Stonington — An arbitrator has overturned the town’s five-day suspension of now-fired Highway Supervisor Louis DiCesare II, saying it improperly prohibited him from having union representation at a disciplinary hearing.

The decision by arbitrator Peter Adomeit states that before DiCesare’s hearing with Public Works Director Barbara McKrell, a police officer told DiCesare’s union representative that if she did not leave she would be arrested.

The town, which as of September 2017 had spent $210,000 fighting the grievance, now must pay DiCesare five days' pay totaling about $1,500 and remove the suspension from his record.

This was the first decision in four legal actions DiCesare has against the town. Adomeit still has to rule on two more union grievances while DiCesare’s civil rights lawsuit against the town is pending in federal court.

First Selectman Rob Simmons said Monday he had not yet read the decision and on the advice of town labor attorney Michael Satti he was not at liberty to discuss the decision in any detail.

Simmons did call the legal action by DiCesare “the last piece of baggage” he inherited from the administration of former First Selectman Ed Haberek. The town fought DiCesare's admission into the union while Haberek was first selectman. Haberek resigned in December 2014 and was replaced by George Crouse who was first selectman when DiCesare was later fired.  

The dispute began in July 2014, when the Stonington Public Administrators Association union sought to include the highway supervisor position in its bargaining unit. In September of that year, a one-person election was held and DiCesare voted to join the union. The town objected and on Jan. 21, 2015, the state labor board dismissed the town’s objection and ordered the highway supervisor position to be included in the union.

Before that occurred, though, McKrell issued a verbal warning that was then confirmed in writing to DiCesare on Nov. 4, 2014, for his failure to communicate with her and others about two paving projects and an athletic field project. DiCesare said he did not agree with the verbal warning and would not discuss his performance without his labor attorney present.

On Jan. 7, 2015, McKrell sent DiCesare a long list of errors she charged that he made on projects, said he was insubordinate when he said he did not trust her and asked him to attend a disciplinary hearing. On Jan. 13 he unsuccessfully requested an extension to prepare for the hearing and was told he could not bring his union representative into the hearing. At the hearing, DiCesare presented a written rebuttal to the charges made by McKrell and reiterated he was being denied representation.

Three days after the meeting, and the day before the state labor board dismissed the town's objection to including the highway supervisor in the union, McKrell suspended DiCesare for five days. The town fired DiCesare in April of 2015. 

Adomeit wrote in his decision that if the town had not objected to DiCesare's entry into the union, the state labor board would have promptly certified the addition of his position. It was during that window, that McKrell suspended DiCesare.

Adomeit wrote that the town’s refusal to allow DiCesare union representation at the suspension hearing was a unilateral denial by the town of his rights. He further wrote that an "employer cannot by filing an objection to a otherwise valid election take those rights away and use the interim between the objection and the Labor Board’s dismissal to discipline the grievant without allowing him to have a representative present.”

He added that the disadvantage for an employee is obvious.

Employees who file grievances “are workers, not experts in presenting grievances. They are emotionally involved in the proceeding. They are frequently nervous and upset. They are placed at a substantial disadvantage in a disciplinary proceeding where they are forced to defend themselves without assistance.”

He said that a union representative, for example, could have alerted McKrell that she was imposing a second discipline for several offenses that the employee had previously been disciplined for. The representative could have also argued that progressive discipline cannot permit an employer to collect offenses and hit an employee for all of them at once with a five-day suspension," he wrote.

Adomeit will now use the evidence presented in this arbitration to rule on the other grievances including whether the town had just cause to fire DiCesare.

j.wojtas@theday.com