BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MARATHON COUNTY PROFESSIONAL
IN THE COURTHOUSE AND AFFILIATED
LOCAL 2492-D, AMERICAN FEDERATION OF
COUNTY AND MUNICIPAL EMPLOYEES,
COUNTY OF MARATHON, A MUNICIPAL
IN THE STATE OF WISCONSIN
Mr. Phil Salamone, Staff Representative, Wisconsin Council 40,
7111 Wall Street, Schofield, Wisconsin 54475, for Marathon County Professional
the Courthouse and Affiliated Departments, Local 2492-D, American Federation of State,
and Municipal Employees, AFL-CIO, referred to below as the Union.
Mr. Dean R. Dietrich, Ruder, Ware & Michler, S.C.,
Attorneys at Law, 500 Third Street, Suite
700, P. O. Box 8050, Wausau, Wisconsin 54402-8050, for County of Marathon, a Municipal
Corporation in the State of Wisconsin, referred to below as the County, or as the Employer.
The Union and the County are parties to a collective bargaining agreement which was
effect at all times relevant to this proceeding and which provides for the final and binding
arbitration of certain disputes. The parties jointly requested that the Wisconsin Employment
Relations Commission appoint an Arbitrator to resolve a dispute reflected in a grievance filed
behalf of Richard J. Weinreis, referred to below as the Grievant. The Commission appointed
Richard B. McLaughlin, a member of its staff. Hearing on the matter was held on
1997, in Wausau, Wisconsin. The hearing was not transcribed, and the parties filed briefs
reply briefs by July 2, 1997.
The parties stipulated the following issues for decision:
Whether the County violated the labor agreement when it
terminated the Grievant from
employment as a Children's Court Intake Worker on September 25, 1996?
If so, what is the appropriate remedy?
Article 2 - Management Rights
The County possesses the sole right to operate the departments of
the County and all
management rights repose in it, but such rights must be exercised consistently with the other
provisions of this contract. These rights include but are not limited to the following:
. . .
D. To suspend, demote, discharge and take other disciplinary
action against employees for
just cause . . .
The grievance questions whether the County had just cause to terminate the Grievant.
termination letter, dated September 25, 1996, [references to dates are to 1996, unless
noted] was signed by his supervisor, Marvin Andersen, the Children's Court Center
I have decided to terminate your employment as a
Dispositional/Intake Worker based upon
your direct involvement in two domestic incidents, one occurring on 9/2/96 involving an
9mm handgun. I have also considered your conduct in failing to cooperate with the Sheriff's
Department in their response to the 9/2/96 event by hanging up the telephone after your wife
placed the 911 call and by refusing to take an alcohol test when requested to do so by the
officer and an employee of the Jail. Additionally, your conduct of identifying yourself as
with juvenile intake when you received a call back from the 911 Dispatcher improperly
your employment with Marathon County in this incident.
During the predetermination meeting, you indicated that you had
no memory of any handgun
being involved in the 9/2/96 events. However, our investigation has confirmed that a
was involved in the 9/2/96 disturbance - in fact, after learning that your wife is pregnant,
went into a bedroom to find the weapon, you loaded the weapon, and you attempted to place
loaded weapon in your wife's hand. Your alleged loss of memory of this one very important
factor has lead (sic) to the conclusion that you have not been completely honest and
during the internal investigation of the facts and calls into question your sincerity in resolving
personal problems and your trustworthiness in your position with the Children's Court
Additionally, we have to question how much we can rely upon your other assertion that the
disturbance, which was not reported to the Sheriff's Department, was limited to grabbing
wife's arm and your statement that while you had a few drinks on the evening of 9/1/96 and
early hours of 9/2/96, you were not intoxicated at the time of the disturbance.
The domestic disturbance and your failure to fully cooperate with
law enforcement during
their response to the event have resulted in substantial damage to your work relationship with
Court system and with law enforcement. Your work as a Dispositional/Intake Worker
regular contact with the Courts and with law enforcement. Your conduct in creating the
disturbances and your failure to be fully forthcoming in the internal investigation sets a poor
example for the young people who you serve and has damaged the reputation of the
Court Center as a service organization. Additionally, your involve-ment in the criminal
system has created substantial doubt about your ability to be effective and impartial in
recommendations to the Court on the rehabilitation, treatment, care and restitution for
For the reasons described in this letter, I find that your personal
conduct has resulted in you
being unable to be effective in your job as a Dispositional/Intake Worker. Thus, your
employment is terminated effective immediately.
Andersen worked with the County's Personnel Director, Brad Karger, to prepare this
letter. Karger further articulated the basis for the discharge in his written denial of the
That denial is dated October 24, and states:
. . .
The decision to terminate . . . came as the result of a careful
analysis of relationship of the
off-duty misconduct to his position as a Dispositional/Intake Worker. That analysis resulted
* (The Grievant) did not cooperate with the police. He hung up
Pamela's 911 call and later
tried to tell the dispatcher that everything is fine. He also twice refused to take an alcohol
when requested to do so.
* (The Grievant) improperly involved his employment with
Marathon County when (sic)
identified himself as being with juvenile intake when he received a call back from the 911
* (The Grievant) was not honest in our internal investigation when
he denied having any
memory of a handgun being involved in the incident. This calls into question his
in his position with the Children's Court Center.
* (The Grievant's) involvement in the criminal justice system
creates doubt as to his ability
to be effective and impartial in making recommendations to the Court as the rehabilitation,
treatment, care and restitution for juvenile offenders. . . .
The overview of the evidence submitted at the hearing will initially focus on the
incident, then the events following the incident and finally the Grievant's work history.
The Grievant was, in August and September, separated from his wife, Pamela Van
Weinreis, who is referred to below as his wife. On September 1, he visited his wife's sister
brother in law. He helped them cut some wood. He brought a handgun with him which he
intended to use for some target-shooting. His brother in law, however, offered him a drink
in the afternoon and they did not target-shoot after that. After eating, he drove to the
Tavern, which was located near the home which he and his wife shared prior to their
She had remained at the residence during the separation, while he had moved to an
The Grievant parked his truck at his former residence, and proceeded to the Outback, where
met members of his horse-shoe team.
He entered the Outback at roughly 9:00 p.m. At roughly the same time, his wife
For perhaps one half hour, they avoided each other. The Grievant, however, approached
hoping to get her to discuss their marital problems. They spoke for a time among mutual
The Grievant ultimately left her to shoot pool. He did so until the bar closed. He estimated
had four to five beers and maybe two shots while he was at the Outback.
He left the Outback, but did not go back to his truck. Rather, he walked to his
found the door unlocked and entered. He approached his wife and asked her to talk with
about their problems. She tried to leave. He blocked her path and put his hand around her
to stop her. She responded by kicking him in the shins. He then grabbed her.
She responded by biting him in the shoulder and again kicking him in the shins. He
her to the floor, and pinned her there. He continued to try to get her to talk to him about
marriage. She refused. He would not, however, release her. She ultimately told him she
pregnant and he was not the father. What happened after this is not readily apparent, except
she separated from him long enough to dial 911. The balance of the background from the
turns, then, on the 911 tape and witness testimony.
The 911 Tape
The contents of the 911 dispatch tape are difficult to summarize. The Dispatcher,
receiving the call from the Grievant's wife, attempts to respond. The Dispatcher can hear
is open, but cannot get a response. She repeatedly and unsuccessfully tries to get a response,
dispatches a squad. After the line is disconnected, she makes three attempts to establish a
connection at the number of the phone from which the Grievant's wife made the 911 call.
succeeds only in reaching the Grievant's wife's answering machine. On the fourth try, the
Grievant answers, and she asks the Grievant to identify himself. He responds thus: "This is
from Juvenile Intake."
With the Grievant's wife crying and shouting in the background, this dialogue follows:
Dispatcher: OK, what's going on out there?
Grievant: Well, I think my wife wants a squad.
Dispatcher: OK, is everything OK out there Rick?
Grievant: No, it's not. It's really not. She
wants me to
leave and I guess I'm going to have
The Dispatcher then advises the Grievant that Deputy Sheriffs have been dispatched.
responds, "OK." She then again asks him to identify himself, and he does so. She then asks
his wife is OK, and he responds "Yeah, she's fine." At this point the Grievant's wife can be
to cry out that she is not fine. The Grievant then responds, "Well, maybe she's not fine."
Grievant then offers to meet the Deputies at the front door, with his hands on his truck. The
dialogue is difficult to separate as it closes, but closes, roughly, thus:
Dispatcher: OK, all right . . . Sounds good, Rick.
Grievant: OK, thank you . . . bye.
The Grievant's Testimony
The Grievant testified that he effectively blacked out when his wife told him of the
pregnancy. He could not recall how long he restrained her on the floor, but he guessed it
have been from fifteen to forty-five minutes. The next event he can recall is that he grabbed
telephone from her hands. Shortly after that, the Dispatcher called back. Thinking he was
asked about a case, he answered by identifying himself as a Juvenile Intake Worker. When
Dispatcher asked him if things were all right at the house, he realized the situation. With his
screaming at him, he advised the Dispatcher that she needed a squad and he noted that he
wait outside by his truck. He then left the house and waited by his truck for the arrival of
Deputy Sheriffs. When the first squad arrived, he placed his hands on his truck to
he would not resist.
He did recall that sometime during the incident he said to his wife, "why don't you
kill me, it would hurt a whole lot less." He could not recall giving her a gun or asking her
him or to hurt him. He acknowledged he refused to take a breathalyzer test, and that one of
Deputies who responded to the call, James Brown, was an acquaintance. He asked Brown
get involved, and understood Brown felt he had no choice but to assist in the arrest.
September 1 was a Sunday, and the Grievant was not on-call. He acknowledged that
he and his wife separated, he gave the Sheriff's department the phone number of his
Modrzejewski is a Deputy Sheriff, and was the first officer to respond to the
wife's 911 call. His written report of the September 2 incident states:
On 09-02-96 at approx. 0234, Dep. Brown, Dep. Marsolek and
myself were dispatched to
T9263 Quarry Rd., for a report of a 9-1-1 hang up call with what sounded like a female on
phone, trying to get her breath. While enroute, we were advised that contact had been made
a male subject at the residence who advised that his wife was requesting an officer at the
and that he will be outside with his hands on his vehicle. We were also advised that the
came on the phone and stated that there was a loaded Rugar on the floor.
As I arrived at the scene, I found a male subject laying on the
hood of a small truck. As I
stopped my squad, he got off the truck, bent over and put his hands on the hood. This
identified himself as (the Grievant, who) was then handcuffed and placed in the rear of my
Dep. Marsolek then arrived and we had the female open the door
to let us in. She identified
herself as (the Grievant's wife). (She) stated that (the Grievant) and her are married, but
been separated for a short time. At approx. 0130, (the Grievant) came into the house and
pushing her around. (The Grievant) kept putting her on the floor and holding her down.
he held her down, he kept telling her to hit him, and kill him. This took place downstairs as
as upstairs. (She) stated that this went on for approx. one hour, and (the Grievant) kept
hit me, hit me, hit me, kill me, kill me, kill me. (The Grievant) then went into the bedroom
where a 9mm hand gun is kept, and brought it out to where (she) was. At this time (she)
the phone and dialed 9-1-1. (The Grievant) then placed a magazine into the gun and again
telling (her to) kill me, kill me, kill me. (She) does not recall if the gun had been pointed at
or not, she just stated that she was very nervous when (the Grievant) loaded the gun and does
remember where it was pointed.
When dispatch called back the number that came in on the 9-1-1,
(the Grievant) picked up the
phone and stated that everything was alright. At this same time, he pulled the magazine out
the gun, threw it onto a table and threw the gun on the floor. This is when he advised
that he would be waiting outside.
The only injuries that (she) had other than being very shaken and
nervous, were scraps (sic)
to her arms and elbows from being held down onto the floor.
Speaking with (the Grievant), there was no firearm used. When I
asked him to submit to a
portable breath test, he asked what the reason was. When I told him the a firearm had been
displayed and that he was very intoxicated, he stated that there was no gun involved. He
refused to take the portable breath test in my squad, and again later at the jail.
On the front floor of the vehicle that (the Grievant) had been
laying on, was a gun case.
Inside this case was a 9mm handgun with two magazines, loaded, and a partial box of shells.
gun that had been used inside of the house was picked up, along with the magazine. This
normally kept on the dresser in (her) bedroom as she stated that she lives alone and needed it
her safety. The firearms were brought to this department, and (the Grievant) was taken to
Modrzejewski was not aware the Grievant was a County employe until Brown so
during the arrest. Modrzejewski noted that the Grievant's wife was crying when he entered
house, and that she smelled of alcohol. The Grievant neither sought nor received preferential
treatment as a County employe.
Deputy Marsolek arrived at the Grievant's home shortly after Modrzejewski. When
arrived, he saw Modrzejewski placing handcuffs on the Grievant. After the Grievant had
placed in a squad, Modrzejewski and Marsolek approached the house. The Grievant's wife
them. She was crying and had scratches on her arms. Marsolek obtained the Grievant's
account of the incident, and asked her to confirm that account in writing. She agreed, and
prepared the following statement:
(The Grievant) came to this address at approx. 1:45 p.m. He
held me down on the floor or
upright for approx. 1 hour. He repeatedly asked me to hit him or to kill him. Eventually he
loaded a clip in a firearm kept in the household and told me to kill him. At about the same
I reached the phone and called 911. He hung up the phone and they rang back. He picked
phone on the call back and indicated everything was alright and he was with juvenile intake.
sustained minor scrapes on my left elbow while being held down.
The Grievant's wife told Marsolek she was concerned the Sheriff's office might let the
off lightly because he worked with Deputies on a regular basis. Marsolek did not, prior to
incident, know the Grievant. He assured her that the Grievant would not receive special
Brown was the third Deputy to respond to the September 2 incident. When he
Grievant had been handcuffed and placed in the back seat of a squad. Brown had met the
several times in the course of their professional duties. They spoke briefly, then Brown went
the house. After speaking briefly with the Grievant's wife, Brown returned to the squad and
the Grievant about the gun he had observed in the house. Brown testified the Grievant either
denied a gun was involved or stated he did not know what Brown was referring to. Brown
asked the Grievant to lock his truck. At this point, the Deputies discovered the Grievant's
After his arrest, the Grievant was taken to the Marathon County jail. The incident
reported in the September 3 edition of the Wausau Daily Herald thus:
Endangering safety, a 32-year old
Wausau man was arrested early Monday morning on
preliminary charges of endangering safety by intoxicated use of a firearm and domestic
conduct after a 35-year-old Wausau woman told deputies her estranged husband came to her
in the T9200 block of Quarry Road, town of Texas, then threatened her and himself with a
While in jail, the Grievant phoned his supervisor, Marvin Andersen, to inform him that
not report for work. Andersen came to the jail on September 3, and informed the Grievant
would be suspended pending a predetermination hearing.
Andersen issued the Grievant a memo confirming his suspension with pay and setting
date for a predetermination meeting. The notice stated:
. . .
During the predetermination meeting, you will be asked about the
events on 9/2/96 which lead
(sic) to your arrest and incarceration for domestic disorderly conduct and endangering safety
use of a dangerous weapon. We will be assessing the impact of this event on your ability to
effective in the performance of your job duties:
1. Any negative impact upon your work relationships with the
Courts and other County
workers as a result of this incident.
2. Any negative impact on your ability to effectively and
impartially review and make
recommendations on the misconduct of juveniles. . . .
The findings of the internal investigation could result in
disciplinary action being taken against
you including the termination of your employment. . . .
The predetermination meeting was conducted on September 9.
The County's Personnel Director, Brad Karger, Andersen, the Grievant and the
Staff Representative, Phil Salamone, attended the predetermination meeting. At that
Karger and Andersen obtained the Grievant's account of the September 2 incident. The
stated that he had been married for roughly three years until early August, when he and his
separated. Sometime prior to the September 2 incident he and his wife had a heated
concerning whether she would get rid of the Grievant's dogs. He grabbed her arm during
altercation, but did nothing further. He eventually agreed to leave the house and not to
The Grievant advised Karger and Andersen that he had sought counseling after the
incident and had voluntarily sought an AODA assessment. The Grievant acknowledged he
the breathalyzer test, but felt that such a test was not warranted since no gun had been
in the incident.
Following the predetermination hearing, Karger attempted to interview the Grievant's
She, however, would not consent to an interview. Karger sought the assistance of the
Victim Witness Coordinator, Geri Heinz. Heinz did speak with the Grievant's wife,
who affirmed the accuracy of her September 2 statement, but would not agree to be
by Karger or to offer testimony against the Grievant. Heinz understood the Grievant's wife
following the advice of the attorney who was handling her divorce action. Heinz understood
Grievant's wife had been advised that offering testimony against the Grievant might result in
court-ordered payments to the Grievant under a then pending divorce action.
After reviewing the 911 tape, interviewing the Deputies, reviewing the Grievant's
from the predetermination hearing, reviewing the Grievant's personnel file, and reviewing
confirmation of the Grievant's wife's September 2 statement, Karger and Andersen met to
the appropriate response. They agreed that the Grievant had not credibly denied that a gun
involved in the incident. They further agreed that the Grievant had damaged his credibility
the law enforcement and juvenile justice community and had failed to assume responsibility
his actions. They agreed termination was the appropriate response, and Andersen issued the
September 25 termination letter set forth above. Neither Karger nor Andersen interviewed
Grievant's co-workers to determine if they would be willing to work with him.
The Grievant was hired as a Shelter Home Youth Worker, effective July 26, 1988.
received satisfactory or better evaluations in that position. The Grievant successfully posted
the position of Assistant Juvenile Intake Worker effective December 14, 1992. It is
that he received this job because he was considered to have worked beyond the requirements
his position as a Shelter Home Youth Worker. He then successfully posted for the position
Dispositional/Intake Worker, effective January 2, 1995. Andersen performed the Grievant's
month evaluation in that position, and found his performance "fundamentally sound," and
productive." The Grievant's personnel file contains no evidence of discipline prior to the
September 2 incident and includes several letters of appreciation.
The position description for Dispositional/Intake Worker defines the classification
This is professional work with juveniles for Court Services.
Employees in this class are
responsible for providing professional assistance to the Juvenile Court in interviewing and
counseling juvenile offenders and their families, both before and after adjudication and
making an effort to obtain necessary or desired services for the child and the child's family
investigating and developing sources toward that end. Work extends to developing
and biographical data of juvenile offenders, screening out those whose offenses do not
official Juvenile Court action, and providing ongoing counseling and assistance to those
sentenced by Juvenile Court to supervision. Work is performed in accordance with
dictates of the area of sociology and psychology with the employee expected to exercise some
discretion and professional judgment in solving problems that arise with the juvenile client.
originates either through taking a juvenile into custody and referral of a juvenile to the
Court by a police department or through the disposition
of a juvenile to supervision by a Juvenile Court judge. Work is
regularly supervised by the
Supervisor of Court Services who assigns case loads, monitors and evaluates work progress,
is readily available for consultation and guidance with difficult cases. Work of this class
involve irregular hours and on-call in accordance with the needs of the Dispositional
The position description calls for the following "Knowledge, Skills and Abilities:"
Some Knowledge (sic) of the philosophies, techniques,
practices, and principles of
sociology and psychology, particularly as it applies to adolescents and the problems of
Some knowledge of the philosophy and
principles of supervisory dispositions, with special
emphasis on juvenile supervision.
Knowledge of interviewing techniques and
Knowledge of interrogation techniques and
Ability to establish rapport with juvenile
offenders and to establish a relationship based
Ability to maintain effective working
relationships with the parents of juvenile offenders,
with fellow employees, and with other employees of the judiciary system.
Ability to write clear and concise reports.
Ability to investigate incidents in a logical
manner and develop orderly procedures for
gathering and reporting facts.
The Grievant's prosecution was handled by the Portage County District Attorney's
to avoid any conflict of interest. That prosecution resulted in the execution of a Deferred
Prosecution Agreement which included the following provisions:
. . .
(3) The defendant shall participate in a 20 week Domestic Abuse
Alternative Program similar
to the one offered by the Family Crisis Center in Portage County. The defendant further
to pay any applicable fees for this program and to attend at the times and places arranged for
(4) If the defendant successfully completes
this agreement, the case will be closed by the
District Attorney's Office. . . .
Further facts will be set forth in the DISCUSSION section below.
THE PARTIES' POSITIONS
The County's Brief
After a review of the evidence, the County contends that the "(a)pplication of
arbitral law to the evidence in this dispute demonstrates" that it had just cause to discharge
Grievant. Arbitral precedent establishes that cause "simply means that an employer, acting
good faith, has a fair reason for disciplining an employee which reason is supported by the
evidence." Such precedent does not limit the authority to discipline to on-duty conduct.
the evidence shows that the Grievant's conduct "harmed the County's reputation and . . .
undermined his ability to perform his duties . . . and has resulted in the reluctance of certain
employees to work with him," it follows that the County's disciplinary interest extends to his
Due to "his duties as a Dispositional Intake Worker," the County argues that "the
should be held to a higher standard of conduct than an ordinary employee." The position
the Grievant in a position of trust within the juvenile justice system. The Grievant identified
himself to the 911 Dispatcher as a County Intake Worker, denied to County Sheriffs that a
had been involved in the incident, and refused to submit to a breathalyzer test. The Grievant
lied to departmental officials in his post-incident account for his behavior.
The testimony of the Grievant's supervisor establishes that the Grievant had lost the
of departmental and law enforcement personnel. Witness testimony establishes the reluctance
co-employees to work with him, and the risk that the Grievant has yet to accept
his mistakes. Even though newspaper accounts did not specifically identify the Grievant,
accounts made it apparent to the community that a County employe was the subject of the
incident. Court appearances further cemented the notoriety surrounding the incident.
background, the Grievant's ability to serve in his position had been irreparably compromised.
Arbitral precedent requires that "an arbitrator should not substitute his discretion for
vested with the employer to determine the proper penalty to be imposed for an employee's
misconduct." Because the misconduct here is egregious, the evidence will not support a
conclusion that the County acted in an arbitrary or capricious fashion in discharging the
It necessarily follows, according to the County, that the grievance should be dismissed.
The Union's Brief
After a review of the evidence, the Union notes that the consequences of this
the Grievant's "professional career and reputation" at stake as well as his position with the
County. Under arbitral precedent, the burden of proof in this matter is on the County
follows that "the County should be expected to prove its allegations with a considerable
of certainty." The considerable uncertainty surrounding the facts underlying the grievance
assume dispositive significance regarding proof of the alleged misconduct as well as the
imposed for those allegations.
That the alleged misconduct is for off-duty behavior demands "standards to evaluate
(which) are quite distinguishable from misconduct which occurs at work." More specifically,
Union argues the off-duty misconduct must have a "'nexus' with the
employment setting." The
most persuasive statement of the standards relevant to off-duty conduct is stated in W.E.
Caldwell Co., 28 LA 434, 436-437 (Kesselman, 1957), thus:
The Arbitrator finds no basis in the contract or in American
industrial practice to justify a
discharge for misconduct away from the place of work unless:
1) behavior harms Company's reputation or product . . .
2) behavior renders employee unable to
perform his duties or appear at work, in which case
the discharge would be based upon inefficiency or excessive absenteeism.
3) behavior leads to refusal, reluctance or
inability of other employees to work with him . .
A review of the evidence, according to the Union, will not support a conclusion that
nexus has been established. More specifically, the Union argues that there was little
surrounding the incident and the Grievant "does not hold a position of high public visibility."
Beyond this, the Union contends that the Grievant is prepared to work and can be expected
effectively perform his duties. That he volunteered for counseling and underwent an alcohol
assessment further corroborates this conclusion.
While the underlying incident is egregious, the Union argues that it is personal and
"directly provoked by a unique and extraordinary set of highly stressful personal
which "would unnerve the most stable of individuals." Since "(i)t is nearly impossible to
circumstance(s) at work which could rise to such a personally upsetting level," the Union
concludes the Grievant's fitness for work has not been meaningfully called into question.
work record underscores this conclusion, and establishes the Grievant's ability to capably
under the stress of work. The complicating role alcohol played in the incident has no
demonstrable impact upon the Grievant's ability to perform his job.
The record on the third of the Kesselman criteria is somewhat mixed, but would
that unit employes are prepared to take the Grievant back, particularly in light of his
to undergo counseling. The Union concludes that the standards governing a discharge for
conduct have not been met by the County.
The Union then contends a number of mitigating factors further undercut the
position. Initially, the Union points to the uncertainty underlying the events which led to the
call. The conduct of the Grievant's wife cannot be meaningfully evaluated, and may have
provoked the Grievant. The County's failure to secure her testimony should not be
Beyond this, the Union points to the Grievant's "long and unblemished record with the
The discharge letter is itself a flawed document, according to the Union. A careful review
document will not support the assertion that the Grievant was dishonest or uncooperative with
investigating officials. A review of the County's case in light of arbitral precedent,
County of Orange v. Association of Orange County Deputy Sheriffs, 90 LA 117
1987), will not support a conclusion that the Grievant was discharged for just cause. The
concludes by requesting that "the Grievant should be reinstated with full back pay and
The County's Reply Brief
The County argues that the "Union has mischaracterized and misstated the facts in
matter." More specifically, the County asserts that the Grievant entered his wife's home
permission, and did not attempt to "discuss" their marital problems. Rather, he "erupted,"
assaulted her. Beyond this, the County contends the Union has failed to show the Grievant
blacked out, and cannot show any justification for the Grievant's hanging up on the 911
Dispatcher or for identifying himself as a County employe. The facts manifest no reason to
question why only the Grievant was tested for alcohol consumption, and manifest no reason
believe the Grievant's wife did anything to provoke the Grievant. Nor can the Union's
that the misconduct cannot reasonably be expected to recur be accepted. The Grievant and
wife may have reconciled.
Nor can the County be faulted for not producing the Grievant's wife as a witness.
been advised by her attorney not to testify in this proceeding, and has eluded the County's
considerable effort to subpoena her. Beyond this, the County urges that the Union's view of
evidence overlooks the egregious nature of the Grievant's proven misconduct.
The County then contends that the Union's evaluation of the evidence is as flawed as
analysis of the facts. The Grievant's work record is neither as long nor as distinguished as
Union asserts. Beyond this, the assertion that the events the County seeks to hold the
responsible for are firmly rooted in the Grievant's testimony and that of the arresting
The nexus between the Grievant's conduct and his employment has also been established.
Testimony that he will remain able to perform those duties rests on the testimony of Union
officers, whose bias is apparent. That the Grievant testified he submitted himself to alcohol
assessment and to counseling falls short of establishing those efforts have demonstrated his
to work. That he may have performed his work in the past says nothing about his ability to
after September 2, 1996.
A thorough review of the Orange County case demonstrates that it is factually
distinguishable to this matter. Unlike that case, the discipline posed here addresses an
with a proven impairment regarding his ability to continue to perform his job. A review of
evidence fails to establish, according to the County, solid reason to believe the Grievant
any remorse for his conduct. The Union's brief reflects that view, and thus understates the
significance of the County's concern. Viewing the record as a whole, the County concludes
the grievance must be dismissed.
The Union's Reply Brief
The Union asserts that "the employer brief is factually incorrect on a number of
Initially, the Union contends that the Grievant is divorced from his wife. From this, the
concludes that a repetition of the stress which provoked the September 2 incident is
Beyond this, the Union questions Employer allegations regarding the severity of the
conduct. There is, for example, no evidence he bruised his wife. The confusion
Grievant's marital status and whether the County based the discharge on one or two alleged
instances of abuse demonstrates either acts of omission in investigation, or commission in
upon the results of the investigation.
A careful review of the evidence manifests several instances where County assertions
not reconcilable to the facts. For example, the Union questions how the Grievant could not
had permission to enter his own house. Beyond this, the Union questions how the Grievant
be discharged for lying to law enforcement officials, but not charged by those officials with
obstruction of justice. Other County assertions regarding the Grievant's honesty rest on no
than "(t)hin air."
The Union contends that a careful review of the precedent cited by the Employer will
support the applicability of those cases to the grievance. For example, at least two of those
address suspensions. At least two other cases do not involve the application of a contractual
cause standard. None of the cases cited by the County can, according to the Union, obscure
fundamental arbitral tenet that the burden of proof in a just cause for discharge case lies on
employer. That the Union failed to demonstrate a medical basis for the Grievant's
during the incident cannot, the Union concludes, be held against it.
In light of the factual inaccuracies highlighted in its reply brief, and based on its
of the evidence, the Union concludes that "(t)his case represents a gross miscarriage of
It necessarily follows, according to the Union, that "(t)he Grievant should be reinstated with
The stipulated issues question whether the Grievant's termination meets the just cause
standard stated at Article 2, Section D. Because the parties have not stipulated the standards
defining just cause, the analysis must address two elements. First, the County must
existence of conduct by the Grievant in which it has a disciplinary interest. Second, the
must establish that the discipline imposed reasonably reflects that interest. As preface to the
application of these two elements, it should be noted that off-duty conduct is at issue here.
Although each party phrases the implications of this point differently, both agree that just
requires a meaningful connection between the Grievant's off-duty conduct and the County's
disciplinary interest. Application of the two elements must account for this connection.
The County has persuasively demonstrated conduct by the Grievant in which it has a
disciplinary interest. The extent of that interest poses the fundamental difficulty in resolving
grievance. This point is, however, more appropriately addressed in the second element.
Karger's October 24 letter states, in four paragraphs, the areas of conduct in which
County claims a disciplinary interest. The final paragraph is less a statement of conduct than
evaluation of the disciplinary significance of the conduct isolated in the three preceding
paragraphs. To varying degrees, the County has established a disciplinary interest in each
The first area of conduct concerns a lack of cooperation with law enforcement,
by the Grievant's interference with the 911 call and his repeated refusal to submit to a
breathalyzer. The Grievant's testimony acknowledges that he took the phone from his wife
occasion and that he declined two requests to submit to a breathalyzer test. The County can
legitimately claim an interest in this conduct. The Grievant must work in cooperation with
enforcement officials and must be relied upon to guide juveniles through the criminal justice
system. In each area, he serves as a role model. The County's contention that his conduct
a flawed signal to the law enforcement, judicial and juvenile community is persuasive.
The Grievant's testimony and the 911 tape establish that the Grievant identified
to a County Dispatcher as "Rick from juvenile intake." This was either an inadvertent error
judgment or a deliberate attempt to use his employment status to personal advantage. In
case, the appearance of the conduct is improper, and the County can claim a disciplinary
in that impropriety. The Union cannot claim both that the County has no disciplinary
the Grievant's personal life and that it can claim no interest in his personal use of his
The final area of conduct concerns the Grievant's honesty, and poses the most
issue regarding the first element of the cause analysis. There is a meaningful connection
the Grievant's conduct in the investigation of his personal conduct and his involvement in the
investigation of the conduct of juveniles swept into the criminal justice system. From a
punishment perspective, the issue the County poses is whether the Grievant can be permitted
lie to save himself from prosecution, then counsel juveniles facing prosecution to honestly
communicate with law enforcement and judicial officials. From a rehabilitation perspective,
issue the County poses is whether the Grievant can be permitted to fail to
acknowledge the full impact of his own behavior, then counsel juveniles to be
their own. Whatever is said of this dilemma, it is apparent that these facts pose a meaningful
between the Grievant's off-duty and on-duty conduct.
The difficulty with the County's position is that the lie is unproven. The evidence is
troublesome, since there are indications the Grievant's recall is selective. He testified that he
not agree with the statement, from the police report, that he restrained his wife for an hour.
he could disagree with this statement given his blackout is not immediately apparent.
he recalled statements made to his wife when, by her statement, he was forcing the handgun
her. How he could recall the statement but not the handgun is not immediately apparent.
his demeanor as a witness poses troublesome issues. His testimony, in significant part, was
and appeared staged. Viewed together, these considerations point toward a difficulty, on his
to acknowledge the full impact of his behavior. Presumably, these considerations were as
apparent at the predetermination hearing as at the arbitration hearing.
The difficulty is that these considerations fall short of proof that he lied. To establish
lie, it must be presumed that his wife's statement is accurate and that he fabricated a memory
lapse. The second presumption is unprovable in any meaningful sense. Who but the
know if he blacked out or pretended to? This does not preclude concluding he lied, but does
clarify that inferring he did requires solid proof from other sources. Such proof is lacking,
there is reason to believe such proof does not exist.
The most compelling fact concerning the Grievant's lapse of memory is that he
nothing by fabricating it. On a criminal level, the memory lapse dubiously shielded him
prosecution. His wife could conceivably be compelled to testify and the gun presumably
prints. The memory lapse did no more than refusing to confess to the charge did. As an
employment matter, the memory lapse offered him no apparent protection. How is his
recall forcing a gun into his wife's hand preferable to forcing a gun into his wife's hand?
memory lapse left her statement unrebutted.
On balance, the evidence demonstrates support for the County's assertion that the
has not acknowledged the full impact of his misconduct. It falls short of establishing he lied.
This remains conduct in which the County has a disciplinary interest. Presumably,
of behavior requires an acknowledgment of the impropriety of the behavior to be modified.
is, however, a lesser degree of misconduct than asserted in Karger's October 24 letter.
This poses the second element of the cause analysis and the most troublesome aspect
case. The issue is whether discharge reasonably reflects the County's disciplinary interest in
Grievant's misconduct. Viewed as a whole, the record will not support this conclusion.
however, a difficult determination. Contrary to the Union's assertion, the record will not
characterizing the discharge as "a gross miscarriage of justice." If the evidence supported
factual assertions of Karger's October 24 letter, the discharge would stand. The evidence
not do so, but the flaws in it are far from glaring.
As preface to an examination of this conclusion, it should be stressed that the County
not base the discharge on the severity of the Grievant's conduct toward his wife. The
letter notes that the Grievant had been charged with a significant offense. The charge,
ultimately led to the execution of a deferred prosecution agreement calling for counseling.
significant than the agreement to use counseling in place of jail time is that the severity of
Grievant's conduct toward his wife has never been established. She refused to respond to
Karger's request to discuss the incident, and successfully avoided service of a subpoena to
at the arbitration hearing. What evidence there is on this point would indicate her reasons
not on personal safety, but on economic advantage. The significance of her refusal to testify
should not be overstated, but does underscore that basing the discharge on the severity of the
Grievant's conduct rests on an undetermined foundation.
More significantly, the link between the September 2 incident and the Grievant's
place conduct is not as strong as asserted in Karger's October 24 letter. The link asserted by
Karger is logical. Neither he nor Andersen asked law enforcement or social service
they would, in fact, object to working with the Grievant. Rather, they determined that the
of his conduct was sufficiently egregious to warrant a conclusion that it would, or should,
that effect. This approach is not, standing alone, objectionable. It is, arguably, the essence
managerial discretion. That Brown, Wadzinski or Schroeter testified that they were willing
work with the Grievant does not address the logical point advanced in Karger's and
The logical point assumes, however, that the Grievant's conduct was as egregious as
County asserts, and that it is inextricably tied to his employment status. The evidence will
unequivocally support these assumptions. The first paragraph of Karger's October 24 letter
focuses on the Grievant's failure to cooperate with law enforcement officials. That he pulled
phone from his wife, initially advised the Dispatcher things were OK, and refused to take a
breathalyzer test are undisputed. This conduct is egregious, but its severity must not be
overstated. The first two points focus less on his professional than his personal conduct. As
above, the discharge rests on his professional conduct. He retracted his assertion that his
OK in response to her sobbing. He promised to leave the house and meet the Deputies with
hands on his truck. He did so. This cannot be characterized as failing to cooperate. It is
necessarily improper for the County to hold the Grievant to a higher standard of cooperation
law enforcement than the constitution requires. However, the link between his assertion of
personal rights and his duties as a Dispositional/Intake Worker is less than evident. That a
within the judicial system might be willing to assert an individual right is less than shocking.
a worker within that system might counsel a juvenile to assert their constitutional rights is
similarly less than shocking. These considerations do not rebut, but limit, the disciplinary
asserted in the first paragraph of Karger's October 24 letter.
The extent of the disciplinary interest asserted in the second paragraph of that letter is
more circumscribed. The evidence will not support a conclusion that the Grievant
tried to use his job to shield himself from prosecution. Identifying himself as an
intake worker was a significant error. The significance of the error should not be
was not on call, and was not in any event on call at that number. At best, the utterance was
inadvertent. Even if inadvertent, it was egregious. The misconduct should, however, not be
exaggerated. The evidence will not support a conclusion that he, in any meaningful sense,
to use his job status to personal advantage. He never asked for preferential treatment. He
with Brown not to become involved in the investigation. The evidence establishes Brown is
only Deputy with whom he could have sought favor based on professional or personal
acquaintance. The misconduct, although noteworthy, is not as egregious as the County
The extent of the disciplinary interest asserted in the final paragraph of the letter is
attenuated. As noted above, the asserted lie is unproven. There are troublesome undertones
the Grievant's account of his actions. Those undertones turn, however, on personal
accountability. The discharge is based on lying.
Beyond this, the Union has persuasively asserted mitigating circumstances. The
2 incident did not become, as the County initially feared, a widely publicized scandal. This
has limited significance, but does undercut the contention that the notoriety of the incident
make it impossible for the Grievant to successfully perform his work. The Grievant has a
long-term work record, unblemished by any discipline other than the discharge at issue here.
more recent evaluations put him well above satisfactory performance. Here too, the
of this point should not be over-emphasized. Andersen authored his most recent evaluation
Andersen was willing to discharge him. Finally, the factual impact of the incident on his
performance remains debatable. It is not unheard of for employes in counseling roles to
from personal mistakes.
On balance, the County has demonstrated a substantial disciplinary interest in the
Grievant's conduct. That interest is not, however, sufficiently well founded in the evidence
support his discharge.
Determination of the remedy appropriate to this violation poses another troublesome
The record poses a series of, in many ways, irreconcilable dilemmas. The County's asserted
interest in the Grievant's lying, for example, has not been proven. This points away from
discharge. However, troublesome issues remain. The evidence, although not establishing
does establish reason to question whether the Grievant has assumed full responsibility for his
conduct. Beyond this, the misconduct at issue here is difficult to address. Subjecting his
of judgment to some form of warning serves no evident purpose. Should the Grievant be
in writing or through a suspension, not to identify himself as a County worker when a
Dispatcher calls during a domestic abuse incident? More subtle than this is that the
of his errors of judgment have not yet been determined. The conclusions reached above note
that Karger's and Andersen's concern with the Grievant's acceptability rest on an uncertain
basis. It remains to be seen if law enforcement, judicial or social service personnel will
difficulty working with the Grievant. Beyond this, it remains to be seen if juveniles or their
parents will have difficulty working with him.
Against this background, the Award entered below returns the Grievant to work
any make-whole component. This remedy, although not unprecedented in arbitration, [See,
generally, Labor and Employment Arbitration, (Matthew Bender, 1997) at Chapter 14;
or, for example, Sheboygan County, MA-7593 (Nielsen, 6/93) and KRC Hewitt, Inc.,
A-5478 (Greco, 11/96)] is unprecedented for me. It reflects the only resolution I can see to
the dilemmas touched upon above, and the remedy mirrors the fundamental difficulty this
poses. The County's sanction rests on a sound basis, but not on as sound a basis as asserted
the discharge documentation. The evidence will not support the conclusion that the Grievant
behaved as egregiously as the County asserts or that his personal misconduct is as closely
his professional status as the County asserts.
The Award entered below balances these considerations by affording the Grievant the
opportunity to restore his blemished reputation as a Dispositional/Intake Worker without
penalizing the County. Beyond this, the Award recognizes that the effects of the Grievant's
misconduct may yet have ramifications. The only expungement of his personnel file required
the Award is that references to the imposition of a discharge be removed or amended to
his reinstatement consistent with the terms of the Award.
Before closing, it is necessary to touch on certain arguments posed by the parties.
fundamental strength of the County's case is that an arbitrator should not substitute his
for that of an employer. The force of this point should not be obscured, and is the primary
for the denial of a make-whole remedy. Neither Karger's nor Andersen's views are illogical
unfounded. Their action was, in a restricted sense, precipitous. The passage of time has
the arbitration record more substantial than the predetermination record.
The denial of a make-whole remedy can appear less a reflection of the evidence than
an arbitrator's desire to offer something to each party. I cannot dispel this appearance.
I can state that I view the remedy to reflect the underlying difficulty of finding and
facts relevant to the grievance. The remedy seeks to balance conflicting, but legitimate and
The County violated the labor agreement when it terminated the Grievant from
employment as a Children's Court Intake Worker on September 25, 1996.
As the remedy appropriate to the County's violation of Article 2, Section D, the
shall offer to reinstate the Grievant to the position he occupied at the time of his termination.
the Grievant accepts this offer, the County shall determine his seniority and any other
consistent with the labor agreement and his actual time of County service. The County is
no obligation to pay him for any wages or benefits which he would have received in the
between the effective date of his discharge and his reinstatement consistent with the terms of
Award. The County shall expunge references to the discharge from the Grievant's
file(s) or amend such references to clarify that the Grievant was reinstated consistent with the
terms of this Award.
Dated at Madison, Wisconsin, this 30th day of October, 1997.
Richard B. McLaughlin /s/
Richard B. McLaughlin, Arbitrator