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)
Mr. Michael J. Wilson, Representative at Large, Wisconsin
Council 40, AFSCME, AFL-CIO, 8033 Excelsior Drive, Suite B, Madison, Wisconsin
53717, appearing on behalf of the Union.
Brennan, Steil, Basting & MacDougall, S.C., by Attorney Howard
Goldberg, 22 East Mifflin Street, Suite 400, P.O. Box 990, Madison, Wisconsin
53701-0990, appearing on behalf of the County.
Pursuant to a request by Lafayette County Courthouse Employees Union Local 678,
WCCME, AFSCME, AFL-CIO, herein "Union," and the subsequent concurrence by
County, herein "County," 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 of Robert
Helm, herein "Grievant," should be sustained on procedural grounds. A hearing on said
conducted by the undersigned on April 28, 1998, at Darlington, Wisconsin. On
July 20, 1998, the
Arbitrator issued an Interim Arbitration Award in the matter, which stated:
. . .
Based on all of the above, and the record as a whole, the
Arbitrator finds that the answer to
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.
. . .
That the Union's Motion to Sustain the
grievance is denied. However, the grievance is
sustained in part, and the parties are ordered to proceed to hearing on the merits.
. . .
A hearing on the merits of the grievance was held on November 17 and 18, 1998, at
Darlington, Wisconsin. A transcript was issued on December 4, 1998. The parties
briefing schedule on February 1, 1999.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
After considering the entire record, I issue the following decision and Award.
Did the Employer have just cause to discharge the Grievant,
Robert Helm? If not, what is the
Robert W. Helm, hereinafter "Grievant," was employed by the Lafayette County
on Aging as a Benefit Specialist for nineteen (19) years. He was supervised in the
County as to his non-benefit specialist duties by Carol Benson, Director of the
Commission on Aging, hereinafter "Benson." His benefit specialist duties were supervised
attorney assigned by the Elder Law Center, Coalition of Aging, hereinafter "ELC" or the
The ELC assigned Attorney Mitchell Hagopian, hereinafter "Hagopian," to supervise the
Funding for this program came from the State and Federal governments. These funds were
administered by a company known as AgeAdvantAge, which was headed by Lucille Baker,
On July 29, 1996, the County Commission on Aging disciplined the Grievant
for events that
took place earlier that year. Specifically, he was given a written warning for failure to
supervisor, Benson, with timely reports of his anticipated activities despite having been
do so. The Commission directed Benson to warn the Grievant "that he must provide timely
in the future and that any further violation of this directive" could subject him to additional
The Commission also suspended the Grievant for three days without pay for events
place during an intake with clients on March 19, 1996. In particular, the Commission
found that the
Grievant acted unprofessionally on that date by making miscalculations when computing a
deductible, by making inappropriate comments about the interview to Hagopian after the
and by writing on the client's papers.
In addition to imposing the above discipline, the Commission directed:
. . .
2. The Committee instructs Ms. Benson to
inform Mr. Helm that he is required to comply
with the tasks as outlined in the ELC letter dated July 16, 1996. Specifically, Mr.
Helm is directed
to take such tests, prepare and submit such reports and such articles as are required by the
is to be warned that failure to follow this directive may subject him to further discipline
. . .
By memo dated July 30, 1996, from Betsy Abramson, Director ELC,
to the Grievant, Helm was advised:
. . .
. . . we have not received the weekly work
plan expected of you as directed in our memo of
July 16, 1996. Item (2) of the (5) listed in this memo stated that you are to "prepare a
plan for the subsequent week, to be completed and FAXed to the CWAG Elder Law Center
preceding Friday noon each week. The contents of the weekly work plan was outlined in
paragraph. You did not comply with this directive on Friday, June 19, 1996 or Friday, June
Additionally, item (3) of that same memo
directed you to complete typed roundtable case
discussion sheets for each opened case, and follow-up addendums as appropriate. To date
received none of these either. It is thus not clear whether you have not opened
any cases since you
received this memo on July 16, 1996 or, alternatively, you are delinquent in
submitting them to us.
. . .
We direct your attention again to this memo
and its assigned tasks and clear deadlines. If further
infractions occur, we will be forced to notify Lucy Baker, Executive Director of Age
By letter dated August 6, 1996, Benson informed the Grievant of the aforesaid
directive. At the same time, she provided the Grievant with a copy of a five point remedial
which included the following expectations:
1. The Grievant must complete, to the satisfaction of the assigned
legal back-up attorney of the
ELC, a Benefit Specialist Examination, developed by and proctored by Hagopian.
2. The Grievant must prepare a weekly
work plan for the subsequent week and FAXed to the
Center by the preceding Friday noon each week outlining his planned activities.
3. The Grievant must complete roundtable
case discussion sheets for each opened case, and
follow-up addendums showing updated activity, and provide same to the Center on a weekly
4. The Grievant must prepare two written
newsletter articles, suitable for publication in the COA
newsletter on two named topics by two dates certain.
5. By a date certain, the Grievant must
develop a typed outreach plan with specific activities and
deadlines noted for increasing participation in three named programs.
Benson further warned the Grievant:
. . .
You are expected to fully cooperate with the
Elder Law Center and the Area Agency on Aging
in all matters including supervision and monitoring of the Benefit Specialist Program.
Failure to do
so may result in further discipline including possible discharge.
. . .
The Union subsequently filed a grievance on both aspects of the discipline. Hearing
matter was held on April 25, 1997, before Arbitrator Edmond J.
Bielarczyk, Jr., who found:
. . .
The County did not have just cause to
suspend the grievant on August 13, 14 and 15, 1996.
The County is directed to reduce the suspension to an oral warning and to make the grievant
for all lost wages and benefits.
The County did not have just cause to
issue the August 8, 1996 written warning regarding
the filing of quarterly reports. The County is directed to cleanse the grievant's record of the
warning and to place the grievant on notice that failure to file timely quarterly reports may
. . .
The County appealed the Bielarczyk Award to the Circuit Court, and Reserve Circuit
Judge, the Honorable Daniel L. LaRocque affirmed on July 11, 1998, the Bielarczyk
as it found there was no just cause to impose a three-day suspension on the Grievant and he
overturned the Bielarczyk Award insofar as it found there was no just cause for the written
imposed on the Grievant. As a result, at the time of his discharge, the Grievant had only an
warning and written reprimand in his personnel file.
Facts Giving Rise to the Instant Dispute
The Grievant was directed to prepare his first newsletter article on the MA
Program, and the second newsletter article on "Increasing assets to generate more income
MA Spousal Impoverishment Program."
According to Hagopian, the MA Deductible Program was "the topic that was the
the client interaction that triggered this whole review process." Hagopian wanted the article
"it was exactly the subject upon which Bob had provided the misinformation to the clients,
and so we
felt the newsletter article would be a useful tool to determine if he understood the program."
Hagopian also felt that the program was a "great program for people in Lafayette County,"
underutilized. A newsletter article could bring people into the program who needed help.
Hagopian testified that the second article was on a topic "that we had just trained Bob
July." Hagopian stated: "So the purpose of this article was not to see if he understood it.
assumed that he did."
On August 14, 1996, Hagopian received a draft of the first required newsletter
By memo dated August 15, 1996, Hagopian instructed the Grievant to make
additions to the
first draft of the newsletter article by including "information which would make it relevant to
Lafayette County citizens" and information on how to get in contact with the Grievant
potentially eligible recipient need assistance."
On August 19, 1996, Hagopian had a telephone conversation with the Grievant in
instructed him to provide more detail in weekly work plans.
On August 23, 1996, Hagopian received a second draft of the first newsletter article.
By memo dated August 27, 1996, to Benson, Hagopian outlined problems with the
article. These included: the lack of any original thought in the preparation of said article;
the fact it
was submitted late; and the fact it failed to contain any instructions on how to apply for the
discussed. Hagopian concluded:
In summary, I believe that Bob has failed to meet the
requirements of submitting
a newsletter article suitable for publication in the COA newsletter on the MA Deductible
required by the memo of July 16, 1996 from the Elder Law Center. Bob had specific
a reasonable opportunity to complete his second "draft" of the article and failed to avail
the opportunity. I recommend that appropriate disciplinary action be taken.
The Grievant took an exam as instructed on September 3, 1996. The exam was an
exam consisting of mostly true and false questions. If an answer was false, then the Grievant
explain why it was false. There were also two essay questions. The answers to all of the
could be found in the materials that had been previously supplied to the Grievant and which
present in his office. There was no time limit imposed on the Grievant, and the only
that he was not to call someone else to learn the answer. Hagopian proctored the exam as he
instructed to do in the Commission's July 29, 1996 minutes. The exam was prepared by
but it was actually graded by another Center employe. Hagopian testified that the Grievant
do well on the exam. According to Hagopian, his grade was 62 percent correct; but, if the
adjusted to reflect a technically correct answer by an incorrect explanation, then his grade
to only 52 percent. Hagopian stated this was a "terrible score" for someone with the
of experience. Hagopian stated the Grievant was expected to score at least 70 percent or
Hagopian added that the Grievant never reviewed the examination with Hagopian "to find out
areas that he had done incorrectly" or to comment on the examination "one way or another."
memo dated September 12, 1996, Hagopian wrote to the Grievant and Benson
disappointment in the results of the aforesaid examination.
By memo dated September 17, 1996, Hagopian informed the Grievant of certain
in the second newsletter article. In particular, Hagopian pointed out that the Grievant "did
address the topic which we had instructed you to cover." Hagopian also noted that if the
"did not understand what the topic was that you were supposed to be writing the article on,
should have contacted me prior to September 15." Hagopian added: "I am becoming
about your apparent inability to follow simple instructions." Hagopian concluded: "I will be
recommending appropriate disciplinary action be taken as a result of this clear failure to
an unequivocable directive."
The Grievant was asked to prepare a second draft. The Grievant's second draft did
accurately describe the subject, and did not present things in the right order. The Grievant
directed to prepare a third draft and submit it to Hagopian. Hagopian testified that the third
"worse" than the second draft. It did not contain an example on the subject matter; rather,
Grievant wrote something else and he got that example wrong.
By memo dated September 19, 1996, to Benson and the Commission on Aging
Hagopian recommended that a remedial training plan for the Grievant be developed "based
performance on the examination." Hagopian recommended the following plan: one,
with the Grievant after the September 23 meeting to consolidate and organize resource
two, the Grievant attend a basic benefit specialist training at the end of October; three, the
use a new case report form; and four, a follow-up substantive evaluation be scheduled "to
Bob's progress in terms of his understanding."
The Grievant's job difficulties were discussed with him and Fran Fink, Union
hereinafter "Fink," at an Executive Committee meeting of the Commission on Aging on
September 23, 1996. At the meeting, the Grievant was advised as to deficiencies
noted by his
supervisors including problems with the newsletter articles, poor test results and failure to
remedial plan of action developed by Hagopian. Other deficiencies discussed included
insubordination by the Grievant (On August 28, 1996, he told his boss to "shut up").
Committee decided "that at this time further disciplinary action would serve no positive
Instead, the Committee passed a motion that if there was further problems with the
performance, attitude or failure to comply with directives there "will be immediate
of five days without pay or probable termination." The Grievant was instructed by the
to adhere to the remedial plan.
Hagopian met with the Grievant, also on September 23, 1996, to discuss not only the
newsletter article noted above, but also client cases and resource materials.
By memo dated October 10, 1996, Hagopian advised Benson, 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 him
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, Fink and Union President Paul Godfrey were present at the next
meeting of the
Commission Executive Committee held on October 24, 1996. At that meeting, the
again advised of problems with his job performance. He was also given a copy of the letter
by Hagopian noted above which outlined the Grievant's continued work deficiencies and
recommended his termination.
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, hereinafter
present. The Committee urged all parties concerned to explore the possibility of placing the
in a different job by way of a job swap with another County employe, the possibility of
Benefit Specialist Program and position to the Human Services Agency or other possible
might be available to resolve the dispute. The Committee voted to suspend taking any
action regarding the Grievant and to explore other solutions for the Grievant and the
Aging until the next Commission on Aging Board meeting. Hagopian was asked "if it would
possible to have a different supervising attorney from the ELC," and Hagopian responded
would forward the request to his supervisor.
By letter dated November 12, 1996, Abramson informed Byron Berg, Chair,
Commission on Aging, that the Center would not replace Hagopian with a different ELC
for purposes of supervising the Grievant's benefit specialist work. Abramson noted that no
of unfairness by Hagopian had been brought to her attention directly, and even if it had, "it
change my position." 1/ Abramson noted that she had attended a July meeting of the
on Aging where Baker "directed us to significantly increase the supervision of Mr. Helm. I
Mitch has done so responsibly, conscientiously and most of all, fairly."
1/ Abramson gave no explanation whatsoever
as to why she insisted on supporting Hagopian even if he had
been unfair in his treatment of the Grievant. Abramson's inexplicable position, and her
steadfast refusal to even
consider replacing Hagopian as the Grievant's supervisor even though that was a
reasonable solution to the conflict
that developed between Hagopian and the Grievant, is partly responsible for the events that
Also by letter dated November 12, 1996, Baker wrote to Berg expressing her concern
extending a contract for Benefit Specialist Services to the County. While noting Benson and
Commission had worked "diligently with the Elder Law Center and Bob Helm to allow Mr.
support and opportunity to improve," Baker expressed disappointment over the outcome of
efforts and the Grievant's failure to grasp the benefits counseling necessary to have a viable
Specialist Program. Baker concluded:
. . .
The Lafayette County Commission on
Aging, as is stated in State policies, has the responsibility
for hiring and firing of benefit specialists. I understand that
the Commission will be taking action on the issues raised in
Mitch Hagopian's October 10th letter.
Given the seriousness of the deficiencies outlined in that letter, I would expect decisive steps
be needed to assure the future quality of your program or I will be forced to look elsewhere
service provider. I will review your action and inform you of your contract status by
. . .
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 copy of
a Severance Agreement to both Larsen and Steven Pickett, hereinafter "Pickett," the County
There were discussions between Larsen and the County regarding the settlement of issues
the Grievant. Larsen informed the County that the Grievant rejected the proposed settlement
agreement because he did not want to resign his employment with the County. Nevertheless,
County renewed its settlement offer several times and settlement discussions continued into
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 the
Commission on Aging Board. At that meeting, Hagopian "gave an overview of the
history of the current issues regarding" the Grievant's work performance as Benefit Specialist
County. Hagopian "then reviewed a summary of activities that the Elder Law Center, the
the Area Agency on Aging" had been involved in "since June of 1995, in an effort to
services of the Lafayette County Benefit Specialist program." (A summary of said activities
attached to the minutes of the Commission's meeting.) Hagopian also discussed the poor test
that the Grievant had received on the skills test and the problems with the newsletter articles
Grievant had been required to prepare. Hagopian then reviewed for the Commission "how
Benefit Specialist Program works in the 11 other counties that he supervises."
Chairman Berg then read the letter dated November 12, 1996, from Baker, noted
regarding the future of the contract for the Benefit Specialist Program. Berg next read the
letter from Abramson rejecting a change in supervisory staff for the Grievant.
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
Larsen commented: "it seemed that all of this was related to the incident of client
in March and that no one was getting wrong information and in fact there had been some
improvement in client files and record keeping."
There was some discussion about client complaints and Benson responded that there
a number of complaints over the past but that they did not come directly from clients.
indicated that those complaining were reluctant to proceed and did not want to formalize the
Jerry Lynch asked to address the Commission and spoke on behalf of the Grievant.
Next Chairman Berg "asked the committee how they wanted to address the issue."
motion, and second, the Commission voted to terminate the Grievant effective immediately.
By memo dated November 26, 1996, Fink advised 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
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
the above memo prior to the
hearing. Nancy Kilcoyne, an employe in the County's Human Services Department, testified
typed said memo and had it delivered to their respective offices.
The Step 1 oral grievance meeting was held on December 4, 1996.
Present were the
Grievant, Union representatives Larsen and Fink, Benson and Pickett representing the
Benson was asked to reconsider the Board's decision to terminate the Grievant and responded
she was not able to overturn a Board level decision. The Union representatives also raised
regarding the lack of a formal letter containing the specific reasons for the discharge
within the time limits set forth in the labor agreement. Pickett responded that this was
the first time
that such a letter had been requested and that a letter would be forthcoming as soon as
By letter dated December 5, 1996, Benson denied Helm's grievance at the oral
. . .
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, Larsen filed a Step 2 written grievance on
In said grievance, Larsen alleged that the County did not have just cause to discharge the
within the meaning of Article III and other applicable provisions of the parties'
agreement. Larsen also indicated that the matter "had been discussed pursuant to Step 1 of
grievance procedure with Carol Benson and the matter remains unresolved." For a remedy,
requested that the Grievant be reinstated, his work record be purged regarding the matter and
he be made whole for all lost wages and benefits.
By letter dated December 17, 1996, Pickett provided the Grievant a letter of
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 over the
previous year and a half with the
documentation that was presented. At the November 18th meeting,
which was held in public session
at your request, the board received information regarding your failure to perform your duties
activities as directed by Attorney Mitchell Hagopian. It was following Mr. Hagopian's
recommendation and a review of the information, that the committee voted to terminate your
employment with Lafayette County. Mr. Helm, you do have the right to appeal this decision
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 "timeliness 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, Larsen notified the County that the Union was appealing the
Helm Termination Grievance to Arbitration. Larsen's letter referenced the threshold issue
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) for the
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 (sic) 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 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.
The Union basically argues that the County lacked just cause to discharge the
In support thereof, the Union first raises a number of procedural arguments. For
the Union argues that the Grievant was discharged based on "a rehashing of old issues"
addressed by management and that such action constitutes the classic form of "double
which precludes discharge. The Union also argues that the County did not follow
discipline or even its own remedial plan before improperly discharging the Grievant. The
complains that the County never could get its reasons straight for discharging the Grievant.
Union adds that the County's failure to specify clear charges against the Grievant has
prejudiced him in his attempt to defend against discharge.
Nor does the Union believe the reasons for the Grievant's discharge are valid. In this
the Union attacks the appropriateness of using both the newsletter articles and the test as
discharging the Grievant. The Union also attacks Hagopian's supervision of the Grievant.
claims that it was unfair for the County to employ and to pay the Grievant as a
discharging him for failure to perform his duties at the "professional" level. The Union
points out that
the County was unable to cite any client's case
or other example of the Grievant's actual work to establish that the Grievant was either
or deserving of discipline. The Union adds that the record does not support a finding that
Grievant had a bad attitude.
Finally, the Union argues that the County's characterization of the award of
Bielarczyk as "both grievances were sustained on technical grounds" is erroneous; rather,
to the Union, both that prior case and the instant dispute demonstrate the County's inability
properly administer discipline.
Based upon the entire record, the Union requests that the Arbitrator sustain the
reinstate the Grievant and make him whole for all losses suffered as a result of the County's
The County makes the following principal arguments in support of its position that it
appropriately when it discharged the Grievant.
One, the County is not obligated to keep an employe on the job when that employe is
to be incapable of performing the work. The County has the right to test the competence of
employes including the Grievant.
Two, the County is entitled to consider bad attitude, as well as poor work
deciding to discharge, and may take action against a deficient employe like the Grievant even
none of his clients ever complained about his work.
Three, the County gave the Grievant adequate warning prior to discharge.
Four, the Grievant was incompetent, his incompetence placed the County's funding of
benefit specialist program in jeopardy, and the County should not be required to put its
in jeopardy by keeping an incompetent employe on the payroll.
Five, the Grievant did not accept responsibility for his shortcomings but instead
like Hagopian and Benson for his problems. His attitude regarding his job, the public that he
and his supervisors was extremely negative.
Regarding the Union's arguments, the County makes the following rebuttal. One, the
of double jeopardy does not apply and/or preclude discharge. Two, the County did not act
prematurely in discharging the Grievant because he had no vested right to his job pending the
December evaluation and because he was specifically warned to fully
cooperate with Hagopian and comply with his directives or face possible "immediate"
his employment. Three, the Union's arguments are procedural in nature and are intended to
attention away from the undisputed facts raised by the County establishing the Grievant's
incompetence, insubordination and bad attitude.
Regarding remedy, the County argues that any sanction that might be imposed for the
County's failure to give timely notice of discharge be minimal in nature. The County
conclusion for the following reasons: one, the Grievant did not suffer any type of prejudice
delay in giving the notice; two, the contract does not provide for a remedy if the three-day
not given as required by Article III; and three, the County has not complied with the
requirement in the past without objection from the Union.
The County also argues that under no circumstances should any remedy include
of the Grievant. The County concludes that it handled the matter appropriately herein and
other choice but to discharge the Grievant since it was clear that any other form of discipline
do no good.
The County requests that the grievance be denied and the matter be dismissed.
At issue is whether there was just cause to discharge the Grievant.
The County argues that there was just cause for the discharge while the Union takes
There are two fundamental, but separate, questions in any case involving just
cause. 2/ The
first is whether the employe is guilty of the actions complained of which the County herein
duty of so proving by clear and satisfactory preponderance of the evidence. If the answer to
question is affirmative, the second question is whether the punishment is contractually
given the offense.
2/ Each disciplinary action involves two issues:
whether there was just cause for the imposition of discipline
for the particular wrongdoing, and whether there was just cause for the
penalty the quantum of discipline
imposed on the Grievant. Labor and Employment Arbitration, Volume I, Tim
Bornstein, Ann Gosline and Marc
Greenbaum General Editors, Chapter 14, Just Cause and Progressive Discipline by Arnold
Zack, s. 14.03, 14-5
Basis for Discipline
Applying the above standard to the instant case, the Arbitrator first turns his attention
question of whether the Grievant is guilty of the actions complained of.
According to the December 17, 1996 discharge letter, the County terminated
the Grievant for
the following reasons:
. . .
The board and its executive committee have
reviewed your work over the previous year and a
half with the documentation that was presented. At the
November 18th meeting, which was held in
public session at your request, the board received information regarding your failure to
duties and activities as directed by Attorney Mitchell Hagopian. It was following
recommendation and a review of the information, that the committee voted to terminate your
employment with Lafayette County.
. . .
At the November 18, 1996 Commission on Aging meeting, Hagopian
"reviewed a summary
of activities that the Elder Law Center, the COA and the Area Agency on Aging had been
in since June of 1995, in an effort to improve the services of the Lafayette County Benefit
program." According to the COA minutes of the November 18, 1996 meeting and the
Summary, the following incidents constitute the bases for the County's decision to terminate
Grievant: a letter to Benson on June 21, 1995, regarding the Grievant's "repeated
failure to follow
instructions on a client's case and including personal information about himself in a letter to
adverse party"; an incident which occurred on March 19, 1996, involving the Grievant
incorrect information to clients, "defacing client documents," and in a conversation after the
left displaying "an attitude which was extremely insensitive to his client's interests"; a memo
Grievant regarding "his failure to submit weekly work plans and client case summaries as
by 7/16/96 supervisory plan"; notice of a written reprimand to the Grievant for failing to
supervisor with timely reports of his anticipated activities despite having been directed to do
problems the Grievant had in preparing two newsletter articles and the Grievant's poor exam
3/ Benson testified that the Commission
considered a wider range of issues before deciding to terminate the
Grievant at its November 18, 1996 meeting. (Tr. pp. 413-415). However, in making
the above findings, the
Examiner relies on the official minutes of the November 18, 1996 Commission meeting.
(Joint Exhibit No. 27).
These findings are supported by the sometimes contradictory testimony of Hagopian. (Tr.
pp. 300-301, 303, 336
The County argues that it is entitled to consider the Grievant's bad attitude, as well
poor work performance, when reaching the decision to discharge him. The County also
the Grievant was insubordinate and incompetent.
The Arbitrator does not agree with the County's contention that it is entitled to
Grievant's insubordinate behavior as a basis for the discharge. The Arbitrator reaches this
for the following reasons. In its brief the County lists a number of examples of the
insubordination. Assuming arguendo that all these examples are examples of
behavior, 4/ the County's argument still must fail. There is no persuasive evidence in
the record that
the Commission considered any of the examples of the Grievant's insubordination noted in
County's brief when it decided to discharge the Grievant on November 18, 1996. It is
true that the
Executive Committee of the Commission on Aging at a meeting on September 23,
the Grievant's insubordinate behavior toward his supervisor when he told her "to shut up."
the Committee took no action to discipline the Grievant for his behavior at that time.
Bielarczyk criticized the County for suspending the Grievant months after the events of
1996. Lafayette County, Case 66, No. 54726, MA-9770, p. 17 (October 15,
Honorable Daniel L. LaRocque, Reserve Circuit Court Judge agreed "that just cause
as that term is
used in the union contract carries with it at least some connotation of timely punishment."
Wisconsin Council 40, Local 678, AFSCME, AFL-CIO vs. Lafayette County, Case
No. 97-CV-95, p. 14, (July 2, 1998). Well-established arbitral standards also require
the imposition of
discipline be prompt. Labor and Employment Arbitration, supra,
s. 14.03[a], 14-10. Applying the
aforesaid timeliness standard herein, the Arbitrator finds that it would be inappropriate for
to rely on the "shut up" incident as a basis for his discharge because said incident occurred
three months earlier (August 28, 1996) and because the County had already considered
discipline for the incident.
4/ The record establishes otherwise. For
example, the County's allegation that the Grievant's attorney while
responding to allegations made against the Grievant "embarked on a diatribe against
Hagopian in which he
challenged Hagopian's fairness and competence" is not supported by the record. While it is
true that the Grievant's
attorney challenged Hagopian's fairness and competence, an examination of the letter which
is reprinted in the
Bielarczyk Award reveals that he did so in a reasonable manner easily within the bounds of
his duty in legally
representing the Grievant.
While the question of the Grievant's bad attitude is a little closer, the Arbitrator also
for the reasons discussed below, this claim of the County. For example, the Arbitrator
disagrees with the County's contention that it was inappropriate for the Grievant's attorney to
challenge "Hagopian's fairness and competence" regarding the events of March 19,
added). Arbitrator Bielarczyk also questioned the ELC's and Hagopian's
conduct while finding that the County's three (3) day suspension of the Grievant for the
March 19, 1996, was not for cause. Judge LaRocque affirmed Arbitrator Bielarczyk's
overturn the three-day suspension. Wisconsin Council 40, Local 678, AFSCME,
Lafayette County, supra, p. 20.
The Arbitrator also can find no persuasive evidence in the record that the Grievant
had a bad attitude toward the public that he served. It is true that the Grievant was
his inappropriate comments about clients after they left on March 19, 1996. However,
in his lengthy
service with the County, there has not been one instance of a complaint from a client
attitude or his service. (Joint Exhibit No. 27). Nor have there been any formal complaints
(Joint Exhibit No. 27). At least one member of the public, Jerry Lynch, spoke on behalf of
Grievant at his termination hearing. (Joint Exhibit No. 27).
It is true that the Grievant often inappropriately blamed his supervisors for his
that he was reluctant to contact Hagopian for any assistance either in his work or in writing
newsletter articles; (Given the discussion of the Center's and Hagopian's shortcomings in
the Grievant contained in Arbitrator Bielarczyk's decision, Judge LaRocque's decision and
decision, the Grievant's position is readily understandable.); and that he did not attend the
seminars for benefit specialists as directed. (Although the Grievant apparently did attend
related to his work. Tr. p. 333). However, the record does not support a finding that
were considered by the Commission when it decided to terminate the Grievant on
(Joint Exhibit No. 27, Tr. p. 334). Therefore, the Arbitrator rejects these claims of the
Finally, the Arbitrator agrees with the County's contention that an employer is
consider bad attitude, as well as poor work performance, when reaching the decision to
Sintermet Corp., 99 LA 600 (Bell, 1992). However, the County may not rely on Sintermet
Corp. to support its arguments in the instant case. The Arbitrator reaches this conclusion
the employe in Sintermet Corp., unlike the Grievant, was on probationary status and
one last chance to improve his work performance or be terminated. Supra, p.
The record does contain some examples of the Grievant's poor work performance.
the Grievant was previously disciplined for the March 19, 1996 incident as well as his
provide timely reports of his work activities. Consequently, the Arbitrator is of the opinion
incidents carry little weight as new bases for the Grievant's discharge.
The record indicates that the Grievant did not prepare two newsletter articles to
satisfaction. However, as noted above, it is also true that the County did not receive any
complaints about the Grievant's actual work performance. (Exhibit No. 27). The Grievant
stated, unrebutted by the County, that "he had no clients
complain about his work on the satisfaction surveys that have been done regarding his
addition, prior to the instant dispute the Grievant performed his duties as a Benefit Specialist
satisfactory manner. (Tr. at 431 and 353). In fact, prior to the March 19, 1996
Honorable Daniel LaRocque, Presiding Reserve Judge found that the Grievant had a good
record and "was an exemplary employee to some degree." Wisconsin Council 40,
AFSCME, AFL-CIO vs. Lafayette County, supra, p. 19.
The evidence is mixed on the question of whether the Grievant is incompetent. It is
the Grievant did not perform program services and did not assist clients in the manner
Hagopian. (Joint Exhibit No. 27). However, it is also true that the Grievant performed his
job in a
satisfactory manner for many years prior to Hagopian's intervention.
The record indicates that the Grievant did poorly on a test administered by the
However, the problems with an exam developed and administered by Hagopian and the
discussed by Arbitrator Bielarczyk in his Award. Thus, while Arbitrator Bielarczyk's
opinion of the
adequacy of Hagopian's testing of the Grievant may only be dicta, as pointed
out by the County, it
is relevant to the question of whether the test may be used as persuasive evidence of the
Arbitrator Bielarczyk found:
The record also demonstrates the following. Hagopian is not
testing expert nor is testing
a field he has any expertise in. There is no evidence he would know how to validate a
would know how to determine its reliability or know how to properly administer any testing
It is the undersigned's opinion any measurement device developed and administered by him
be highly suspect as a device which could accurately determine the grievant's job knowledge.
Particularly if Hagopian is approaching the matter with a predisposed opinion as to the
capabilities. Needless to say, any results of such a measurement would be relatively useless.
further complicated by the fact that the Elder Law Center's recommended job description for
Benefit Specialist and the job description the County has hired the grievant to perform are
distinguishable from each other and Hagopian was unaware of this. This does not mean the
can not (sic) give the grievant an examination to determine if he is capable of
performing the duties
for which he was hired. However, such an examination, to have any real merit, would need
developed and administered by individuals who have the knowledge to develop and
measuring device which is valid, reliable and pertinent to the job description the County
grievant to fill. Lafayette County, supra, p. 16.
Based on Arbitrator Bielarczyk's reasoning in his aforesaid decision, the Arbitrator
reasonable to conclude that the County may not rely on the results of the aforesaid test to
that the Grievant was incompetent.
Based on the foregoing, the Arbitrator finds that the County did not sustain its burden
proof on its claim that the Grievant was incompetent.
Therefore, based on all of the above, the Arbitrator finds that there is some factual
which to discipline the Grievant, although not as much as claimed by the County. In
County may rely on the June 21, 1995 letter to Benson and the Grievant's failure to
newsletter articles as directed as bases for its disciplinary action. This is not a sufficient
upon which to discharge the Grievant. A question remains as to whether the punishment is
Appropriateness of the Disciplinary Action
A review of this question may be undertaken within the context of the issues raised
Union in arguing against discharge as well as the other arguments by the County supporting
The Union argues that the Grievant was discharged based on a rehashing of old issues
as a result the Grievant was subjected to a classic form of "double jeopardy." Double
defined as "the act of putting a person through a second trial for an offense for which he has
been prosecuted." The American Heritage Dictionary of the English Language, New
(10th Ed. 1981) p. 419. In the instant case, there is no persuasive evidence
that the County has put
the Grievant through a second trial for the events that occurred on March 19, 1996, or
for his failure
to provide Benson with timely reports of his activities both of which led to discipline. It is
the Commission considered the imposition of prior discipline when deciding to terminate the
Grievant. However, it is not clear what weight the County gave these incidents when it
terminate the Grievant. Furthermore, arbitrators have rejected the claim that consideration of
offenses in determining the propriety of the penalty assessed for a later offense constitutes
jeopardy. Elkouri and Elkouri, How Arbitration Works, 5th
Edition, p. 925 (1997). Therefore, the
Arbitrator rejects the Union's argument.
The Union also argues that the County did not follow progressive discipline when it
discharged the Grievant. For the reasons discussed below, the Arbitrator agrees.
Progressive discipline is generally considered a component of just cause where the
issue is one
that would not call for discharge on the first offense but for some milder penalty aimed at
Elkouri and Elkouri, supra, p. 916. Here, the County itself recognized the
nature of the Grievant's
offense when it responded to the Grievant's performance problems by
adopting a remedial plan which was communicated to the Grievant by letter in early
Progressive discipline normally includes oral reprimand, written warning, suspension and
At the time of his discharge, however, and as a result of the Bielarczyk Award and Judge
ruling, the Grievant's record only contained an oral and written reprimand. Since the event
precipitated Hagopian's recommendation that the Grievant be terminated was continued poor
performance (his failure to adequately prepare the second newsletter) for which a corrective
plan was in place and/or being proposed, the Arbitrator finds that suspension, not discharge,
be the more appropriate next disciplinary step in the County's effort to impress upon the
need to improve his work performance.
5/ Elkouri and Elkouri, supra, pp.
917 and 918. Also see Labor and Employment Arbitration, supra,
14-13, footnote 26.
Such a penalty is consistent with the seriousness of the Grievant's offense. It is said
"axiomatic that the degree of penalty should be in keeping with the seriousness of the
Capital Airlines, 25 LA 13, 16 (Stowe, 1955). While it is true that in cases of extremely
offenses arbitrators are more than willing to recognize the need for enforcing penalties that
seriousness of the offense, arbitrators in less serious cases prefer to apply progressive
exercise leniency and modify disciplinary penalties imposed by management when there are
circumstances that lead arbitrators to conclude that the penalty is too severe and the employer
failed to follow progressive discipline. Elkouri and Elkouri, supra, pp.
916-917. Applying the
aforesaid standard herein, the Arbitrator finds that the County by its action ignored not only
nature of the Grievant's offense, but well-accepted principles of progressive discipline which
for discharge for the first offense of the aforesaid nature (and usually not even for the
second or third
offense) but for some milder penalty aimed at correction. (Emphasis added). See
Elkouri, supra, p. 916 and cases cited therein.
The County also ignored the Grievant's basically good work record prior to his
problems with Hagopian, et al. when it decided to terminate the Grievant. The Arbitrator is
opinion that all of the above factors mitigate in favor of suspension rather than discharge.
have upheld an arbitrator's consideration of mitigating factors in determining whether there is
cause for discharge unless the collective bargaining agreement clearly and unambiguously
the arbitrator from doing so. Elkouri and Elkouri, supra, p. 917. There is no
such express prohibition
in the parties' agreement herein.
The conclusions noted above are also appropriate given the County's own lack of
in its response to the Grievant's work performance or lack thereof. In this regard, the
points out that as late as September 19, 1996, Hagopian recommended to Benson and
Commission on Aging that a remedial plan be developed for the Grievant "based on his
on the examination." Yet, less than a month later Hagopian was recommending the
termination based on the Grievant's failure to write an acceptable article on "increasing assets
generate more income under the MA spousal impoverishment program." The Union
the County did not even follow its own "remedial plan" before prematurely discharging the
The Arbitrator agrees. While it is true, as pointed out by the County, that the Grievant had
right to his job, it is also true that the County did not even give the aforesaid remedial plan a
before discharging him. As pointed out in the County's reply brief, the Grievant was
supposed to be
evaluated by Hagopian in December, 1996. (Tr. p. 357). Except for the threat by
to cut off funds for the Benefit Specialist Program, the County can point to no other new
the Grievant warranting discharge except his failure to complete his second newsletter article
satisfactory manner which, as noted above, is not the type of offense which would ordinarily
immediate discharge. And, as noted above, at the time of his discharge the Grievant had
more than a written warning in his personnel file. Based on same, and all of the foregoing,
Arbitrator finds that the County acted unreasonably or unfairly by moving to discharge the
shortly after it announced a remedial plan to address the Grievant's alleged shortcomings
such action violated the corrective nature of its own remedial efforts, and because such action
precipitated by AgeAdvantAge's threat to cut funding for the position. Fairness and
are basic components of just cause. Hiram Walker & Sons, Inc.,
75 LA 899, 900 (Belshaw, 1980)
(equating the term "just cause" with "the now-common expression, 'fair shake'"); Beatrice
Co., 74 La 1008, 1011 (Gradwohl, 1980) ("proper cause" means that
management "must have a
reasonable basis for its actions and follow fair procedures"). Even Hagopian agrees that due
includes treating people fairly. (Tr. p. 326).
Finally, the Union argues that the County's failure to specify the charges against the
has seriously prejudiced the Grievant. The Arbitrator agrees. Article III requires
written notice of
the discharge including "the reason or reasons for the action shall be given to the employee
copy to the local Union." On December 17, 1996, the County provided the Grievant
with a discharge
letter which stated in material part 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 over the
previous year and a half with the documentation that was presented. At the
meeting, which was held in public session at your
request, the board received information
regarding your failure to perform your duties and activities as directed by Attorney Mitchell
Hagopian. It was following Mr. Hagopian's recommendation and a
review of the information, that
the committee voted to terminate your employment with Lafayette County. (Emphasis
. . .
This is fairly general information and subject to differing interpretations.
It is also true, as pointed out by the Union, that there are some contradictions as to
considered as the grounds for discharge. For example, in the County's opening statement
Goldberg stated that the Grievant's non-attendance at certain workshops for benefit specialists
one of the factors in the County's decision to terminate the Grievant. (Tr. p. 191).
Hagopian, who made the recommendation to terminate the Grievant, testified on
that the Grievant's failure to attend the appropriate workshops "was not one of the specific
in my mind that he was being terminated." (Tr. p. 333). In addition, there is no persuasive
in the record that the Commission on Aging considered this factor when it decided on
1996, to terminate the Grievant.
The County argues contrary to the above that the Grievant "and his union
knew all along the nature of Helm's work deficiencies and the reasons for his termination."
the Union denies same and as early as November 26, 1996, only eight days after the
decision to terminate the Grievant wrote the County requesting "written notice of his
along with the reasons for said action. In addition, the Arbitrator pointed out above at least
example of confusion in this area (Was the Grievant's failure to attend certain workshops a
his discharge?). Furthermore, a review of the December 17, 1996 discharge letter
indicates that it
did not contain clear, specific and/or concise reasons for the discharge. (Tr. p. 327).
reviewing the entire record (see especially Tr. pp. 61-63, 74-75), and the minutes of the
November 18, 1996 meeting at which the Grievant was terminated, the Arbitrator is of
that there is at least some persuasive evidence in the record to support the Union's contention
the County's failure to specify the charges against the Grievant has made it difficult for the
defend against the Grievant's discharge. Therefore, the Arbitrator rejects this argument of
The County also argues in support of its position that it is not obligated to keep an
on the job when that employe is found to be incapable of performing the work. The
Arbitrator agrees. However, even if the Grievant is deficient in performing some of
his duties, the
County must still adhere to the principles of just cause, including progressive discipline,
terminating the Grievant. 6/ As noted above, it failed to do so in the instant case.
6/ The progressive discipline principle has been
explained as follows:
(2) The progressive
(a) Unless otherwise
agreed, discipline for all but the most serious offenses must be imposed in gradually
increasing levels. The primary object of discipline is to correct rather than to punish. Thus,
for most offenses,
employers should use one or more warnings before suspensions, and suspensions
before discharge. (Emphasis
(The Common Law
of the Workplace, The Views of Arbitrators, National Academy of Arbitrators,
J. St. Antoine, Editor, s. 6.7 Discipline and Discharge, Magnitude of Discipline; Progressive
Discipline, p. 172
The rationale for
progressive discipline is:
Discipline. Because industrial discipline is corrective rather than punitive, most arbitrators
require use of progressive discipline, even when the collective agreement or employment
contract is silent on the
subject. In most cases, the principle of progressive discipline benefits employers as
well as employees. With
progressively increasing penalties, employees have an opportunity to conform their
performance and conduct to
the employer's reasonable expectations. Rehabilitating the employee is less
expensive and less disruptive than
hiring a replacement. (Emphasis added).
(The Common Law
of the Workplace, supra, p. 173.)
The rationale for
progressive discipline has further been explained as follows:
that the parties are committed to utilizing discipline progressively as a tool to bring
about change in the behavior of employees, reserving termination for those
guilty of serious offenses and those who
have run the gamut of progressive discipline and have shown themselves to be
incorrigible. For the employee,
corrective discipline, through escalated penalties, opens the door to rehabilitation and the
opportunity to restore
his standing and continue his employment. For the employer, providing the opportunity for
an employee to profit
from discipline by reforming his behavior also brings benefits. The employer is able to
recoup the cost invested in
the training and skill development of such employees and to avoid the additional cost of
hiring and training
replacement personnel. Thus, there is a strong motivation to offer progressive discipline as a
rehabilitating wayward employees before facing the often unavoidable conclusion that certain
incapable of taking advantage of such opportunity and must be removed from the workplace.
Employment Arbitration, supra, at s. 14.03,
Instead, faced with a threat of a cutoff of funding for the Benefit Specialist position,
County discharged the Grievant rather than impose the next logical level of discipline-
If the County had suspended the Grievant as required by progressive discipline and the just
standard, the County would probably have known a long time ago if the Grievant would have
able to conform his performance and conduct to reasonable expectations. Such an approach
would probably have resulted in less disruption and expense to the County over the long term
as a more timely resolution of this dispute. However, the County failed to follow
discipline, and as a result, it now must pay the penalty for said failure.
The County argues contrary to the above that notwithstanding the just cause standard
not have to retain an employe where there is little likelihood that the employe can overcome
incompetence, Florsheim Shoe Company, 74 LA 705 (Roberts, 1980), and where the
has concluded that rehabilitation is impossible, even though all disciplinary steps had not
Pratt and Witney Aircraft Group, 91 LA 1014 (Chandler, 1988). However, the aforesaid
cases are distinguishable from the instant dispute. In Florsheim Shoe Company, the
upheld an employe's discharge where the chronic character of the grievant's failure to be
productive and lack of significant improvement in her output impaired the employment
where the employer did not discriminate against the employe, and where the employer
counseled the grievant concerning problems and gave her adequate warning that her failure to
desired output would result in her termination. Florsheim Shoe Company, supra,
However, unlike the instant dispute Florsheim Shoe Company followed progressive
supra, p.707, consistently counseled the grievant, supra, p. 709,
and gave her adequate notice that
termination would follow from her failure to improve her performance. Supra,
p. 709. The arbitrator
also concluded, which the Arbitrator herein is unable to do, that there was "no prognosis that
a reasonable period of time the cause that impairs the employment relationship can be or will
removed." Supra, p. 709. Therefore, the Arbitrator rejects the County's
reliance on this case.
The Arbitrator also rejects the County's reliance on Pratt and Witney Aircraft Group.
In that case, the arbitrator concluded that even though progressive discipline had not been
in its truest form the Company could discharge the employe because it "presented evidence
to conclude its decision on potential failure for rehabilitation to work is well founded." Pratt
Witney Aircraft Group, supra, p. 1018. The County did not provide similar persuasive
in the instant dispute. Pratt and Witney Aircraft Group is also distinguishable on the
grounds: unlike the Grievant herein, the employe in Pratt and Witney Aircraft Group was
discharged for failure to follow work rules which affected his work ethic, supra,
p. 1017, unlike the
Grievant herein, the aforesaid employe received five written reprimands and several
sessions before termination; supra, at p. 1014, and finally, other employes
complained about the
employe's work performance and its affect on their ability to work unlike the present
The County cites several other cases in support of its position that where the
previously warned or attempted to counsel a deficient employe prior to the act of discharge
avail the discharge has been upheld. However, those cases are also distinguishable from the
dispute. In West Chemical Products, Inc., 63 LA 610 (Dykstra, 1974), the County points
that the discharge for unsatisfactory job performance of an employe with twenty-five years
on the job
was affirmed. However, in West Chemical Products, Inc., unlike the present dispute, the
was given a written warning on six separate occasions that his performance was
the union and employer had agreed at a grievance meeting that the grievant be given 60
to 70 days
to correct his deficiencies or be terminated. Supra, pp. 610-611.
(Emphasis added) Another
important distinguishing factor is that in West Chemical Products, Inc., "there were several
customer complaints as to the manner in which the Grievant was performing his duties."
612. Complaints from clients and citizens were minimal to nonexistent herein. In Cisco
Protection, 91 LA 593 (koven, 1988), the County notes discharge was upheld where the
was found to have exhibited serious job deficiencies on several occasions, and even when
pointed out, the employe failed to correct them. In reaching his decision, the arbitrator
union's contention that "mitigating factors were present to show that a lengthier trial period
called for and that discharge was improper under such mitigating factors." Cisco Fire
supra, p. 595. The arbitrator rejected the primary factor relied upon by the Union;
satisfactory work performance for prior and subsequent employers." In the present case, the
had a prior good work record with the County. Also unlike the employe in Cisco Fire
the Grievant was not a new employe. His record of satisfactory service with the County
almost 17 years.
The County did initially give the Grievant adequate notice to improve his job
face possible discipline, including discharge. However, the County violated other aspects of
cause standard as discussed above. Therefore, the Arbitrator rejects this claim of the County
In addition, the County argues that the Grievant's incompetence placed the County's
of the benefit specialist program in jeopardy. The County adds that it should not be required
its operations in jeopardy by keeping an incompetent employe on the payroll.
It is true that certain parties perceived that the Grievant was incompetent and this
County's funding of the benefit specialist program in jeopardy. And the Arbitrator agrees
County's basic premise that it should not be required to put its operations in jeopardy by
incompetent employe on the payroll. However, as pointed out by Reserve Judge Daniel
Now I suppose that the county can take
position that when it learns that someone is going
to withdraw their funding they can impose discipline under the contract, but my view
would be that
whatever the county does, even if
funding is at stake here, because they have got a union
contract, they have to, they have to place
their discipline within the terms of the just cause provision of the union contract.
Wisconsin Council 40, Local 678, AFSCME, AFL-CIO vs. Lafayette County, supra, pp.
Therefore, the Arbitrator rejects any assertion from the County that the Grievant's
be upheld simply because the County's funding may be lost if the Grievant is reinstated.
Finally, citing Welch Foods, 96 LA 962 (Feldman, 1991), the County reiterates that
employe with lengthy seniority may be terminated for poor work performance where the
after being warned that he could be fired if he continued without change failed to protect his
Supra, p. 966. However, in Welch Foods the employe in question received four
and specific notice that the next violation would result in termination and failed to grieve any
Supra, pp. 962 and 964. The Grievant in the instant case grieved his prior
disciplinary action and was
successful in overturning the suspension. He also did not receive clear notice that the next
would result in termination.
Based on all of the foregoing, the Arbitrator finds that the punishment is not
appropriate because the County failed to follow progressive discipline and its own remedial
before discharging the Grievant.
Based on all of the above and in particular on the following: one, that the County
have a sufficient factual basis upon which to terminate the Grievant; two, that the County did
follow progressive discipline; three, that the County failed to adequately consider the
good work record; and four, that the County did not complete its own remedial plan before
prematurely discharging the Grievant, the Arbitrator finds that the answer to the issue as
to by the parties is NO, the County did not have just cause to discharge the Grievant, Robert
In reaching this conclusion, the Arbitrator has applied the standard noted above in
Employment Arbitration, supra, at s. 14.03, 14-5, in finding that the
County lacked just cause to
discharge the Grievant both for the actions complained of and for the level of penalty
In reaching the above conclusion, the Arbitrator has addressed the major arguments
parties relating to the Grievant's discharge. All other arguments, although not specifically
above, have been considered in reaching the Arbitrator's decision. 7/.
7/ For example, the County argues that it is not
necessary that members of the public must first complain
before the employer is entitled to take action against a deficient employe. King's Daughters'
96 LA 609, 613 (Curry, 1991). However, as noted above, the County has not established
sufficient factual basis
to support termination of the Grievant's employment. In addition, unlike the employe in
Medical Center, the Grievant was not a probationary employe and had not agreed in
settlement of a prior
grievance that any further work violations would result in his termination.
Supra, p. 609.
A question remains as to the appropriate remedy.
On July 20, 1998, the Arbitrator issued an Interim Award sustaining the instant
part while finding that "the County violated Article III of the collective bargaining
it failed to provide a written notice of the Grievant's discharge within three (3)
working days as
required by the agreement." The Arbitrator stated that he would "address the issue of
remedy at the substantive stage of this arbitration proceeding."
The County puts forward a number of arguments as to why "any sanction that might
imposed should be minimal in nature."
The County argues that it has "never" complied with the three-day
timeline specified in the
Agreement, and there has never been a grievance filed as to that past practice. (Emphasis in
However, Pickett also acknowledged that the Union had never granted a waiver in the past
three-day requirement. (Tr. p. 124). Pickett added that any extension of the three-day
was by mutual understanding. (Tr. p. 125). He also admitted that there was no such
with the Grievant. (Tr. pp. 125 and 138). He further stated that he could not recall any
disciplinary actions against unit members that had been grieved. (Tr. p. 143). Finally,
arguendo that there is a past practice which supports the County's position, its
argument still must
fail. Clear contract language requires the County to provide a written notice of the
discharge with the reason or reasons to the Grievant with a copy to the local Union within
working days after said disciplinary action is taken. Therefore, the Arbitrator rejects this
claim of the
The County also points out that no remedy has been bargained in the agreement
what is to happen if the three day notice, described in Article III, is not given within
that time period."
However, there is nothing in the agreement which restricts the Arbitrator's authority in
a remedy so long as the Arbitrator does not, as set out in Article IV, Section 4
"add to, detract from,
alter, amend, or modify any provisions of this Agreement or impose on any party hereto a
or obligation not provided for in this Agreement." Any remedy imposed by the Arbitrator
would simply be intended to reinforce the contract's requirement that the County provide
notice of disciplinary action, including discharge, within three (3) working days after such
action is taken. Such a remedy, therefore, would be in compliance with the aforesaid
Finally the County argues since it made every effort to involve the Union as well as
Grievant in the process (which the record contains evidence in support of) that any sanction
might be imposed should be minimal in nature. The County requests that if the Arbitrator
that a sanction should be imposed the Arbitrator direct the Employer to not violate this
portion of the
labor agreement in the future.
The Arbitrator agrees with the County that the sanction for violating the contractual
day notice requirement should be a direction to the County that it not violate this portion of
agreement in the future. It is important that unit employes be provided timely notice of
action as required by the collective bargaining agreement. The Arbitrator is of the opinion
sanction for the County's aforesaid contractual violation will discourage future violations of
contract provision and is a sufficient remedy for violation of the Article III notice
particularly in light of the reinstatement and make-whole remedy discussed below.
A question remains as to the appropriate remedy for the County's unjust discharge of
The County argues that it would be inappropriate to reinstate the Grievant because
been "massive" changes in the laws that benefit specialists deal with since the Grievant was
and the Grievant has not kept up with these changes. However, there are courses and
the Grievant could take to refresh his understanding of current rules and practices for benefit
specialists so the Arbitrator rejects this argument of the County. (Tr. pp. 294-295,
328 and 331).
The County also argues that reinstating the Grievant would not benefit the County or
citizens because of his approach to the job. In particular, the County criticizes the
that "all he needed to do was read the newspaper and newsletter articles to keep up" and that
"no need to attend classes on these subjects because he would forget what he learned before
needed it." There is some validity to the County's concerns. However, reading the
help the Grievant keep up to date with changes in the benefit specialist program. And, if
have the right information, a call to Social Security would provide answers to your questions
as "the latest update." (Tr. p. 472).
The County concludes by noting that the Grievant's "approach may have been
in 1980, but is certainly not acceptable in 1999." Based on the entire record, the Arbitrator
that this may be the crux of the problem. For many years, the Grievant performed his job in
satisfactory manner. However, the County wants the Grievant to perform his job differently
The County now wants the Grievant to move away from just handling basic cases and to try
his program "more accessible to the people who had more complicated problems." (Tr. p.
County wants the Grievant to do "all sorts of [new] things"; (Tr. p. 223), to be more
reach out to people that need to be reached; (Tr. p. 222), and to publicize programs that
under utilized by older people in the County. (Tr. p. 266). Yet the County sent mixed
this area. It adopted remedial and corrective programs to assist the Grievant in meeting
expectations and then turned around and disciplined the Grievant almost at the same time as
to meet management's expectations. The County failed to follow through in a clear,
manner in support of its own remedial program to assist the Grievant to perform at a level
now expected. Hagopian, the Elder Law Center and AgeAdvantAge also share in this
although it is the County, because of the contractual just cause standard, which bears the
The Arbitrator believes that the Grievant should share some responsibility for his
adopt to the new approach. Although Hagopian, the Center, AgeAdvantAge and the County
have acted in a manner that would cause the Grievant to act defensively toward efforts
improve his performance, the Arbitrator hereby puts the Grievant on express notice that he
comply with directives and reasonable work performance standards in the future if he hopes
continue as Benefit Specialist for the County. However, the Arbitrator will also reinstate the
and give him another chance to perform his duties as Benefit Specialist for the County based
County's failure to have just cause for his termination.
The authority of the Arbitrator to modify penalties deemed improper is addressed in
and Elkouri, supra, p. 913:
Where the agreement fails to deal with the matter, the right of
the arbitrator to change or
modify penalties found to be improper or too severe may be deemed to be inherent in the
power to decide the sufficiency of cause, as elaborated by Arbitrator Harry H. Platt:
In many disciplinary cases, the
reasonableness of the penalty imposed on an employee rather
than the existence of proper cause for disciplining him is the question an arbitrator must
is not so under contracts or submission agreements which expressly prohibit an arbitrator
modifying or reducing a penalty if he finds that disciplinary action was justified, but most
labor agreements do not contain such limiting clause. In disciplinary cases generally,
arbitrators exercise the right to change or modify a penalty if it is found to be improper or
under all the circumstances of the situation. This right is deemed to be inherent in the
power to discipline and in his authority to finally settle and adjust the dispute before him.
Based on all of the above and the record as a whole, it is my
The grievance is sustained and the County is ordered to: (1) reduce the
to a three-day suspension; and (2) immediately reinstate the Grievant to his former
position with all
seniority and rights he had under the collective bargaining agreement and make the Grievant
for all wages and benefits lost as a result of the discharge, minus the three-day suspension
wages the Grievant earned in the interim that he would not have received except for his
any benefits he may have received from unemployment compensation. The County is also
to post a notice for thirty (30) days acknowledging that it violated Article III of the parties'
bargaining agreement when it failed to provide a written notice of the Grievant's discharge
three (3) working days as required by the agreement and stating that it will not violate the
day notice requirement of Article III in the future.
The Arbitrator will retain jurisdiction over the application of the remedy portion of
for at least sixty (60) days to address any issues over remedy that the parties are unable to
Dated at Madison, Wisconsin, this 21st day of April, 1999.
Dennis P. McGilligan, Arbitrator