BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
NICOLET AREA TECHNICAL COLLEGE
NICOLET AREA TECHNICAL COLLEGE
(Lois Gough Grievance)
Mr. Gene Degner, Executive Director, Northern Tier UniServ,
on behalf of the Association.
Michael, Best & Friedrich, by Mr. Robert W. Mulcahy, on
behalf of the College.
The above-captioned parties, herein "Association" and "College", are signatories to a
collective bargaining agreement providing for final and binding arbitration. Pursuant thereto,
was held in Rhinelander, Wisconsin, on December 1, 1998. There, both parties agreed that
retain my jurisdiction if the grievance is sustained. The hearing was transcribed and both
subsequently filed briefs and reply briefs that were received by March 1, 1999. Based upon
record and the arguments of the parties, I issue the following Award.
Since the parties were unable to jointly agree on the issue, I have framed it as
Did the College have just cause under Article VI and Article
XIV, Section C, of the contract to
suspend grievant Lois Gough for the first semester of the 1998-1999 school year and, if not,
is the appropriate remedy?
Gough has been employed as an English teacher by the College for about 30 years.
Prior to the instant dispute, she received a written warning in January, 1996, over her
refusal to obtain
recertification and to sign and return her individual teacher contract on time.
In the summer of 1998, she taught an American Literature course which included
on civil disobedience and Henry David Thoreau's book On Civil Disobedience.
Gough was not
required to teach that summer course because it was outside the scope of her regular
It is undisputed that Gough on July 8, 1998 (unless otherwise
stated, all dates herein refer to
1998), spray-painted in very large letters over 12 inches high the Spanish word "OMELAS"
back of two large bookcases in her third floor office.
Gough testified that her students had lost interest in their readings on
she concluded that she had to do something to spark their interest; and that she spray painted
word "OMELAS" which apparently was the name of a mythical town in a short
story she intended
to discuss with the students (Union Exhibit 3) - to demonstrate the meaning of civil
which was the main point of the "OMELAS" short story.
. . .
What I thought I would do is I would use the word Omelas
take the students (past the
book cases) up on Thursday. We would have walked upstairs, gone past the word, and I
asked them before we went up not to comment, not to ask questions, just to follow me,
notice things, and come back down.
I chose the spot that I did because in summer it's not highly
trafficked. I think Nita mentioned
we have about a third of the regular business of the college going on in the summer. I teach
individually arranged courses and I had most of the people coming up were my own
of whom on Wednesday morning identified the word for me. He knew what it was. He had
short story of the ones who walked away from Omelas. And no one called me at home on
I come in later when I have the night class. I was working coming in about 2 or 2:30,
in there, meeting with some students. When I came in, I had three questions prepared. I
to take the students past the mural and bring them back to the classroom and then I
was going to start out and ask them, first of
all, what did you see. Certainly one or more would
say well, we saw this strange word and probably try to pronounce it. I find it to be echoic
word homeless in my interpretation of the allegory that it comes from so I pronounce it
The second question that I planned on asking them would be
what does it mean and they
might or might not know. Some of them it's perfectly possible and I at least considered the
perhaps students would have known the story, would have read the story, and identified it in
case I wouldn't I would have the student explain what the story was. I wouldn't do
Third, before I explained the story to them, I was going to
them a question about the
method of presentation. Again, part of what they had seen. Of course, I didn't get to do
any of that
because when I came in on Thursday, the word had been removed. One of the reasons that I
think it necessary to tell Sam that I would have removed it was that it had already been
Director of Human Resources Robert A. Pound suspended Gough via an August 13
. . .
The purpose of this letter is to confirm your disciplinary
suspension without pay during the fall
semester of the 1998-99 academic year. I had notified you over the telephone on August 11
would be suspended for that period of time. Specifically, the dates of your suspension are
21, 1998, through December 18, 1998 (80 work days). You are to report for work on the
day of the winter semester which is January 18, 1999.
On August 5, 1998, an investigatory
meeting was held to discuss the incident of spray painting
of the word OMELAS on the backs of the bookcases that comprise one wall of your office.
of these bookcases are located to the immediate left of one of the entrances to the third floor
University Transfer Center, and comprise part of a public hallway. Present at the
interview were you, Ethan Cummings, Faculty Union President, Gene Degner, Director of
Tier UniServ, Nita Fisher, Vice President of Instruction, and me.
During that meeting, I asked you if you had spray painted the
word on the back of the bookcase,
and you indicated that you did so on July 8, 1998 at approximately 10:00 a.m. in the
I asked you why you did that, you responded that you were preparing to teach a class in civil
disobedience and you intended to take your class upstairs to see the painted bookcase as an
of civil disobedience. You also indicated that you did not take your class upstairs because
had sanded off the word, prior to the class meeting at 5:00 p.m. on July
I also asked you if you sought permission to
spray paint the back of the bookcase. You indicated
that you did not seek permission from anyone because the word would only be there for
approximately three days. You further indicated you did not consider that painting the back
bookcase was defacing or damaging Nicolet property, that you had the right as a taxpayer to
and that you did not know why it was prohibited. I asked you if you were trying to convey
to the college by spray painting, and you indicated that you "might" be making a point.
When I asked
if you would share that with us, you indicated that you would not do so because I could not
anything about it.
I asked you what you thought would be
appropriate discipline for your spray painting the back
of the bookcase, and you indicated that we should fire you. I asked you if you were serious
answered "Yes". When I re-asked you what you thought appropriate discipline might be,
me for specific possibilities. I listed the following as possible outcomes; doing nothing, oral
reprimand, written reprimand, suspension, and discharge. You indicated that given those
you thought an appropriate outcome would be to give you a bonus. When I asked which
in this list I had just given you might be appropriate, you repeated that you thought you
Nita Fisher asked you why you did not
choose to paint the word on a piece of paper or
cardboard, and you indicated that you painted the bookcase because paper or cardboard
make the impact you wanted. Nita asked how this could serve as an illustration of civil
if you did not believe that you were breaking the rules. Your response was that it was
I believe the rationale you offered at the
investigatory meeting for spray painting the back of the
bookcase was both well thought out on your part and without credibility. There are two
I reached this conclusion. First, on July 29, I spoke to you on the third floor of the
Center to inform you about the investigatory
meeting that would occur on August 5, 1998.
When I informed you of that meeting, you asked if you were going to be fired. I indicated
one possible outcome; however, we wanted to meet with you and your union representatives
your side of the story and that no decision had been made on what, if any, discipline might
You also asked if I would give you a list of the questions that I was going to ask you. I
that I had not formulated all the questions but I knew that I would ask you, 1) Did you spray
the back of the bookcase, and 2) if so, why? You responded that you did spray paint the
back of the
bookcase, but when you reflected on why, you indicated you had no idea why you did that.
offered that possibly you did that because you and your father used to have political
you were a child. If you had spray painted the back of the bookcase for the reasons you
in the investigatory meeting, you certainly could have been forthright and told me on July
Second, on July 9, 1998, at approximately 3:00 p.m., Sam Bass had a conversation with you
concerning the spray painting incident. Sam had just completed trying to clean the word off
of the bookcase. When Sam asked you why you spray painted, your response to him was
that he was
trying to impede your right to express yourself and that you believed it was your first
right to do that. You were aware that Sam had attempted to remove the word from the back
bookcase; however at no time did you indicate to Sam why you spray painted the word or
intended to clean the bookcase yourself. Therefore, I find the explanation of this event that
offered at the investigatory interview to be without credibility.
Nicolet views the spray painting incident as
very serious and one that defaced and damaged
Nicolet property. When the seriousness of our concerns were conveyed to you during the
investigatory meeting, your response was that you thought the appropriate course of action
be to give you a bonus. I find that response to be both flippant and indicative of your
Nicolet College as your employer.
For the reasons set forth above, we decided
that a one semester disciplinary suspension without
pay was appropriate. When I spoke with you by telephone on August 11, 1998, I indicated
believed a one semester suspension was appropriate because, in our opinion, to put students
position of having two instructors for the same class in the same semester would be
in terms of their learning process. You indicated to me that you agreed with this analysis.
Prior to your returning to work on January 18, 1999, we will
schedule a meeting with you to
discuss your conduct and the ways you believe are permissible to express yourself in the
As mentioned earlier, we believe this
incident to be very serious in nature, and if you engage in
this, or similar types of behavior in the future, you will be subject to further disciplinary
to and including discharge.
Pound testified at the hearing that the contents of his August 13
letter to Gough were correct, as he
went into greater detail about what had happened. His testimony was partly coroborrated by
Vice-President of Instruction Nita Fisher who testified about her role in this incident and her
with Pound that Gough should be suspended for one semester.
Gough testified that she was being facetious when she told Pound she deserved a
she told him that the spray painting was a symbol because she wanted her students to "accept
word as a symbol of injustice"; and that she became "a bit frustrated with [Pound] at this
some of my answers do then and later do reflect that".
Gough subsequently served out her suspension for the first semester of the 1998-1999
year, during which time she had been scheduled to teach about five English classes.
POSITIONS OF THE PARTIES
The Association asserts this case "is about a professor who believes academia arises
all else" and that Gough painted the word "OMELAS" as a "teaching technique"; that the
suspension was "extremely punitive" because Gough lost about $26,130 in wages when she
suspended for the first semester of the 1998-1999 school year; that the College "had several
of a lesser form of punishment", but chose not to exercise them because the College really
Gouugh to take early retirement; that the College's investigation was unfair partly because it
conducted with an "open mind"; and that the District did not comply with all of the other
requirements of the just cause standard. As a remedy, it asks that "a more reasonable
imposed and that Gough be made whole for all the wages and benefits she lost as a result of
The College contends that it had just cause to suspend Gough for the entire first
because it satisfied the seven "tests" set forth in Grief Bros., Cooperage Corp., 44 LA 555
(Daugherty, 1964); because the "grievant's admission of guilt and lack of remorse calls for a
punishment"; because "Discipline is a function of management and must not be reduced if
management operated in good faith when reaching its decision"; and because Gough's
not involve academic freedom.
In agreement with the College, I find that Gough engaged in gross misconduct when
defaced school property by spray painting the word "OMELAS" on the two bookcases by her
I find inexplicable, however, why she did what she did, as I have gone over her testimony
over again in order to fathom her actions, only to conclude that they are simply
Hence, there is no merit to the Association's assertion which it initially
dropped at the first
step of the grievance procedure - that Gough's misconduct was protected by Article VI of the
contract, entitled "Academic Freedom", which states:
A. The spirit and policy of this institution, developed and
sponsored under progressive
administrative and employee leadership, encourages the teaching, investigating and publishing
findings in an atmosphere of freedom and confidence.
B. This spirit and philosophy is based
on the belief that when students have the opportunity to
learn and acquire knowledge from a variety of sources and opinions in an atmosphere of
open inquiry, they will develop greater knowledge and maturity of judgment.
C. Therefore, the freedom of each
bargaining unit employee to present within his/her classroom
the truth as he/she understands it in relation to his/her area of professional competence is
to the purposes of our college and society and shall continue to be upheld by the Board and
D. When the bargaining unit employee
speaks or writes as a citizen, he/she shall be free from
administrative and institutional censorship and discipline. However, the bargaining unit
the responsibility to clarify the fact that he/she speaks as an individual and not on behalf of
E. Bargaining unit employees shall be
responsible for the relevancy of the lecturer's or guest
speaker's subject matter to the course.
For while this language in other contexts may protect even stupid freedom of speech, it
does not protect the kind of stupid defacement of College property found here.
That being so, the only difficult question here is determining what punishment is
under the contractual just cause standard found in Article XIV, Section C, of the contract.
Gough earlier received a written warning for refusing to obtain recertification
and for refusing to turn in her 1995-1996 individual teacher contract on time (which
unfathomable), and since her misconduct here is so serious, the College had just cause to
up the disciplinary chain by suspending her.
Any such suspension, however, must be proportionate to the monetary and any other
she caused. Here, Pound testified that the two defaced bookcases can be replaced with new
bookcases costing about $500 each if they are purchased from outside vendors and that the
itself can build new ones for $350 each. Assuming arguendo
that new bookcases are needed, Gough
therefore lost about $26,130 in salary (because of her first semester suspension) for causing
$600- $1,000 damage to College property. The Association therefore claims that the
have ordered her to buy new bookcases."
This is a good point because such a punishment would be directly proportionate to the
damage she caused. I therefore conclude that the College can order Gough to pay
two new bookcases to replace the ones she defaced and which, in spite of efforts to totally
it, still show faint traces of the word "OMELAS".
A short suspension without pay ordinarily also would be in order because that is the
of time that most suspensions last; because a short suspension is in line with the gravity of
Gough did; and because the College has already issued Gough a written warning over her
seek recertification and to return her individual teaching contract.
But here, the College asserts that it was too impractical to suspend Gough for
than an entire semester and it also contends in its reply brief, at 7, that it was entitled to
heavier discipline in part because: "Pound testified that the attitude and the responses of the
were a factor in the decision in the quantum of discipline." This claim also brings into play
Association's charge that the College did not conduct a fair investigation before it disciplined
and that it imposed a lengthy suspension in order to force Gough into retirement.
Contrary to the Association's claim, I find that the College conducted a fair
that it did so in spite of Gough's refusal to cooperate and to give straight answers about why
what she did. She at various times thus told Pound that she did not know why she did what
that she had no explanation for her actions; that she did so as a teaching technique tied into a
about "Omelas"; that she should be fired; that she should get a bonus; and that she would be
to teach without pay during the first semester with another teacher.
The Union claims that Gough reacted the way she did because she was goaded by
I disagree. Pound's investigation was full, fair and objective. The same cannot be said for
actions during the investigation. Indeed, Gough's responses during the
investigation make it easy to understand why her behavior after July 8 only caused the
Nevertheless, her behavior was insufficient to constitute a separate grounds for
Hence, the College's decision to suspend Gough must stand or fall solely on
Gough's defacement of
the two bookcases.
I conclude that the College lacked just cause to suspend Gough for an entire semester
that suspension caused her to lose about $26,130 in lost wages for defacing $600-$1,000
College property, as the just cause standard requires proportionality between an act of
and the severity of the discipline imposed. For, while the College cites considerable
authority for the proposition that arbitrators should defer to management's discretion when it
time to assess the appropriateness of a given penalty, I believe the better view has been
arbitrator Harry H. Platt who stated:
. . .
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.
. . .
See How Arbitration Works, Elkouri and Elkouri, (5th
Edition, BNA, 1997), at 913.
This view is also stated in Labor and Employment Arbitration,
Bornstein, Gosline, Greenbaum
(2nd Ed., Matthew Bunder, 1998), which states, at 14.03(3), 14-12, 13:
. . .
-Just Cause for the Penalty
As noted earlier, the arbitrator's responsibility in discipline
cases includes determining whether
there was just cause for the quantum of discipline imposed. Some arbitrators, having found
discipline was justified,
decline to review the propriety of the
penalty because they are unwilling to substitute their
judgment for that of the employer, especially where the submission agreement does not
arbitrator to review the amount of discipline. Yet if they are unwilling to substitute their
for that of the employer on the issue of whether the grievant acted improperly so as to justify
discipline, they should be willing to review the employer's judgment on the quantum of
imposed. The credibility of the whole grievance and arbitration system hinges on review of
penalty to assure that it is in conformity with the guiding precept of progressive or
than punitive, discipline. (footnote citations omitted)
. . .
The College asserts it could not impose any suspension lasting less than a full
because that would have necessitated finding a replacement for Gough during her suspension,
destroying the continuity that exists when only one teacher teaches a course during a full
The College thus cites Vinton Community School District, 83 LA 632 (Madden, 1984),
Arbitrator Stanford C. Madden ruled that a school district did not violate the contract when it
a teacher's transfer request to another class because: "The Board was entitled to give great
in considering her case, to the advantage enjoyed by the pupils of the District in retaining her
present assignment." Id., at 635.
That case, though, is materially different than this one because it centered on whether
district violated the contractual transfer clause which gave it broad discretion in determining
a transfer request should be granted, whereas this case involves application of the just cause
one which places far greater restraints on the College's area of discretion and which
with it different policy considerations. In addition, the teacher there was already scheduled
the beginning of the school year because of her need to take pregnancy leave, thereby
it is possible for a teacher to miss part of a school year without the damaging
Moreover, teachers regularly miss work for all kinds of reasons, including the taking
under the Family and Medical Leave Act ("FMLA") which can last up to 12 weeks. While
Vice-President of Instruction Fisher testified that the situation with the FMLA was different
because it is
a "legal requirement" and that "there is no choice in the matter but to grant that", the
also was required under the contractual just cause proviso in Article XIV, Section (C), to
"legal requirements", which in this case means imposing a penalty that is proportionate to the
misconduct involved. This latter "legal requirement" must be followed even if the College
distasteful to do so by breaking up the continuity that is otherwise created by only having one
throughout the semester.
I therefore conclude that the District lacked just cause to suspend Gough for an entire
semester. Instead, it at most was entitled to either: (1), suspend Gough for the remainder of
summer session; (2), not offer Gough a summer job in 1999; or (3), suspend
her for one week during
the first semester of the regular 1998-1999 school year. Since the District did not choose
any of these
options, I find that Gough's semester-long suspension should be converted to a one-week
and that the District is entitled to now deduct one week's salary from her backpay award
which is to
cover all the wages and benefits she lost as a result of her original suspension, minus any
benefits she earned during that time period that she ordinarily would not have earned. In
the District can deduct from the backpay award the $600-$1,000 it takes to replace the
bookcases, depending on whether the College purchases new bookcases from an outside
whether the District's carpenter makes them.
In light of the above, it is my
1. That while the College had just cause to impose some form of discipline on
Lois Gough for defacing College property, it lacked just cause under Article XIV,
Section (C), to
suspend her for one semester. Her one-semester suspension is therefore converted to a
2. That to make her whole, the College shall reimburse grievant Lois Gough in
manner described above.
3. That to resolve any questions that may arise over application of this Award, I
retain my jurisdiction for at least sixty (60) days.
Dated at Madison, Wisconsin this 12th day of May, 1999.
Amedeo Greco, Arbitrator