. . . .
The parties stipulated to the following issue:
Did the employer have just cause to terminate the grievant on
October 18, 1999? If not, what
is the appropriate remedy?
RELEVANT PROVISIONS OF THE COLLECTIVE
Article II, Management and Union Recognition
. . .
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
. . .
To hire, promote, transfer, assign and retain
employees positions with the City and to
suspend, demote, discharge and take other disciplinary action against employees for
POSITIONS OF THE PARTIES
The employer notes that it has disciplined all first violations of the drug and alcohol
policies with a five-day suspension. Failure to provide an adequate specimen is considered a
The five-day suspension was sustained. The grievant again tested positive on September 29,
The City contends that the grievant's history of discipline supports the termination. The
reviews the grievant's disciplinary record and argues that the City has been lenient with the
over the course of his employment.
The City further argues that the two positive drug tests, standing alone support the
to discharge. The employer has established a standard of termination for a second drug test
The Union contends that the City failed to follow its
own Drug and Alcohol policies after
the first positive test by failing to have the grievant evaluated by EAP and referred for
treatment. The Union asserts that such a referral is a pre condition to sustaining a second
positive drug test where the consequence is discharge. Workers have a right to expect that
the employer will intervene to assist employees suffering drug or alcohol problems, and not
just test and punish those individuals.
The Union contends that discharge is a last resort. It was incumbent upon the
attempt treatment. Treatment was never offered.
With respect to the City's contention that the totality
of the grievant's work record justifies
discharge, the Union notes that I overturned the 30 day suspension and last chance
provision. Under that circumstance, the Union argues that the grievant's work record is
not so poor, as is alleged by the City.
Markus Dyess had a terrible work record. His employment record is filled with
behavior resulting in discipline, the frequency and severity of which increased over time.
unsuccessfully challenged a number of the disciplinary measures. There is no indication in
that any of this discipline was effective in modifying the inappropriate workplace behavior.
It is in
this context that the termination must be reviewed.
Mr. Dyess' termination is alleged to be appropriate for two separate, but related
first is that he failed a drug test. Under the terms of the Drug and Alcohol Testing policy,
constituted the second positive test. It was the uncontradicted testimony of Terry Parker,
Human Resource Manager, that every city employee who has tested positive for drugs has
suspended for 5 days. Parker further testified that all second positive tests have led to
and that each of those terminations have been sustained in Arbitration.
The Union contends that the termination should be overturned because of the failure
City to have the grievant evaluated by EAP, and offered a drug treatment opportunity. The
Drug and Alcohol Testing policy provides as follows:
RESULTS OF A POSITIVE TEST
An employee who tests positive for
controlled substances shall be subject to discipline, up to
and including termination. As with an alcohol misuse violation, the City is required to act
positive drug test result in the following manner:
Remove the employee from
the safety-sensitive position. . .
Refer the employe to the
City EAP for assessment and subsequent compliance with
recommended rehabilitation after a determination of a drug problem has been made;
Employee must be evaluated by a substance abuse
professional or MRO and determined to
be fit to return to work prior to their release of the employee;
Employee must have a negative result on a return
to duty test. . .
The record establishes that there was no referral to EAP, nor was there a City initiated
a substance abuse professional. However, William Dyess, the grievant's father, was the
Coordinator at the time. The City attempted to introduce an exhibit which purportedly
grievant to EAP, at an earlier time. That exhibit was excluded based upon a Union
record also establishes that following the first drug test, Mr. Dyess went to his own
received a clean drug test.
I believe that a referral to EAP was called for following the first test. However, in
of the foregoing, I do not believe the failure of the City to make such a referral is a fatal
Dyess was certainly aware of the EAP program by virtue of his father's status. The policy
burden of referral on the employer. Mr. Dyess familial status does not alter that. I do
believe that Mr.
Dyess must be held to knowledge of the program. The Union successfully objected to the
introduction of what was described as a prior EAP referral. The employer contended that it
evidence of past efforts at assistance, and its frustration with the grievant. Under that
the Union's claim that the City owed Mr. Dyess a referral loses some of its persuasiveness.
Mr. Dyess did not actually fail the first drug test. He failed/refused to provide a
was subsequently seen by a physician, and given a clean bill of health. He claimed to be
It is in that context that no referral was made.
There are circumstances under which I would agree
with the Union that the City's failure
to refer the grievant to EAP or provide him with assistance would cause a termination to be
overturned. This is not such a case. Mr. Dyess has been treated consistently with those
who have gone before him. The circumstances described above do not suggest he has been
The second basis for termination is the totality of Mr. Dyess' work
record. The Union argues that
my prior Award overturned the 30-day suspension, and last chance status that preceeded this
discipline. My prior Award reduced the suspension imposed due to procedural flaws in the
imposition of the discipline. That Award indicated that I found Mr. Dyess behavior to be
"..inappropriate to the workplace, confrontational, and threatening." The behavior described
that Award was Mr. Dyess reaction to being disciplined for admittedly coming to work
hour late, for the second day in a row. These disciplines were the culmination of the lengthy
disciplinary history set forth above.
This case poses the question: At what point has the City put up with
enough? I believe the
answer is that this positive drug test was the last straw.
The grievance is denied.
Dated at Madison, Wisconsin, this 22nd day of March, 2002.