BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GENERAL TEAMSTERS LOCAL 662
D.C. EVEREST SCHOOL DISTRICT
(Grievance of J_ H_)
The above-captioned parties, herein AUnion" and "District", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Schofield, Wisconsin, on July 14, 1998. There, both parties agreed that I should retain
jurisdiction if the grievance is sustained and they then also agreed to waive the
three person arbitration panel. The hearing was transcribed and both parties filed briefs that
received by September 10, 1998. Based upon the entire record and the arguments of the
issue the following Award.
Since the parties have not jointly agreed on the issue, I have framed it as follows:
Whether the District properly terminated grievant J_ H_ and, if
not, what is
the appropriate remedy?
Grievant H_, a full-time Custodian II with seven (7) years seniority, worked on
p.m. - 11:30 p.m. shift in the District's high school. There, he often worked alongside
custodian Mary L. Waldhart who worked in the high school and who also cleaned the
administrative offices that are located in a separate building. She, unlike H_, had keys to
On the night of March 9, 1998 (all dates hereinafter refer to 1998), H_ spoke to
about the fact that she could enter the District's administrative offices. There is a
conflict over exactly what was said and why it was said.
Waldhart, a part-time employe, testified that H_ at about 7:00 p.m. - 7:30 p.m.
me if I would go into the files in [Supervisor of Personnel James Jaworski's] office, and get
information for him"; that she initially thought H_ was kidding and replied, "What"; and
replied, "well, can you go in the office and get me some information in those files". She
would not do that, and that he said, "well, you know, maybe you wouldn't have to do it.
I would let him in that he could do it", to which she again said no. Waldhart testified that
said "Well, I suppose that everything is under lock and key anywhere so I couldn't get in",
she replied, "It could be", at which point she left.
Asked whether she believed H_ was serious, she testified: A"t first, like I said, I
he was kidding, but then when he asked -- when he paused for a few seconds and asked
again if he
could go in, or you know, if I would let him in, I thought, well, he must have been serious.
what I took it as." On cross-examination, she stated that she never felt threatened in her
with H_; that he never followed her to the administration offices; and that she never again
up this subject with H_ during the subsequent time they worked together.
H_, by contrast, testified that when he spoke to Waldhart on March 9, "I just
made a joke
to her. I just said, >I suppose you get to look through all of our files while you are over
then I -- I remember both of us laughing. I know I laughed, and then I added, >I know
is locked up anyway.'" H_ denied mentioning keys in their conversation and said,
he told Waldhart: "I am sure all the filing cabinets are locked up anyway." He denied ever
her to break into any files or letting him do so himself. H_ said that he had reviewed his
pesonnel file in June, 1997; that he knew he could do so anytime; and that he had no
switching any information in his file.
Waldhart became concerned over H_'s comments and she that night wrote a note
Supervisor of Personnel Jaworski (District Exhibit 1), stating:
On 3-9-98 J_ H_ asked me if I would go into your personal
files and get
some information for him. I didn't think I heard him right, I said what! He asked me
again, and I said no, I wouldn't do that! Then he said well maybe you wouldn't
have to do it, you could just let me in, & he would do it, and I told him I would not
do that either. He said he wanted to get into the files so he could switch some
information around. I thought it was strange & that I should let you know about it.
If you have any questions call me. I would prefer that he not know I told you this.
. . .
Waldhart met with Jaworski on March 12, along with Custodial Supervisor Lee
Jorgensen and School
Superintendent Roger Dodd, at which time she recounted her March 9 conversation with
recounted about. Waldhart thereafter gave a statement to the local police on March 13
encounter with H_ (District Exhibit 2).
School Superintendent Dodd testified that he decided to investigate the matter after
spoke to him; that he spoke to H_ on March 12 in the presence of Union steward Bob
and asked him if "he had tried to solicit help from a co-employee to access personnel files in
building"; and that he asked H_ "why anybody would make up a story like this", to which
replied: "I don't know. People in the District have been out to get me for a long time."
H_, "J_, I'm disappointed in your answers. I believe that the person who has brought
allegation is telling the truth. I wish you had come in and said that, yeah, a conversation
happened, but I didn't intend for her to take it seriously, that it was all a joke." Dodd
H_ with pay and told him not to have any conversation with Waldhart.
On cross-examination, Dodd acknowledged that he did not tell H_ or his Union
representative ahead of time why he wanted to speak to H_ on March 12; that he on
March 12 did
not either give or show to H_ a copy of Waldhart's earlier March 9 statement to
Personnel Jaworski (District Exhibit 1); and that he did not mention Waldhart's name until
end of their meeting.
H_) testified that during his meeting with Dodd, "I was confronted that there was
information that I was conspiring to break into the administration building and get into
files." H_ testified that he then replied, "I didn't make any type of plan or conspiracy,
didn't know what they were talking about"; that Dodd told him that
Waldhart was the individual who had accused him of trying to solicit her to break into
the files; and
that he replied he "couldn't understand where such an idea came from." H_ added that
did not then show him Waldhart's written statement to Supervisor of Personnel Jaworski
On cross-examination, H_ acknowledged that he had a good relationship with
that he believed her to be a truthful person; and that he has no reason to believe she has lied
their March 9 conversation. He said that Dodd told him on March 12 that he was hoping
H_, would admit his conversation with Waldhart, but say that he was joking when he
spoke to her.
Asked whether Dodd then told him he was "putting a co-worker in jeopardy by trying to get
go into the personnel files of the District", H_ answered: "He said that, but I still didn't
what he was talking about." H_ denied ever telling Dodd that someone had lied about him
said that he first told his Union representative after his March 16 termination that he had
joking comment to Waldhart, but that "it had nothing to do with asking her to aid me in
entry." H_ said that Waldhart laughed when he spoke to her. H_ added that he filed a
complaint with the State of Wisconsin's Equal Rights Division in early March, 1998, wherein
complained that he had been treated differently and more harshly than other employes.
Dodd and other management personnel decided to terminate H- on Monday,
Dodd later that day met with H_ and then told him of his termination, to which H_
am speechless. It's at best a gross exaggeration", or words to that effect. Dodd then issued
the following termination letter (Joint Exhibit 3):
. . .
DISCHARGE OF J_ H_
Please consider this confirmation of your suspension with pay on
12, 1998. Upon further investigation of your attempt to solicit a co-employee to
assist you to unlawfully enter the D.C. Everest Area School District Administration
Building and the office of Jim Jaworski, Supervisor of Personnel for the purpose of
illegally accessing school district files, you are hereby notified of your discharge from
the employment of the D.C. Everest Area School District effective today, March 16,
This discharge is made in accordance with Article 10 --
Discharge of the
contractual agreement between the D.C. Everest Board of Education and General
Teamsters Local No. 662.
. . .
Dodd and others subsequently met with H_ on March 18, at which time H_
parts of a written statement he had given to police, (Union Exhibit 2), wherein he claimed
conversation with Waldhart was a joke. At that point, Jaworski said that H_ had changed
and that he had gotten the idea to say it was all a joke from Dodd a few days earlier.
H_ grieved his discharge on March 18, thereby leading to the instant proceeding.
POSITIONS OF THE PARTIES
The Union argues that the just cause standard is applicable here even though the
not expressly contain such a standard; that the District has failed to establish "beyond a
doubt" that it had just cause to terminate H_; that Waldhart's accusations against H_
based on a "misunderstanding"; and that the District's investigation "was not conducted in a
and objective manner." As a remedy, the Union asks for H_'s reinstatement and a
backpay order. Alternatively, the Union states that even if "Mr. H_
was lying when he
denied any knowledge of the incident, such a denial does not rise to the level of a
offense for dishonesty."
The District, in turn, contends that it properly terminated H_ over his dishonesty
"it is undisputed that he lied during the District's investigation"; that the just cause standard
inapplicable because it is not mentioned in the contract; that the "applicable burden of proof
preponderance of the evidence" and that it has met said burden here; and that H_'s
so serious as to merit summary discharge."
This case turns on what was said between H_ and Waldhart on March 9 and
was serious when he spoke to her about gaining access to the administration building.
I conclude that Waldhart's testimony should be credited over H_'s testimony
(1), Waldhart had no reason to fabricate her testimony against H_, a point that even H_
acknowledged during his testimony; (2), Waldhart's subsequent action in writing her March 9
to Supervisor of Personnel Jaworski (District Exhibit 1) is consistent with what Waldhart
to here; (3), Waldhart testified in a highly credible fashion; and (4), H_'s initial denials to
District regarding his conversation with Waldhart render his testimony incredible.
H_ on March 12 thus initially denied to Superintendent Dodd that he had any
with Waldhart, when in fact, it is clear that he did, a point H_ ultimately acknowledged in
March 17 statement to the police (District Exhibit 2) and in his subsequent March 18 meeting
Dodd. While H_ now claims that he was confused about Dodd's March 12 questions
H_'s conversation with Waldhart, the record shows that H_, in fact, had to know on
12 what Dodd was talking about, as Dodd then specifically mentioned Waldhart by name.
that H_ then chose to hide the truth indicates that he did not want the truth to come out.
I therefore also credit Waldhart's testimony that H_ was serious when he asked for
assistance in gaining access to the District's files. While the Union claims that H_ had no
to access those files because he knew he could always see his own personnel file (as he did
past), it is possible that H_ wanted to either look at other files that he otherwise could not
or to look for documents that were related to his recently-filed complaint with the State of
Wisconsin's Equal Rights Division that he filed a few days earlier. But, in any event, it is
unnecessary to determine what motivated H_ since the record shows -- via Waldhart's
testimony -- that he was serious when he tried to enlist her help in gaining access to the
His attempt to do so constituted "dishonesty" as that term is used in Article 10 of the
contract entitled, "Discharge", that provides:
Section 1. No employee who has
completed his/her probationary period shall be
discharged or suspended without one (1) warning notice of the complaint in writing
to the employee with a copy to the Union and Steward, except no warning notice is
required for discharge due to dishonesty, being under the influence of intoxicating
beverages while on duty, use of illegal drugs while on duty, immediate possession of
intoxicating beverages or controlled substances, carrying unauthorized passengers in
an Employer vehicle, recklessness resulting in a chargeable accident while on duty or
other flagrant violations. Warning notice to be effective for not more than one
hundred eighty (180) days from date of notice. Discharge or suspension shall be in
writing with a copy to the Union and the employee affected.
. . .
The District therefore was free to terminate him without any prior notice for engaging
egregious misconduct. That is true irregardless of whether a just cause standard is used (an
need not decide), as termination in any event would still be warranted even under a just
The only remaining ground for overturning his discharge would be the Union's claim
District's investigation was marred by procedural irregularities, i.e., that the District did not
H_ or Union steward Kaszubski ahead of time what Dodd wanted to discuss with H_
12; that Dodd did not then provide H_ with a copy of Waldhart's written statement to
that Dodd did not mention Waldhart's name earlier in their conversation; and that the District
March 16 had already decided to fire H_ even before he provided additional information
time and on March 18.
While all of these facts are true, they are insufficient to overcome the two central
facts of this
case: i.e., that H_ engaged in egregious misconduct when he asked for Waldhart's help in
access to the District's files and that H_ thereafter chose not to tell the truth when asked
it during the District's subsequent investigation and during the instant arbitration proceeding.
claimed shortcomings in the District's investigation hence were not prejudicial and thus are
insufficient to set aside the District's discharge decision.
The Union cites Associated Cleaning Consultants, 94 LA 1246 (Lubow, 1990), in
support of its alternative claim that H_ should be reinstated even if he lied about his
conversation with Waldhart. In that case, arbitrator Martin Lubow ruled that a grievant
about whether he took money from a geriatric patient should be reinstated because, in
. . .
Lying is a dishonest act. No one could quarrel with that. However, in
discharge clause, where only "cardinal sins" form the basis for bypassing the
progressive discipline system, a lie of denial of an act, which results in punishment,
is not the equivalent of intoxication on the job or physical violence.
As one who has long lamented the decline of truthfulness in
I hesitate to contemplate the state of our economy if lack of candor in the workplace
became a dischargeable offense. Surely the negotiators did not mean that when they
used the word "dishonesty" as a basis for preemptory challenge. I suspect they had
theft in mind.
The Company memorandum cites the case of Furrs, Inc. and
and Commercial Workers Union Local 1564, December 12, 1986 [88 LA 175],
to support its position that lying per se is such an act of dishonesty as to be a
preemptory challenge. Arbitrator Albert Blum does indeed hold that position. He
does so in the face of clarifying examples, none of which include lying. His only
rationale is a Webster's dictionary definition. I
disagree. If lying on the job were to be the basis of a penalty, I do not
would be one of the "cardinal sins." As a matter of fact, I cannot remember one case
in 30 years plus in this field where lying in the workplace was made the basis of any
penalty, let alone the ultimate penalty as a result of a single offense. Id, at
. . .
The facts here, however, are distinguishable because H_ was not fired for lying, but
trying to enlist Waldhart's help in gaining access to the District's records. No such
found in Associated Cleaning Associates because it turned on whether the grievant there had
borrowed money from a patient and because arbitrator Lubow found: "There was no intent
repay demonstrated to support a charge of fraud." Id, at 1248.
In addition, I in any event, do not agree with arbitrator Lubow's ruling that it is
right for a grievant to lie in an investigation and to then repeat those lies under oath. Lying
oath in an arbitration proceeding is a very serious offense that should not be,
and cannot be, rewarded
in any fashion. Yet that, in effect, would be the result here if I were to order H_'s
in the face of his discredited testimony. That, I will not do.
Instead, H_ must live with the full consequences of his own actions. He chose to
by not telling the truth about his March 9 conversation with Waldhart and he now must pay
for losing that gamble.
That is why it is my
That the District properly terminated grievant J_ H_; his grievance is
Dated at Madison, Wisconsin this 12th day of November, 1998.
Amedeo Greco, Arbitrator