BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
HAMILTON SCHOOL DISTRICT EMPLOYEES
LOCAL 3086, AFFILIATED WITH DISTRICT COUNCIL
HAMILTON SCHOOL DISTRICT
(Robert Wiczynski Discharge Grievance)
Mr. Sam Froiland, Staff Representative, AFSCME Council 40,
on behalf of the Union.
Quarles & Brady, S.C., by Mr. David B. Kern, on behalf of the
The above-captioned parties, herein "Union" and "District", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Sussex, Wisconsin, on August 9, 1999. The hearing was not transcribed. Both parties
and the District filed a reply brief that was received on October 1, 1999.
Based upon the entire record, and the arguments of the parties, I issue the following
The parties agreed to the following issue:
Did the District have just
cause to terminate grievant Robert Wiczynski and, if not, what is the
Grievant Wiczynski, a Custodian, was employed by the District since August, 1988.
one major exception, Wiczynski has been a good employe, as his various evaluations and
letters of commendation all attest to his ability and dedication. (Union Exhibits 1-10).
The one major exception relates to when he worked at the District's High School at
when he left work early 30 minutes on October 7, 1994, and 60 minutes on
February 23, 1995.
Custodians Jim Moran and Les Nettesheim, who then worked at the High School with
also left work early on repeated occasions. The District ultimately agreed to suspend all
three for 15
working days and entered into a May 5, 1995, Memorandum of Understanding (Joint Exhibit
Wiczynski, Moran, Nettesheim, and the Union which stated in pertinent part:
. . .
The Hamilton School District (District), Hamilton School
District Employees' Union Local
3086 (Union), Jim Moran, Les Nettesheim, and Bob Wiczynski (Employees) hereby agree as
(1) The District has determined
that Jim Moran, Les Nettesheim, and Bob Wiczynski have
falsified their time cards by over reporting their work on the following days by the following
. . .
(2) All three employees have admitted to the facts set
forth in paragraph one (1) above.
(3) In lieu of termination of
these Employees, and in full settlement of the matters relating to this
situation, the District, the Union, and the Employees agree as follows:
a. Each employee will be suspended without
pay for a period of fifteen (15) work days.
The District has the option to stagger the suspensions for work coverage purposes.
b. Each Employee will serve a two-year
probationary period commencing on May 8,
1995 and ending on May 7, 1997.
c. During the course of
the probationary period, each Employee will not be eligible to
apply for any type of job advancement position.
d. Any dollars received
by the Employees as a result of the falsification of time cards will
be returned to the District by each Employee no later than June 30, 1995.
e. The District retains
the option of transferring any of the Employees to a different
f. Mr. Nettesheim will
lose his position as night foreman and revert to the position of
g. The District will
temporarily fill the night foreman position at Templeton Middle
h. In accordance with
the negotiated agreement, the District will post the position of
night foreman at Templeton Middle School.
i. This Memorandum
of Understanding will become a permanent item in each
Employee's District personnel file.
(4) Any further misconduct by the employees during
the probationary period described in
paragraph 3. (b) above, or any breach of the Employees' obligations described in
(d) above, will result in their immediate termination, without recourse to the grievance
(5) The Union and the above
named Employees agree not to grieve or in any other way challenge
the foregoing discipline or other terms of this Memorandum, and this Memorandum of
Understanding is in full settlement of all of these matters.
. . .
Wiczynski for several years thereafter worked at the High School. He subsequently
transferred to the District's Maple Avenue School where he worked the 3:00 p.m.
11:30 p.m. shift
with fellow Custodian Fred Krull. There are no time clocks in the Maple
Avenue School and there are no supervisors on the third shift. Hence, Custodians on
the third shift
operate under an honor system wherein they must handwrite their own starting and quitting
time cards. On the dates related below, Wiczynski and Krull both wrote they left work at
when, in fact, they did not.
Bryan Ruud, the Manager of Buildings and Grounds, testified that the District in
1998, received a tip that night Custodians were leaving work early. To determine whether
true, he and other management personnel audited when Custodians were leaving work by
to the District's various schools and timing when the Custodians left. He said that he saw
and Krull leave the Maple Street School at 11:24 p.m. on October 27, 1998 (unless
all dates refer to 1998); 11:22 p.m. on November 3; and 11:23 p.m. on November 9. Ruud
his wristwatch was correct by checking it with the telephone and the Maple Street School's
He and other management personnel interviewed Wiczynski on November 3, at which
Wiczynski denied ever leaving work early. Ruud explained that the District initially fired,
subsequently agreed to suspend, the two other Custodians who left early because it was their
offense and because, unlike Wiczynski, they admitted to leaving early during the District's
investigation. He also said that Wiczynski then never claimed there was a practice of
at the High School.
On cross-examination, Ruud acknowledged that Wiczynski was "a good Custodian"
there was a practice at the High School of where Custodians went to the boiler room about
minutes before quitting time so that the school alarm could be set. There are no alarms or
detectors at the Maple Street School. Hence, there is no need for the Custodians there to
together before closing the school.
Alex K. Dittrich, Assistant Superintendent for Business, testified that he on
Wiczynski pull up his car to the front of the school at about 11:14 p.m.; that he returned to
building; and that Wiczynski and Krull left the Maple Street School at 11:22 p.m. Dittrich
he checked the time with his car radio and wrist watch.
Director of Educational Services/Human Services Dean Schultz testified that he on
5 saw Wiczynski and Krull leave the Maple Street School at 11:23 p.m. and that he checked
on his wrist watch with the car radio. He said that when he on November 11 met with the
Custodians who had been caught leaving early, Custodians Ernie Jaekl, who also left early at
school, and Krull admitted to leaving work early, but that Wiczynski claimed he left at
He explained that Wiczynski was terminated, rather than suspended, because of his earlier
falsifications and that Wiczynski asserted at his unemployment compensation hearing for the
that he left work early at the Maple Street School because there was a practice to that effect
On cross-examination, Schultz said the standard for time card falsification had not
since 1997 and that he did not participate in drawing up the earlier Memo of Understanding
Exhibit 3), which was a permanent part of Wiczynski's file.
In his defense, Wiczynski testified that he often reported to work early and that he
paid for it; that he has been repeatedly praised for his past work; and that he felt justified in
early in 1994 and 1995 because he and the other Custodians at the High School finished their
early. He said that he initially denied leaving early at the Maple Street School in November,
because he used the stage clock to determine when he should leave; because the office clock
Maple Street School is not correct; and because he knew he could be fired for again leaving
early. He added that he knew he had left early on some of the days in question; that his
always done on those occasions and that was why he felt justified in leaving early; that he
there was a custom of leaving early at the Maple Avenue School; and that he and other
had regularly quit working early at the High School.
On cross-examination, he said he knew he was on "thin ice" when he was caught
again in 1998; that he was aware fellow Custodian Krull said during the course of the
investigation that he used the office clock and that he and Wiczynski had left together at the
time; that he never mentioned leaving early at the High School during the District's
he "automatically assumed" the same practice was followed at the Maple Street School; and
never asked about the practice at the Maple Street School when he worked there.
Wiczynski was terminated via a November 17 letter from Schultz that stated:
. . .
This letter wil confirm your termination of employment from the
Hamilton School District for
falsifying your time sheets on repeated occasions. You were observed leaving your
on five different occasions from October 27 through November 9, 1998. Your time sheets
that you had remained at work and fulfilled your entire work shift, which was not the case.
You were previously issued a 15 day
disciplinary suspension for falsifying your time sheets in
1995. You were clearly aware of the District's prohibition against such actions and the
therefore has no choice but to terminate your employment.
. . .
Wiczynski grieved his termination on November 23 (Joint Exhibit 2), hence leading
POSITIONS OF THE PARTIES
The Union maintains that the District lacked just cause to discharge Wiczynski
"degree of discipline" levied against Wiczynski "far outweighed the offense, as well as the
work record"; because unlike 1995, Wiczynski in 1998 "believed his actions were
because Wiczynski in 1998 left early only after his work was completed; because he never
to defraud the District; because Wiczynski by October-November, 1998, was "no longer on
probation"; and because the terms of the earlier 1995 Memorandum of Understanding (Joint
3), "were not intended to reach as far as the District would stretch in this instance." The
cites Carbide Corp., 100 LA 763 (Felice, 1993), in support of the claim that Wiczynski
intended to defraud the District. As a remedy, the Union seeks a make-whole order which
Wiczynski's reinstatement and a backpay award.
The District, in turn, submits that the grievance is without merit because Wiczynski
a reasonable and well-known policy against falsifying time cards"; because it was "within its
in imposing the penalty of discharge"; and because there are "no mitigating factors justifying
Life seldom gives us a second chance to rectify our major errors. That is why
law is replete with countless cases sustaining the discharges and other disciplinary penalties
employes who committed only one major error involving their
But, this is not such a case. Here, Wiczynski was given a second
when the District
converted his original discharge to a suspension after he was caught leaving work early in
1995. That suspension should have put him on express notice that the District would not
having its Custodians leave work early and that he therefore could lose his job if he ever
That message however, for whatever reason, went unheeded since Wiczynski claims
he is entitled to a third chance because he is a long-term employe with an
otherwise good work
record and because he really did not intend to cheat the District by leaving early.
If this marked the first time he left work early, this argument might prevail. But, it
is not since
he also punched out early in 1994 and 1995. That being so, he has used up all of his "chits"
mitigation bank. Moreover, I do not credit Wiczynski's claim that he honestly
thought there was a past practice of leaving early at the Maple Avenue School and that
it was all right
for him to do so. For even if there was such a practice, Wiczynski surely must have known
as a result
of his earlier suspension that the District would not tolerate such early departures irrespective
prevelant any such practice might be. In addition, Wiczynski's failure to tell the truth during
District's investigation renders suspect all of his testimony here.
All these factors distinguish this case from Carbide Corp. supra, where Arbitrator
Felice ruled that the Company lacked just cause to terminate an employe charged with
falsifying his time sheet because, in his words, "the Grievant was never previously warned
supervision regarding any inconsistencies in his recording of time. . ."; because the company
"conduct a fair and objective investigation. . ."; and because the company several years
suspended, rather than fired, another employe for falsifying his time card. 100 LA 766-767.
by contrast, Wiczynski was warned by the District in 1995 that he could be
fired for leaving early;
the District did conduct a fair investigation; and the District rightly treated
Wiczynski differently from
the other two employes who left early given his prior suspenson and his failure to tell the
the District's investigation. For all these reasons, Carbide Corp. is inapposite.
Given all of these latter factors, it is my
That the District had just cause to terminate grievant Robert Wiczynski. His
Dated at Madison, Wisconsin this 29th day of October, 1999.
Amedeo Greco, Arbitrator