BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WALWORTH COUNTY (County Clerk)
WALWORTH COUNTY COURTHOUSE EMPLOYEES
WISCONSIN COUNCIL OF COUNTY AND MUNICIPAL
(Grievance concerning discharge of F__ D__)
von Briesen, Purtell & Roper, SC, by Mr. James R.
Korom, appearing on behalf of the County.
Mr. Laurence S. Rodenstein, Staff Representative, Wisconsin
Council 40, AFSCME, AFL-CIO, appearing on behalf
of the Union.
At the joint request of the Union and County noted above, the Wisconsin
Relations Commission designated the undersigned Marshall L. Gratz as Arbitrator to hear
a dispute concerning the discharge of the Grievant. That dispute arose under the successor to
parties' 1994-96 agreement, which the parties agree was identical to the 1994-96 agreement
respects material to this dispute. That successor agreement is referred to herein as the
Pursuant to notice, the dispute was heard by the Arbitrator at the County Highway
Office near Elkhorn, Wisconsin on August 6, 1998. The proceedings were not transcribed,
the parties agreed that the Arbitrator could maintain a cassette tape recording of the
arguments for the Arbitrator's exclusive use in award preparation.
Briefing was completed on September 15, 1998, marking the close of the record.
At the hearing, the parties authorized the Arbitrator to decide the following issues:
1. Did the Employer violate the contract when it terminated
Grievant F__ D__?
2. If so, what is the appropriate remedy?
At the hearing, the County offered to present certain
acquired by the County after the
decision was made to discharge the Grievant. The Union objected to consideration of such
after-acquired evidence as regards the Arbitrator's resolution of ISSUE 1, asserting if it was
all, it would only be so as regards ISSUE 2. The County then requested that the Arbitrator
to reopening the hearing for the purpose of receiving that evidence in the event that the
concludes that the discharge violated the Agreement. The Arbitrator reserved ruling on the
request in that regard pending the Arbitrator's resolution of ISSUE 1.
PORTIONS OF THE
ARTICLE VII - SENIORITY
. . .
7.03 Probationary Employee.
a. Probationary Period. New
employees shall be on a probationary status for a period of six months, however, such
period shall be extended by mutual agreement only, for an additional thirty calendar days for
individual employees as
the need arises. If still employed after such date, their seniority shall date from the first day
of hiring and eligible
employees shall receive sick leave and vacation benefits from their first day of hire.
b. Termination. Probationary
employees (new employees) may be terminated at any time at the discretion of the
County. Discharges during the probationary period shall not be subject to the grievance
. . .
ARTICLE XXVI - DISCHARGE
. . .
26.01 Right of County. The
County shall have the right to discipline or discharge any employee for just cause.
. . .
26.06 Work Rules -
Discipline. Employees shall comply with all provisions of this Agreement and all
work rules. Employees may be disciplined for violation thereof under the terms of this
Agreement, but only for just
cause and in a fair and impartial manner. . . .
The Union represents a bargaining unit consisting of certain courthouse employes of
County. The County and Union have been parties to a series of collective bargaining
covering that unit, including the Agreement.
Prior to her April 15, 1998, discharge, the Grievant was employed as a Clerk III in
Clerk's office. Grievant was encouraged to apply for that position and ultimately hired by
immediate supervisor, Kim Bushey, who first took office as elected County Clerk in January
Grievant began work as the Clerk III on August 25, 1997, and successfully completed her
probationary period on February 25, 1998.
Bushey's April 15, 1998, memorandum memorializing Grievant's discharge reads in
part, as follows:
A meeting was held today with the following participants:
Kim Bushey, Andrea E. Lazzeroni, F__ D__ - Clerk
in the County Clerk's Office, Jeannine Palenshus - Union Representative.
The discussion began by reviewing various
work related accuracy problems that Ms. D__ was having during her
employment in the County Clerk's Office. A review was conducted of what had transpired
to correct these issues. A
summary of these problems, prepared by Kim Bushey, is attached. These problems have
been taking place the entire
period of employment of Ms. D__ within the department. The discussion then focussed on
the fact that Ms. D__ had
lied to Ms. Bushey.
Ms. Bushey reminded Ms. D__ that she had
been repeatedly instructed that if there were any problems, Ms. Bushey
was to be made aware of them immediately. Ms. Bushey also indicated that she had spent
many hours reviewing the
work completed by Ms. D__ because of the on-going problems i.e. corrections to County
Board Payroll. Ms. Bushey
asked Ms. D__, "Why did you lie to me when I inquired many times whether the
DNR Account had
reconciled each month?" Ms. D__
indicated that she lied by indicating that they had reconciled because she did
not want to admit anything to the contrary. A. Lazzeroni asked Ms. D__ if she received
the support she needed when
there had been other problems in the past and Ms. D__ indicated that she had. A. Lazzeroni
told Ms. D__ that lying
to Ms. Bushey constituted Misconduct and Insubordination.
At that time Ms. D__ was informed that the
employee/employer relationship had been irrevocably broken and that
her employment was terminated. She was informed who to contact to discuss her benefits
and any other questions that
she may have regarding the termination. She was offered the opportunity to tender her
resignation. Ms. D__ indicated
she would consider it and let Ms. Bushey know whether she would resign and when she
would pick up her personal
The January 19, 1998, grievance giving rise to this
reads, in pertinent part, as
On 4-15-98 Grievant was discharged for alleged inadequate
performance. Of the alleged performance issues none
had been made known to grievant through established rules of progressive discipline.
Additionally, the absence of
training appears to be a factor for successful performance. Alleged misconduct and
insubordination were reasons given
for discharge when the above listed allegations are the core of the need for this formal
. . . (Article or Section of contract which
was violated if any) Articles 1.01, 2.01, 26.01, 26.06, and any and all
other articles, sections and statutes that may apply.
. . . (corrective action desired): (1) Make
the Grievant whole; (2) restore grievant to full-time position; (3) restore
to Grievant any and all lost wages and benefits; (4) compensate Grievant for any and all
economic damages; (5) remove
any and all references to this discharge action from any and all files; (6) cease and desist
from further violations as
stated above; (7) provide Grievant with a written apology.
At the hearing the County presented testimony by Bushey
rested. The Union presented
testimony by County Human Relations Department Assistant Director Andrea Lazzeroni,
officer and Courthouse employe, Dian Struck, and the Grievant and rested. The County
recalled Lazzeroni and Bushey on rebuttal, and the evidentiary hearing was concluded.
It is undisputed that Grievant's duties included monthly reconciliation of the
through which some $600,000 flows annually in receipts from sales of
State Department of Natural
Resources hunting and fishing licenses to recreational sportspersons. Some of the licenses
by the County directly, but most are sold through agents such as K-Mart who are credited
sales commission for each license sold. The County Clerk's office receives licenses from the
allocates them to agents for sale, receives payments and sales figures from the agents, and
and reports to the DNR. The County Clerk's office is responsible for making sure that the
and sales information received from the agents properly accounts for the licenses previously
to them for sale. If errors are made in the performance of that function, the Clerk's office
effect corrections by issuing refunds or requests for additional payments to the agents
It is also undisputed that Grievant was trained by Bushey in how to perform the
reconciliation, stressing the importance of the reconciliation balancing to avoid the need for
corrections to be issued later. The two of them performed Grievant's first reconciliation
The next month Grievant performed it herself with Bushey closely observing. Both of those
reconciliations balanced exactly. Each month thereafter Grievant performed that task on her
with Bushey inquiring whether the DNR account had balanced. On each of those occasions,
told Bushey that it was "okay" or that "it had reconciled okay." However, it is undisputed
Grievant had successfully balanced the monthly DNR account reconciliation only once during
period from November 1997-March 1998, such that several of the reconciliations during that
had not balanced.
Bushey did not discover that until mid-April of 1998, a few weeks after Grievant
her six-month probationary period. Bushey's testimony as to the circumstances of that
paralleled the following description thereof contained in a portion of County Exhibit 11:
On the morning of Tuesday, April 15, 1998, I asked F__ for
some information regarding a Conservation payment
to the DNR and why a particular number did not match the numbers in the computer system.
She indicated that she
had, had a tough time with this. I inquired what specifically she was having trouble with.
She then said she was going
to admit something. F__ then told me that some of the months DNR payments did not
reconcile exactly. I explained
that each month must reconcile exactly and asked if she had not previously understood this.
F__ indicated she had
understood this. I reminded her that I have on a number of occasions inquired about the
progress of the DNR payment
and whether or not it reconciled. I also reminded her that each time I inquired she assured
me that it had reconciled.
She then told me that she had lied to me on those occasions when I inquired. I asked why
she had lied she said she
afraid that I would terminate her
employment. I told her that lying was unacceptable. I told her that she had lost
my trust. She indicated that she knew this. I met briefly with F__ on the afternoon of April
14 in room 104. I told
her that I was setting up a Predisciplinary Meeting for the next day and that we would be
action up to and including termination of employment. I indicated I would get back to her
once the meeting was
scheduled. I told her that there would be one representative of the union and someone from
Human Resources present
for the meeting. She apologized for the trouble that this had caused. At some point in the
conversation she indicated
that the cause of this problem was that she did not know how to ask for help.
Bushey and her deputy spent considerable time checking and
correcting the errors that resulted
in Grievant's several monthly DNR account reconciliations not balancing. The correction
involved the issuance of several checks, one of which was for about $2,000.
In her testimony, Grievant admitted that she had responded to Bushey's periodic
the DNR reconiliations in ways that would lead Bushey to believe that the DNR account had
when in several instances it had not. Grievant explained that by doing so she was trying to
time until she could work the problems out on her own. She denied that her responses to
were focussed on enabling her to successfully complete probation, but she admitted that she
responded to Bushey as she did to avoid being fired. Grievant stated that she had expected
to discover the problems Grievant was having with the DNR account earlier than she did.
pointed out that when Bushey asked her about the account on April 14, 1998, she forthrightly
admitted that she had lied in response to Bushey's inquiries on the various occasions when
Bushey that the DNR reconciliation had balanced when in fact it had not.
Grievant further testified that she had been supervised by Bushey at a different
years earlier and that Bushey contacted her and encouraged her to apply for the
Clerk III position.
Grievant asserts, however, that from the beginning of her work as Clerk III, Bushey created
pressured work environment, telling Grievant from early on: that Bushey would be tougher
than on anyone else; that Grievant would be terminated if she did not measure up; that if she
stop making so many mistakes typing marriage licenses she would be fired; that if things
up I'm going to fire you; etc.
Grievant further testified that she was not claiming that Bushey's conduct had
her to lie;
that she had acknowledged at the pre-disciplinary meeting that Bushey had provided her with
support she needed when there had been other problems in the past; that Bushey had
to talk to Bushey about any questions or problems she had performing her duties; and that
tried to answer her questions when she brought them to her. However, Grievant asserted
sometimes did not know the answers to Bushey's questions; that Bushey created a pressured
environment; and that -- contrary to her April 15 statement -- Grievant felt that Bushey
provided her with the support she needed when there had been other problems in the past.
Additional background information is set forth in the summaries of the parties'
in the discussion, below.
POSITION OF THE EMPLOYER
Grievant was discharged for repeatedly lying to her supervisor, not for the
problems that she lied about. It is undisputed that over a period of several months, in
inquiries from her supervisor, Grievant responded in ways that were intended to and
leading the supervisor to believe that the monthly DNR account reconciliations had balanced
in fact they had not. Because Grievant's Clerk III position handles significant amounts of
money, and because the County Clerk cannot recheck all aspects of the Clerk III's work, the
Clerk necessarily must have the highest level of trust in her employes. Grievant's conduct in
destroyed that trust, making discharge an appropriate disciplinary response in the
The first offense of lying to one's supervisor about work-related matters has long
been recognized by arbitrators
as a dischargeable offense. Citing published awards including Claridge Products &
Equipment, 94 LA 1083
(Goodstein, 1990)(upholding discharge of 16-year employe for tape recorder eavesdropping
on supervisor's office
and then subsequently lying about why he placed the recorder there) and Furr's, Inc., 88 LA
1986)(upholding discharge where grievant's breaking of glass door did not justify discharge,
but repeatedly lying to
manager about it did.)
The seriousness of Grievant's lying is aggravated by the facts that it occurred
after her probationary period; that she completed her probation on false pretenses by hiding
from her supervisor; that she lied on a number of occasions spanning several months; and
was a position of public trust with responsibility for hundreds of thousands of dollars of
There are no mitigating factors that would warrant a penalty less than discharge.
Grievant ultimately admitted to Bushey that she had repeatedly lied and apologized for doing
did so only after Bushey asked her for copies of documents that would have clearly revealed
Grievant's earlier lies. The Union has failed to establish that Grievant was inappropriately
threatened by Bushey; on the contrary, the evidence shows that Grievant was appropriately
and informed of the importance of the DNR compilation balancing and of asking for help
needed it, and that Bushey provided her with help each time she asked for it. The Union has
failed to establish that Grievant was punished more severely than other employes committing
misconduct; the two correctional officer cases cited by the Union materially differ from
case because neither involved: an employe responsible for handling large amounts of public
repeated lies to the supervisor over several months; a grievant with only seven months of
a grievant whose lies enabled her to complete probation under false pretenses; and significant
to the County in the forms of substantial time and embarrassment required to unravel several
of errors retroactively. Finally, the Union has failed to establish that the decision to
reached in haste, anger or ignorance; after Grievant admitted to Bushey that she had been
to her, Bushey consulted Lazzeroni (who had substantial personal experience with just cause
at length, received Lazzeroni's opinion (concurred in later by the County's Director of
Relations, Janice St. John) that termination would be an appropriate penalty in the
briefly considered a suspension, struggled with what she said was a "difficult decision" on a
level, and ultimately concluded that discharge was necessary because she could no longer
Grievant to represent her in dealing with public funds for which Bushey was ultimately
For those reasons, the Arbitrator should conclude that the discharge was for just
should deny the grievance in all respects. If the Arbitrator concludes that the discharge
contract, the County renews its request for an additional hearing and briefing of the County's
contention that the after-acquired evidence rule of McKennon v. Nashville Banner Publishing
Co., 513 U.S. 352 (1995) (notwithstanding determination that employer has violated ADEA,
must consider how after-acquired evidence of the employee's wrongdoing bears on the
remedy ordered) should be applied to the instant arbitration proceeding.
POSITION OF THE UNION
Just cause requires equal treatment. Progressive discipline is widely accepted as the
effective and most equitable means for correcting an employe whose performance is less than
satisfactory. The object of any penalty should be to correct employe performance so that the
employer may benefit through improved performance.
The Grievant was discharged for lying to her supervisor about the status of her
the DNR conservation account. Grievant's admission of lying formed the singular basis for
peremptory discharge. However, neither the supervisor nor County human resources
considered what penalties had been imposed by the County in the past for the same offense
to a supervisor. Rather, the determination that discharge was the appropriate penalty was
the inexperienced Bushey based on her feelings of personal betrayal rather than on an
consideration of applicable just cause principles.
Had Bushey and Lazzeroni looked into the County's prior experience with cases of
accused of lying to a supervisor, they would have learned that R__ O__, a Correctional
less than two years of seniority, was initially issued a two-day suspension for lying to
about an action taken by a correctional guard; and that Correctional Officer V__ O__ was
issued a three-day suspension for lying to supervision to cover up an action involving prison
taken by the employe. Both of those employes have law enforcement positions requiring a
degree of trust associated with maintaining facility security. Yet the County imposed
significantly less harsh than discharge in connection with its charges that those employes lied
There are several other factors that mitigate the severity of the penalty appropriate
Grievant's conduct, as well. First, Grievant "testified that it was her intent to reconcile the
conservation license account but that she was afraid that the volatile Bushey would carry out
insinuation of firing D__." Union brief at 6. Second, Grievant's lying is best characterized
as a lack
of candor resulting from a penchant for telling authority figures what she believes they want
rather than lying or deception for the purpose of personal financial gain. Third, Grievant's
to Bushey related to acts of omission rather than acts of commission on her part, i.e., to
had failed to balance the DNR account rather than to the more serious matter of whether a
correctional officer had affirmatively committed specific actions involving the security of jail
Discharge is too severe a penalty for Grievant's lying about her job performance.
Citing, Associated Cleaning
Consultants, 94 LA 1246, 1248 (Lubow, 1990)(a lie or denial of an act, which results in
punishment is not the
equivalent of intoxication on the job or physical violence under a discharge clause where only
"cardinal sins" form the
basis for bypassing the progressive disciplinary system); and Village of Sturtevant, WERC
grievance award MA-8837 at 16 (Houlihan, 1995) (under a peremptory discharge clause
where only "job-connected dishonesty" and other
listed offenses form the basis for bypassing progressive discipline, while ". . . the evidence
supports a finding that B__
did a poor job inspecting and cleaning the sewer lines. This employer has tried to convert a
performance case into a
dishonesty case by asking the employe if the job was done. When the employe said yes, the
his answer as dishonest, and discharged him. . . . The grievance is sustained.")
Grievant lied because she was afraid that her inexperienced and volatile boss would
fire her if
she learned that Grievant's accounts were not in balance. When Bushey asked her how
going, Grievant's response was to fudge the truth while fully intending to balance the books
ultimately. Bushey testified that discharge was necessary because Bushey could thereafter
Grievant or work effectively with her in the future. However, the evidence undercuts
emotionally overreactive conclusion in that respect. Grievant demonstrated sincere remorse
conduct by admitting to Bushey that her previous statements regarding the reconciliation of
conservation account were untrue, by apologizing to Bushey, and by her obviously
demeanor at the arbitration hearing. The numerous favorable job references which Grievant
to her position also indicate that she remains a salvageable employe despite this lapse. Given
Grievant's obvious overall strengths as an employment candidate, it follows that her
Bushey are attributable at least in part to Bushey's weaknesses as outlined in the testimony of
Strunk and the Grievant: Bushey's inexperience and unfamiliarity with the Clerk's job when
election; her anxiety and insecurity in her position; her proneness to overreact to anything
the office; and her abrasive personal style.
With regard to requested remedy, the Union concludes its brief as follows:
The Union believes that Ms. D__'s statements warrant discipline.
We agree that Employers must rely on truthful
statements. Lack of candor, even under mitigating circumstances, is inappropriate behavior
in the workplace.
However, both the contextual environment of D__'s statement(s), and the lack of equal
treatment under similar
circumstances, warrants a significant reduction in the penalty. We suggest a penalty similar
to those given R__ O__
and V__ O__. We ask the Arbitrator to sustain the grievance consistent with the discussion
set forth above.
In light of the positions taken by the parties, the issue is not whether any discipline
in the circumstances, but whether discharge is too harsh a penalty.
Although management's judgment regarding penalty is ordinarily accorded a degree
deference, no such deference is accorded in this case because management failed to inform
the County's prior disciplinary cases involving charges of lying to a supervisor before it
discharge in this case.
As the Union argues, just cause requires that the County's application of discipline
be even-handed. The County cannot, consistent with just cause, impose a substantially
heavier penalty on one
employe than on another for the same offense.
However, the Arbitrator is satisfied that the Grievant's misconduct is more serious
alleged in the Correction Officer cases relied on by the Union, such that the County is not
Grievant's case to the degree of discipline imposed in those two prior cases. Unlike the
Officer cases, Grievant's misconduct involved repeated intentional lying about important
information requested by supervision, over an extended period of time, as compared with
isolated instances of alleged lying to a supervisor. Grievant's lying to Bushey caused
greater harm to the County than either of the other cases. That harm took the form not only
time and potential embarrassment involved in unwinding the erroneous accounts and sending
corrections, but also of the fact that the County was prevented from assessing Grievant's
of completion of her probation free of the effects of her lying about the results of her work
DNR account. Accordingly, the discharge imposed in this case has not been shown to be a
penalty than the County has imposed in the past for the same offense.
The Arbitrator is also satisfied that this is not a case in which the County is
attempting to bootstrap itself to a
dishonesty discharge from what is basically only a job performance problems case. In this
case, unlike the Village
of Sturtevant situation, the real harm done to the County's interests were due to the
Grievant's lying to
conceal the fact that the
reconciliations were not balancing, rather than from the fact that the reconciliations did
in the first place. The problems Grievant was having could have been corrected and the
terms of the time and embarrassment of unwinding several months of erroneous
entirely avoided had Grievant alerted Bushey that she needed help with balancing the account
the reconciliations did not balance. Similarly, had Grievant not concealed her difficulties
DNR account by lying, her qualifications and suitability for completion of probation could
assessed free of the effects of those lies.
The seriousness of the Grievant's misconduct is aggravated by the fact that she
intentionally responded falsely
to her supervisor's inquiries about the status of the DNR account reconciliations during
her probationary period and
for the admitted purpose of keeping her job which she feared she would lose if her
supervisor learned of the problems
she was experiencing. The evidence establishes that the problems Grievant was
covering up were significant; Grievant
knew that; they were problems that involved misallocation of funds as between the State
DNR and various third parties;
and they caused the County significant time, effort and potential embarrassment to unwind
when they were ultimately
discovered. Under Agreement Sec. 7.03, the County would have had the right to terminate
Grievant without recourse
to the grievance procedure. Grievant's intentionally and materially deceptive answers to
Bushey's inquiries enabled
her to complete her probation, in effect, on false pretenses.
The evidence also satisfies the Arbitrator that Grievant's lying to conceal her
Bushey is not rendered less serious by shortcomings on Bushey's part. Grievant knew the
of balancing monthly DNR reconciliation. Grievant also knew that Bushey had directed her
to let her
know if she was having problems performing her job. Bushey had provided Grievant with
documentation and hands-on training in the performance of the monthly DNR reconciliation.
had also provided Grievant with help for other problems that Bushey learned of from
from other employes. In consideration of the record as a whole, the Arbitrator finds that
concern, that Bushey would fire her rather than help her to overcome promptly-disclosed
account reconciliation problems, was not reasonable in the circumstances.
Even if it had been reasonable for Grievant to believe that Bushey's temperament
inexperience would have led Bushey to unfairly discharge her before or after she completed
had she responded truthfully to Bushey's inquiries, the Grievant did not have the right to
County's legitimate operational interests to significant harm in pursuit of her self-interest in
employed. Here, Grievant's lying to her supervisor not only prevented Bushey from fully
Grievant's suitability for successful completion of probation and prevented the County from
the difficulties it later experienced in unwinding several months of erroneous reconciliations.
prevented Bushey from providing Grievant with the very assistance she needed to overcome
serious problems that Grievant alone knew she was experiencing.
For those reasons, the Arbitrator concludes that the County's discharge of the
Grievant in the
circumstances of this case was for just cause and within the County's rights under the
DECISION AND AWARD
For the foregoing reasons and based on the record as a whole, it is the decision and
the Arbitrator on the STIPULATED ISSUES noted above that
1. Yes. The County did have just cause to discharge the
2. Accordingly, the grievance giving rise to this arbitration is
denied. No consideration of
ISSUE 2, above, regarding a remedy is necessary or appropriate; and no ruling is needed or
rendered on the County's request to reopen the hearing as regards the County's
Dated at Shorewood, Wisconsin this 17th day of
Marshall L. Gratz, Arbitrator