BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 1901, AFSCME, AFL-CIO
Mr. Bob Baxter, Staff Representative,
Wisconsin Council 40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. John C. Jacques, Assistant Corporation Counsel, Brown County,
on behalf of the County.
The Union and the County named above are parties to a 1997-1999 collective
agreement that provides for final and binding arbitration of certain disputes. The parties
Wisconsin Employment Relations Commission to appoint the undersigned to hear the
William Augustine. A hearing was held on December 22, 1998, in Green Bay, Wisconsin,
time the parties were given the opportunity to present their evidence and arguments. The
completed filing briefs by April 14, 1999.
The parties ask:
Did the Employer have just cause to terminate the Grievant? If
not, what is the appropriate
The Grievant is William Augustine, a certified nursing assistant, who has worked at
County's Health Care Center for 12 years. The Grievant worked on Unit 9 and was a
manager with a load of eight patients. He took care of patients with Alzheimer's and
such patients can be combative and violent during the time that they are being given care for
hygiene. The first hours of the shift are the busiest times for the nursing assistants.
When the Grievant started working at the Health Care Center in June of 1986, he
a set of documents, including personnel policies and the labor contract. He received a copy
employee handbook in January of 1987. The handbook states that excessive absenteeism
in dismissal. Under work rules and code of conduct, the handbook also states that excessive
absenteeism and being absent five consecutive days without notice is unacceptable conduct.
Employer also sends out a yearly notice about attendance and tardiness that goes along with
Article 27 of the parties' collective bargaining agreement provides that any
absences from work for more than five continuous work days shall be construed as voluntary
termination from employment. More about that article later.
On August 2, 1994, the Grievant selected the casual leave/disability plan instead of
on the prior sick leave plan. The collective bargaining agreement contains a sick leave plan
18 and a casual day/short term disability leave and long term disability plan in Article 19.
Grievant did not have any accrued sick leave time left by September of 1998.
If an employee is ill for less than three consecutive workdays, he or she does not
doctor's excuse. After three days, he or she is required to provide a doctor's excuse. Under
labor contract, claims for disability benefits must be submitted to the Human Resources
within four workdays of the initial absence. This requirement has been waived in
emergencies or if
someone is in the hospital.
The Grievant used short-term disability four different times since 1994. He had one
from September 21, 1996 to October 4, 1996, using 14 calendar days of short-term
used 92 calendar days from September 17, 1997 through December 17, 1997. He used 105
days from February 3, 1998 to May 18, 1998. His last leave was for 33 calendar days
from June 24,
1998 to July 26, 1998, although some of that was changed back to vacation starting July
Susan Gladh is a Human Resource Analyst in the County's Human Resources
who assists with disciplinary problems and terminations. On September 15, 1998, she sent
Grievant notice that his employment was terminated. The letter states the following:
Our records indicate that your Doctor released you to work
full-time effective 7/10/98 with the
restrictions of no climbing or operating heavy machinery. Since that time you have been off
August 20, 1998
August 24, 1998
August 25, 1998
August 30, 1998
September 1, 1998
September 2, 1998
September 3, 1998
September 4, 1998
September 7, 1998
September 8, 1998
September 10, 1998
September 11, 1998
September 12, 1998
September 13, 1998
September 15, 1998
Additionally you have exhausted your State and Federal Family
Leave entitlement prior to the
above stated dates.
In an effort to determine the reason for your
continued absences, Brown County sent you to a
fit for duty review with Dr. Sliwinski. Based on her recommendation, you were scheduled
to see Dr.
Hitch for further testing. We have been informed that you did not complete tests ordered on
September 3, 1998 by Dr. Sliwinski. Dr. Hitch requested you to complete the
testing on September
10, 1998. You informed Dr. Hitch that you had an appointment with Dr. Asma. Dr.
reported that you were too tired to attend the appointment.
Yesterday, September 14, 1998, your Supervisor Dawn Schaefer
called you at 10:00 AM and
asked you to come to the Mental Health Center to discuss this matter with her. You
indicated to Ms.
Schaefer that you were on standby and did not know if you could meet with her but you told
you would call her back. You did not call her back.
Today, September 15, 1998 Dawn Schaefer
called you at 8:40 AM and left a message on your
answering machine to inform you that she needed to meet with you prior to 1500. Ms.
requested you to call her back with a convenient time to meet. You did not return the call.
We have tried to work with you Bill, but you continue to be
unavailable. These absences are
considered to be unjustifiable.
Your employment with Brown County is terminated, effective
Please return your badge and keys to
Melanie Kirchman by Friday, September 18, 1998. If we
have not received your keys and badge by this date, the cost will be deducted from your last
The dates in the above letter indicate dates that the Employer claimed to be
absences, where the Grievant had not filled out any documents for short-term disability or
written excuses. The absences were recorded by the scheduler at the Health Care Center,
Kumm. There was another absence August 27th that Gladh
missed when writing the letter and
this date was also considered to be an unjustifiable absence. (All dates in this Award will
refer to the
year 1998 unless otherwise stated.)
The Grievant had a doctor's excuse for August 27th. Gladh
that the County did not
receive a doctor's excuse for August 27th until November
10th. The Grievant had applied for a
personal holiday for the date of August 20th, which was approved.
Dr. Stephen Asma is the Grievant's primary physician, having cared for him since
1993 at the
Prevea Clinic. Asma testified that the Grievant had problems over the past year with
hernia, gastroesophageal reflux, thyroid, high blood pressure and atrial fibrillation. The
on a number of medications for multiple medical problems, and the main problem during
dizziness. Initially, it was not clear to the doctor what was causing the dizziness. The
taking a medication called Zantac which helps to suppress acid in the stomach and treats the
esophageal reflux symptoms from his hiatal hernia. He started taking Zantac in March of
Asma stated that while the drug is generally well tolerated, it can have side effects such as
malaise, dizziness, insomnia, vertigo, confusion, abdominal pain, liver enzyme
abnormalities, rash and
Asma testified that it was not clear whether the Grievant's dizziness and confusion
by medication. Other physicians, such as Dr. Jane Sliwinski and Dr. Case evaluated him.
2nd, Case ordered a MRI scan of the brain and suggested neuropsychiatric
evaluation with Dr. Hitch.
Asma saw the Grievant on May 18th when the Grievant complained
of weakness and
unsteadiness. Asma was not able to diagnose the source of the unsteadiness and dizziness
continued throughout the spring and summer until September 15th, when he
made a connection
between the medication started earlier in the year and the symptoms. Asma determined then,
the neurological evaluation and a partial neuropsychologic test that Zantac could be the
made a diagnosis on September 15th that the Grievant's malaise, dizziness,
insomnolence and vertigo
were a side effect of taking Zantac, and he told him to stop taking it
and return in three days to see if the symptoms improved. The Grievant returned on
and he had improved, so he was told he could go back to work. However, by that time, the
had been terminated.
Asma's records showed that he wrote an excuse for the Grievant to be off work from
February 23rd through March 3rd, March
4th through March 6th with a return to work for March
March 9th through the 16th with a return to work for
March 17th. Asma saw the Grievant on March
20th and wrote an excuse with a return to work for March
23rd. Asma wrote a work excuse on May
5th that included April 16th until re-evaluated on April
27th. He saw the Grievant on April 27th and
wrote a work excuse until re-evaluated for elbow pain that the Grievant was suffering from at
time. The Grievant was getting an orthopedic evaluation of his elbow and supposed to get a
injection and physical therapy.
Asma saw the Grievant on May 5th and wrote an excuse for the
following week with a return
to work on May 12th with no limitations. On May 18th,
the doctor saw the Grievant again for
dizziness and returned him to light duty work on May 19th. On May
26th, the doctor continued to
leave him on light duty work until he could be re-evaluated in one week. On June
3rd, Asma wrote
a return to work with light duty for the next two weeks until he was re-evaluated. He also
a work excuse for June 1st and 2nd. On June
17th, Asma wrote a return to work for June 18th with no
limitations. One of Asma's partners, Dr. Warren, saw the Grievant on August
27th and wrote an
excuse with a return to work for August 28th. Asma said that his records
showed an entry for
September 4th and he believed the Grievant was seen on September
3rd by Dr. Hitch. On September
15th, the Grievant had a long office visit with a re-evaluation for September
18th, and Asma wrote a
work excuse for those days.
Asma noted that there was an entry for July 1st that the Grievant
was taken off the job for
confusion, and that he was confused at times and had difficulty understanding simple
Asma testified that if the Grievant were dizzy, he should not have been working.
Dr. Jane Sliwinski, an occupational medicine physician, evaluated the Grievant on
and June 24th for dizziness and confusion. She wrote a report dated July
10th recommending that the
Grievant return to work but avoid climbing and operating dangerous moving equipment. She
recommended that he undergo neuropsychiatric testing to assess his ability to return to work,
noted that an appointment was set up for September 3rd for that purpose.
That appointment was with
Dr. Hitch, and the Grievant kept that appointment but was unable to complete the testing.
testified that the Grievant called her on September 10th saying he was
getting dizzy and asked her
what to do, and she suggested that he contact his doctor. She also suggested that he make
ask his employer what was required of him so he could get whatever was necessary from Dr.
Hitch told Sliwinski that during the middle of the test, the Grievant felt dizzy and
took a break, but then said he could not continue. He canceled an appointment on September
to finish the testing he had started on September 3rd. Another appointment
was made for October
for the Grievant to finish the testing. He never completed the testing,
because he was terminated by then and believed that he might not have insurance or
the money to
cover the testing cost. Asma read into the record portions of a letter to Sliwinski from Hitch
September 3rd, in which Hitch described the Grievant's case as baffling,
difficult to pin down, very
complex, and difficult to make a conclusion based on cancellation of appointments. Asma
in his records a July 2nd letter from Neurology Consultants written by Dr.
Case, who ordered an MRI
scan of the brain, which the Grievant had. Case suggested that he undergo neuropsychiatric
evaluation before going back to work.
Paula Leuman is the Human Resources Coordinator in charge of short-term disability
administering the family medical leave in the Human Resources Department. She has
requests from the Grievant for short term disability benefits. Leuman sent the Grievant a
July 21st explaining that he had exhausted his federal and state family and
medical leave benefits, that
he was expected to return to work on July 27th, that he was scheduled for
testing on September 3rd
and that he could call her if he had any questions. Her letter also stated that his short term
benefits began on June 24th and concluded on July 10th.
The last part of the notice stated that if he
failed to return to work for reasons other than a continuation of a serious health condition, he
owe the County for insurance premiums by the County during the family and medical leave
Leuman testified that she has received return to work slips from Asma by regular mail, from
Sliwinski, and from either the Grievant directly or from the Mental Health Center.
Leuman mailed out a packet of the family medical leave documents for the Grievant
August 27th because the scheduler at the Mental Health Center asked for it.
Leuman did not receive
any information regarding the Grievant between August 27th and September
15th. She contacted the
Grievant herself on September 2nd and reminded him that she needed
doctors' excuses for the time
he was off from work. She also reminded him about his September 3rd
received a phone call from Sliwinski indicating that the Grievant attended the testing with
but that he could not complete it due to fatigue. Leuman called the Grievant on September
left a message to call her, but he did not return that call.
Jeannine Kumm is the nursing services scheduler at the Mental Health Center. She
all the nurses and nursing assistants and replaces employees who call in sick and keeps
those matters. Her schedule for a four-week period from August 22nd
through September 16th
showed that other employees replaced the Grievant 17 times during that period of time, up to
September 15th. Kumm would find replacements if the Grievant called in
during her regular hours
(8:00 to 4:30) for the next day. If the Grievant called before 8:00 a.m., the night house
Bruce Anderson would find a replacement. Employees who are calling in sick are required
to call at
least one hour before the start of their shifts. If they do not do so, the record shows a
"no-call-no-show" entry. Kumm's records showed that the last time the Grievant worked a
shift was August 29th.
If Kumm receives documents, such as doctor's excuses, she stamps them with a date stamp
that she has received them.
Bruce Anderson is the house manager on the night shift and is a RN. He
calls from the Grievant between August 20th and September
15th when the Grievant called in sick or
went home sick. On August 25th, Anderson recorded a no-call-no-show for
the Grievant, although
the Grievant had come in but got sick and left. Anderson called him at home and asked him
had not called, and the Grievant told him that he was dizzy and nauseated and couldn't make
it to a
phone. Anderson asked him why he would drive if he felt
dizzy, and the Grievant told him that he was careful and would pull over if he needed
then told him that his absence would be recorded as a no-call-no-show, since Anderson had
the contact with him. On at least one occasion, September 8th, the
Grievant told Anderson that he
could not return to work without a doctor's slip.
The Grievant's regular shift was to start at 6:00 a.m., although he and another
made a long term trade wherein the Grievant started at 7:00 a.m. beginning in the last part
However, that trade arrangement was supposed to end as of August 27th,
because the Nursing
Supervisor, Dawn Schaefer, refused to renew the trade between the two.
On August 27th, the Grievant came in at 5:40 a.m. and called his
floor from the employee
lounge on the ground floor. He told an RN, Judy Everson, that he was dizzy and couldn't
Everson told him to sit down, and she and Anderson went to see him. Everson took his
pressure, which was 190 over 110. Anderson's entry about this incident on the log refers to
blood pressure reading as "sky high" and that he was sent home.
A similar incident had happened a few days earlier, on August 24th,
when the Grievant came
in at 5:45 a.m. and called Anderson from the employee lounge saying he was having dizzy
was going home. Anderson encouraged him to sit down for awhile to see if the dizziness
Anderson stopped in the lounge within the next half hour to check on him, but he was gone.
Anderson's record's show that he talked to the Grievant almost every day between
20th and September 15th, at least on the days that the
Grievant was scheduled to work and when
Anderson was also on duty.
Dawn Schaefer is the nurse manager on Units 6 and 9 and was the Grievant's
Schaefer described the Grievant's absences after July as having a disastrous effect on patients
need continuity of care, particularly patients on Unit 9 who are fragile and suffering from
The staff that fills in does not know the patients well, and the patients become more difficult
handle. The fill-in staff is more at risk of being hurt by those patients. Schaefer stated that
many mornings when the remaining staff had to work short during the Grievant's absences,
had to cover his caseload and were frustrated and overwhelmed.
Schaefer called the Grievant on September 14th and asked him to
come in to meet with Gladh
at Human Resources. He told her that he just got off the phone with Asma and he didn't
know if he
could come in, that he was on standby and might have to call Hitch to finish his testing. He
her that he was still having trouble with dizziness, and that he knew that it looked bad but he
not handle patients feeling that way. He told Schaefer that he would call her later that
he could come in, but he did not call back. Leuman testified that Sliwinski left her a
September 14th, stating that the Grievant was not on a standby list for Asma
on that date.
On September 15th, Schaefer called the Grievant and left a message
on his answering machine
to come in any time to meet with her before 3:00 p.m. She left another message at 3:05
him to contact the house manager immediately when he got the message. He never called
On September 22nd, Schaefer received a request for short-term
disability from the Grievant.
She sent a note to Gladh, asking her what to do with the forms. She also received a
grievance on that
date regarding the Grievant's termination. Schaefer did not sign the form for short-term
She stated that the form was almost a month past due and these forms are usually submitted
timely fashion for approved leave. She was not aware that the Grievant was on any
The application for short-term disability from August 24th to September
4th was dated on September
8th, and the application for disability from September 7th
to September 18th was dated September 14th.
The Grievant has never been disciplined for attendance or sick leave abuse. He did
a good understanding of the casual day/short-term disability program. He acknowledged
the forms for disability from the County and that he had filled them out a couple of times.
Grievant testified that he had asked Asma to get the disability forms filled out but they were
ready. He testified that he repeatedly asked the doctor for the disability forms but the
were never ready until September 15th, when he was terminated. The
Grievant could not remember
who he gave the original doctors' excuses to. He started making copies of them at the
because there were some questions about them. The Grievant did not turn in a doctor's
September 4th until after September 15th. He said he was
not feeling well and did not want to drive
The Grievant received several positive employee performance appraisals until
became his supervisor. There were no negative references to his attendance record or use of
leave during most of his appraisals. Up until 1996, his supervisor was Shirley Gruender on
Schaefer became his supervisor sometime in 1996, and the Grievant was "shook up" when
him less than positive evaluations. In 1996, the Grievant wrote on his appraisal that he
Schaefer's comments on his performance. In his appraisal for 1997, his supervisor stated
performance had been minimally acceptable. The Grievant told Schaefer that he was upset
Cheryl Jahnke is President of the Union. She found out that the Grievant was
when he called her. There was no meeting between the Union and the Employer to discuss
termination before it took place. Jahnke testified that she knew of other instances where
had gotten doctors' excuses in late and were not terminated.
THE PARTIES' POSITIONS
The County asserts that the Grievant's sick call absences from work were
absences from August 30th to September 15th.
Unjustifiable absences of five continuous workdays
subject an employee to termination under Article 27 of the labor contract. The
record shows that for more than five continuous scheduled workdays, the Grievant
called in sick for
dizziness between August 30th and September 15th. Those
absences were unjustifiable. He called in
sick and/or failed to show up on 11 scheduled workdays August 30,
September 2, 3, 4, 7, 8, 10,
11, 12, 13 & 15.
The Employer's representatives left messages for the Grievant on September 14 and
report for a meeting but he failed or refused to attend a proposed meeting. Leuman
necessity of a work excuse, disability leave application and the neuropsych examination with
Grievant on September 2nd. The Grievant failed to complete that
examination on September 3rd and
on several occasions thereafter which were made available. Between September
3rd and the 15th, he
called in sick every scheduled workday eight days, more than the five necessary for
under Article 27. His absences were unjustifiable which justified his termination and
cause. It was not until September 22nd that he submitted documents
requesting medical disability
leave, several days after he was terminated on September 15th. It was not
until November 10th that
the medical excuses from work and return to work documents were submitted to the
The County submits that under these facts, the continuous failure to report to work
with the failure to submit a physician's excuse constituted a voluntary termination from
under Article 27 of the labor agreement. The Grievant confirmed that he knew on
September 2nd that
he would have to get a physician's excuse for the past and any further absences. A claim for
due to sickness must be submitted within four days of the initial absence under Article 19 of
contract. The Grievant's work schedule between August 30th and
September 15th contained more
than five continuous workdays during which he was absent without submitting a doctor's
in a timely manner.
The County argues that even if dizziness could be construed as a justifiable medical
for calling in sick, the Grievant's absences were excessive and constituted just cause for
Excessive absences have long been recognized as just cause for discharge. When absences
unreasonable and sporadic, termination is a recognized management right
even for bona fide illnesses. Arbitrators recognize that an employee must cooperate
employer. Arbitrator Bielarczyk construed the term "excessive absence" to mean absences
accrued sick leave benefits were exhausted. The Employer's work rules prohibit excessive
Attendance at work is considered an essential job requirement. The Grievant exhausted his
leave entitlement before August 30th and failed to apply or receive
short-term disability for an illness
for the day-after-day absences occurring after July 10th. His
absences after July 10th, with the
exception of a personal holiday on August 20th, were excessive under any
common sense use of the
The County points out that the Grievant was able to get several doctor's certificates
four short-term disability leaves for sicknesses between 1996 and 1998. The pattern ended
return to work certificate with limitations was given by Dr. Sliwinski. After that, the
absences from work for claimed dizziness became excessive. The 11 continuous
absences from work
must be considered excessive since all contractual fringe benefits and benefits mandated
federal and state medical leave acts had been exhausted. Once he exceeded those limits, his
Further, the County argues that the Grievant's failure to comply with the short-term
requirements in Article 19 meant his absences were unjustifiable. Leuman tried to get
and sent him the forms on August 27th. He did not return them within four
days as required by
contract and failed to respond to numerous employer contacts between August
27th and September
15th. The Grievant's belated attempt to submit the forms was not timely
because he had already been
terminated. The County believes that the Grievant's refusal to complete the neuropsych
testing is a
classic indication of malingering.
The Union did not explain why medical reports dated in August and September were
furnished to the Employer until November, and those documents should be excluded as
not relevant to the termination. Just cause was present on September 15th
and information submitted
after that date is not relevant. The documentation provided in November shows that the
was released to return to work on September 9th but he called in sick on
September 10th, the very next
day, saying that his doctor would not release him to come to work yet.
The County states that if the reports submitted in November were submitted in a
manner with a doctor's certification of sickness, a short-term disability leave might have been
as it had in the previous four leaves. The untimely physician reports dated
August 27th, September
4th and September 15th show that the Grievant suffered no
sickness which would excuse numerous
absences from work after August 29th. All absences after that date were
not excused by a valid
physician certification of illness and were therefore both unjustified and excessive. His five
continuous absences from September 9th through
September 15th have never been excused. There
is no general contractual right to retroactive submission or untimely submission of leave
medical excuses absent extraordinary circumstances.
The County asserts that the Grievant was given a chance to explain his absences but
show up for a proposed meeting. Even if he was sick and could not work, he could not have
so incapacitated to be unable to attend meetings. He was never hospitalized in this period for
claimed dizziness. He had adequate notice of meetings but failed to attend because he was
The labor contract procedures in Article 26 could not be violated by the Grievant's refusal to
meetings where he would have the opportunity to provide medical information or a valid
for his unexcused absences. Nothing in Article 26 limits the Employer's authority to
excessive absences. The Employer tried to meet with him but he refused to return contacts
and refused to provide information on September 10, 14 and 15. He was given numerous
a disability leave of absence required medical certification.
The Union claims that the Grievant was entitled to a hearing on September
15th to face his
accusers. There is no due process right to such a meeting in a situation where the Grievant
even respond to a proposed meeting on both September 14th and
15th. He also ignored the notice on
September 10th to contact Human Resources immediately. Article 26
provides for a fair hearing
before a neutral arbitrator to challenge a termination. Such grievance arbitration provisions
procedural due process.
The County further asserts that attendance work rules were applied fairly to the
In the last two years, he was on paid short-term disability leave and paid vacation/casual
as much as he actually worked. He had 240 calendar days on short-term disability between
September 1996 and August 29, 1998. The Grievant used up his accrued sick days in 1997.
attendance policy states that regular attendance is an essential function and minimum
an employee. Jahnke admitted that attendance rules have been uniformly enforced with all
and Rude-Pierce admitted that a medical certification is required for disability leave in every
The Union's challenge to a just cause termination is premised on a false factual
because Augustine was terminated solely because of his absences, not because of any alleged
which may have caused the absences. Many courts have held that regular attendance is an
element of all jobs. An employee who cannot perform because he does not show up for
be terminated for not showing up regardless of the underlying reason for absence.
The contractual disciplinary procedure was complied with, the County asserts.
relates to procedure for discipline, not the substantive grounds for discipline. Arbitrators
recognized the employer's substantive right to require regular attendance. The requirement
progressive discipline is procedural and has no application where the employee refuses to
and refuses to attend meetings offered to explain his absences. Moreover, the more specific
substantive provisions of Article 27 prevail over the general procedure of Article 26. Article
limits progressive discipline by noting that the type of discipline depends on the severity of
offense. While the Union is asking the arbitrator to reduce termination to a lesser
discipline or to
layoff contrary to the limitations in Article 26, the
arbitrator has no authority to reduce a valid discipline because of the limitation on
authority set forth
in Article 26. The County states that there is no contractual basis for a remedy of an unpaid
as suggested by the Union.
The County maintains that a discharge for unjustified absences and excessive
proper cause or just cause under Article 1 and Article 26. There is no dispute that the
absent without any paid benefits on the dates listed in the termination letter, except for
The other 16 missed workdays were unpaid days off without a valid medical excuse. No
need tolerate indefinite calls in sick without medical certification, and Article 19 requires that
certification within four days of the initial date of the last set of absences, which was August
The County claims that the Grievant's refusal to submit to the neuropsych exam was
conceal his true medical fitness for work. The medical reports dated August 27, September
15 do not mention any disabling illness and would not meet the requirements of Article 19.
If he was
truly medically disabled, he could have received paid disability leave under Article 19 upon a
medical certification within four days of the initial absence.
The Grievant's work history, including his attendance record, is an aggravating
County states. In his last two years of employment, his performance deteriorated as being
acceptable. His attendance record was totally unreliable after September of 1996. Given the
difficulty of replacing sick call-ins on each missed workday, the Employer had good cause to
terminate the Grievant for excessive absences. The County also claims that the Grievant
information regarding his doctor's appointments and his ability to work.
Article 19 of the labor contract does not allow retroactive excuses for absences. The
three-day requirement for medical excuse for an absence and the four-day limit for medical
disability are valid and have been evenly enforced. The Grievant seeks to submit retroactive
for unpaid absences and/or obtain a medical leave of absence or layoff. The labor contract
been violated and the grievance should be denied, the Employer concludes.
The Union makes two arguments in support of its contention that the Employer did
just cause to terminate the Grievant. First, the Grievant's health during the time frame in
was so poor that he was not able to work. Secondly, the termination letter contains several
inaccuracies. The Union notes that Article 26 gives certain grounds for immediate discharge
as dishonesty, intoxication on the job, use of illicit drugs on duty, etc. The Grievant was not
on any such offense that warrants immediate discharge under Article 26.
The Union asserts that the evidence clearly shows that the Grievant was too sick to
Both Asma and Sliwinski confirmed that fact. Sliwinski released him to return with certain
restrictions, and no testimony offered by Sliwinski contradicts Asma. It is undisputed
that the Grievant was told by his doctor to not report to work from September
4th through the 9th.
It is also undisputed that Asma was treating the Grievant on September 15th
with a return to work
slip issued September 18th. The Union claims that it is bewildered by the
Employer's contention that
the Grievant was physically able to work at this time.
While Leuman testified on behalf of the Employer, her testimony supports the
position. She testified about the number of times that the Grievant used the casual day and
plan in the labor agreement, as well as the length of time he was on approved family and
leave. Although she testified that she never received any doctor's excuses from the Grievant
time frame from July 10th through September 15th, she
does not receive all employee doctors' excuses
or sick slips. She never spoke with Asma or made any written inquiry of him. She spoke
with the Grievant and never followed up with him in writing. The Union urges that minimal
should be given to her notes, which were not made the same day as phone conversations that
The Union points out that another Employer witness, Anderson, testified that the
health was not good enough to allow him to work. He knew that on August
27th the Grievant's blood
pressure was 190 over 110, and that he would not advise him to work if his blood pressure
high. The Grievant was sent home by management on that date to protect his own health.
objects to Gladh's belief that the Grievant should not be excused from work on August
27th due to
his high blood pressure.
There are a number of inaccuracies in the termination letter, such as the dates that the
Grievant was allegedly absent without an excuse. Anderson spoke with the Grievant every
between August 20th and September 15th except when
Anderson was off. He was under the wrong
impression about the Grievant's starting time, which was actually 6:00 a.m. until August
Grievant contacted the Employer on August 20, 24, 25, 27, 30, September 1, 2, 4, 5, 8, 10,
15 prior to his starting time in compliance with the work rules. He was excused by his
September 5th through the 9th and from September
15th through September 18th. He had a personal
holiday on August 20th, he reported for work on
August 24th and 25th and 27th but
went home ill those
days. The Union believes that it has proven that the Grievant was too sick to work and that
complied with the work rules calling in before a scheduled shift. The termination letter is
Furthermore, the Union points out that the Grievant had 12 performance evaluations
his employment at the Mental Health Center, and the majority of them were excellent.
Schaefer became his supervisor in 1996, the Grievant was concerned that her evaluations did
reflect as positively on him. He wrote a note to dispute her evaluations, as he is not
takes his job lightly.
The Union also submits that the Employer violated the collective bargaining
agreement by not
giving the Grievant any form of progressive discipline. The Grievant's illness and
unavailability to work must be viewed as one occurrence, not as separate occurrences. The
Employer has agreed to follow progressive discipline except in certain
instances noted in the contract, such as dishonesty, intoxication on the job or the use of
on duty, etc. Since the Grievant was not accused of those offenses, he should not have been
summarily discharged. Article 26 of the labor agreement provides for a normal progression
disciplinary actions. In this case, the first three steps of the progressive disciplinary
The Union asserts that the Employer's reliance on Article 27 is misplaced because the
has proven that the Grievant was not unjustifiably absent for more than five consecutive work
The Union notes that arbitrators often find that progressive discipline is appropriate except in
of extremely serious offenses. The Grievant has a spotless disciplinary record and glowing
performance evaluations until Schaefer became his supervisor. Some consideration should be
to the past record. If the Grievant deserves some discipline, it should be in a much less
The Union states that the Grievant's due process rights were violated, as he never
opportunity to face his accusers. He found out that he had been terminated by telephone,
was no meeting between him and management and Union officials about the termination.
meeting held between the Union and the Employer was to determine how the Employer
create an inaccurate termination letter. No step three grievance procedure meeting was ever
Arbitrators have often refused to uphold management's action where it has failed to give an
some measure of due process. The Employer should remember that the purpose of discipline
correct, not to punish. The Union asks that the grievance be sustained.
In replying to the Union, the County states that the Grievant's continual absences
just cause to terminate him as set forth in the termination letter. The defense that there was
for all the absences for health reasons lacks any merit. Even if he had a health excuse for
between September 4 and 9, and September 15 and 18, there were no physician's excuses
for the absences for August 30, September 1, 2, 3, 10, 11, 12 and 13. There were 11
workdays of unexcused absences between his last day of actual work on August
29th and September
15th. Eleven unexcused absences in a four-week period constituted
excessive absences meriting
discipline. Asma's testimony indicated that there were no medical excuses between August
September 3 and September 9 and 15.
Even if retroactive submission of physician's excuses were allowable under the labor
the Grievant's four absences between August 30th and September
3rd remain unexcused as are four
absences between September 10th and September 15th.
County Exhibit #46 shows that the Grievant
was to return to work with no limitations on September 9th. There
are eight unexcused absences,
clearly excessive under the labor contract and attendance policy.
The County asserts that progressive discipline under Article 26 is not applicable to a
termination under Article 27 for five continuous unjustified absences. Article 27 applies to
Grievant's unjustifiable absences. It is the employee's responsibility under Article 19,
Article 27 and the work rules to submit a physician's excuse after two days of absence for
reasons. Leuman and Kumm informed the Grievant of the excused absence rules and the
of a physician's excuse. Schaefer tried to reach him on September 14th and
15th. He knew the
attendance rules. Article 26 is designed to correct an actual work performance deficiency,
Grievant didn't perform any work to correct. The Union ignored the requirements of Article
Article 1, but the arbitrator must consider those terms.
There is no requirement that a discipline decision must be preceded by a meeting
employee to allow him to present an explanation. While the Union claims that the Grievant
given a chance to face his accusers, he was given three separate chances to report to the
to justify his absences. He refused to show up for meetings on September 10, 14 and 15.
that his tape machine was flipped around is meritless. Procedural due process was satisfied
notice given by Kumm to the Grievant on September 10th. While the
Union cited language in Article
26 that provides some examples of dischargeable offenses, those examples are only
serious offenses and not the only offenses meriting immediate discharge.
The County asserts that the Grievant was not summarily discharged, as alleged by the
but that his continuous failure to show up for work without a medical excuse was a voluntary
termination. He was not terminated because of sickness or the use of sick leave/disability
leave/medical leave. He was terminated solely because of his unjustified absences from
County further asserts that his work record and attendance record in the last two years were
aggravating factors. He also gave false information on September 10th by
stating that he saw a doctor
on that date, when he did not. He had health insurance coverage for October of 1998,
his testimony, and he had no valid excuse for canceling his neuropsych exam in October.
whereabouts for proposed meetings on September 10th,
14th and 15th remain a mystery.
The County notes that the Union concedes the possibility that the Grievant may
level of discipline. The Union also is correct in stating that progressive discipline is to give
employees a chance to correct work performance. Since the Grievant did not show up for
had no performance deficiencies to correct. The Union would have the Employer grant an
unpaid leave, which conflicts with the language of Article 19. Reinstatement without back
unpaid leave would not correct the attendance rule infractions because the Grievant could
to call in sick without a negative consequence.
The Union takes issue with the Employer's claims about the date that the Grievant
his medical excuses. The Employer asserted that some of the Grievant's medical excuses
turned in for the first time on November 10th and that they should have
submitted when the grievance was filed on September 22nd. The
Employer is correct when it states
that the medical reports were not furnished by the Union until November
10th, the first day the Union
had the opportunity to give copies of the excuses to the Employer. There was no meeting
the Grievant, the Union and the Employer prior to the discharge. The Grievant testified that
to turn his excuses into an employee who was not in her office, and then went to the payroll
department and asked that Schaefer receive them.
The Union objects to the Employer's arguments that the medical excuses for
September 4th and 15th should not be considered by the
Arbitrator. The Union states that the
Employer objects because those documents prove the medical necessity and justifiable
the Grievant's absences. The evidence shows that the Grievant saw a doctor on September
was released to work on September 9th, and he was sick on September
10th with the same condition
that plagued him for months and forced him to use his casual/disability and FMLA benefits.
notified the Employer prior to the start of the work day that he was sick and followed policy
While the Employer claimed that the Grievant knew the consequences of not
neuropsychological testing on September 3rd, a review of the evidence
shows that he was reminded
to attend the appointment and to submit medical excuses. At no time between mid-August
and mid-September was he told the consequences of not attending a neuropsych test.
The Union agrees with the Employer's citation to Elkouri &
Elkouri regarding management
showing tolerance where the equities favor the employee. The Grievant's 12 years of
entitled him to better treatment than he received.
While the Employer claims that the Grievant failed or refused several offers from
to complete his neuropsych testing, the record shows that the Grievant kept his appointment
September 3rd but became ill and was not able to complete the tests. He
was placed on stand-by
September 10th but there were no cancellations. The Employer claims that
the Grievant should have
completing the testing in October, but the record shows that his medical condition was
he was released to report to work on September 18th. As Dr. Asma
testified, the Grievant's medical
condition was the result of side effects from medication, and once the medication was
side effects vanished and there was no reason for him to take the test to verify his medical
The Employer's claim that the Grievant was malingering is ridiculous, because the Grievant
received any compensation during the time frame of August 27th through
September 15th. Thus, he
had no financial motive to not report to work.
The Union further states that the Employer's contention that the Grievant's absences
work were unexcused and excessive is false. The Employer added the number of excused
absences to the number of alleged unpaid, unjustified absences and claimed
that the total number of missed workdays was excessive. It is inappropriate to connect
leave with the missed workdays which are the subject of this dispute. The Union believes
excuses justified the Grievant's absences. Three physicians had difficulty diagnosing his
condition, and the Employer was aware of that. The Grievant was doing the best he could to
cooperate with the Employer during a time when his health was poor and he was trying to
medical condition cleared up so he could return to work.
The Union takes issue with the contention that the Grievant received notice of
requests from management on September 14th and 15th.
Schaefer claims she left a message on his
answering machine on the 15th, but he never received it. Moreover,
Leuman's testimony regarding
the application of Article 19 of the collective bargaining agreement is incorrect. The
that the only excuse for not submitting a timely medical condition within four days of the
absence is emergency hospitalization. But hospitalization is not the only reason; it is only
Article 1 of the collective bargaining agreement provides, among other things, that:
Employer shall adopt and publish reasonable rules which may be amended from time to time
. . ." The
County introduced its handbook (Co. Ex. #10), which describes responsibilities, rights and
Section VI of the handbook issued in 1987, the first one the Grievant would have received,
among other things, that employees are expected to be on duty on scheduled workdays and
occurrences of absence within a six-month period will ordinarily subject an employee to
action. Also of note in the 1987 handbook in Section VII, there is a provision for
that states that an employee may be granted leave without pay for medical reasons after sick
benefits have been exhausted. The 1998 handbook states, among other things, the discipline
result from excessive absenteeism and the failure to report for scheduled work shifts for five
consecutive days without notifying the Employer. The new handbook was updated to include
"Family and Medical Leave" which would have replaced the "Medical Leave" section in the
The collective bargaining agreement has other articles that come into play in this
Among them are Articles 19, 26 and 27. Article 19 is complex and has several provisions,
not all of
which will be repeated here. The relevant portions of Article 19 come under the heading
Disability Leave" and are as follows:
Employees who have completed six (6) months of service shall be
eligible for disability leave pay
*On the job accidents or injuries of the
employee first day coverage at 75% of regular pay until
the start of long-term disability coverage (doctor certificate required).
*Sickness or an off the job accident or injury of the employee
coverage after three (3) work
days at 75% of regular pay until the start of long-term disability coverage (doctor certificate
All claims for disability benefits must be submitted to the County
Human Resources Department.
Claims arising out of sickness or an off the job accident or injury must be submitted within
work days of the initial absence. Claims must include a statement indicating the day the
first became disabled, the nature of the disability, and the employee's anticipated date of
Human Resources Department, within its discretion, may request from the employee's
written certificate indicating the first day of disability, the reason for the employee's
the anticipated length of such disability in the event the employee is absent for a period of
three (3) work days. The employer agrees to waive the foregoing requirement under
circumstances (e.g. hospitalization). Upon returning to work from disability, employees will
any required forms, furnished by the employer, for proper recording of disability leave.
In order to qualify for disability benefits, an employee must
report to the immediate supervisor
or other management designated employee at least one (1) hour prior to the employee's
time, except in the case of an emergency. All illness or injury must be reported every day
definite absence time is report on the first day of occurrence. It is understood by both
employees are expected to notify the employer at the earliest practicable time but no less than
(1) hour prior to the employee's normal start time, if they should be absent from work due to
. . .
Employees may use banked sick days to supplement the above
coverage and such days may be
used only after casual days are exhausted.
BANKED SICK LEAVE
Employees employed by Brown County prior to July 1, 1994 will,
upon enrollment in to the
Casual Leave/Disability Plan, have sick leave accumulated "banked" in a sick leave
account which may be used by the employee to supplement any 75% of regular pay benefit
for a disability. Banked sick leave may be used to make the employee whole for base pay
However, no additional sick leave benefits will accrue in the banked account. Fifty percent
of an employees' unused accumulated banked sick leave, up to a maximum of 90 days
payout 45 days) shall be paid upon eligibility for retirement or Social Security
. . .
The record shows that the Grievant was employed prior to July 1, 1994, that he
enrolled in the Casual Leave/Short Term Disability Plan on August 2, 1994, and accordingly
further accumulation of sick leave and had used all of his prior banked sick leave before the
The Employer is correct in stating that under Article 19, it is the employee's
submit claims for disability benefits within four workdays of the initial absence. But that
question or what? Be fired? Or not receive disability pay? Article 19 also says that
will waive that requirement under "extraordinary circumstances (e.g. hospitalization)."
Hospitalization is only one extraordinary circumstance, but it is not the only one. The
operating a health care facility and is aware that in this day of managed care, hospitalization
reserved for the truly incapacitated. People with heart bypass surgery don't stay in hospitals
than a couple of days anymore. One can easily be too sick to work but not nearly sick
enough to be
hospitalized. The parties have never expanded on the term "extraordinary circumstances,"
could encompass a strange situation such as that being experienced by the Grievant. He had
problems, multiple medications, vague symptoms, and no definitive diagnosis for several
that extraordinary or normal? One could argue that whether it is extraordinary
depends on one's
age and physical condition. Even if the Employer were not required to waive the four-day
requirement, the contract does not say what the penalty is for falling outside of that
Surely termination would be too harsh if one submitted the claim five days after the initial
or six days .
The Grievant's failure to submit a claim for short-term disability within four days
absence in strict accordance with the requirement of Article 19 is a factor to be considered in
context of the whole record and in any remedy. It is not such a strict requirement that he
his job for failing to follow that requirement precisely. Employees obviously should not
claims and expect to receive disability benefits. But the parties do not show anywhere in
contract or relationship that they expect people to be terminated for failing to follow the
requirement for submitting disability claims.
Articles 26 and 27 are the main provisions that are cited in this case. Article 26 says
following about dismissal and disciplinary procedure:
DISMISSAL: No employee shall be discharged except for just
cause. Any employee who is
dismissed, except probationary, shall be given a written notice of the reasons for the action at
of dismissal, and a copy of the notice shall be made a part of the employee's personal history
and a copy sent to the Union. Any employee who has been discharged may use the
procedure by giving written notice to his/her steward and his/her supervisor within ten (10)
days after dismissal. Such appeal shall go directly to
arbitration. If the cause for discharge is
dishonesty, intoxication on the job or drinking or use of
illicit drugs on duty, and/or if an employee is convicted in the illicit sale of drugs or pushing
the individual may be dismissed immediately from employment with no warning notice
DISCIPLINARY PROCEDURE: The progression of disciplinary
action normally is, 1) oral, 2)
written, 3) suspension, 4) dismissal. However, this should not be interpreted that this
necessary in all cases, as the type of discipline will depend on the severity of the offense.
warnings shall be maintained in effect for six (6) months, written warnings for twelve (12)
and disciplinary suspensions for eighteen (18) months during which time a repetition of an
can result in a more serious disciplinary action. In all such cases the employee shall have
the right to
recourse to the grievance procedure.
The grievance committee chairman or his designated
representative shall be present during all
disciplinary hearings and shall receive copies of all communications concerning disciplinary
The critical portion of Article 27 regarding termination is the following:
Any employee leaving employment except for legitimate reason
such as sickness, vacation or
granted personal leave, shall be considered a terminated employee. Any unjustifiable
work for more than five (5) continuous work days shall be construed as voluntary termination
employment. It is, however, understood that on any work day any employee unable to
his/her duties shall advise his/her supervisor prior to the commencement of said work day, if
The basic question to be addressed in this case is the following: what is an
absence" as stated in Article 27? It is undisputed that the Grievant was absent for more than
continuous workdays. The question is whether his absences were unjustified.
The sentence preceding the term "unjustifiable absences" in Article 27 is important,
it states that: "Any employee leaving employment except for legitimate reason such as
vacation or granted personal leave, shall be considered a terminated employee." (Emphasis
If sickness is a legitimate reason, it is also a justifiable absence. The Employer would agree
rationale. In fact, the Employer states that if the Grievant had properly returned doctors'
filled in the form for short-term disability, he might have been granted it and he would have
for his absences. Then his absences would have been justifiable.
In other words, the only thing the Grievant did wrong was not get the paperwork in
Employer in a timely manner. That cost him his job.
There are cases where immediate discharge is warranted. This is not one of them.
The language of Article 27 is clearly meant to apply to employees who abandon their
do not report to the Employer. It is somewhat common in certain employment settings that
employees simply do not show up for work and do not call in. That kind of conduct is
a voluntary quit, and Article 27 acknowledges it by putting a time limit of five continuous
on unjustifiable absences. The Employer does not have to continue to schedule such
may permanently replace them. However, Article 27 does not contemplate that employees
sick for several days be terminated. In fact, the contract language in that article equates
a legitimate reason for leaving employment. The last sentence of that article
also requires an
employee unable to perform his duties to advise his supervisor prior to the start of the
possible. The Grievant complied with that requirement. He notified his supervisor on all
He showed no intent of abandoning his job. He could not be considered a voluntary quit or
abandoned his job.
The Employer rested its case on the fact that it considered the Grievant's absences
unjustifiable and within the language of Article 27. However, the absences were justifiable
the lateness of the paperwork, and this factor alone should not be used to discharge an
has no other disciplinary record in 12 years of employment. The Employer also points out
Grievant had excessive absences in the last two years and that such excessive absenteeism,
of the cause, is an aggravating factor. It may have aggravated his supervisors enough to
an opportunity to fire him, but his attendance and absenteeism would have been a perfect
progressive discipline, if the Employer were indeed concerned about it.
The Employer correctly points out that in Article 26, the list of things that might
immediate discharges is not exhaustive, but an example of things. However, the Employer
attempt to discharge the Grievant under Article 26, where progressive discipline would have
appropriate and probably sustained for excessive absenteeism. Instead, it appears that it
it could find the five continuous workdays under Article 27. Instead of dealing with the
health problems and attendance problems, the Employer waited for an opportunity to get rid
employee who was considered by his supervisor, Schaefer, to be minimally acceptable in his
performance under her supervision.
It is true that an employee may be discharged for excessive absenteeism even where
underlying reason for such absenteeism is valid and without question. While the County has
that the excessive absenteeism is an aggravating factor to be considered, it does not take into
consideration the fact that this is a long-term employee without a record of sick leave abuse
who has run into a bad spell of health problems. Short-term employees with bad attendance
are given less deference than long-term employees with good
attendance and performance records. The Grievant's evaluations were positive, up
until a couple of
years ago when he got a different supervisor. His health problems or at least the use of
disability seem to coincide with that time frame. The Grievant was successful under
supervision but not under Schaefer's.
There are several pieces of evidence in the record that show that the Employer knew
should have known that the Grievant truly had health problems, but the Employer did not
the continuing problem of absences and lack of supporting documentation or paperwork.
Significantly, one of the Employer's own RN's took the Grievant's blood pressure on August
during the time frame that the Employer has claimed "unjustifiable." Anderson was present
RN recorded the Grievant's blood pressure as 190 over 110, and Anderson described it in his
being "sky high."
Also, Anderson talked with the Grievant almost every day during the critical period
August 20th and September 15th, and he was aware that
the Grievant was sick. It was September 15th
that Dr. Asma finally diagnosed the source of the Grievant's problems, the same day that he
terminated. It took that long because the doctors seeing him had looked at several things,
his blood pressure medicine, a CT scan of his head, as well as a partial neuropsychologic test
The Grievant finally turned in an application for short-term disability on
September 22nd, one
week after he was terminated. The Employer contends that it did not get the doctor's excuse
September 15th until November 10th. However, the
Grievant had filled out the short-term disability
form for August 24th through September 4th and
September 7th through September 18th at least by
September 22nd, when Schaefer reported that she received it in her mailbox
(Co. Ex. #39). The
supporting doctors' excuses were not attached to the forms for short-term disability, as
Again, the paperwork was late and partially missing. But it was not as late as November,
and it was
an attempt to show that he was not abandoning his job.
The Employer has strongly objected to the fact that the Grievant did not complete the
neuropsychiatric testing. But Leuman knew that he did not complete it because of fatigue.
called by Sliwinski and told about it. Leuman also knew that the test was being conducted
September 3rd, because she called the Grievant to remind him about it. Yet
the termination letter lists
September 3rd as one of the dates of so-called "unjustifiable absences,"
again due to the lack of
documentation. The Employer's own representative had actual knowledge of the reason for
absence. The supporting paperwork is a formality, and the September 3rd
date should not have been
considered to be an unjustifiable absence where the Employer had actual knowledge about the
medical testing being conducted on that date.
Therefore, the Employer knew the reason for the Grievant's absences, and the fact
Grievant had not produced doctor's excuses for all those absences does not mean that the
could have reasonably considered that the Grievant voluntarily abandoned or terminated his
employment. The Employer knew that the Grievant was sick. The proper paperwork might
been missing, but that was all.
The Employer considered the absences unjustifiable without the proper paperwork,
doctors' excuses, return to work forms, or applications for short-term disability. While the
knew or should have known that he had to comply with the Employer's demands for the
paperwork, it is much too harsh a penalty to discharge someone under these circumstances,
particularly where the Employer knew or should have known that this employee was having
bad run of health problems. The Employer would certainly have known that, had it run a
investigation of the situation.
The Union is correct when it states that there was no motive for the Grievant to be
"malingering" as the Employer claimed, because he was not collecting any compensation.
not on paid sick leave or short-term disability. What advantage would he have gained by
to be absent?
This Arbitrator has upheld this Employer in the past in a discharge matter where the
was unresponsive to the Employer. However, in that case (Case 503, No. 49571,
Grievant had been warned several times about being discharged. The Employer used
discipline to no avail. The Grievant had ample time to rectify her absences or notify the
of the reason for her absences. In that case, I found that the Grievant's failure to meet with
Employer should not be held against the Employer, because the Employer was trying to give
Grievant due process and had shown some forbearance and tried to work with the Grievant.
Employer tried to accommodate the Grievant and even gave the Grievant a last chance
In that case, there were also certain indications that the Grievant had abandoned her job.
In this case, the Employer has not shown that it has tried any progressive discipline,
it has tried to give the Grievant any due process, or that it has tried to work with the
Grievant has not given any indication of abandoning his job, unlike the above case. There
no attempt at a true investigation or accommodation. And most significantly, unlike the
there has been no warning of the consequences.
I agree that the Grievant needed to respond to the Employer's requests for medical
documentation, and that the Grievant needed to respond to the Employer's requests for a
on September 14th and 15th. In fact, the Employer makes
a good point that the Grievant's excuse
about his answering machine tape appears to be flimsy at best. The Grievant should bear
responsibility for his own conduct and lack of response to the Employer, because the
apparent attempt to investigate the matter was thwarted by the Grievant. Accordingly,
will allow the Employer to give the
Grievant a written reprimand for the absences of 1998 as well as the Grievant's failure
to respond to
the Employer's requests for a meeting. This reprimand may also warn the Grievant that
absences and/or continued failures to comply with the Employer's requests for medical
documentation or meetings may result in stronger discipline, including termination.
The Grievant is entitled to reinstatement and back pay and to be otherwise made
record is not quite clear on whether the Grievant would be entitled to short-term disability
dates in late August and September where his documentation was either missing or late. The
Arbitrator makes no opinion about payment for that period of time. This case is not about
or not the Grievant should have been receiving short-term disability, but it is about whether
the Grievant should have been discharged. I find that the discharge was not for just cause or
compliance with either Article 26 or 27 of the collective bargaining agreement. However, I
jurisdiction as noted below to resolve any disputes over the scope and application of the
The grievance is granted.
The Employer did not have just cause to terminate the Grievant, William Augustine,
ordered to immediately offer to him reinstatement to his former position or a substantially
position, and to make him whole by paying to him a sum of money, including all benefits,
would have earned from the time of his termination to the present, less any sum of money
The Employer may issue a written warning consistent with the discussion above.
The Arbitrator will hold jurisdiction until July 30, 1999, for the sole purpose of
disputes over the scope and application of the remedy ordered.
Dated at Elkhorn, Wisconsin this 7th day of May, 1999.
Karen J. Mawhinney, Arbitrator