BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MELROSE-MINDORO AREA EDUCATION
MELROSE-MINDORO SCHOOL DISTRICT
Melrose-Mindoro Area Education Association, hereinafter referred to as the
the Melrose-Mindoro School District, hereinafter referred to as the District, are parties to a
bargaining agreement which provides for the final and binding arbitration of disputes arising
thereunder. The parties jointly requested that the Wisconsin Employment Relations
designate a member of its staff to act as an arbitrator to hear and decide a grievance over a
The undersigned was so designated. Hearing was held in Melrose, Wisconsin on September
October 13, 1997 and January 9, 1998. The hearing was not transcribed and the parties
post-hearing briefs and reply briefs, the last of which were exchanged on April 16, 1998.
The grievant, Gordon Bornitz, was employed by the District for twenty (20) years
discharge on May 30, 1997. Just prior to his discharge, the grievant was a Junior High
teacher. The grievant resides in the City of Onalaska. The events leading up to the
discharge began on January 12, 1997. The grievant returned home at around 11:00 p.m.
watching and celebrating the Packer's NFC Championship game victory. The
grievant was intoxicated and got in a dispute with his wife. He pushed her around and
she called 911
and Officers Roh and Lounsbury and Sergeant Kobishop responded. After speaking to the
wife, the grievant was placed under arrest. The grievant was asked to change out of his
put on clothes which he did. The officers noted a box in his right front pants pocket and
asked twice what it was the grievant did not say. The grievant was searched and the officers
a small cardboard box containing two vials which were empty but contained a white powder
substance which tested positive for cocaine. The grievant's wife consented to a search of the
premises and told them to check the garage. Officer Holm arrived at the residence and he
Lounsbury searched the garage. Lounsbury searched the west side of the garage and in a
tackle box, found a wooden pipe with marijuana residue in it, two partially smoked
cigarettes and a plastic zip-lock bag with remnants of a marijuana plant and seeds. Officer
searched the east side of the garage and inside another tackle box found a baggie with a
substance which later tested positive for marijuana. Holm also found what appeared to be a
homemade measuring tool, a roach clip and two packs of cigarette rolling papers.
On January 23, 1997, the grievant was charged with Battery, Possession of Cocaine,
Possession of Marijuana, Possession of Drug Paraphernalia and Disorderly Conduct. At
on January 24, 1997, the grievant met with the District Superintendent Stephen Fredrick and
the circumstances giving rise to the charges and hoped they would not be publicized. The
stated he had used drugs infrequently on out of town trips. At 10:45 a.m., the grievant met
Superintendent and Principal Ron Perry and was placed on paid administrative leave. On
26, 1997, a local newspaper reported the charges and the allegations set forth therein.
On March 3, 1997, the grievant entered into a diversion agreement wherein he pled
to Battery and Possession of Marijuana but judgment of conviction was withheld for one year
provided the grievant complied with certain conditions.
On April 29, 1997, the grievant was placed on a suspension with pay pending a
the District Board on the Administration's recommendation that the grievant be terminated
1. Possession of Marijuana on January 13, 1997
1. Possession of Cocaine on
January 13, 1997
1. Admissions on January 24,
1997, to Ron Perry and Steve Fredrick that the grievant used
marijuana and cocaine.
After a hearing on May 29, 1997 before the District's Board of
Education, the Board on a 4-3 vote
terminated the grievant. The matter was grieved and waived directly to the instant
The parties stipulated to the following:
Did the District have just cause to terminate the employment
If not, what is the appropriate remedy?
PERTINENT CONTRACTUAL PROVISIONS
. . .
completion of the probationary period, no teacher shall be non-renewed, discharged,
suspended, reprimanded, reduced in rank or compensation, or otherwise disciplined without
just cause. Any such action, including adverse evaluation of teacher performance asserted by
the Board or representative thereof, shall be subject to the grievance procedure set forth
herein. Information bearing on any disciplinary action will be made available to the teacher
and only upon request of said teacher to the Association. The teacher must, however, be
notified in advance of the meeting, in writing, that a disciplinary procedure is involved, and
that he/she has the right to representation by the Association should he/she want it.
The District contends that the key facts are not in dispute. It states that based on the
the grievant was in possession of cocaine and marijuana on January 13, 1997 and on January
1997, admitted to his supervisors that he used marijuana and cocaine. The District argues
grievant's testimony at the hearing is not credible. It submits that the grievant could not
story straight regarding the use and possession of marijuana. It further observes that the
added time and distance regarding his use of cocaine and the evidence failed to establish how
grievant came to be in possession of the cocaine. It observes that the grievant told
Fredrick that the grievant's spouse knew he used drugs yet his spouse testified she was not
the marijuana until February, 1997. It claims that the grievant has attempted to modify and
misrepresent the facts at the hearing so as to obfuscate the relevant facts that he possessed
and marijuana on January 13, 1997 and was a user of both illegal drugs.
The District maintains that the grievant's termination is supported by the record. It
arbitrators have applied different standards of just cause and it believes that just cause
it demonstrate misconduct by the grievant and the discipline it imposed is reasonable.
The District, citing the Student and Teachers' Handbooks, insists that it has taken a
stand regarding the expectations for its students and staff and has expended considerable time
resources to implement the D.A.R.E. program. It rejects the grievant's argument that
District does not have an express policy that teachers will be terminated for off-duty use
possession of drugs that he is off the hook. It cites arbitral support for its position that the
have an express rule does not bar the District from imposing discipline for non-workplace
drug-related activity. It claims that school teachers are held to a higher standard and occupy
of a role model and it suggests that the grievant knew and understood this as reflected in his
that his possession and use of drugs would become public and the grievant was concerned
the community and students were saying about the incident. It points out that two newspapers
serve the District publicized the January, 1997 arrest and students expressed disbelief that a
would have engaged in such conduct. It asserts that it is ludicrous to argue that there is no
between the grievant's conduct and his role as a teacher. It observes that the grievant is a
teacher with the District for 20 years and can be held accountable for understanding a
position as that of a role model. It rejects the grievant's contention that he can now be a
model regarding the dangers of drug use and insists that the grievant had the responsibility as
model for avoiding the use and possession of illegal drugs.
The District distinguishes the grievant's termination from the conviction of another
for disorderly conduct on the grounds that illegal drugs were not involved in that incident
and it was
a one time error in judgment; whereas, the grievant had the opportunity over a long time to
of the illegal drugs and cease using them. It states that the presence of drugs was the result
of a series
of deliberate decisions made by the grievant over a long period of time. The District stated
that it was
compelled to address the grievant's strategy with respect to the police reports and the
decision of the
District Attorney not to prosecute. It asserts that the claim that the police reports were
was not supported by the evidence and the Assistant District Attorney's testimony was quite
in that she dropped the cocaine possession charge without knowledge of the amount of
the grievant's possession and did not even ask whose cocaine it was. It notes that the
District Attorney worked for the County for less than one year. It argues that the reasons
possession charge was dropped is irrelevant because the District's decision was based on the
grievant's admissions and was independent of the prosecutor's interests and policies.
The District suggests that the arbitrator should not substitute his judgment for that of
District absent a finding that the penalty is excessive, unreasonable or an abuse of discretion.
asserts that the District determined that the grievant's conduct was contrary to the role and
of the school and the grievant could not reasonably believe that it had no concern with
employe's off-duty use and possession of illegal drugs. It requests the grievance be
dismissed in its entirety.
The grievant contends that there is no nexus between the asserted reasons for his
and his employment with the District. It submits that there is no evidence that the grievant's
possession of drugs was in any way connected with the school premises, school time, a
function or individuals from the school. It further asserts that the grievant's conduct in no
impaired or interfered with his ability to teach. The grievant argues that the District's
to support its case and connection to the school is demonstrated by the testimony of Connie
It asserts that Sprinkel is not an unbiased witness on several grounds. It characterizes her
as both bizarre and irrational. It states that given the undisputed facts, to call a witness who
in fanciful speculation shows how desperate the District is to establish just cause for the
The grievant alleges that while there is no direct connection between the grievant's
and his employment, the District will suggest that the nature of his conduct impairs his
ability as a
teacher. The grievant claims the evidence utterly fails to establish this. It points out the
vote to discharge the grievant is unusual and the 3 dissenters apparently felt the grievant's
were not sufficiently connected to the school to discharge him. It notes that no parent who
supported the District and no teacher except Ms. Sprinkel offered testimony to support the
It observes that at least two petitions were circulated among students in support of the
his return to the classroom. It notes that the Superintendent's own daughter supported the
It contends that the newspaper articles reporting the charges introduced by the District to
impairment of the grievant's ability to teach proves nothing and it would be frightening if job
of public employes were dependent upon the accuracy and integrity of a newspaper whose
are questionable and whose accountability is non-existent. It asserts that the District failed to
establish by any direct evidence that the newspaper articles had any impact at all. It
the District failed to establish a direct or indirect connection between the totally private and
conduct of the grievant and any duty and responsibility he has to the District.
The grievant acknowledges that his conduct was not appropriate but was not
dangerous. The grievant insists that the charges as originally made were inconsistent with
as the grievant's wife testified that the officers' reports were exaggerated as did the Assistant
Attorney. It claims that the testimony of all of the professionals was that the grievant's
presented no danger to students and the District never attempted to establish there was any
present danger or risk to students.
The grievant submits that the amount of marijuana and cocaine seized was de
the grievant established that the cocaine vials were not his. It concludes that two empty vials
remnants of marijuana is hardly egregious conduct justifying the grievant's discharge. The
argues that his use of marijuana and cocaine was de minimus and not egregious. The grievant
that the evidence establishes that he is not drug dependent on marijuana or cocaine and would
place at risk any students and nothing in the facts of the case support the drastic and
consequences of discharge.
The grievant contends that the grounds for his discharge are contrary to the express
policy of the district. It submits that the policy clearly confines the improper use of drugs to
time, school functions and school activities and teachers have never been advised that any
encounter with illegal drugs could give rise to discipline and/or discharge.
The grievant also asserts that his discharge is contrary to the District's standards for
dependence. The grievant notes that the District has a policy for those who suffer from a
dependence and it subscribes to a therapeutic approach encouraging individuals to self-report
seek treatment. The grievant claims that he relied on that policy and went to his
Principal on January 23, 1997 and disclosed to them his chemical dependence. The grievant
that the actions giving rise to his discipline were precipitated by his alcoholism which was
his infrequent drug use. The grievant states that the District did not follow its own policy
embarked on a course of punitive action. Such action, according to the grievant, can have
adverse consequences with regard to remediation of chemical dependencies as no one will
The grievant takes the position that the District's conduct is contradictory to its express
policies and there was no just cause for what the District did.
The grievant claims that his prior and subsequent actions mitigate against discharge.
According to the grievant, arbitrators traditionally look to mitigating factors in assessing the
appropriateness of discipline. He points to the following factors:
1. Full disclosure to the District the circumstances
surrounding the January 12, 1997 event as
well as prior use of marijuana and cocaine.
1. Demonstrated remorse and conversion for
his chemical dependence.
1. Compliance with all therapy recommendations.
1. His prior record with the District with 20 years as an
1. His other activities working with children.
The grievant argues that these factors suggest he deserves to be reinstated and be fully
The grievant insists that his reinstatement would not constitute any risk to students
is supported by the prosecuting attorney, a fellow teacher, his pastor, parents and his wife.
grievant suggests that the failure to reinstate him will have catastrophic consequences for
besides the loss of income, he will be effectively precluded from obtaining a comparable
position, an occupation for which he is gifted and talented. The grievant argues that this is
case raising serious and compelling questions concerning the invasion of the District into the
life of an employe and presenting extraordinary results. The grievant concludes that the
to show that the District had just cause to discharge him and the only just solution is
and full back pay.
The District contends that the grievant's brief contains many
misrepresentations of the facts. The District lists the following 14 misrepresentations:
1. Onalaska is 20 miles from the District and is in a
1. The grievant's use of pot
occurred only when he was hundreds of miles from the District.
1. The grievant's friends
brought the marijuana to social gatherings.
1. The cocaine vials belong to
1. The cocaine vials were
empty and one was washed out.
1. The grievant "discovered"
the cocaine vials in his truck.
1. The grievant cooperated
fully with the police.
1. The incident reports are
1. The grievant voluntarily
reported to the District the circumstances giving rise to the charges
and fully disclosed the circumstances of January 12-13, 1997.
1. The Assistant District
Attorney specifically rejected the District's efforts to exhort (sic) from
the grievant a resignation.
1. During the April 9, 1997
meeting, the grievant specifically answered any other questions
1. Superintendent Fredrick
possessed illegal drugs and offered illegal drugs at a social gathering
with other District employes.
1. The grievant was never
afforded the opportunity to avail himself of the Employee Assistance
1. No other teacher has been
disciplined as a result of an arrest or conviction and the resulting
The District states that these are only some of the distortions and misrepresentations
reveal the degree to which the grievant is willing to cloud the record. As to other arguments
grievant, the District points out that Connie Sprinkel does not stand to replace the grievant
testified that the District had made no promises to her and she could be fired tomorrow. It
had nothing to gain and a lot to lose by her testimony. The District notes that at p. 19 of the
grievant's brief, it stated that the "District suggested that the grievant was making frequent
his car in the parking lot." It asks where did this come from? The District does not believe
anything in the record to this effect. The District asserts that the fact three Board members
against termination means nothing as the hearing before the Arbitrator is de novo. The
out that only one parent, not parents, testified on behalf of the grievant and was under the
that the grievant's drug use was 20 years ago. It also observes that the reference to
translates to one teacher who was subpoenaed and is a deeply religious person who believes
one repents, there should be no impact on one's employment. The District claims that
not privy to all the facts because the grievant did not want an open hearing. The District
grievant's argument that returning him to
work would not present a danger to students misses the point which is that the grievant
position of trust and influence and the District should not be compelled to employ a teacher
was in possession of cocaine and marijuana as recently as January 13, 1997 and admitted he
both. The District notes that the grievant repeatedly asserted he was not dependent on
marijuana and he was not terminated because of his use of alcohol but possession of illegal
As to the grievant's arguments regarding the treatment of actions related to chemical
being remedial rather than punitive, the District asserts there is a distinction between legal
drugs and the grievant is seeking to secure the benefits and protections which attach to the
legal drugs to his use of illegal drugs.
The District recognizes that the consequences from the grievant's actions are severe
should be. It argues that if the grievant's conduct would not be acceptable to other districts,
not be acceptable to the Melrose-Mindoro School District. The District insists that this case
about disabilities, handicaps related to chemical dependency or intrusions into employes'
rather it is about a public school teacher caught in possession of marijuana and cocaine who
he used both illegal drugs. It seeks dismissal of the grievance in its entirety.
The grievant contends that there were several factual assertions which
need clarification. The
grievant denies there was any hesitancy to retrieve his trousers and the record establishes that
grievant was at all times cooperative. The grievant maintains that the police officers
invented his wife's suspicion of drug use. The grievant states that voluntarily and before any
were brought, he notified the School District of the events of January 12 and 13, 1997. The
indicates that he will not be convicted of any offense whatsoever and although he entered a
plea was not accepted. The grievant asserts the vote of the board on his discharge was a
divided 4-3 vote. The grievant takes great exception to the District's assertion that he lacked
credibility based on inconsistencies in his testimony. The grievant points out there was no
of the Board hearing so any attempt to impeach him with a non-existent transcript is
grievant claims no inconsistency with regard to statements made to Connie Sprinkel. The
also submits that the evidence shows that the grievant is not a habitual or regular drug user
has been forthright about the events of January 12 and 13, 1997 as well as his alcohol abuse
infrequent use of marijuana and cocaine.
The grievant insists that the mere possession and use of small amounts of illegal
unconnected with District employment does not constitute just cause for his discharge. The
states that the District cited no authority for its position. The grievant submits that the
to meet even one of Arbitrator Daugherty's seven tests set forth in Enterprise Wire Co., 46
(1966). The grievant states that there was no notice that this behavior
could give rise to discipline as the only written policy relates to on-duty, on school
behavior. The grievant asserts that a zero-tolerance rule is not reasonable for off duty
grievant alleges that the District did not conduct a fair investigation in that it did not accept
grievant's offer of a drug test, did not consult with his counselors, did not allow the
confront parents who expressed concern about the grievant and did not investigated the
support for the grievant among parents and students. The grievant contends that the District
consistency in the application of off duty conduct. The grievant argues that the punishment
disproportionate to the offense.
The grievant submits that the District failed to prove sufficient impact for the District
sustain any discipline, much less discharge. He claims mere publication of the charges is not
sufficient, there is no proof of harm to the District, mere speculation is not enough, there is
showing that employes would be reluctant to work with the grievant and there is no issue of
as the evidence fails to suggest the grievant poses any risk to students.
The grievant claims that case law does not support discipline or discharge. The
distinguishes the three cases cited by the District on the grounds these cases involved large
of illegal drugs, their manufacture for sale or the involvement of young people in illegal
states that here the drugs were minuscule, no evidence of manufacture, sale or distribution
young person was involved.
The grievant argues that the "role model" basis for discipline is flawed. The grievant
that the role model standard reflecting community attitudes was rejected with regard to
licensing and furthermore it is overboard. The grievant maintains that even if this standard
the District did not prove that the grievant failed to meet the role-model standard sufficiently
his dismissal. It asks that the grievance be granted and the grievant reinstated and made
The factual underpinnings of this case are not in dispute. The evidence
established that the
grievant on January 12 and 13, 1997 had vials in his pocket which contained trace amounts
cocaine. A search of his garage on January 13, 1997, revealed small amounts of marijuana.
January 24, 1997, the grievant admitted to his Superintendent and Principal that he used both
and marijuana. Thus, the issues related to the credibility of the police, the grievant, and
witnesses related to the drugs and their discovery are irrelevant.
The grievant was later charged with possession of cocaine and marijuana which was
in local newspapers. These events occurred off-duty and off school premises and the District
terminated the grievant for possession of these illegal drugs and their use because such
contrary to the role and mission of the school. The grievant contends that his off-duty
no connection to the school and his discharge must be set aside. Generally, arbitrators
concern over discipline or discharge based on off-duty misconduct and require some "nexus"
relationship to the job.
Marvin Hill and Mark L. Kahn, in an address before the National Academy of
have summarized most of the criteria arbitrators apply in off-duty cases as follows:
Whether the nexus is sufficient to overcome the presumption
that an employee's off-duty
behavior is not subject to the employer's control is, dependent on many considerations. The
characteristics of the employer may be critical. If it is claimed that the off-duty misconduct
adversely affected or will harm the company's reputation or sales, or both, this may be of
concern for firms that operate in highly competitive, consumer-oriented, markets (e.g.,
stores, private schools, health clubs, day-care centers) than for oligopolistic firms with
The location of the employer may be a
factor. A prominent employer in a small isolated town
may be legitimately more sensitive to scandal based on off-duty misconduct than an
employer in a large metropolitan area.
The nature of the misconduct: Violent,
destructive, or perverted actions may reinforce the
nexus more than crimes of the so-called white-collar variety (e.g. tax evasion). A
marijuana possession) is much less likely to be considered just cause for discharge than a
The occupation of the offender. Many
decisions [in the off-duty area] have hinged on a link
between the employee's job duties and obligations and the content of the misconduct. It is
to demonstrate a nexus when a police officer commits a felony off-duty, when a teacher
child off-duty, when a sales clerk is convicted of shoplifting (from someone else's store), or
bank teller has embezzled funds from his church's treasury. The extent and nature of the
customer contacts are important, especially if they relate to the type of misconduct.
sex crimes or property thefts will probably not be retained in jobs that entail entering
Finally, there is the extent and kind of
publicity. When the public's attention has focused on
the misconduct and the miscreant has been clearly identified with the employer, the nexus is
reinforced. Often, of course, it is the publicity that caused the employer to become aware of
the off-duty misconduct. (Hill & Kahn, "Discipline and Discharge for Off-Duty
Misconduct: What are the
Arbitral Standards," in Arbitration 1986: Current and Expanding Roles.
Proceedings of the 39th
Annual Meeting, National Academy of Arbitrators. 121-154, 153-154.
In the instant case, the grievant is a teacher in a rural school
district and the charges of cocaine
and marijuana possession were reported in two local newspapers.
The number of cases involving teachers and possession of drugs is not great but a
instructive. In Comings v. State Board of Education, 23 Cal. App. 3d 94 (1972), Selwyn
while visiting Hawaii, was charged with possession of marijuana to which he pleaded nolo
and was convicted. Upon his return to Westmoor High School in the Jefferson Union High
District in Daly City, California, where he was an art teacher, the District sought his
testified his arrest and conviction were reported in the San Francisco Chronicle. No parent,
or fellow teacher testified in the matter, only the Vice Principal. The Court upheld Jones'
In Chicago Board of Education v. Payne, 430 N.E. 2d 310 (Ill. App. 1981), Payne was
for possession of a small amount of marijuana. Payne was a teacher in the Chicago School
which discharged him despite the support of fellow teachers and students. The District Court
overturned a hearing examiner's finding that Payne's dismissal was improper. The Court of
affirmed the District Court and upheld the dismissal stating:
We are aware of the special position occupied by a teacher in
our society. As a consequence
of that elevated statute, a teacher's actions are subject to much greater scrutiny than that
given to the
activities of the average person. We do not doubt that knowledge of a teacher's involvement
illegalities such as possession of marijuana would have a major deleterious effect upon the
system and would greatly impede that individual's ability to adequately fulfill his role as
the Board. This conclusion is especially true where, as here, the teacher holds a certificate
children ages 10 to 13 who are, according to testimony in this case, very impressionable.
only find that general awareness of possession of marijuana by a teacher in Payne's position
and adversely affects that individual's ability to effectively perform as a teacher.
In West Monona Community School District, 93 LA 414
1989), a K-12 guidance
counselor was convicted of vehicular homicide. The facts indicated that he was driving a car
at a high
rate of speed which crashed killing one passenger and severely injuring another resulting in
paralysis. The driver's blood test indicated .095 grams of alcohol per 100 milliliters of
blood and also
cocaine was detected of .17 milligrams/liter. The guidance counselor was discharged and
Hill upheld the discharge. With respect to the cocaine in the blood sample, Arbitrator Hill
Judge Walsh's cocaine finding is
completely at odds with the notion of teacher as guidance
counselor and role model, and no reasonable person would argue to the contrary. A finding
cocaine use by the elementary school's guidance counselor would, in any other case, be
of the just cause issue.
Teachers not only teach what they know but teach by example. The District prohibits
drugs on its premises (Ex-9) and is a drug-free school and has a program to address and
use of illegal drugs. (Ex-10). The grievant's possession of marijuana and cocaine and his
of the use of illegal drugs is an example contrary to the message the District is
trying to instill in its students. Clearly, there is a sufficient nexus with the District's
efforts to have
students understand and appreciate the dangers of illegal drug usage and the grievant's
stated, by the Court in Summers v. Vermillion Parish School Board, 493 So. 2d 1258 (La.
3 Cir., 1986).
"Involvement with illegal drugs is a plague that most often pursues our youth, even
grounds. The school board would be remiss in its duties if it did not properly dismiss
his involvement with illegal drugs."
As Arbitrator Yaeger stated in Shawano-Gresham School District, (unpublished,
It also had the effect of undermining his role model status,
created the appearance that
he was not supportive of the District's attempt to instill in students that marijuana use is
inappropriate. Because teachers are held to higher standards of conduct than others, his
compromised his role model status in the eyes of the District to such an extent that they
was no longer employable.
The grievant has argued that the role model basis is flawed. I
respectfully disagree. The
Court in Thompson v. Department of Public Instruction, 197 Wis.2d 688 (Wis. Ct. app.
rejected the role model standard for the revocation of a teacher's license pursuant to the state
which required state wide uniformity because the role model standard by its nature varied
District to District. Here, the role model standard is not being applied state wide but rather
and, as arbitrator Yaeger noted, the role model standard which is a local decision without
application is appropriate. Arbitrator Malamud in Milwaukee Board of School Directors,
WERC No. A/P M-95-355 (5/96) opined that the role model status was overbroad. This was
which is in itself an overbroad statement. The District did not discharge the grievant because
stayed out past 10:00 p.m., exceeded the speed limit or committed just any minor criminal
Certain offenses carry with them a stigma that others do not and those with a stigma may
effect the work of a teacher. With regard to drug related offenses, whether on or off school
they have developed such a stigma which does affect the District. The grievant was
because of marijuana and cocaine possession and his admitted use of these illegal drugs. Just
arbitrators determine whether just cause exists for discipline or discharge, they can determine
or not a District properly applied the role model standard.
The grievant's arguments that he is not a risk to students does not infer that his
illegal drug possession and use was not for just cause. The safety of students is not an issue
matter rather it is the grievant's ability to provide a role model and example that they should
illegal drugs. Thus, it makes no difference what the opinions of the grievant's wife, pastor,
worker, fellow teachers or the Assistant District Attorney are as regards safety
of students because that issue misses the point. The grievant's reliance on the Board's
4-3 vote is
also misplaced. Just cause is not determined by how the Board voted just as any law is not
less enforceable because it passed the legislature by a single vote or is upheld by a 4-3 vote
It may be true that the grievant has an excellent record with the school and can teach
to students very effectively. This is certainly a factor in his favor. The grievant has asserted
post arrest actions have all been positive. This may be true but it must be recognized that
these actions are under the threat of imposition of criminal sanctions and this argument must
less consideration. The grievant has argued that the District's written rules only prohibit use
drugs at school or at a school function and not to off duty, off premises drug use or
grievant was not discharged for violating this specific rule and there is no evidence he used
possessed drugs at school. However, that does not mean that he cannot be discharged for off
conduct. There is no need to warn the grievant of conduct that is illegal as he already knew
employer is required to incorporate the criminal code in its work rules as murder, rape,
robbery, etc., are known to be prohibited. The District may take action based on just cause
conduct that is not part of the written District policy. Trane Company, 96 LA 435
The grievant testified he was not dependent on marijuana or cocaine and the evidence
supports this, however, he argued that the District's actions were contrary to its standards for
chemical dependency. The evidence fails to support this argument. The grievant is not
on illegal drugs and the record fails to show any support for the argument that the use of
was dependent on his alcoholism. Had the grievant killed someone while driving drunk, his
alcoholism would be no defense. The grievant simply cannot have it both ways. Thus, this
The grievant has asserted that his conduct will allow him to give students first hand
knowledge of the danger of drugs. This is a call for the District to make and not the
West Monona Community School District, 93 LA 414 (Hill, 1989) at 422.
The grievant has also noted that another teacher who was convicted of disorderly
which was published in the local newspaper was not discharged. According to the
teacher became angry when he saw his wife talking to another man at a bar and struck the
man in the
face. This case is distinguishable as it is more akin to a spontaneous action than the
possession and use of illegal drugs. This is very similar to the situation distinguished in
Shawano-Gresham School District, supra. Inasmuch as the two factual situations are
argument that there was disparate treatment is not persuasive. It should be noted that the
against the grievant in court included battery but that was not a basis for his termination.
The undersigned is persuaded that the grievant's possession and use of illegal drugs
shown to have adversely affected his ability to teach in the District. The
continued employment would send the wrong message to students and fellow teachers
and thus his
discharge was proper.
Based on the above and foregoing, the record as a whole and the arguments of
undersigned issues the following
The District had just cause to terminate the employment of Gordon Bornitz, and
the grievance is denied in all respects.
Dated at Madison, Wisconsin this 24th day of June, 1998.
Lionel L. Crowley, Arbitrator