BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL UNION 579
Ms. Andrea F. Hoeschen, Attorney at Law, Previant, Goldberg,
Uelmen, Gratz, Miller &
Brueggeman, S.C., appearing on behalf of the Union.
Ms. Charmian J. Klyve, Deputy Corporation Counsel, Rock
County, appearing on behalf
of the County.
The Union and the County named above are parties to a 1996-1997 collective
bargaining agreement that provides for final and binding arbitration of certain disputes. The
parties jointly requested the Wisconsin Employment Relations Commission to appoint the
undersigned arbitrator to hear and decide the grievance of Maurice Gladney. A hearing was
held in Janesville, Wisconsin, on September 15, 1997, at which time the parties
their evidence and arguments. At the conclusion of the hearing, the parties argued their case
orally in lieu of filing briefs. The transcript of the proceedings was received on
1997, and the record was closed on that date.
The parties ask:
Was Maurice Gladney discharged for just cause? If not, what is the
The Grievant, Maurice Gladney, was a juvenile Detention Officer in the County's
Juvenile Detention Center. The Grievant started working at the Detention Center in April of
1995. On September 18, 1996, the Superintendent of the Juvenile Detention Center, Fred
Atlas, notified the Grievant that he was discharged for using excessive force on August 24,
1996, on a juvenile that will be referred to as J.C. in this Award.
The Juvenile Detention Facility is licensed by the State of Wisconsin and governed by
the State Administrative Code which prohibits any use of corporal punishment. The
operational manual, developed by Atlas, states that inappropriate disciplinary actions (used
on juveniles) includes corporal or unusual punishment, intentional humiliation, mental abuse,
interference with daily functions of living, and the use of restraints such as handcuffs or
shackles. The manual also states that examples of misconduct that may result in immediate
discharge include conduct endangering the welfare of a juvenile or another person.
The facts in this dispute all center on the events of the evening of August 24, 1996,
when the juvenile J.C. got out of hand and the Grievant was asked to help get him under
control. The juvenile is described as a 14 year old boy who is about six feet tall, over 250
pounds, and emotionally immature. He has been in the Juvenile Detention Center before this
date and is well known to the Detention Officers.
Paula Holte was working at the Center on the evening of August 24, 1996. She was
assigned as a floater and was giving the central control worker, Detention Officer Solomon
Battle, a break. Holte had asked the Grievant if he would take a boy that was in with J.C. to
recreation, and J.C. was angry because he wanted to go to recreation also and could not go
because he was being segregated from other boys for recreation. Holte described J.C. as a
whiner, a real mouthy child. He started swearing and calling her a "fucking bitch" because
she would not let him go with Officer Gladney's group to recreation.
Eric Harrell, another Detention Officer, came to the central control area and J.C.
started throwing garbage cans and swearing loudly. Battle and Harrell tired to talk to him
first but J.C. got upset with Battle and tried to swing at him. Battle and Harrell then thought
it would be better to get him to his cell.
The two officers got J.C. to his cell, and the juvenile fell in the doorway which
prevented them from closing the door to his cell. Holte was trying to close the door for
from central control. Battle had to sweep J.C.'s legs into the cell by bringing his own leg
around, almost like a motion that kicked J.C., in order to clear J.C.'s legs away from the
closing door. Holte thought that Battle had kicked the juvenile. Harrell did not think that
Battle had kicked him, but that he had used his legs to make a sweeping motion in order to
get J.C.'s feet into the cell.
Battle and Harrell went over to central control from J.C.'s cell and discussed what
happening with Holte. Harrell went back to the cell to check on the juvenile and found that
he was flooding the cell, taking toilet water and spreading it everywhere. J.C. had put the
mattress up to the door, blocking vision into the cell. The detention officers are supposed to
be able to see into the cells for the juveniles' safety. Holte and Harrell thought that they
should take everything out of his cell so that the juvenile could not harm himself. Harrell
went to the gym to get the Grievant to help out because the Grievant usually had good
rapport with the juveniles. The officers hoped that the Grievant could talk some sense into
J.C. and that J.C. might listen to him.
The Grievant brought his juveniles back from the gym and the detention officers
locked the boys down in their cells in order to focus on the problem with J.C. The Grievant
went to talk with J.C. and the juvenile threw toilet water on him, which angered him. The
Grievant ordered the door to be opened and he went into the cell. Harrell started taking the
bedding out of the cell. Harrell heard the Grievant tell J.C. that they were going to "kick his
ass" as they went into the cell. The Grievant stated that Harrell made that remark. The
Grievant tried to talk to J.C. and get him to calm down, but J.C. was still out of control.
Grievant told J.C. that he would take him to recreation, but J.C. kept on swearing at them.
The Grievant decided to take him to a holding area, and he and Battle planned to move J.C.
while Harrell was to remove everything from the cell.
The Grievant yelled to Holte that they were taking J.C. to a holding cell. At that
point, Battle and the Grievant were handling J.C. to move him to the holding area. Holte
observed them and noticed that the three of them could not come through the cell door at the
same time. The Grievant was on the right side of J.C., Battle on his left side. The juvenile
was acting like a "madman," according to the Grievant, and he was a strong young man. He
was pulling and trying to get loose from Battle and the Grievant. As they started to exit the
cell door, Harrell saw the Grievant lift up his right arm and give three shots or punches to
J.C.'s side, near the ribs. Battle stated that J.C. was resisting, and he saw the Grievant's
move but thought that the Grievant was trying to keep a hold on J.C.'s right arm and keep
The Grievant testified that J.C. had yanked his arm loose and was going to hit him,
so the Grievant threw up his left arm to block him and swung his right arm around J.C.,
to grab him around the waist. The Grievant said that J.C. was calling him a "fat mother
fucker" and called all the officers "bitches," and that he was very violent at that moment.
Grievant denied hitting or punching J.C. with a closed fist.
Holte also saw a struggle going on while they were in the door of the cell and saw the
Grievant punch J.C. with his fist at least three times. She testified that she was shocked by
what she had seen, believing that the Grievant had punched the juvenile in the stomach area
with his fist at least three times, possibly five times, and that these were intentional blows.
She heard the Grievant tell J.C. that he was "gonna kick his ass, boy." She testified that he
heard the Grievant call the juvenile a "fat ass" also.
After the juvenile was hit, he hunched over and Battle and the Grievant brought him
into the corridor in front of central control and escorted him down the hallway. Suddenly,
Holte saw J.C. go down and she heard him saying, "Stop choking me, stop kicking me." At
that point, Holte could see Harrell and Battle but not the Grievant or J.C. When the
stood up, he was right over J.C. Holte could tell through the intercom that J.C. was
and gagging. She went over to the door and saw J.C. laying on the floor shaking. The
juvenile had a past history of hyperventilating and faking medical emergencies.
Harrell went back to retrieve his walkie-talkie and when he returned to the hall area
in front of central control, he saw J.C. on the ground and the Grievant on his knees
in front of J.C. Harrell saw the Grievant put his hands around J.C.'s neck and make a
squeezing motion a few times. J.C. was yelling and then he lay there and started shaking
violently as if he were having a seizure. Harrell saw something coming out of J.C.'s mouth.
Harrell testified that he was basically in shock and didn't know what was going on. He was
scared that J.C. might actually die, and he ran to a closet and got a face towel. Harrell gave
the towel to Battle, who used it to wipe off J.C.'s head and mouth. Someone suggested that
they get a pillow and Harrell ran and got a pillow. They put it under J.C.'s head and Battle
was about to perform CPR on the juvenile.
Battle stated that J.C. had become limp in the hallway, that he was not going to move
and then he started gagging and coughing, and mucus came out of his mouth. He was
concerned about J.C. and cleared his airway to get ready for CPR if necessary. J.C. had
incidents in the past where he appeared to fake choking or shaking or gagging. Battle did not
think that J.C. was faking his distress while shaking on the floor.
The Grievant testified that when they got J.C. in front of Unit A in the hallway, J.C.
froze and said, "I ain't going no Gad damn where." When J.C. went down on the floor, the
Grievant ran over to the front of him and pinned him down to the ground and told him that
he was not going to let him up until he calmed down. The Grievant stated that he was trying
to hold J.C.'s shoulders down, and J.C. kept trying to lift up, but that he never choked the
juvenile. The Grievant thought they held him down for almost 20 minutes, and that J.C.
like he was choking and dying, but he denied ever putting his hands around J.C.'s neck. He
stated he was pinning his shoulders to the floor.
Detention Office Kevin Leifker was on duty that night working in the shelter side of
the facility. Holte called him and asked him to come over to the secure area, where she was
in central control. When he came through the doors, he heard J.C. yelling and screaming.
He walked around the corner and heard the Grievant yelling "fat ass, fat mother fucker."
was lying on the floor at that time. As Leifker came into the hallway, he saw Battle standing
over J.C., and the Grievant stood up by J.C.'s head as Leifker came around the corner.
Leifker heard the Grievant say, "Let's get our stories straight." Leifker then went into the
unit and got all of the females into their cells and checked on a couple of other units.
Harrell heard the Grievant say "get your story straight" to everyone in the
Harrell recalled Leifker being in the area at the time.
Battle recalled that the Grievant said something about getting their stories straight,
but he could not say exactly what was said. He testified that he could not state that he saw
the Grievant punch or choke J.C. but that he believed it happened. He testified that he did
not hear J.C. yell "stop choking me, get off me" or anything to that effect.
The Grievant came into central control and yelled to Holte to call 911. Holte at that
time had been on the phone with Atlas. She called 911 for an ambulance, and the Sheriff's
Department came over also.
Holte asked Atlas who should go with J.C. to the hospital, and Atlas told her that the
Grievant should go because he was the more senior worker there. Atlas also told Hotel to
contact a supervisor, Nichole Kumlien, to come to the facility. Holte said nothing to Atlas
about having seen the Grievant hitting or choking J.C.
When Kumlien arrived, she started to find out what happened from Battle and
Two deputies were also there. Holte was busy at central control and was not questioned by
the deputies. The Grievant was still at the hospital with J.C. and Holte had an opportunity
to tell Kumlien what she had seen, but at that time, she did not tell Kumlien that she had
the Grievant hit J.C.
The Grievant brought J.C. back to the Detention Center and they cleaned up his cell
together. The Grievant, Harrell and Battle were making out their reports and discussing the
incident, and Holte testified that the Grievant said to her, "I guess I was a little rough on that
kid, wasn't I?" Holte answered, "Yes, you were," and she punched out and left. The
thought Holte was upset because Kumlien wanted J.C. to sleep in his wet scrubs, and the
Grievant got him some clean clothing and linen.
The Grievant described J.C. as a good kid but a compulsive liar who could be
dangerous if he felt he was treated unfairly. The Grievant has had to restrain J.C. in the
and has seen J.C. acting as if he were hyperventilating.
At the time, Holte was employed there for only four months and was still on
probation. She was disturbed about the whole situation and she went over to the shelter care
facility where she talked with Leifker about it. Leifker told her that she had to talk to
Kumlien about it.
Kumlien is a social worker and had been a shift supervisor at the Detention Center for
two years at the time of this incident. Another supervisor, Mo Ruffin, was scheduled to be
on duty the evening of August 24, 1996, but was having car problems. Kumlien was on call
after 6:00 p.m., and she was called between 6:30 and 7:00 p.m. by Holte and asked to
to the facility immediately.
Kumlien made a report regarding J.C.'s disorderly conduct, based on her
with Holte, Harrell, Battle and the Grievant. This report mentioned nothing about any
misconduct on the part of any staff member. No one reported any misconduct at that point.
Kumlien went home and received a call from Holte. Holte told Kumlien that she was going
to write a different report because she felt there was inappropriate conduct by some of the
staff. She told Kumlien that she thought she saw Battle kick J.C. and that she saw the
Grievant punch and possibly choke J.C. Kumlien came back after 11:00 p.m.. She called
Atlas and reported what she had heard from Holte. At the facility, Leifker told her that
Harrell had told him that Gladney "lost it." She and Leifker went to talk with J.C., who had
returned from the hospital. Kumlien called Atlas again, and he directed her to call the
Sheriff's Department to have a statement taken. The Detention Center has no police power
and must rely on the Sheriff's Department to investigate and proceed on criminal
Kumlien wrote a second report on
August 25, 1996, dealing with allegations that J.C. was physically assaulted by
Holte spoke to Kumlien sometime after 9:00 p.m. that evening, and Kumlien told
Holte to write a report in detail. She went home, worked on her report, and returned at 7:00
a.m. the next day. Holte's report does not state that she heard J.C. say, "Stop choking me,
stop kicking me." Her report states that she saw him on the ground coughing, gasping for
air and screaming that he could not breathe. Holte told the police that J.C. had a past
Harrell also spoke with Leifker later that evening after the ambulance left. He told
Leifker that he had a bad feeling about what had happened, that it was not right. He told
Leifker about the choking incident that he had seen. Harrell made Leifker promise that he
would not say anything. Leifker found Harrell to be visibly upset, and stated that Harrell
him that the Grievant was choking J.C. very hard, that he had lost respect for him and would
not lie for him. When Leifker met with Kumlien that evening, he told her everything that
Harrell had told him. Leifker wrote up notes in the early morning hours after the incident,
morning of August 25, 1996. His notes reflect his conversations with both Harrell and
Harrell testified that when the officers made their report to Kumlien, they concocted
a story to make it seem as if J.C. were more or less at fault. Harrell testified that every
agreed on that story -- Holte, Battle, Gladney, and himself. Harrell wrote a report that
recommended that J.C. be punished for disorderly conduct and damage to property. He
admitted that his first report was not accurate and he wrote a second report a few days later.
Harrell testified that he did not think that the Grievant was acting within his normal
character, that the Grievant had just "lost it" on this occasion. The Grievant usually calmed
Harrell down when he was upset. The Grievant had given Harrell pointers on how to deal
with things if something strange happened or if Harrell would lose control of himself. He
knew that there would be repercussions to the Grievant if he told the truth, and he did not
want that to happen. He also did not want any trouble and he did not want to lose his own
Harrell went home that night and asked his mother what he should do. She told him
he better tell the truth even if he had something to do with it. The next day, detectives came
to Harrell's home and he gave them the same incorrect report he had given earlier to
After that, he talked to his aunt, Emma Harrell, and she told him that he had better tell the
truth. She reminded him that he would have to be under oath, and he did not want to lie
under oath. His aunt told him that he could tell the truth over and over but he could not tell
a lie over and over and he could not cover up for people. The detectives had told Harrell
to talk with Officers Gladney and Battle, and when the two officers came to Harrell's home,
Harrell got scared and asked his mother to tell them that he wasn't there. When he returned
to work, the detectives had spoken with Leifker.
Harrell was going to drug counseling and after a counseling session, he told Atlas that
he wanted to tell the truth at that point. Harrell no longer works for the County. He did not
pass his probation period and was dismissed in December of 1996. His probation period was
extended once. He was having some trouble with drugs at the time. He had not been using
drugs on August 24, 1996 and had not been using drugs for a while previously.
Frederick Atlas has been the Superintendent at the Detention Center for two and a
years at the time of the incident. The facility is licensed by the State Department of
Corrections and has to comply with the Administrative Code 346. The Code requires that
the facility have an operational plan. The facility's plan states that corporal or unusual
punishment is inappropriate disciplinary action. Atlas stated that corporal punishment is
excessive force, bodily harm, anything that constitutes child abuse. The operational plan also
states that conduct endangering the welfare of a juvenile may result in immediate discharge.
Atlas considers striking a juvenile with a closed fist and choking a juvenile to be acts that
would endanger the welfare of a child. Atlas stated that it is not unusual to have to restrain
a juvenile in a cell. However, he stated that striking or choking a juvenile is not proper
Atlas spoke with Kumlien and all the other detention officers about the incident, and
he reviewed the Sheriff's Department's reports. Harrell told Atlas that he was not telling the
truth initially. Atlas put the Grievant on suspension with pay on September 13, 1996
discharged him five days later. Holte, Harrell and Battle were given verbal counseling for
failing to properly write and submit reports. The Grievant's prior record includes a verbal
counseling for failing to complete secure observation checks and a written reprimand for
misuse of sick leave. Atlas did not mention any prior discipline as a reason for the
E.L.(Mo) Ruffin, a shift supervisor for two years, has supervised the Grievant in the
past. He never saw the Grievant strike a juvenile or treat a juvenile in a degrading manner.
Most of the time, Ruffin found the Grievant to get along well with J.C. They played cards
and talked about family problems. Ruffin had prior experiences with J.C. working himself
into a frenzy where his heart would pound rapidly. He has seen J.C. hyperventilating more
than five times in the past. Shortly before the incident on August 24, 1996, J.C. tried
Ruffin and broke Ruffin's watch.
The Sheriff's Department's internal investigation shows that the Grievant told the
investigating officers that he might have called J.C. a "fat ass" and his temper might have
flared. The Grievant testified that the officers' report was incorrect.
There were some female juveniles in the facility during this incident who would have
been behind a wall with glass windows that look into the hallway where the critical events
took place. The Arbitrator has disregarded any statements, police reports, statements by
witnesses, regarding those juveniles because of the hearsay nature of the evidence. The
Arbitrator has similarly disregarded evidence of statements made by the juvenile J.C. or
anyone who did not come forward to testify regarding this incident.
THE PARTIES' POSITIONS
The Union asserts that the County as treated this as the cafeteria plan of discharge
cases. The County picks and chooses which evidence it relies on and disregards all the
evidence. The County decided to use Kumlien's second report. It decided to use Holte's
incident report and Harrell's second report. It decided to rely on statements that other
juveniles made to the police to the extent they favored the County's decision to discharge the
Grievant, and it chose to rely on J.C.'s allegations against the Grievant.
On the other hand, the Union points out that the County decided not to rely on
Kumlien's first report and it did not rely on Harrell's first report. The County decided not
rely on observations of juveniles reported to police, or Battle's statement, or J.C.'s
against Battle and Harrell. The Union notes that Battle and Harrell were not disciplined in
this incident, only the Grievant.
When there are differing interpretations of what happened, one might rely on the most
recent account of what happened. The County did just the opposite in this case. The Union
objects to the fact that the County discounted nearly every immediate account of the events
in favor of revised and changed reports by employees. The County gave no explanation why
it thinks its own employees are more truthful after the fact than they are in the heat of an
The Union states that another way to differentiate between contradictory statements
is to look to the actions, which speak louder than words. The County again did exactly the
opposite and disregarded its own employees' actions and the significance of those actions.
It disregarded the fact that Holte made no mention of Gladney striking the juvenile at the
the incident was occurring while she was on the phone with either Atlas, Kumlien or the
police. It disregarded the fact that none of the employees made any mention of Gladney
striking the juvenile when Kumlien first arrived at the scene. It completely disregarded the
fact that Gladney was allowed to accompany the juvenile in the ambulance and none of his
co-workers protested or even expressed any concerns about that. The County further
disregarded the fact that no one intervened in the alleged altercation between the juvenile and
Gladney, and it disregarded the fact that no one ever told Gladney he was doing anything
improper. The County has disregarded the alleged acts of co-workers and did not discipline
either Harrell or Battle. All of the employees admit that they did nothing to protect the
juvenile's interests when they thought or alleged that the juvenile was being threatened or
harmed by Gladney. Yet none of them received anything more than a verbal counseling.
only way the County expressed any interest in the well being of this juvenile is by firing
The Union submits that the allegations are extreme and severe. The Grievant not
lost his job but it is highly unlikely that he will ever be able to work in his field in the future
if these allegations are allowed to stand. This is a career-ending case for him and it is
humiliating for him to face his parish and members of the community.
Because the County has alleged what is essentially criminal activity, the County
be held to the highest standard of proof, the Union asserts. Many arbitrators have ruled on
several occasions that when allegations of criminal conduct affect the employee's career and
life, the employer should have the burden of proving its case beyond a reasonable doubt.
Union argues that there is no imaginable way that the County has met its burden in this case.
The Grievant's account is just as likely an account of events or more likely.
Even if the Arbitrator does not believe that the standard of proof should be beyond
a reasonable doubt, the Union suggests that the clear and convincing standard is appropriate.
It argues that the County has not met that standard and cannot even prove its case to a
preponderance of the evidence. The Union asks that the Grievant be reinstated with full back
The County points out that the employees who testified -- such as Harrell and Holte --
were on probation and had not been in the Detention Center for very long at the time of the
incident. They did not have a supervisor there on duty to report the incident. Holte reported
the incident to Kumlien when she was able to without everyone else being around. Kumlien
came back to the facility to make the later report and Leifker told her what Harrell had
reported to him.
The County asserts that Harrell's testimony is credible. He did not want to get the
Grievant in trouble, as they were friends or co-workers. The fact that Harrell told Leifker
that night what happened, then told his mother and his aunt and came in a day or two later
to tell Atlas what happened all goes to his credibility. Both Harrell and Holte were in a
position to see what happened.
The County argues that Battle was not in a position to see something, but he saw arm
movements. While he could not testify that those arm movements were closed fist punches
to the juvenile, that does not make Holte's and Harrell's testimony void. Also, the County
argues that there is no reason for Harrell to say that the Grievant choked the juvenile unless
it happened. Harrell was scared and couldn't live with himself unless he reported it. The
County admits that it is difficult for workers to report misconduct about another worker.
The County further submits that Gladney changed his story when talking to the
Sheriff's Department investigators. First he said he was perfectly calm, then he admitted
he was really upset. First he said he did not call the juvenile any name, then he admitted
he called the juvenile a "fat ass." Three separate people heard the Grievant say, "Let's get
stories straight," the County notes. Even though the employees did not come forward
immediately, the County maintains that the employees who testified against the Grievant
credible. The testimony established that the Grievant used more force than was necessary
under the circumstances.
The previous disciplinary matters also deal with the Grievant's credibility, the County
submits. The Grievant did not do his security checks and called in sick was he was not sick.
The employer has a right to look at the Grievant's prior record. Atlas looked at the reports
and the police reports and concluded that the Grievant had used the force on the juvenile as
charged. The County finds the evidence to be overwhelming. It finds the Grievant's
statements to be self-serving, and believes that he would not admit something in the
arbitration hearing that would result in any criminal penalties.
The collective bargaining agreement sets out a just cause standard for discipline and
discharge in Section 1.01. In Section 12.11, the contract gives grounds for disciplinary
ranging from a warning to immediate discharge, depending on the seriousness of the offense,
and the grounds include disregard or repeated violations of safety rules and regulations and
other circumstances which may warrant disciplinary action. The operational plan for the
Detention Center prohibits corporal punishment or the use of excessive force on juveniles.
There is no real dispute between the parties that if the Grievant punched or choked the
juvenile J.C., discharge is an appropriate disciplinary measure.
The burden of proof need not be the criminal standard of beyond a reasonable doubt
in an arbitration proceeding. The loss of one's job -- while a severe penalty -- is not the loss
of one's liberty. However, due to the nature of the allegations in this case, it is entirely
appropriate to hold the County to meet a standard of proof of clear and convincing evidence.
The County has met that burden. While there are some troubling aspects to the
evidence, the evidence shows that there were a lot of people present on August 24, 1996
when this incident took place. No one corroborates the Grievant's version of the events.
Holte and Harrell corroborate each other's testimony regarding the Grievant's conduct while
taking the juvenile through the doorway of the cell, when both of them saw the Grievant
punch him. There is a slight difference in their testimony, in that Holte thought the punches
were to J.C.'s abdomen and Harrell thought the punches landed in the side around the ribs.
However, both of them were certain that the Grievant punched J.C., and both of them saw
about three punches.
Harrell saw the Grievant choke the juvenile while he was laying on the floor in the
hallway in front of the central control area, across from Unit A. No one else testified to the
choking incident quite so directly, although Battle reluctantly agreed that he believed that it
happened. The fact that J.C. was gagging and choking does not in itself corroborate
version, since J.C. was known to the detention officers to fake things like that. Holte could
not see J.C. when he was on the floor, but she heard say something like, "Stop choking me,
stop kicking me."
Oddly, the guy with the best view in the house can't (or won't) say what happened.
Battle had a ring side seat and should have seen and heard everything. He
was a most reluctant witness, refusing to state outright that he had seen the Grievant
or hit or choke the juvenile, but also stating that he believed that it happened. He claimed
to have heard what Holte heard when J.C. was screaming to stop choking him. He also
not state what the Grievant had said about getting their stories straight, but he knew that
something to that effect had been said. The vagueness of his testimony diminishes its value.
The Union makes a good point when it notes that no one, including Holte, stopped
the Grievant from escorting the juvenile to the hospital. And no one intervened to stop the
Grievant from choking J.C. However, these were not long term employees and they had
experience as detention officers. In fact, the Grievant had more seniority than they did and
that's why he was sent by Atlas to go along in the ambulance to the hospital. Atlas had no
knowledge at that time of what had transpired, even though Holte could have told him over
the phone about what she had seen.
The most damning evidence is that several people heard the Grievant say, "Let's get
our stories straight." Leifker heard it. Harrell heard it. Battle heard something to that
Then four of them -- Battle, Harrell, Holte, and Gladney -- set out to put the blame
on the juvenile and deflect any wrongdoing on the part of employees at the facility. The
Grievant's comment in the hallway about getting their stories straight obviously influenced
the other detention officers, although they eventually decided to tell the truth. Both Holte
Harrell were so bothered by the attempt to cover up the incident that they independently
sought out Leifker for solace or advise. The evidence shows that there was an attempt on
part of the Grievant to stop others from reporting his conduct, and that it was initially
successful, as Kumlien's first report shows only the misconduct on the part of the juvenile,
not any of the employees. But Holte and Harrell could not continue in the cover-up, and the
Grievant's attempt to get their stories "straight" resulted in only a temporary reprieve.
Some of the most credible testimony came from Harrell, whose version is
corroborated in several respects. Holte, Leifker, and Battle all corroborate Harrell's version
in part. Leifker heard the same phrase as Harrell, when the Grievant said, "Let's get our
stories straight." Leifker later had a conversation with Harrell in which Harrell told him that
the Grievant "lost it." Leifker confirmed that conversation and repeated it to Kumlien.
Harrell's aunt even testified that her nephew talked to her about the incident and his role in
covering up for the Grievant. He was particularly troubled by the lie that the employees had
concocted, as he phrased it, and to his credit, he did not perpetuate it. Holte had already
decided to tell what she had seen the Grievant do to J.C., and as Harrell stepped forward,
two of them showed the physical misconduct on the part of the Grievant. The fact that these
employees did not tell the truth immediately does not mean that they did not tell the truth
later. The fact that the County did nothing more than give them verbal counseling does not
mean that they were not telling the truth. The evidence is more compelling that Harrell and
Holte did tell the truth in their later versions rather than their earlier versions.
The evidence is convincing enough to find that the Grievant punched and choked the
juvenile J.C. To reach any other conclusion would be to disregard all the corroborating
evidence and accept the testimony solely of the Grievant. The record will not support such
a conclusion. Accordingly, the County had just cause to discharge him, and the grievance
be denied and dismissed.
The grievance is denied and dismissed.
Dated at Elkhorn, Wisconsin this 11th day of November, 1997.
Karen J. Mawhinney /s/____________________
Karen J. Mawhinney, Arbitrator