BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GENERAL TEAMSTERS UNION LOCAL 662
SCHOOL DISTRICT OF NEW RICHMOND
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Andrea F. Hoeschen, 1555 North RiverCenter Drive, Suite
202, P. O. Box 12993, Milwaukee, Wisconsin 53212, appearing on behalf of the Union.
Weld, Riley, Prenn & Ricci, S.C., by Attorney Kathryn J.
Prenn, 4330 Golf Terrace, Suite 205, P. O. Box 1030, Eau Claire, Wisconsin
54702-1030, appearing on behalf of the District.
General Teamsters Union Local 662, hereinafter referred to as the Union, and the
District of New Richmond, hereinafter referred to as the District, are parties to a collective
agreement which provides for the binding arbitration of disputes arising thereunder. The
a request, with the concurrence of the District, that the Wisconsin Employment Relations
designate a member of its staff to act as an arbitrator to hear and decide a grievance over a
suspension. The undersigned was so designated. Hearing was held in New Richmond,
on August 11, 1999. The hearing was not transcribed and the parties filed post-hearing
parties reserved the right to file reply briefs. The Union chose not to file one and the
a reply brief which was sent to the Union on November 9, 1999.
The Grievant has been employed as a custodian by the District for 14 years and prior
instant case had a clean record. The District has a maintenance shop inside of which is a
wire mesh cage area where tools and supplies are kept. The wire mesh cage was
installed to prevent
theft of tools and equipment. In December, 1998, the District installed a hidden video
camera in the
maintenance shop. On Saturday, February 13, 1999, the video camera recorded the grievant
the shop area with the key he had as a custodian and a short time later, the grievant emerged
piece of sheet rock. The grievant was not confronted immediately and the video camera
to be operated. On March 29, 1999, the grievant was directed to meet with management
a union representative over the removal of the sheet rock. The grievant admitted he removed
piece of sheet rock to make a home repair but insisted that he merely picked up a piece of
District's Board held a hearing on April 19, 1999 and imposed a 30-day suspension without
the grievant for removal of District materials from a secured area without authorization The
suspension was grieved and processed to the instant arbitration.
The parties were unable to agree on a statement of the issue. The District frames the
Did the District have just cause to suspend the grievant,
Larson, for 30 days without
pay for the theft of District materials from a secured area within the District's maintenance
Saturday, February 13, 1999?
If not, what is the appropriate remedy?
The Union frames the issue as follows:
Did the District have just cause to suspend the grievant for 30
days? If not, what is the
The undersigned adopts the issue as
framed by the Union.
ARTICLE 9 DISCIPLINE
Section 1. The Employer will
not discipline, suspend, or discharge an employee without just
Section 2. The normal disciplinary procedure is:
1. Verbal warning
2. Written warning
The above procedure need not be followed
in cases of serious misconduct.
The number of warnings or length of
suspension shall be determined by the Employer in
accordance with the gravity of the violation, misconduct, or dereliction involved, taking into
consideration that such steps are intended to be corrective measures.
All discipline shall be in writing with a
copy to the employee and the Union.
The District contends that a majority of the key facts are not in dispute. It asserts
grievant took sheet rock from a locked/secured area without permission from any manager or
supervisor. The grievant measured the sheet rock while in the secured area and never
manager he had taken the sheet rock until the investigative interview. The District points out
grievant looked over his shoulder just before unlocking and entering the shop and only at the
arbitration hearing did he indicate he did this because he heard a noise. It notes that the
not aware of anyone removing materials for personal use from the cage and he admitted that
is locked to keep people from removing materials from the cage without authorization. The
insists that the grievant knew that the sheet rock he removed was usable material. It submits
undisputed facts establish that the grievant committed theft of school property.
The District disputes the grievant's claim that the sheet rock he found and took was
pile on the floor. It observes that Building and Grounds Supervisor Jerry Davis testified that
sheet rock in the caged area were full sheets or partial sheets not less than four feet by six
on the side of the cage. It submits that this testimony was confirmed by Steve Eichinger, a
unit member, who testified the caged area was clean and the only sheet rock was stacked
along a wall.
It refers to the testimony of unit member Dave Johnston who did not recall the sheet rock in
It asserts that the grievant's testimony that there was a pile of sheet rock on the floor is not
in contrast to the other witnesses' testimony about the sheet rock. It also contends that the
testimony is nonsensical in that he needed an 18 inch by 18 inch piece and there were 2 feet
by 3 feet
pieces, yet he took a two foot by four foot piece even though he had a tape measure. The
claims that the grievant simply used the tape measure to cut off a piece of sheet rock from
sheets stacked against the wall.
The District maintains it had just cause to suspend the grievant. It states that the
of the offense allows a departure from the normal progressive discipline scheme. The
to its policies that put the grievant on notice that theft would subject him to discipline and
theft is the
type of conduct that the grievant should know is improper.
The District argues that a 30-day suspension for theft of the sheet rock is not
cites a number of arbitral authorities which upheld discharge for theft of property of nominal
It refers to cases where long term employes with good records were given greater
including suspensions of nine months or more. It asks that the arbitrator not substitute his
for the District's as to the amount of discipline unless the discipline is arbitrary, capricious,
discriminatory or excessively severe. It insists the suspension should be upheld and the
The Union argues that the District must prove the offense beyond a reasonable doubt
the charge is theft which carries the stigma of general social disapproval. It contends that the
must come forward with such convincing evidence that no reasonable person would doubt the
grievant is guilty of theft. It claims that the grievant need not be found innocent but if there
other credible explanation then the District has not sustained its burden and the grievant must
The Union maintains that the District allowed employes to take scrap materials
permission. It claims that because the sheet rock was scrap, the grievant committed no
taking it. It refers to the numerous examples where employes take scrap materials for their
and taking scrap does not constitute stealing. It takes the position that even without such a
arbitrators do not recognize taking garbage to be an offense.
The Union insists that the District failed to meet its burden to prove the sheet rock
scrap. It insists that there was scrap sheet rock in the shop on February 13 and the grievant
piece that was gouged and had foot marks on the edges. It states that the grievant took
to the dumpster a few days later and it was his job to put scrap sheet rock in the garbage.
It submits that the District's claims that there was no scrap sheet rock in the shop on
13, 1999, is not supported because the testimony was inconsistent with Davis testifying there
scrap sheet rock in the shop on February 13, 1999, yet he passed on the opportunity to
sheet rock or to check that any had been cut. It also notes that Davis was inconsistent on
sheets and their size and location in the shop. It points out that Eichinger testified that the
could be 4x12 or 4x8 and Johnston did not know there was any sheet rock in the shop. It
that this inconsistent testimony demonstrates
that no one can say that all the sheet rock was good. The Union notes that the shop
significant amount of scrap and on April 19, 1999 had so much it needed a 20-foot by
dumpster to discard it. It argues that the District tried to prove that it was unlikely that there
scrap on February 13, 1999 so the grievant probably took good scrap but the theft allegation
be proved by creating an inference as to probabilities.
The Union insists that the grievant had the ability and authority to determine whether
of sheet rock was scrap. It claims that the District tried to prove that the grievant had no
to enter the caged area or determine what pieces of sheet rock were scrap; however, the
job is to take out garbage and scrap and he does not have to check with management on
of garbage or scrap. It observes that Larson has a key so he can clean the shop and
their common sense to determine whether a piece of scrap is usable or not. It maintains that
was nothing unusual or improper about the grievant's concluding that a small piece of sheet
The Union states that the District demonstrated that it had no use for the sheet rock
it failed to punish him immediately nor did it ask him to return the piece of sheet rock and it
generated more scrap sheet rock than it could even hope to use.
The Union argues that whether the sheet rock was scrap or not, the grievant believed
and therefore did not commit theft. It argues that theft is composed of action and intent and
grievant had no intent to steal. The Union observes that the grievant asks if he can take
items if he
has any doubt such as the Carpet shampooer and one of the old modems.
The Union claims that the District has forgiven mistakes by other employes including
mistakenly taking a cabinet and Renspe taking a sewing machine they believed were scrap.
the position that the District should have shown the same courtesy and respect to the
his 14 year unblemished record. It believes that the grievant should have been confronted
immediately and told that he was mistaken in thinking the sheet rock was scrap and to bring
The Union contends that the District failed to give notice that it was changing its
allowing employes to take scrap. It does not deny that the District can change its policy
tells the employes in advance, but here the District maintained the status quo and condoned
encouraged employes to take home anything sitting around in the hallways, without asking
The Union argues that the District made the grievant a scapegoat for its theft problem
than successfully addressing the problem. It insists that the District took it for granted that
managers were not the source of the thefts and also eliminated Eichinger because he installed
video camera and monitored it. The Union infers that the video camera was installed
only two people one of whom was the grievant and then avoided
confronting the grievant to see if he "stole" anything else and when he didn't, the
removed. It submits that the District went to great lengths to monitor the grievant and
management practices that invited thievery such as leaving the maintenance shop garage
even after all employes had left. It asserts that the District tacitly acknowledged that the
no thief as it allowed him to carry bags of money from building to building from
February 13 to
April 1, 1999. It concludes that for these reasons, the suspension should be rescinded
grievant made whole.
The District contends that the Union's brief contains factual misrepresentations and
majority of cases cited by it actually support the District's position. The District insists there
practice of allowing employes except maintenance employes to remove materials from the
without authorization inasmuch as the reason the cage was built was to protect items within
it. It also
asserts that the grievant's duties do not include cleaning the caged area unless ordered to do
the grievant removes scrap that is placed in a 30 gallon garbage can. The District argues
Union's reliance on the testimony of Roger Breault and Rich Spinks is a reach because
not worked in the shop since 1995, prior to the cage being built, and he admitted never
a scrap pile in the caged area. It notes Spinks had no knowledge of the size of pieces of
in the caged area on February 13, 1999, but testified that even small pieces are usable for
The District asserts that the Union's reference to the "dumpster" and sheet rock is misleading
the sheet rock put there was from a demolition project which occurred in April, 1999. It
the fact employes can help themselves to material in the dumpsters or mistakenly believe that
items left in open areas are to be discarded have no application to the instant case as there
mistake about materials in a locked caged area within a locked building.
Contrary to the Association, the District notes that this is not a criminal matter and
standard of proof for a criminal case and proof of intent are not applicable. The District
position that the cases cited by the Union do not support the Union's position on burden of
It argues that none required proof beyond a reasonable doubt.
The District argues that there is no dispute that the grievant removed sheet rock from
property without authorization and personally benefit from the taking. It states that the
cases cited by the Union fail to support the Union's position. It argues that there is no
basis upon which the grievant can assert that it was okay for him to enter the caged area on a
Saturday morning and help himself to a piece of sheet rock. The District insists that the
Union's flim-flam argument about lack of intent must be discredited. It insists there was no
scrap on the floor of
the caged area and even if there were, the grievant knew he was not authorized to remove it.
With respect to the penalty, the District submits that it has not ignored thefts from
secured areas and the fact that the value was small is not relevant. It states that the Union's
to blame everyone else except the employe is typical in employe disciplinary cases. It states
grievant was lightly disciplined and his arguing that the suspension is not warranted indicates
grievant still does not get it and attests to the reasonableness of the suspension. It requests
grievance be dismissed.
The Union has argued that the appropriate burden of proof in this matter is proof
reasonable doubt. This burden of proof is required in criminal cases, but this case involves
arbitration and the record fails to establish that the grievant has been charged with a crime.
consequences of a conviction for a crime, which may include the deprivation of one's liberty,
present. The undersigned finds that in the instant case the District need only demonstrate by
preponderance of the evidence that the grievant stole the sheet rock and this was sufficient to
him for 30 days.
The Union insists that the grievant simply took a piece of
rock which he knew was scrap
or reasonably believed was scrap. Although the Union made numerous arguments related to
the undersigned finds these to be inapplicable because it is concluded that the sheet rock was
scrap. Three witnesses, Jerry Davis, Steve Eichinger and David Johnston all credibly
on February 13, 1999, there was no scrap pile of sheet rock in the maintenance shop. Davis
Eichinger testified that the shop was cleaned up before the arrival of Johnston as a new
there were sheets of dry wall in the southeast corner leaning up against the wall. Johnston
that he never saw any sheet rock and didn't realize the sheets were there. If no sheet rock
by Johnston, there could be no pile of sheet rock scrap on the floor.
Contrasted against this testimony is the grievant's. He
that sheet rock was on a scrap
pile on the floor. Both Eichinger and Johnston testified credible and there is no evidence of
interest in the case on their part or any other reason for them to fabricate about the scrap
the other hand, the grievant has an interest in the 30 days pay he lost plus his reputation for
The undersigned finds that there was no scrap pile on the
which contained pieces of
sheet rock. The evidence establishes that there were sheets of sheet rock in the caged area.
source of sheet rock would be those sheets. Thus, it is concluded that the grievant cut off a
from a sheet and created his own scrap but this is simply petty theft where the practice
taking scrap is not applicable. The grievant could take a 4-foot by 12-foot sheet of sheet
cut it into many small pieces which would then become scrap but the creation of scrap to use
personal use is theft. Thus, the evidence is clear and convincing
that the grievant stole sheet rock from the District. The fact that the District did not
action does not lesson the misconduct but might lessen the penalty. Also, despite the
the camera was installed to capture a bargaining unit member, the undersigned finds the
to support such an inference. Having concluded that the grievant stole the piece of sheet
next determination is the appropriate penalty.
Arbitrators have held that theft of nominal amounts can result
severe punishment. In State
of Minnesota, 95 LA 995 (Gallagher, 1990) the theft of approximately $10.00 by a
year employe justified a discharge as the trust of the employe was destroyed. In Deer Lakes
School District, 94 LA 334 (Hewitt, 1989), a custodian's theft of $4.00 resulted in a three
suspension rather than a discharge based on the custodian's seventeen years of service with a
record. In CSX Hotels, Inc., 107 LA 702 (Thorp, 1996), a housekeeper at a hotel who had
record was discharged for giving a fellow employe what she thought were two aspirins from
Many other cases could be cited but the grievant as a
has access to the areas he
cleans and has to be trusted not to steal. Whether this was a one time lapse or not, he must
the District's trust. In any event, the undersigned cannot conclude that the 30-day suspension
out by the District was inappropriate.
Based on the above and foregoing, the record as a whole and the arguments of the
the undersigned issues the following
The District had just cause to suspend the grievant for 30 days, and therefore, the
Dated at Madison, Wisconsin this 15th day of December, 1999.