BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AFSCME LOCAL 2485, AFL-CIO
WAUKESHA SCHOOL DISTRICT
Ms. Christine Bishofberger, Staff Representative, Wisconsin
Council 40, AFSCME, AFL-CIO, W237 S4626 Big Bend Road, Waukesha, Wisconsin
53189, appeared on behalf of the Union.
Mr. Sean Scullen, Quarles & Brady, LLP, Attorneys at Law,
411 East Wisconsin Avenue, Milwaukee, Wisconsin 53202-4497, appeared on behalf of the
On September 6, 2002, AFSCME Local 2489 and the Waukesha School District filed
request with the Wisconsin Employment Relations Commission seeking to have William C.
a member of the Commission's staff, hear and decide a grievance pending between the
hearing was conducted on December 2, 2002, in Waukesha, Wisconsin. A transcript of the
proceedings was taken and distributed on December 13, 2002. Post-hearing briefs were
and exchanged by February 10, 2003.
This dispute addresses the elimination of the Kitchen Equipment Repair position,
by Matthew Hamer, the grievant.
BACKGROUND AND FACTS
Matthew Hamer, the grievant, was hired on January 21, 1998. He worked on the
as a Kitchen Equipment Maintenance and Repairman. Mr. Hamer testified to a number of
which caused him to challenge certain decisions of his employer, and/or to engage in
During the 1999-2000 academic year, Mr. Hamer objected to the distribution of
overtime. He filed a grievance, which caused the matter to be discussed. As a consequence
discussion, Hamer removed himself from the snowplow list. It was his testimony that Glen
his supervisor, was present. He testified that he and Norder had a testy exchange relative to
taking himself off the snowplow list. According to Hamer, the next time it snowed, Norder
him and asked if he could plow. The next year, Hamer testified that Norder did the same
According to Hamer, Norder refused to call him on a double-time situation which caused
file a grievance. It was Hamer's testimony that the resolution of that grievance was to give
overtime to make up for the time he was not called.
Ronald Stierman, the Director of Facilities, also testified with respect to Hamer's
snowplowing grievance. According to Stierman, snowplowing had historically been handled
building-by-building basis. Stierman testified that Hamer's grievance resulted in a
the snowplowing protocol. According to Stierman, a meeting was convened among
members involved in the snowplowing. Stierman testified that a consensus came out of that
to continue snowplowing as it had historically been handled. At the conclusion of the
Hamer indicated he wanted to be taken off the snowplowing list.
Mr. Hamer testified that at the conclusion of the snowplowing season, ". . .Glen told
Gerber, who was the maintenance manager at the time, a lie, that he witnessed me coming in
3-12-00 and 3-13-00, and that was the start of my entire nightmare with all of this."
Q. "Did you file grievances on that?"
A. "Yes, I filed a grievance on
Q. "Were they resolved?"
A. "They were resolved
through mediation. And the letter was supposed to be pulled out of my
file and it was supposed to be null and void, except Paul Roberts put me on notice there was
an issue because I had admitted in the past that, yes, I had been late, but these two times in
inaccurate. And I believe the reason Glen Norder said this or
made up this accusation was
because he knew the grievance of the snowplowing was coming up. It was in retaliation of
that. . ." (Transcript, p. 35-36)
In November of 2000, Mr. Hamer was selected to be the union steward for the Food
employees. In his capacity as union steward, Mr. Hamer wrote the following letter, which
distributed in the January 7, 2002 Union newsletter:
. . .
The Future of the
Dear Union Brothers and Sisters, Local
The events of this year motivated me to
make a decision to take action. If things continued
on the same path, there would be no future for our local Union. Derogatory comments have
made. I myself have had complaints about the Union and its operations. What I did not do
up to be heard. That was my fault. Some Union members including myself had given up on
This letter is my attempt to do something
to make a difference. As you may already know,
the Union can be only as good and effective as its members are. If each person would
small amount of time and voice his or her opinion, the result would be a stronger, more
We as a Union, a group of people
together, can make a difference. Working
together we can make our investment in the Union a powerful force to protect us all from
discriminatory, unlawful, and unethical treatment. Let's work together to restore the
members of this Union. It is our right as Union members to share information, voice our
and be heard.
I look forward to seeing you at the next
Hamer, Food Service Steward
. . .
It was Mr. Hamer's testimony that he subsequently saw Mr. Norder reading the
Ronald Stierman ultimately recommended the elimination of Mr. Hamer's Food
position. Stierman testified that he did so for two reasons. According to
Mr. Stierman, the District
had experienced a long-standing problem with a backlog of plumbing maintenance and
District had two day-shift plumbers and had attempted to manage the plumbing work with
staff for a period of years. This effort had proven unsuccessful in that the substantial
plumbing orders never diminished. Stierman came to the conclusion that a third plumber,
second-shift, was necessary. However, due to the financial circumstances surrounding the
any additional position had to come from existing resources. That is, the District was not in
position to add a new plumber without finding the money for that position from already
Maintenance employees had been directed to log their repair and preventative
time. It was Stierman's understanding that Norder had issued a directive to do so during the
quarter (July through September) of 2001. Mr. Hamer denied being given any such directive
December of 2001.
On December 20, 2001, a meeting was held involving Mr. Hamer, Dale
Union Steward, Glen Norder and Ron Stierman. It was at that meeting that he was given his
work-order printout which reflected very little work being done from September 1 through
He was instructed to provide labor, time and material costs for all completed work orders in
Mr. Hamer objected to the utilization of the electronic log, at least in part because he
he was not advised that his activities should be recorded. Mr. Hamer kept a log, by school,
performed. That log recorded the tasks, but not the amount of time spent at those tasks.
Hamer was questioned about the number of work orders he handled, he created a work order
sheet. The sheet that Mr. Hamer created reflected orders, time, tasks, etc.
None of the foregoing logs report a substantial number of work hours. Mr. Hamer
that he worked many hours beyond those reflected in any of the logs.
Stierman reviewed the electronic log of maintenance and repair time and concluded
positions, an air conditioning position, and the food service repair position, were less than
The two positions experienced peak work seasons at different times of the year. Stierman
that the two positions could be combined, thus freeing up a new position, which could be
filed by a
On January 11, 2002, a second meeting was held involving Christianson, Hamer,
Norder and Stierman. It was at this meeting that Hamer was advised that there was not
in the Food Service Equipment repair area to require a full-time staff member. Stierman
Hamer that he was recommending that the Food Service Equipment repairman be eliminated
replaced with a second-shift plumbing position. On February 7, 2002, Paul Roberts,
Director of Human Resources, sent Mr. Hamer the following letter:
This letter is a confirmation of the discussion we had with
on Monday, February 4, 2002.
The position of Food Service Equipment repair has been eliminated as of that date, February
As we indicated in our conversations, you will be eligible to bump anyone less senior in
if you can meet the posted qualifications. It is our understanding that you are not able to
qualifications, therefore you will have an opportunity to select from any vacant positions in
custodial unit. While working in the custodial position, you will continue to be paid at the
as you had been as a Maintenance worker. You will remain at that rate until you post for a
position, at which time you will be placed at the bargained salary for that position.
As a result of our discussions, you asked
for a personal day for Tuesday, February 5, 2002,
which was granted. We allowed you to use accrued vacation time for the balance of the
week to get
any personal affairs in order. Please make sure that this service building is notified that you
are using those days.
On February 25, Mr. Hamer filed the following grievance:
Mat Hamer's job was eliminated. Mat had to go to second
or be laid off and then
recalled the next day to job vacant on second shift. Mat had to use all his vacation time to
get his life
in order because of the hardship of going to second shift. If Mat had not gone to second
would have been fired. Mat went to second shift under protest. . .Mat says he has the right
on first shift "a significant benefit" or go to layoff status until a first shift vacant position
according to Article XXII, Layoff and Recall. Mat also claims management violated their
under Article I - Management Rights, by retaliating against Mat and eliminating his job due
to his past
political actions. Mat claims management is abusing their rights under Article V
Employees and Appendix "B"
Other Agreements, No. 7, and any other violations not
The parties stipulated the following issue:
Did the District violate the collective bargaining agreement when
it eliminated Mr. Hamer's job?
RELEVANT PROVISIONS OF
THE COLLECTIVE BARGAINING AGREEMENT
ARTICLE I MANAGEMENT RIGHTS
1.01 Rights. Unless otherwise herein
provided, the management of the work force and the
direction of the working forces, including the right to hire, promote, demote or suspend, or
otherwise discharge for proper cause, and the right to relieve employees from duty because
of lack of work or other legitimate reason is vested in the Employer. Effective February 1,
1984, the District shall have the right to subcontract second shift cleaning at Butler Middle
School for the term of the labor agreement. The employees laid off as a result of this section
shall be subject to the layoff and recall provision of the contract.
Action. If any action taken by the Employer is proven not to be justified, the
employee shall receive all wages and benefits due him/her for such period of time involved
in the matter.
1.03 Rules. The
Employer may adopt reasonable rules and amend the same from time to time.
. . .
20.01 Policy. It shall be the policy of the
Employer to recognize seniority.
. . .
ARTICLE XXII LAYOFF AND
22.01 Layoff and Position Elimination
Procedure. In the event that it becomes necessary to reduce
the number of employees in the bargaining unit or a bargaining unit position is eliminated,
following procedure will be followed.
a. The employee in the
affected job classification, if qualified and capable, will be placed
in any vacant position that exists at the time of layoff in the same job classification.
If no vacant position is available, the affected employee may replace the employee in
the same job classification with the least seniority with the Employer provided they
are qualified and capable of performing the work.
b. If an employee is
replaced or if there is no vacant position, that employee, if qualified
and capable, will be placed in any vacant position that exists at the time of layoff in
the next lower job pay classification on the same shift. If no vacant position is
available at the next lower job pay classification the affected employee may replace
the least senior employee whether in the same or lower job classification on the same
shift with the Employer provided they are qualified and capable of performing the
work and has more seniority with the employer.
c. The employee
replaced in paragraph B may replace the least senior employee in the
unit provided they are qualified and capable of performing the work and has more
seniority with the employer.
procedures. The last employee laid off shall be the first re-called and placed in any
open position which is at the same or lower job category, provided that the employee is
capable and qualified to perform the work in the job that becomes available (If available and
desires to return to work). This procedure shall apply until all employees on lay-off are
recalled. If a open positions occurs in a higher job category Article XXI shall apply until
there is an open position at the same or lesser job category that the affected employee
occupied at the time he/she was laid-off.
. . .
POSITIONS OF THE PARTIES
It is the Union's contention that the Employer acted unreasonably, arbitrarily and
in its consideration of the elimination of the Kitchen Equipment repair position. The grievant
became aware that the Employer was contemplating eliminating his position when he met
Director of Facilities, Ron Stierman, Maintenance Supervisor Glen Norder and then-Chief
Steward Dale Christianson on December 20, 2001. During this meeting, the grievant was
that the Employer had been able to account for only 23 of a possible 400 hours of work
during the period September 1 through November 15. Additionally, the Employer asserted
the time period of November 16 through December 15, only 76 of a possible 160 hours
accounted for by work orders.
Subsequent to that meeting, the grievant took it upon himself to set up a more
thorough time-tracking method, revisited the periods in question to more accurately account
for his activity, compile
that data, and attempted to submit it for reconsideration. The Employer refused to review
The Union contends that the District's rationale reduce a Kitchen Equipment
to provide for an additional plumber is suspect. The evidence does not support the
rationale. In fact, the District testified that it has only reduced the plumbing work orders by
the nearly 11 months since the grievant has been removed from his duties.
The Employer had a duty to thoroughly investigate the workload of the grievant. The
Employer never investigated or tried to assess why it appeared the grievant only worked 23
of a possible 400 or 76 of 160 hours. They saw what they wanted to see, and then refused
entertain a plausible explanation their method of tracking hours was flawed. The
backed into the circumstance they desired by conveniently finding a way to justify the
the grievant's position.
The Union asserts that the Employer acted out of anti-union animus when it
grievant's position. The Employer would have the arbitrator believe that it is a mere
the grievant's election to union office and elimination of his position happened within sixty
(November, 2001 and January 11, 2002). The history between this grievant and his
long-standing. The grievant filed prior grievances relating to the unequal distribution of
It is plausible that these actions taken by the grievant had an impact on the employer's
look impartially at the staffing levels and needs of its custodial/maintenance unit.
The Union asserts that the Employer felt compelled to "clip the wings" of a
steward who had previously exerted rights inherent in unionism. The elimination of a
officer's position sends a message loud and clear; don't challenge the employer. Short
of discharge, it is as severe an action as possible to elicit the desired effect; quell the
under the guise of management's rights. To do so within two months of election indicates
profound action if you question the employer. The employer has set a dangerous precedent
elimination of a union officer's position. The chilling effects are far reaching; don't run for
you risk the likelihood of your job being eliminated, move to a less desirable shift and doing
other than what you have been hired to do.
The District argues that it did not violate the collective bargaining agreement by
the grievant's kitchen equipment repair position. The District contends that the burden of
upon the grieving party, in this instance, the Union. The grievant failed to meet that burden
dispute. The collective bargaining agreement explicitly gives the District the right to
positions due to a lack of work or for other legitimate reasons. The District had a legitimate
reason to eliminate the grievant's position; the need for an additional full-time plumber to
backlog of plumbing work orders. The District based its decision solely on work loads,
available skills, and there is no evidence to support a finding that those reasons are in any
Pursuant to the explicit terms of the agreement's management rights clause, the
the right to eliminate the grievant's position for lack of work or other legitimate business
evidence demonstrates that the District had legitimate reasons for selecting the grievant's
for elimination. An extreme backlog in plumbing work orders caused the District to
it needed an additional second-shift plumbing position. The grievant himself acknowledged
was aware of the large backlog. The District conducted a survey of the maintenance
determine if any positions did not warrant full-time status and could be combined. Two
were found: 1) the AC Maintenance position, which had its heaviest workload in the spring
summer, and 2) the Kitchen Equipment repair position, which had its heaviest workload
school year. Looking at a three-month survey of the grievant's work orders, Stierman found
identified work of approximately 100 hours out of a possible 560 hours.
The grievant did not present any credible evidence to dispute the low number of
work orders for his position. The grievant could not identify from his own records that he
working more hours than the District's logs recorded. Based upon his low seniority and lack
qualifications, the grievant was not eligible for the combined AC/Kitchen Equipment repair
In addition, the grievant did not have the seniority or qualifications. The grievant failed to
the District's legitimate reasons for his position elimination were pretextual or based on
The District cites authority for the proposition that ". . .there must be evidence or powerful
reasonably drawn from the evidence. . .mere assertions are not enough." The District points
Stierman's testimony to the effect that the District and the Union have a long history of
together and successfully resolving grievances. Moreover, the evidence actually negates any
Union animus. The grievant became a union steward in November, 2001. By that
time, the District
had already begun investigating ways to reduce plumbing order backlog. In fact, the District
already begun its survey of the workloads in the maintenance department. The decision to
the grievant's position was based solely on seniority and level of expertise. There is simply
evidence that the grievant's position was targeted for elimination because he was a union
The grievant's January 7 letter to union members also fails to support his claim of
animus. As the grievant acknowledged, the letter was an internal document distributed to
members only. Moreover, by the time the letter was distributed, the decision to recommend
elimination of the grievant's position had already been made. Although the grievant alleged
Norder reading the letter sometime before his January 11 meeting with Stierman, even if
proves nothing. Norder was not chiefly involved in the decision to eliminate the grievant's
The grievant also attempted to suggest that the District eliminated his position
prior grievances he had filed. The District contends there is no evidence to sustain that
The grievant's prior allegations had been successfully resolved or dropped. Numerous other
employees had successfully filed and processed grievances and not been subject to any
Finally, the snow grievance arose and was resolved over a year prior to the decision to
position. Thus, there is no temporal proximity giving rise to any inference of retaliation.
The employer's action in eliminating the Food Service Maintenance position, creating
second-shift plumber position, and causing Mr. Hamer to bump to a second-shift custodial
all appear consistent with the authority possessed by the Employer under the terms of the
bargaining agreement. Article I, cited by the Union, captures the traditional management
right to plan
and direct the work. The creation and/or elimination of positions to accommodate the
is an inherent component of that right. Hamer did not have the seniority to bump into a
Article XXII regulates layoff, bumping and recall with a focus on seniority.
The grievance seeks layoff status until a vacant first-shift position opens. Such an
arrangement is not called for by the collective bargaining agreement.
The Union claims these actions are all pretextual; that they are retaliatory responses
Hamer's protected, concerted activities. I find no support for this contention. Mr. Hamer
engaged in protected, concerted activity. He filed a number of grievances, he was a union
and his letter of January 7, 2002 was a call to action. I believe the Employer was clearly on
of Mr. Hamer's protected activity.
The Union is correct in its assertion that retaliation can be chilling. However, the
virtually silent as to Employer hostility and/or animus toward Mr. Hamer's activity. Mr.
testified to one exchange between himself and Mr. Norder. Even under Hamer's
remarks were more personally directed than directed at any protected conduct of Hamer.
Hamer had an exchange over Hamer's self-removal from the snowplowing list. If Stierman's
of the incident is accurate, Hamer was complaining about a snowplowing system that his
Taking Hamer's testimony at face value, it appears that Norder accused Hamer of
late on two dates, and that Hamer grieved. It also appears that the matter was resolved in
No other details of, or reactions to, that incident are found in the record.
The record relative to Mr. Hamer's activities as a union steward consist of the
Q. "Have you ever held a union position, union
Q. "What position was that?"
A. "That was food-service
Q. "And when did you take that
A. "Last November."
Q. "November, 2000?"
A. "Not this one which is
2002. It would have been 2001."
Q. "2001. And as union
steward for food service employees, what were your roles and
A. "To handle problems that
may occur between the kitchen ladies, union kitchen ladies, and
problems that may have occurred."
Q. "And did you do that?"
A. "I really didn't have too many problems. Being
brand new to it, I wanted to do a good job.
So I requested a contract between the school district and the . . ."
Nothing in this record suggests a particularly aggressive union steward. Nothing in
record even hints at employer retaliation.
Mr. Hamer authored a letter contained in the union newsletter printed in January of
That letter is really a call to union employees. The letter does contain a reference to ". .
.discriminatory, unlawful and unethical treatment." The reference is unflattering to the
though non-specific. However, this letter arose well after the whole plan to create and fill a
plumber's position was underway. It more appears that the letter was a reaction to the plan,
not vice-versa. Mr. Hamer claims that he saw Norder read the letter. While this might
there is no evidence as to any Employer reaction.
The Employer lays out a rational basis for its decision. On its face, the Employer
have been pursuing a legitimate business purpose. In the absence of evidence to support a
animus, I conclude that the decision is what it is represented to be, an effort to get the work
The grievance is denied.
Dated at Madison, Wisconsin, this 28th day of May, 2003.
William C. Houlihan, Arbitrator