BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LAFAYETTE COUNTY COURTHOUSE EMPLOYEES
UNION LOCAL 678,
WCCME, AFSCME, AFL-CIO
(Robert Helm Discharge Grievance)
Pursuant to a request by Lafayette County Courthouse Employees Union Local 678,
WCCME, AFSCME, AFL-CIO, herein AUnion,@ and the subsequent concurrence by
County, herein ACounty,@ the undersigned was appointed Arbitrator by the Wisconsin
Relations Commission on November 21, 1997, pursuant to the procedure contained in the
grievance-arbitration provisions of the parties= collective bargaining agreement, to hear and
decide a dispute
as specified below. On April 1, 1998, the Union filed a motion that the discharge grievance
Helm, herein AGrievant,@ should be sustained on procedural grounds. A hearing on said
conducted by the undersigned on April 28, 1998, at Darlington, Wisconsin. The hearing was
transcribed. The parties completed their briefing schedule on June 1, 1998.
After considering the entire record, I issue the following decision and Award.
1. Did the County violate Article III of the collective
2. If so, what is the appropriate remedy?
The parties also agreed that the motion filed by the Union
above is Aassumed@ in the
stipulated issue and will be resolved when the Arbitrator answers those questions that the
stipulated are before him.
Robert W. Helm, hereinafter AGrievant,@ was employed by the Lafayette County
on Aging as a Benefit Specialist for nineteen (19) years.
The Grievant=s job difficulties were discussed with him and Fran Fink, Union
Steward, at an
Executive Committee meeting of the Commission on Aging on September 23, 1996. At the
the Grievant was advised as to deficiencies noted by his supervisors including poor test
failure to follow a remedial plan of action developed by Mitchell Hagopian, an employe of
Law Center, associated with the Coalition of Wisconsin Aging Groups, who supervised the
professional aspects of the Grievant=s job duties. Other deficiencies discussed included
insubordination by the Grievant (he told his boss to Ashut up@). The Grievant was instructed
Committee to adhere to a remedial plan, and was informed that failure to do so would result
Aimmediate disciplinary action up to and including probable termination.@
By letter dated October 10, 1996, Mitchell Hagopian advised Carol Benson, the
supervisor and Director of the Lafayette County Commission on Aging, in material part, as
I am again recommending that the Committee take some
disciplinary action against Bob for his
failure to comply with my earlier directive that he write an article on the subject of
to generate more income under the MA spousal impoverishment program.@ I have given
additional opportunities to come up with an article that actually relates to this subject.
It is my understanding from the conversation which occurred at
the September 23 meeting that
any additional contact from me regarding deficient performance by Bob Helm would result in
termination. Under the circumstances, I believe that termination would be appropriate.
Please contact me as soon as possible
regarding your plan of action with regard to my
The Grievant, Union Steward Fink and Union President Paul Godfrey were present at
meeting of the Commission Executive Committee held on October 24, 1996. At that
Grievant was again advised of problems with his job performance. He was also given a copy
letter written by Mitchell Hagopian noted above which outlined the Grievant=s continued
and recommended his termination. In said letter Hagopian outlined his concerns with the
The Committee did not act on this matter at the time but instead adjourned to a later
because the Grievant wanted to have Union Representative Tom Larsen present. The
urged all parties concerned to explore the possibility of placing the Grievant in a different job
of a job swap with another County employe, the possibility of moving the Benefit Specialist
and position to the Human Services Agency or other possible options that might be available
resolve the dispute. The Committee voted to suspend taking any disciplinary action
Grievant and to explore other solutions for the Grievant and the Commission of Aging until
Commission on Aging Board meeting.
The Executive Committee next met on November 12, 1996, for the purpose of
with counsel. The Committee took no action at this meeting but discussed various options,
termination of the Grievant. The Grievant was not present at said meeting.
On November 14, 1996, the County=s counsel, Attorney Howard Goldberg, faxed a
a Severance Agreement to both Union Representative Thomas Larsen and County
Steven Pickett, the County Clerk. There were discussions at this time between Larsen and
County regarding the settlement of issues regarding the Grievant. Larsen informed the
County at this
time that the Grievant rejected the proposed settlement agreement because he did not want to
his employment with the County. Nevertheless, the County renewed its settlement offer
and settlement discussions continued into December, 1996.
When the parties were unable to reach an agreement concerning the Grievant, the
the Grievant=s job status was placed on the agenda of the November 18, 1996 meeting of
Commission on Aging Board. At that meeting, Mitchell Hagopian again described the
job deficiencies and lack of cooperation, the activities that the Elder Law Center, the
Aging and the Area Agency on Aging had been involved in
since June of 1995, in an unsuccessful effort to improve the services of the Lafayette
Specialist program, the poor test results that the Grievant had received on the skills test and
ongoing issues regarding the newsletter articles that the Grievant had been required to
how the Benefit Specialist Program worked in the other 11 counties that he supervised. Also
meeting, Hagopian discussed an incident from the previous March which led to the Grievant
assigned additional tasks and to his suspension which are the subjects of another grievance
Chairman Berg then read a letter dated November 12, 1996, from Lucille Baker,
Director of Age AdvantAge, the Area Agency on Aging regarding the future of the contract
Benefit Specialist Program. In said letter, Baker indicated that she was no longer willing to
County to the tune of $10,000 based on Hagopian=s recommendation to terminate the
unless the County took decisive steps Ato assure the future quality of your program.@ Berg
a letter from Betsy Abramson, Director of the Elder Law Center regarding changing
for the Grievant wherein she stated: AI stand by Mitch=s decisions and actions in this
Accordingly, I will not re-assign a different . . . attorney to serve as legal back-up for the
County benefit specialist program.@
The Grievant was then offered the opportunity to make a response. The Grievant
he had no clients complain about his work on the satisfaction surveys that had been done
Union Representative Larsen commented that it seemed that everything was related to
incident of client services in March, that no one was getting wrong information and that
been improvement in the Grievant=s client files and record keeping.
Benson responded that there had been a number of complaints over the past but that
not come directly from clients. Benson indicated that those complaining were reluctant to
and did not want to formalize the complaint process.
Thereafter, the Commission voted to terminate the Grievant effect immediately.
By memo dated November 26, 1996, Union Steward Fink advised Carol Benson and
Pickett as follows:
Per Article IV of the Lafayette County Courthouse Employees
Union Local 678 contract with
Lafayette County, Step 1: Mr. Helm requests a meeting with you to discuss the action taken
him on November 18, 1996.
Mr. Helm is filing a grievance based on the violation of Article
III of the contract. He contends
that he was discharged without just cause. In addition, no written notice of his discharge nor
reason for the action has been given to Mr. Helm or to the Union.
Mr. Helm and the Union request copies of
the minutes of the open and closed sessions of the
Commission on Aging Executive Committee Meeting held in Madison on Tuesday,
Both Benson and Pickett testified that they did not recall seeing the above memo prior
hearing. Nancy Kilcoyne testified that she typed said memo and had it delivered to their
The Step 1 oral grievance meeting was held on December 4, 1996. Present were the
Grievant, Union representatives Larsen and Fink, Carol Benson and Steve Pickett
County. Benson was asked to reconsider the Board=s decision to terminate the Grievant and
responded that she was not able to overturn a Board level decision. The Union
raised an issue regarding the lack of a formal letter containing the specific reasons for the
within the time limits set forth in the labor agreement. Pickett responded that this was the
that such a letter had been requested and that a letter would be forthcoming as soon as
By letter dated December 5, 1996, Director Benson denied Helm=s grievance at the
In response to the issues raised in the oral grievance meeting held
on Wednesday, December 4,
1996 the grievance has been denied.
As you are aware, the decision to discharge
you from your position as Benefit Specialist for
Lafayette County was made by the Commission on Aging Board. As director of the agency I
in a position to rescind a board level decision.
As discussed, a formal notice of your
discharge will be forthcoming and copies of the minutes
requested will be made available as soon as they have been approved by the committee.
By letter dated December 13, 1996, Union Representative Larsen filed a Step 2
grievance on the matter. In said grievance, Larsen alleged that the County did not have just
cause to discharge the Grievant within the meaning of Article III and other applicable
the parties= collective bargaining agreement. Larsen also indicated that the matter Ahad
discussed pursuant to Step 1 of the grievance procedure with Carol Benson and the matter
unresolved.@ For a remedy, the Union requested that the Grievant be reinstated, his work
purged regarding the matter and that he be made whole for all lost wages and benefits.
By letter dated December 17, 1996, County Clerk Pickett provided the Grievant a
discharge which provided as follows:
As you know, your employment with Lafayette County was
terminated on November 18, 1996.
The Commission on Aging Committee at its meeting on a vote moved to terminate your
with Lafayette County. The board and its executive committee have reviewed your work
previous year and a half with the documentation that was presented. At the November
which was held in public session at your request, the board received information regarding
failure to perform your duties and activities as directed by Attorney Mitchell Hagopian. It
following Mr. Hagopian=s recommendation and a review of the information, that the
voted to terminate your employment with Lafayette County. Mr. Helm, you do have the
appeal this decision as stated in your union contract.
You will continue to be covered at your
choice under the Lafayette County Health Insurance
Program. You have Cobra rights which will be extended for 18 months.
If you have any questions, please feel free
to contact me.
On January 14, 1997, the Lafayette County Grievance Committee denied the
refused to consider the question of Atimeliness and accuracy of the notice of your discharge .
These issues were not specified on the grievance you filed and were not considered by the
On January 24, 1997, Union Representative Larsen notified the County that the
appealing the Robert Helm Termination Grievance to Arbitration. Larsen=s letter
threshold issue regarding Article III notice. The letter stated as follows:
This letter will serve as written notice of the Union=s intent to
proceed to arbitration in the
matter of the grievance concerning the termination of employment on Robert Helm.
We note that the Grievance Committee did not address the issue
concerning the County=s failure
to comply with the provisions of Article III regarding the notification in writing reasons (sic)
termination. We consider this to be a threshold with regard to the determination if the
just cause to terminate Robert Helm=s employment. As you are aware the Union has raised
at each step of the grievance procedure.
It is out understanding that the County
would like to combine this grievance with the grievance
currently pending arbitration regarding Helm=s suspension.
If you have any questions, please contact
Article III B Employee Discipline
Non-probationary employees shall not be disciplined, suspended,
disciplinarily demoted or
discharged without just cause. Written notice of the suspension, discipline, disciplinary
discharge and the reason or reasons for the action shall be given to the employee with a copy
local Union within three (3) working days after such disciplinary action is taken.
POSITIONS OF THE PARTIES
The Union basically argues that the grievance should be sustained on procedural
that the County failed to provide the Grievant and the Union with a written notice of
three (3) days of November 18, 1996, stating the reason(s) for the discharge. The Union
just cause has both procedural and substantive components and that arbitrators will not find
for discharge where there is noncompliance with the terms of an agreement which requires
post-disciplinary written notice. The Union adds that it has not waived the right to raise an
the written notice at the arbitration hearing.
The Union argues in support of the above that disciplinary notice must contain
to the reason(s) for discharge and that the Arbitrator cannot ignore specific contract language
requiring same because of his lack of authority to modify the agreement as written. The
that the County cannot add at a later date reasons known to it at the time and not cited in the
The Union adds that the Grievant is entitled to protection from unspecified charges
foregoing reasons and also to protect the Grievant from being recharged on allegations
in his suspension which was overturned by Arbitrator Bielarczyk.
Having failed to clearly state the charges in writing within three (3) days of the
Union alleges that the County is now attempting to modify the reason(s) for discharge. The
adds that it has been impossible to ascertain at any time material herein the actual reason(s)
For a remedy, the Union requests that the Arbitrator sustain the grievance and order
Grievant=s immediate reinstatement and coverage under group health insurance, etc., as
provide other appropriate remedy.
The County, on the other hand, argues that arbitral precedent does not support the
position that violation of the notice requirement automatically results in reinstatement of a
employe. The County notes that distinctions have been made in previous arbitration
on the severity of the violation and the amount of prejudice, if any, flowing from a notice
Where the requirement is only for written notice after discharge, the County argues that the
Arbitrator has discretion to determine the appropriate remedy to be imposed when there is a
procedural violation of the contract.
In support of its position, the County first argues that reinstatement with back pay is
appropriate remedy in the instant case because the procedural infirmaries were not prejudicial
Grievant; because an emphasis upon technicalities would be inconsistent with the informal
of the grievance-arbitration process as practiced over the years by the parties herein where
emphasis has been on resolving grievances, not strictly adhering to the grievance
lines; and because the end result herein could be quite ludicrous with reinstatement of the
to his former position, because of a minor procedural error, leading to probable
discontinuance of the
entire program and disruptions in the work force when the Grievant and the present
incumbent in the
position of Benefit Specialist were laid off and subsequently bumped other employes in an
retain their employment with the County.
The County next argues that the Union failed to follow the grievance procedure with
to its claim. In this regard, the County maintains that the Union could not have filed a
accordance with Sections 1 and 2 of Article IV of the agreement since the Union is basing its
grievance on both the lack of detail and lateness of Mr. Pickett=s December
17th letter yet filed his
grievance protesting same prior to the date that this letter was sent.
In conclusion, the County concedes that it failed to give written notice of the
three working days of the date the Commission on Aging voted to terminate the Grievant.
the County states that it would be totally inappropriate to award reinstatement because of this
procedural technicality which had a negligible impact on the Grievant and the Union. The
adds that the Arbitrator should not reinstate the Grievant to his former position without first
considering his job deficiencies.
For all of the foregoing reasons, the County requests that the Grievant=s motion be
Both parties, in advancing the above arguments, cited numerous arbitral authorities
precedent in support of their positions.
At issue is whether the County violated Article III of the collective bargaining
when it failed to timely provide the Grievant and the Union written notice of the Grievant=s
containing the reason(s) for said action. The Union moves to sustain the instant grievance on
procedural grounds while the County takes the opposite position.
The County concedes that it did not provide a written notice of discharge to the
within the three (3) working days of said action as required by Article III. However, the
argues that this was a technical violation of the agreement that caused no harm to the
Union and does not warrant the absurd result of reinstating the Grievant. The Union, on the
hand, argues that the contract requires such notice so that the Grievant can adequately defend
charges made against him.
The County correctly points out that the Arbitrator has the discretion to determine the
appropriate remedy to be imposed where there is a procedural violation of the agreement
where there is a procedural irregularity involving the written notice after discharge. The
correctly points out that some arbitrators have exercised that discretion to sustain a grievance
put the employe back to work. Other arbitrators, however, take a different approach.
Arbitral Discretion: The Tests of Just Cause, in Arbitration 1989: The
Discretion During and After the Hearing, Proceedings of the 42nd Annual
National Academy of Arbitrators, ed. Gruenberg (BNA Books, 1990), 29, 36.)
As noted above, arbitrators differ on how they approach these issues. There are
procedural due process errors are weighed very heavily while in other cases arbitrators have
a Aprejudicial error@ rule to such matters. Most arbitrators, however, have taken a middle
Rather than adopting either of the aforesaid approaches B i.e. viewing procedural due
essential or assessing whether improper procedure has Aprejudiced@ the Grievant B these
to balance the competing tensions of rigidity and fairness by
treating procedural failures as
relevant, but not necessarily as invalidating, discipline that is otherwise warranted. It is in
that we see most clearly due process concerns dealt with as an aspect of remedy, generally
appropriate discipline. (Christine D. VerPloeg, AInvestigatory
Due Process and
Arbitration: Is There a Common Trend in the Arbitral Community?@, Proceedings of the
45th Annual Meeting, National Academy of Arbitrators, ed. Gladys W.
(Washington, D.C.: BNA Books, 1992)
The undersigned agrees with the above approach, and will address the procedural
of the Union using the above standard.
In this regard, the County first argues that the procedural infirmaries were not
the Grievant. For the reasons discussed below, the Arbitrator agrees.
The Union argues, contrary to such a conclusion, that the Grievant and the Union
to defend against the Grievant=s discharge because the Committee gave no reasons for its
to terminate the Grievant on November 18, 1996. However, as pointed out by County Clerk
Pickett, all parties concerned had met many times in an effort to address the Grievant=s
deficiencies, which were the basis for his termination, without success (Tr. 121). The Board
Commission on Aging had all that information before them when they voted to terminate the
on the aforesaid date (Tr. 123). The Grievant and his representatives were present at all the
meetings including the one at which he was terminated. The Grievant was given a copy of a
written by Mitchell Hagopian, which outlined his continued deficiencies and recommended
termination (Employer Exhibit No. 5). The Grievant was given an opportunity to present his
the story (Tr. 16). His representative was also given an opportunity to present information
to the Grievant prior to the Board=s decision to terminate him (Joint Exhibit No. 2). Based
and the entire record to date, the Arbitrator is of the opinion that the Grievant and the Union
or should have known of the reasons for his termination despite their statements to the
The Union also argues that the Grievant was subject to double jeopardy because not
were the charges against him unspecified but because the County is attempting to relitigate
considered in the suspension which are not unique to the discharge. However, the parties
at hearing that Bielarczyk=s suspension arbitration and decision and record are not part of
proceeding. There, the Arbitrator is unable to address at this time this concern of the Union.
The Union further argues that the reasons given in the County=s discharge letter are
specific enough to defend against and allow the County to improperly modify its reasons for
termination at this later date. However, based on the instant record the Arbitrator finds that
evidence does not support the Union=s claim. Therefore, the Arbitrator rejects this
argument of the
The County also argues that the Union failed to follow the grievance procedure with
to its claim. The County, however, cannot base this claim on its failure to provide written
a timely basis as provided in the agreement. There is no dispute that the Union filed its
conformance with the parties= contractual grievance procedure following the County=s
November 18, 1996, to terminate the Grievant. The Arbitrator also finds, contrary to the
assertion, that the Union properly raised the aforesaid procedural objection at the oral stage,
of the grievance procedure (Tr. 45, 91-92 and 149) and maintained this objection throughout
grievance processing. (Union Exhibit Nos. 1, 2, 4, 7; Employer Exhibit No. 3, Tr. 59-60,
62, 99, 104-105, 109).
Finally, the County argues that the parties have been flexible in the past in processing
grievances, placing an emphasis on resolving disputes rather than enforcing grievance
requirements such as time limits. However, the contract clearly requires the County to
written notice of the reasons for discharge to the Grievant and the Union within three (3)
days after said disciplinary action is taken. Therefore, the Arbitrator rejects this argument of
In reaching the above conclusions, the Arbitrator has addressed the major arguments
parties relating to the procedural issues. All other arguments, although not specifically
above, have been considered in reaching the Arbitrator=s decision.
Based on all of the above, and the record as a whole, the Arbitrator finds that the
the issue as stipulated to by the parties is YES, the County violated Article III of the
bargaining agreement when it failed to provide a written notice of the Grievant=s discharge
three (3) working days as required by the agreement. However, the Arbitrator will address
of appropriate remedy at the substantive stage of this arbitration proceeding.
Based on all of the above, and the record as a while, it is my
That the Union=s Motion to Sustain the grievance is denied. However, the
sustained in part, and the parties are ordered to proceed to hearing on the merits.
Dated at Madison, Wisconsin, this 20th day of July, 1998.
Dennis P. McGilligan, Arbitrator