BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 678, WISCONSIN COUNCIL OF COUNTY
MUNICIPAL EMPLOYEES, AFSCME,
Brennan, Steil, Basting & McDougall, S.C., by Mr. Howard
Goldberg, 433 West Washington
Avenue, Suite 100, P.O. Box 990, Madison, Wisconsin 53701-0990, appearing on behalf of
Mr. Michael J. Wilson, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 8033
Excelsior Drive, Suite "B", Madison, Wisconsin 53717-1903, appearing on behalf of the
Lafayette County, hereinafter referred to as the County, and Local 678, Wisconsin
of County and Municipal Employees, AFSCME, AFL-CIO, hereinafter referred to as the
are parties to a collective bargaining agreement which provides for final and binding
of grievances. Pursuant to a request for arbitration the Wisconsin Employment Relations
Commission appointed Edmond J. Bielarczyk, Jr., to arbitrate a dispute over the discipline of
employe. Hearing on the matter was held in Darlington, Wisconsin on April 25,
stenographic transcript of the proceedings was prepared and received by the undersigned by
8, 1997. Post-hearing arguments and reply briefs were received by the undersigned by July
1997. Full consideration has been given to the evidence, testimony and arguments presented
rendering this Award.
During the course of the hearing the parties where unable to agree upon the framing
issue and agreed to leave framing of the issue to the undersigned. The undersigned frames
issue as follows:
"Was the three day suspension on August 13, 14 and 15, 1996 for
"If not, what is the appropriate remedy?"
"Was the August 8, 1996 written warning regarding the filing of
quarterly reports for just
"If not, what is the appropriate remedy?"
Article III - Employee Discipline
Non-probationary employees shall not be disciplined, suspended,
disciplinarily demoted or
discharged without just cause. Written notice of the suspension, discipline, disciplinary
or discharge and the reason or reasons for the action shall be given to the employee with a
to the local Union within three (3) working days after such disciplinary action is taken.
. . .
Among its various government operations the County operates a Commission on
where in it employs Benefit Specialist Robert Helm, hereinafter referred to as the grievant.
grievant has been employed by the County since January 1, 1978 and at all material times
his supervision has been bifurcated between Commission on Aging Director Carol E.
supervises the non-confidential aspects of the grievant's job, and Coalition of Wisconsin
Groups (CWAG), Elder Law Center Attorney Mitchell Hagopian, who supervises the
and legal aspects of the grievant's job. Hagopian's offices are located in Madison,
The County's benefit specialist is required to explain to clients, the elderly and poor,
benefits, give assistance to clients in dealing with State and Federal agencies, and act as an
advocate for the client if benefits have been denied by government agencies or insurance
companies. Funds for the County's benefit specialist program are administered by
AgeAdvantAge, which is located in Madison and whose executive director is Lucille M.
On March 19, 1996 Hagopian, accompanied by Elder Law Center Attorney Michele
Hughes, made an on-site visit to the County. During this time a couple sought advice from
grievant concerning a change in their medical assistance. The grievant miscalculated the
deductible. Hagopian corrected the matter. Hagopian also noted that the grievant had wrote
on the clients papers and Hagopian informed the grievant he did not handle the matter
appropriately. The grievant informed Hagopian the clients would be faced with a
benefits in the near future so it really didn't matter as they might as well get used to living
lesser benefits now. Hagopian than met with Benson and expressed his concerns to her.
On May 1, 1996 Hagopian went on Family Leave and was getting paid 10% to
small things. On May 22, 1996 Hagopian sent the following letter to Benson with a copy
Lafayette County Commission on Aging
600 North Main Street, #107
Darlington, WI 53530
Re: Bob Helm
This letter is a follow-up to the conversation we had following my
onsite visit on March 19,
1996. As you will recall, I had an opportunity to observe Bob handle an intake while I was
conducting my onsite. Based on my observations, I am again questioning Bob's competency
handle the benefit specialist job duties.
The intake presented a fairly typical benefit specialist issue. A
married couple came in with
five or six notices from the county Human Services Department. The couple did not
them, although they did seem to understand that their application for Medical Assistance had
denied by the county. After receiving these notices and without examining them, Bob called
to the economic support worker and asked her what the situation was. He wrote the notes of
conversation with this economic support worker down on the one of the original documents
the clients had just presented to him. Apparently the economic support worker told him that
county had not completed processing this case. The worker said that the couple would
be eligible for the Medical Assistance Deductible program. Bob did not inquire further into
specifics of why this couple was eligible for only the Medical Assistance Deductible program
opposed to any of the other Medical Assistance programs.
In the course of his conversation with the clients, however, it
became obvious that these
clients had an ongoing relationship with Bob. During 1995 and January and February of
these clients were eligible for SSI as a couple. In February, the wife turned age 62 and
receiving her Social Security benefit. Prior to her 62nd birthday, she had been eligible for
based on disability.
Because she had never been eligible for Social Security Disability
because at the time that she became disabled, her "insured status" had lapsed), her income
than SSI was zero. Essentially in February of 1996, this woman's income went from zero to
per month. When that income was combined with her husband's income, the couple
eligibility standard for the SSI program. Apparently, the clients had been notified that their
would terminate and, as is normal procedure, were notified that they could apply for Medical
Assistance with the county once their SSI ended. These clients apparently immediately went
the county to apply for Medical Assistance benefits. That application triggered the
of notices from the county. Bob was aware that this woman would begin receiving Social
income in February, but had not prepared the clients for what would happen to them once
Bob then attempted to calculate what this couple's "deductible"
would be. Based on the
couple's income, he estimated that their deductible would be approximately $130 for the six
deductible period. As I listened to Bob explain this, I also calculated the deductible but
that their deductible would, in fact, be approximately $1500 for the same six month period.
on the information Bob had just given them, the clients were prepared to leave, basically
that their situation would not be appreciably worse once the county determined their
At that point, I advised Bob that I believed he had been using the wrong eligibility
Bob then proceeded to hand-write a note to one of the local physicians requesting that the
physician supply this couple with free samples of the various medications which they were
At that point, the clients left.
After the clients left, Bob and I discussed this intake. I asked him
why, if he knew the couple
would be losing their SSI eligibility due to income, he did not explain to the clients about the
month extension of Medical Assistance eligibility. Essentially, this couple would have
to receive categorically needy (no deductible) Medical Assistance for three months following
termination of their SSI benefits. Because the couple apparently applied for Medical
in the same month that they lost their SSI eligibility, they prematurely gave up their right to
categorically needy status. Bob told me that he believed that these people might as well get
to their new situation sooner rather than later. He also told me that he believed that his note
which he believed would qualify these people for free drug samples from the local doctor
all of their problems. I pointed out to Bob that the Medical Assistance card would have
these clients with considerably more benefits than simply free prescription drugs.
This case causes me grave concern. First, Bob's virtual
unfamiliarity with how to calculate
the couple's Medical Assistance deductible is inexcusable. During both January and
monthly trainings, we had gone over in detail precisely the situation presented by these
Basically, the Elder Law Center had been preparing benefit specialists for assisting clients in
maximizing their eligibility for the Medical Assistance program following the changes to the
program. Thus, Bob should have been keenly aware of how to properly calculate this
Second, Bob's attitude regarding his clients and getting used to
their new situation is
unacceptable. Bob's job is to maximize benefits for his clients. Any marginally competent
specialist who knew that his clients were losing SSI eligibility due to income would have
the clients when to apply for Medical Assistance at the county so as to ensure that they
their three month categorical eligibility and possibly obtain an additional month of eligibility
them. Bob apparently had no interest in doing this for his clients. Bob's comment that he
solved his client's problems by requesting that the local physician supply them with free
demonstrated an ignorance of the Medical Assistance program and the benefits of
Third, Bob's use of client's original documents as note paper is
almost beyond comment. It
is unprofessional in the extreme.
This was the first opportunity I have ever had to see Bob handle
an intake. I am very
concerned about his performance. It leads me to re-examine my findings as reflected in my
to you dated February 19, 1996.
Based on my in-depth review of documents submitted to me from
Bob, it had been my
impression that the main problem with the Lafayette County Benefit Specialist Program was
complicated issues were not being presented for Bob's consideration. Having now seen Bob
actually handle a substantive issue in an unsatisfactory and negligent manner, I am not
that my findings with respect to the problems of the benefit specialist program in Lafayette
were accurate. I now suspect that the written products which Bob was submitting to me did
reflect what cases were actually being presented to him in the course of clients contacts. My
observations indicate that Bob may be routinely providing clients with inaccurate information
about their situations and not recognizing basic advocacy issues which are presented directly
As you know, I am on a leave of absence. I am only working
10% time until August. When
I return in August, I believe that you and I need to re-examine
how the benefit specialist program in Lafayette County needs to
be handled. Bob is currently
scheduled to visit me for an in-service on August 14 at 1:00 p.m. By that time, I believe
I need to come up with additional measures to deal with the problems I now perceive.
Because AgeAdvantAge has been involved in the effort to
improve the benefit specialist
program in Lafayette County, I am copying this letter to Lucy Baker.
I will be in touch with you sometime during the week of August
5, 1996 to discuss the
concerns raised in this letter as well as any additional information that you have obtained
any work plans that Bob has developed since we spoke in March.
Mitchell Hagopian /s/
cc: Lucy Baker
After review of Hagopian's letter Baker became concerned about the grievant's
to handle his job. She concluded she was no longer willing to continue the AgeAdvantAge
contract with the County when it expired the following December. On July 3, 1996, Baker
the following letter:
Lafayette Co. Commission on Aging
600 N. Main Street, #107
Darlington, WI 53530
I have read with deep concern the May 22nd correspondence of
the CWAG Elder Law Center
that raises serious questions about the competency of the Lafayette County Benefit Specialist
perform the kind of complex benefits work that he has been trained to do. This follows the
November 1995 review of the program by the Center that found that the Benefit Specialist
caseload in Lafayette County is composed of simple cases that should occupy not more than
of his time.
By professional code, training and philosophy Benefit Specialists
are pledged to work
faithfully with older people who, with declining health and economic resources, are driven to
help in troubled times. I fail to find one of these principles that has not been compromised
abrogated in the exchange Bob had with the couple seeking assistance and with the back-up
attorney immediately following. Given the gravity of the incident that prompted the May
and the history of problems with this benefit specialist that have been well documented, I am
inclined to extend further contracts for benefit specialist services to Lafayette County.
On July 16th I wish to meet with you to discuss what this will
mean to the Lafayette County
Benefit Specialist Program. While this is a confidential meeting, you are welcome to invite
who are involved in dealing with this issue. A 10:00 a.m. meeting time is my preference.
call me with the meeting location.
Lucille M. Baker /s/
Lucille M. Baker
On July 16, 1996 a meeting of the Commission on Aging was held in closed session,
the grievant, his steward and his union representative in attendance, and Elder Law Center
Director Betsy Abramson. Thereat Baker indicated she was not inclined to renew the
with the County unless some discipline was imposed on the grievant so he understood what
was wrong, a remedial program was implemented and there was improvement in the
program. Abramson gave the grievant a copy of the following document which identified a
point plan to improve his work performance:
TO: Carol Benson, Director and Robert Helm, Benefit
FROM: Betsy Abramson and Mitchell Hagopian
As you know, we have become increasingly concerned about the
performance of Bob Helm
as the benefit specialist for Lafayette County. Our concerns, most of which have been
conveyed to you, include, but are not limited to:
(1) Mr. Helm's incorrect advice, lack of program knowledge
and insensitivity towards
clients as observed by Mr. Hagopian during a March 19, 1996
on-site visit in Mr. Helm's office where Mr. Helm was
with a couple related to
their SSI and Medical Assistance eligibility. (See Mitchell Hagopian letter to Carol
Benson, Lafayette County Commission on Aging, dated May 22, 1996.)
(2) Our conclusion that most of the cases that Mr. Helm is
handling do not include
advocacy work related to benefits; rather, they involve acting as a liaison person
between his client and a public agency, e.g., assisting in the application process,
replacing a lost Medicare card or notifying the agency of a change in address.
After over fifteen years as a benefit specialist, Mr. Helm should be capable of
significantly higher levels of advocacy. (See Mitchell Hagopian letter to Carol
Benson, Lafayette County Commission on Aging, dated September 5, 1995.)
As a function of our supervisory role and in order to monitor his
dealings with clients and
generate a higher volume of more significant cases, we will expect the following of Mr.
(1) Mr. Helm must complete, to the satisfaction of the
assigned legal back-up attorney
of the CWAG Elder Law Center, a Benefit Specialist Examination, to be developed
by and proctored by, the CWAG Elder Law Center Attorney Mitchell Hagopian.
This exam will take place no later than September 1, 1996, in Lafayette County,
at a time and date agreed upon by Mr. Hagopian and Mr. Helm.
(2) Mr. Helm must prepare a weekly work plan for the
subsequent week, to be
completed and FAXed to the CWAG Elder Law Center by the preceding Friday
noon each week. This typed weekly work plan should outline Mr. Helm's planned
activities including: (a) availability for case intake; (b) casework; (c) filing, file
maintenance and reporting; (d) outreach presentations (with specifics as to where
he will be and topics to be covered); and (e) other tasks.
(3) Mr. Helm, must complete typed roundtable case
discussion sheets (copies of the
form have been previously provided to him) for each opened case. Each such case
sheet should then be updated the following month to reflect what developments
(i.e., additional advocacy) have occurred. Each typed roundtable case discussion
sheet, and follow-up addendums, should be mailed or FAXed to CWAG Elder Law
Center on a weekly basis.
(4) Mr. Helm must prepare two written newsletter articles,
suitable for publication in
the COA newsletter on the following two topics: (a) the MA Deductible Program;
and (b) Increasing assets to generate more income under the MA Spousal
Impoverishment Program. The first newsletter must be received by the CWAG
Elder Law Center by August 15, 1996. The second must be received by
September 15, 1996. Both newsletter articles must be typed.
(5) Mr. Helm must develop a typed outreach plan with
specific activities and deadlines
noted for increasing participation in the Qualified Medicare Beneficiary (QMB),
Specified Low-Income Medicare Beneficiary (SLMB) and Partner Care Programs.
The plan must be received by the CWAG Elder Law Center no later than
September 1, 1996, with updates regarding its implementation submitted to the
CWAG Elder Law Center monthly thereafter.
Given the type of cases it appears Mr. Helm has been handling
(based on Mitchell Hagopian's
detailed examination of Mr. Helm's cases conducted during the summer and fall of 1995),
believe there is ample time in Mr. Helm's work week to accomplish all of the above tasks.
encourage the county to allow Mr. Helm to set aside specific time slots (probably on
comply with the weekly duties outlined in (2) and (3), above.
cc: Lafayette County Commission on Aging
Baker indicated the five point plan was an example of the type of remedial action that
had in mind. The Commission on Aging did not make a decision on disciplining the grievant
directed the grievant to file a response to Hagopian's May 22, 1996 letter by July 22,
the Commission on Aging to meet again on July 26, 1996. On July 26, 1996 the grievant's
attorney, Duane M. Jorgenson, submitted the following letter:
Dear Mr. Hagopian;
I have been retained by Bob Helm to represent him
the allegations you have
made against him in your letter of May 22, 1996 and any subsequent occurrences as a
Frankly, I find your letter of May 22, 1996 to read like an
individual that long ago made
up his mind that he did not want Bob Helm serving the elder population of Lafayette County.
You in fact admit as much in your very first paragraph.
You have made several conclusions based upon incomplete
information. The basis of your complaint concerned a husband and wife who came in
appointment on a day when you and another attorney were doing an onsite visit.
What you fail to mention in your letter is that the couple
involved were never without
services. You make much of the issue of the calculation of the deductible. What you
chose to ignore is that the actual level of benefits to be received by this client was not going
changing, and has not changed. Not stopping at that, you characterize Mr. Helm's attitude
who was uncaring. When in fact the only thing this couple would need to get used to is a
processing procedure. That being the application for Medical Assistance through the county.
What I find amazing is that not only do you not mention that fact, but you totally distorted
misrepresented Mr. Helm's actions. The implication of your letter is that this couple was
services. They in fact were not. Further, it can only be concluded that you knew at your
that they were not without services, nor had they experience a reduction in services.
The only element of truth in your entire letter is that Bob did
not correctly tabulate their
deductible, if in fact it may have been an issue. Mr. Helm does not dispute that he did not
math correctly, because he did not consult the MA manual, as his normal practice would be.
Helm did not consult the manual because it was an irrelevant exercise. An exercise
Mr. Hagopian, because Mr. Helm already knew that the notices received were the result of
misprocessing of the claim, and Mr. Helm had already been assured by the Human Services
worker that this woman would be provided same level of services she had been receiving.
The note requesting medication on the indigent drug program
for insulin for the woman
was not in response to your questions concerning the deductible, but was done after he
that the notices to the clients were generated due to processing difficulties, that those
were in fact being corrected, but pending that rectification this woman needed insulin, so
Helm saw to it she received that insulin.
Finally, you mentioned that Medical Assistance deductible
calculations were included in
the January and February training. You appear not even to consider the possibility that the
training being provided may be inadequate. Frankly, if a benefit specialist with the
and ability of Bob Helm was not getting it right, the problem may be widespread because of
training. Yet it is clear that you never once so much as
contemplated that your training may
In reviewing your memo dated July 16, 1996, I believe there
many problems with the
approach being called for by you and Betsy Abramson.
1) To subject Mr. Helm to a test, with the sole criteria
being the subjective satisfaction
of Mitchell Hagopian is ridiculous. Besides being beyond belief, it is I believe
in that no other benefit specialist is being subjected to such scrutiny. Further, there is no
standard or level by which Mr. Helm is to be judged. Further, someone other than yourself
develop the exam, all benefit specialists may be subjected to the same test, and it must be
administered and scored by someone other than you. Any other testing conditions are not
As to (2) and (3), while these items are potentially beneficial,
again nothing is being
expected of the CWAG Elder Law Center. The Elder Law Center has enough knowledge of
Helm's work load, to identify just how much time of his week should be devoted to the
areas outlined in the memo. Presumably every hour devoted to (2) and (3) is time Bob will
be available for case intake. Mr. Helm is entitled to know how much time he is expected to
devote to these reporting requirements. Further, Mr. Helm is entitled to expect feedback and
interaction from the CWAG Elder Law Center. Again, nothing in (2) and (3) specify what
Elder Law Center responsibilities are and as to feedback and supervision. Mr. Hagopian,
your history and past behavior towards Mr. Helm, my client has a right to know how these
documents are going to be used. Are these intended to assist Mr. Helm in his job, or are
going to be used solely as a means to scrutinize Mr. Helm's every move, looking for the
human imperfection on his part.
As to (4), given the fact that you apparently expect Mr. Helm
complete these articles
on his own time, this requirement is both unacceptable, overburdensome, and unreasonable.
Mr. Helm is to complete these articles as part of his employment, then they should be
on compensated time. Particularly, if they are to appear in the COA Newsletter. Further,
first article should not be due until October 15, 1996, and the second article until February,
Finally, these articles should be submitted for review and editorial assistance to someone
than Mitch Hagopian.
As to (5) this has nothing to do with the complaints made in
Mitch Hagopian's May 22,
1996 letter. Further, the outreach plan is something that
should be appropriately be developed by Mr. Helm
and the Elder Law Center, in consultation
with the Lafayette County Commission on Aging. Once again, there appears to be no
placed on the Elder Law Center to exercise oversite and supervision.
Finally, I am forced to question your objectivity and your
to oversee Mr. Helm.
Frankly, none of the provisions outlined in the July 16, 1996 memo are acceptable if Mitch
Hagopian is going to be providing oversite. It is obvious that you bring with you a
of bias against Mr. Helm. The memo of July 16, 1996, which I must believe is, in large
your thought product is on its face is discriminatory toward Mr. Helm. I am more than a
troubled by your recalcitrant attitude towards a person whom himself could be served by the
services you and your agency purport to offer.
Mr. Helm stands ready to do those things that would provide
better services to his clients
in Lafayette County. Further, he stands ready to cooperate with the CWAG Elder Law
and their role of supervision, provided that supervision is done in a reasonable and
Duane M. Jorgenson /s/
Duane M. Jorgenson
On July 26, 1996 the Commission on Aging met, reviewed Jorgenson's July 22, 1996
letter and asked the grievant if he had anything to add. The grievant replied Jorgenson's
said everything needed to be said. The Commission on Aging set a meeting for July 29,
determine what it would do on the matter. On July 29, 1996 the Commission on Aging met,
determined the grievant had not prepared and submitted his quarterly outreach plans on a
basis and directed him to prepare and submit them on a timely basis in the future, warned
failure to do so could result in additional discipline, up to and including discharge, and
copy of the warning in his personnel file. The Commission on Aging also concluded that
Hagopian's May 22, 1996 letter describing events was not disputed and decided such findings
justified a conclusion the grievant had not performed his job duties in a competent and
professional manner. The Commission on Aging set discipline of three days suspension with
copy of the discipline to be placed in his personnel file and warned the grievant further
could subject him to additional discipline, including possible discharge. The grievant was
directed to comply with the remedial activities consistent with the five points set forth in the
Law Center's July 16, 1996 letter. Thereafter the grievant grieved the discipline and the
was processed to arbitration in accord with the parties grievance procedure.
The County asserts there can be no question the grievant knew he was to prepare and
submit quarterly outreach reports on a timely basis. The County asserts these reports were
designed to eliminate the deficiencies found by Hagopian when he evaluated the grievant's
The County argues that Hagopian had concluded the grievant was really only working half
and that the vast majority of his time was spent on simple rather than complex matters. The
County contends the grievant's response that he was too busy doing other work to do the
is really that the grievant considered the reports worthless exercises and he chose to spend
doing other things. The County points out the Union does not dispute the County's right to
compel the grievant to prepare such reports but the Union asserts the warning was
and untimely as the third quarterly report was submitted in a fashion consistent with prior
The County points out the first quarterly report was submitted prior to the start of the
second not until the quarter was over and the third was submitted after the quarter had
The County argues all the County did was to officially note that the grievant was required to
prepare the reports and if that if he failed to do so he would be subject to discipline. The
concludes the warning was appropriate.
The County also asserts the grievant was given a three (3) day suspension for his
at the meeting held with clients on March 19, 1996. The County points out this was the first
occasion where Hagopian monitored a meeting between the grievant and a client. The
also points out that the grievant miscalculated a deductible amount, which Hagopian had to
correct, wrote on the clients documents, which he shouldn't have done, and, when the clients
left, expressed to Hagopian that his note to qualify the clients for free drug samples from the
doctor had resolved all their problems and that they might as well get use to their new
sooner than later demonstrated his apparent lack of understanding of the program and a callus
disregard of client rights. The County points out the grievant or the Union never disputed
facts. The County asserts it properly investigated the matter and the discipline that was
The County also contends the timeliness issue was never raised by the Union prior to
hearing in this matter. The County also argues the facts in this case are unusual in that the
supervisory duties of the grievant are divided between two supervisors one of which is an
agency. The County acknowledges it retains the right to discipline the grievant. The County
points out Hagopian had a timely discussion on the matter with the grievant and with Benson
March 19, 1996. The County also points out that Hagopian's May 22, 1996 letter indicated
he intended to deal with the matter further when he came back from his family leave in
The County also points out Baker's involvement caused the matter to be accelerated. The
asserts there was no way it could do anything until Baker started the process. The County
points out this was not a situation where the grievant had the "Sword of Damocles" over his
The matter was not raised until the County received Baker's July 3, 1996 letter.
The County asserts that it was not unreasonable to wait for Hagopian's return to deal
matter. The County also asserts the delay caused the grievant no prejudice.
The County also asserts it has the right to direct the grievant to follow the
of Hagopian's five (5) point plan. The County also asserts the undersigned does not have the
authority to review this plan as the five (5) points are not intended to be discipline. The
argues the requirement to write two (2) newspaper articles clearly falls within the grievant's
description and that the collective bargaining agreement does not prohibit the grievant from
In its reply brief the County asserts that the Union and the grievant did not raise the
timeliness of the discipline until the arbitration hearing. The County asserts that if the Union
not raise the issue during the grievance procedure there is no way it can attempt to make a
satisfactory adjustment. Thus the County asserts that if the Union is complaining the County
four (4) months to apply discipline, the Union took nine (9) months to raise the timeliness
The County again stresses the Union has not demonstrated there was any problem or
caused by the County's delay.
The County also asserts there was no double jeopardy in this matter. Further, that it
barred by the collective bargaining agreement from giving the grievant a competency test,
particularly when the reason for the testing is for evaluative, not disciplinary purposes. The
County also argues that it has disciplined the grievant for his failure to perform his job duties
asserts it is not holding the grievant to the wrong standards. Further, the Union's claim that
grievant did not make inappropriate remarks to Hagopian concerning his clients on
1996 is not supported by the record.
The County would have the undersigned deny the grievance.
The Union contends the County did not have just cause to discipline the grievant and
asserts there is a timeliness of discipline and double jeopardy element. The Union asserts
timeliness is an element of just cause and argues the further we recede from prompt action
further we recede from justification. The Union also argues the just cause standard is not
when discipline is unduly delayed because discipline is intended to be corrective, not
the County must exercise full discipline within a reasonable amount of time after it had
knowledge of an infraction, being prompt and complete. The Union also asserts that to
a penalty at a later date might give rise to the assumption that it was being imposed for some
subsequent misconduct and not for the initial infraction. The Union also contends the
of other proceedings does not supersede the implied limitation of a reasonable time for
The Union also argues that double jeopardy is universally accepted in arbitration
and that double jeopardy violations are found in cases lacking prompt disciplinary
unreasonable delay in imposing penalties.
The Union argues there are glaring deficiencies in the County's belated attempt to
discipline the grievant. The Union acknowledges the grievant did make errors in calculating
deductible on March 19, 1996 but stresses the matter was corrected on the spot by the
The Union asserts the County can not resurrect the matter months later as the grounds for
discipline. The Union also argues the grievant did not make inappropriate remarks to clients
March 19, 1996, nor to Hagopian. That if the grievant did make inappropriate remarks the
to deal with such misunderstanding was on March 19, 1996. The Union contends a three (3)
suspension constitutes excessive discipline for an employe with an unblemished work record
eighteen (18) years.
The Union also argues the August 8, 1996 written warning is unwarranted and
The Union acknowledges Benson gave the grievant a directive to submit second and third
reports by July 5, 1996. The Union asserts the grievant complied, the reports were received
Benson with no admonitions, and later, the Commission on Aging gave the grievant the
warning for late reports.
The Union also argues grievant was given disparate treatment when he was singled
a competency test and was directed to write newspaper articles. The Union points out
was never the intent of the directive to write the articles. The Union also points out the
and Elder Law Center were operating under different job descriptions, with the Elder Law
Center's job description never being communicated to the grievant.
The Union would have the undersigned sustain the grievance, order the grievant
whole, to direct the County to cleanse his personnel record, and to direct the County to
desist disparate treatment.
The undersigned notes at the onset that the County clearly has the right to establish a
remedial program to ensure the grievant is capably performing his job duties. The only
of concern is which job? The Elder Law Center recommended job description or the
job description. Clearly there are distinguishing factors between the two jobs descriptions
grievant should be made aware of which one he is to comply with. Either job description
allow the County to direct the grievant to develop a sample newspaper article.
The record demonstrates the grievant was disciplined for two acts. Failure to submit
quarterly reports and for an incident which occurred on March 22, 1996. The County has
that the timeliness issue raised by the Union is without merit as there has been no
showing that the grievant was prejudiced by the delay and further that the Union took
months to raise such a defense. The undersigned finds no merit in this defense. It is an
employer's burden to demonstrate it had just cause to discipline an employe. By the
actions, or in this case inaction, the employer views how it demonstrates the seriousness of
employe's offense. Herein the record demonstrates that in neither instance was there
discipline (except for Hagopian's verbal admonishment of the grievant on March 22, 1996).
Clearly, the failure to follow a reasonable directive, the completion of quarterly
is a matter for which an employer may discipline an employe. The first quarterly report was
received in November of 1995. The County took no action when the second quarterly report
not submitted and it took no action until the third quarterly report was late. The undersigned
concludes that had the County acted promptly a written warning for the grievant's
with a work directive would be reasonable. However, the County did not act. The record
demonstrates it did not even ask where the second quarterly report was until well into the
quarter. The undersigned therefore concludes a written warning is not reasonable. The
undersigned does find that the County can place the grievant on notice that if he fails to
file timely quarterly reports in the future he can face discipline and that such a notice can be
placed in his personnel file.
The record also demonstrates the following. Hagopian is not a testing expert nor is
a field he has any expertise in. There is no evidence he would know how to validate a
device, would know how to determine its reliability or know how to properly administer any
testing device. It is the undersigned's opinion any measurement device developed and
administered by him would be highly suspect as a device which could accurately determine
grievant's job knowledge. Particularly if Hagopian is approaching the matter with a
opinion as to the grievant's capabilities. Needless to say, any results of such a measurement
would be relatively useless. This is further complicated by the fact that the Elder Law
recommended job description for a Benefit Specialist and the job description the County has
the grievant to perform are distinguishable from each other and Hagopian was unaware of
This does not mean the County can not give the grievant an examination to determine if he is
capable of performing the duties for which he was hired. However, such an examination, to
any real merit, would need to be developed and administered by individuals who have the
knowledge to develop and administer a measuring device which is valid, reliable and
the job description the County hired the grievant to fill.
Hagopian's lack of knowledge concerning the job description the grievant was hired
perform also raises concerns about the allegations he raised concerning the grievant's job
performance in his May 22, 1996 letter to Benson. Hagopian raises the allegation based
first and only observation of the grievant's March 19, 1996 interaction with a client that the
grievant was not appropriately handling client contacts. Hagopian has the capability to
the matter by contacting other clients to determine whether or not the grievant was
handling their cases. He did not do so. Hagopian has the capability to observe
the grievant handling other clients to determine whether the grievant is appropriately
their cases. He did not do so. He does indicate that based upon this one observation he
reevaluate the entire benefit specialist program. He also concludes that this matter can wait
three (3) months until he returns from a leave of absence on August 5, 1996, or almost five
months after the date of the incident.
The undersigned finds that while Hagopian has alleged he is very concerned about the
grievant's performance on March 19, 1996, Benson and he discussed the matter on March
1996 and determined, by there inaction, that no immediate action was necessary to correct
grievant's performance and that no action need be taken until August. Further, had Baker
intervened in the matter, no discipline would of been issued to the grievant. The
finds that Hagopian immediately admonished the grievant on March 19, 1996 for his actions.
undersigned concludes that the admonishment by Hagopian was in effect a verbal reprimand
that such a reprimand can remain in his record. The undersigned notes here there is no
in the record as to why Baker waited until July 3, 1996 to contact Benson about this matter.
is puzzling is why Baker is only concerned with the grievant's performance and not the Elder
Center's. Baker is correct in that the matter, from AgeAdvantAge's perspective, the
described by Hagopian needed immediate attention. However, the undersigned must
Hagopian immediately admonished the grievant, concluded that the grievant's performance
adequate to accomplish the benefit program, and that no additional action was necessary until
returned in five months from his leave of absence. Based on the above the undersigned finds
three (3) day suspension unreasonable, particularly as this was a first offense for the
Therefore, based upon the above and foregoing and the testimony, arguments and
presented, the undersigned concludes the County did not have just cause to issue the three (3)
suspension and concludes the County did not have just cause to issue the grievant a written
warning. The County is directed to reduce the suspension discipline to an oral warning,
to change the grievant's record to an oral warning, directed to expunge the grievant's record
the written warning, directed to place in his record notice that failure to submit timely
reports may result in discipline, and directed to make the grievant whole for all lost wages.
The County did not have just cause to suspend the grievant on August 13, 14 and 15,
1996. The County is directed to reduce the suspension to an oral warning and to make the
grievant whole for all lost wages and benefits.
The County did not have just cause to issue the August 8, 1996 written warning
the filing of quarterly reports. The County is directed to cleanse the grievant's record of the
written warning and to place the grievant on notice that failure to file timely quarterly reports
result in discipline.
Dated at Madison, Wisconsin, this 15th day of October, 1997.
Edmond J. Bielarczyk, Jr. /s/
Edmond J. Bielarczyk, Jr., Arbitrator