BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MARATHON COUNTY SOCIAL SERVICES
PARAPROFESSIONAL AND CLERICAL
UNION, LOCAL 2492, AFSCME, AFL-CIO
Mr. Philip Salamone, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Ruder, Ware & Michler, S.C., by Attorney Dean R. Dietrich,
appearing on behalf of the County.
Marathon County Social Services Department Paraprofessional and Clerical
Union, Local 2492, AFSCME, AFL-CIO, hereinafter referred to as the Union, and
hereinafter referred to as the County, are parties to a collective bargaining agreement which
for the final and binding arbitration of disputes arising thereunder. The Union made a
the concurrence of the County, that the Wisconsin Employment Relations Commission
member of its staff to act as an arbitrator to hear and decide a grievance over a written
The undersigned was so designated. Hearing was held in Wausau, Wisconsin, on
1999. The hearing was not transcribed and the parties filed briefs and reply briefs, the last
was filed on February 4, 2000.
The grievant has been employed by the County for the last ten years and has been a
Support Specialist since October, 1996. On May 7, 1999, the grievant was given a
from Jane Huebsch, the Support Program Manager, which stated, in pertinent part, as
You are issued this written reprimand for making demeaning,
judgmental statements to program
participants, the improper release of confidential information, and for failing to keep your
informed of your absences.
More specifically, you are reprimanded for:
1. Statements to clients that are
inappropriate and/or demeaning. Such statements are beyond
the scope of your role as a Child Support Worker.
2. The improper release of confidential
information about child support cases to individuals and
agencies. This is a violation of the state rules which cannot be repeated.
3. Failure to keep management informed
when you are not coming to work due to an illness or
personal emergency. We expect a call within one-half hour of your scheduled start time.
clients and we need to know what is happening so that appointments can be handled or
and work can be reassigned should there be a need to do so.
These are very serious offenses which if
repeated could result in more serious disciplinary actions
begin (sic) taken against you, including the termination of your employment.
On May 14, 1999, a grievance was filed over the letter
reprimand. The grievance was
denied and proceeded through the grievance procedure to the instant arbitration.
The parties stipulated to the following:
Did the Employer violate the collective bargaining agreement
issuing a written reprimand
to the grievant, Lyn McCarthy?
If so, what is the appropriate remedy?
Article 2 Management Rights
The County possesses the sole right to
operate the department and all management rights repose
in it, but such rights must be exercised consistently with the other provisions of this contract.
rights include but are not limited to the following:
. . .
D. To suspend, demote, discharge, and take
other disciplinary action against employees for just
. . .
The County contends that it had just cause for issuing the written reprimand to the
It submits that the grievant had previously been warned about making inappropriate remarks
and other members of the public, the improper release of information and had been
about her failure to notify her supervisor and the clerical staff that she would be late or
work. It insists that it had "just cause" as defined by arbitral authorities to discipline the
It asserts that the grievant had been verbally reprimanded. It submits that in 1998, the
given a verbal reprimand by Robin Bentley, the Program Supervisor for the Child Support
Department, for making inappropriate statements to clients and others. It claims that Ms.
told her she should refrain from making comments that could be taken as derogatory or
to a client or the public. It states that in April, 1999, Client A reported to Jane
Huebsch, the Support
Program Manager, comments made to her by the grievant. It notes that the grievant
she may have said things to Client A that were taken in a demeaning fashion. The
County argues that
the comments were contrary to the dignity and respect to be afforded all participants in the
Support Program and it had just cause to issue the written reprimand for the inappropriate
made to Client A.
The County points out that the Wisconsin Child Support Procedures Manual
confidentiality and the release of confidential records, and in particular, limits the disclosure
information regarding applicants and recipients of the establishment of paternity. It observes
December, 1997, a concern was made to Ms. Bentley that the grievant had
information regarding a file she was working on. It notes that it was
unclear whether or not the grievant had released this information, but
Ms. Bentley explained to the
grievant she needed to be more careful about what she said and agreeing with a statement
another person could be construed as disclosing information.
As to the written reprimand, the County contends that the grievant worked on a
which was closed without paternity being established. It notes that four months later, based
newspaper accounts that Client X was the father of a child that he was accused of
causing the death
of, the grievant obtained the birth query and faxed it to the District Attorney's Office. It
this information from a closed file was confidential, was released even though the District
made no request or inquiry, and this was not a paternity case and the case did not involve the
Services Department. It asserts that the grievant showed a clear disregard for the
policies and duties to safeguard confidential information and she was appropriately
The County maintains that the most obvious item in the grievant's written reprimand
continuous failure to notify Ms. Bentley and staff when she will be absent or late for
work. It points
out that Ms. Bentley discussed the need to follow the contract when reporting absences
late as well as notifying her and a member of the clerical staff and this discussion was
followed up by
written memorandum dated August 7, 1998. It contends that in 1999, the grievant
numerous occasions to follow the appropriate procedures when she was absent from work. It
concludes that a written reprimand was long overdue and reasonable and appropriate under
The County alleges that the grievant admitted the items listed in the written
forward a number of excuses to justify her misconduct. It insists these "excuses" are "full of
and simply are not reasonable. It submits that these "excuses" lack any substance and the
claim that the conversations with her superiors were not verbal reprimands because she was
formally told so is puzzling as these were not passing conversations but held in private and
addressed each issue. It rejects the grievant's claim that her supervisors and others disliked
were causing problems for her. The grievant's assertion as to misunderstanding the
to calling in when she was absent or late is not credible, according to the County, as
evidenced by the
numerous notes Ms. Bentley left on the grievant's time sheets. Also, the County
claims the grievant's
excuse concerning the release of confidential information is not credible. It insists that the
testimony lacks credibility as it conflicts with more credible testimony and the documentary
The County argues that the Arbitrator should defer to the County's judgment as to the
imposed. It cites arbitral authorities for the proposition that unless the Employer has acted in
arbitrary or unreasonable fashion in assessing the penalty, it should not be changed. It also
that prior warnings and the grievant's past record may be considered in determining the
penalty and here the grievant has a history of performance deficiencies for which she was
counseled, so the written reprimand should be upheld. It seeks dismissal of the grievance.
The Union contends that the misconduct alleged by the County is not of a serious
asserts that in such cases, it is universally recognized that progressive discipline should apply
County's Personnel Policies and Procedures Manual sets out a progressive sequence of
steps commencing with a verbal reprimand. It argues that the written reprimand in this case
the verbal reprimand provided in the County's manual and the Union believes that the
in bad faith by bypassing the initial disciplinary step.
As for the first specific charge, the Union disputes the County's claim that the
admitted making demeaning statements to a client and allege that the statements made to the
may have caused the client to feel demeaned but the grievant could not control the feelings of
client nor how she interpreted the grievant's remarks, especially when the client is learning
and unusually fragile emotionally. It notes that exactly what was said is not known and as
did not testify, the grievant was not allowed to confront her accuser. It argues that the
have produced the witness and its failure to do so violated the grievant's right to fundamental
process, so the assertion of alleged misconduct must fail.
As to the second charge of release of confidential information, the Union states that
"release of confidential information" was upon a request of the District Attorney's Office and
action was taken for some three months after the incident. The Union believes that this was
attempt to "lie in the weeds" while building a case against the grievant. It claims that the
conduct was unfair and contrary to the purpose and intent of progressive discipline. The
maintains that the grievant learned what she knew to be incorrect news and discussed with a
co-worker whether the information would be helpful. It observes that she then asked the
Attorney's Office if it might be helpful and the District Attorney's Office indicated it might
requested certain documents which the grievant supplied and later she advised her supervisor
actions which indicates the grievant did not know her conduct violated any rule. The Union
whether the release of information related to a serious crime can be any violation of law. It
that even if there was a technical breach of confidentiality, it was simply an understandable
With respect to the third item, failure to keep management informed of absences and
tardiness, the Union believes that this is primarily the result of a communication breakdown
employes and supervision. It submits that the grievant attempted to notify her supervisor of
and/or absences by leaving messages with clerical employes and this was deemed acceptable
supervisor, but the grievant later discovered one of the clerical employes had oftentimes
to pass on the message to the supervisor.
It concludes that the County did not have just cause to discipline the grievant as the
was too harsh and inconsistent with the County's own policies and the assertions made by the
lack foundation. It states that the reprimand is totally devoid of merit and should be
The County contends that the grievant's actions were of a serious nature and it had
to discipline her. It argues that the grievant disregarded the requirement to treat everyone
respect and dignity and to be concerned with disability and cultural accommodations, such as
"personal subject matters," when she made comments to Client A. It disputes the
to discredit Client A as not credible on the basis that Ms. Huebsch personally
interviewed Client A
who had taken written notes about the treatment she received from the grievant and claims it
reasonable for the County to find her credible. It notes that the comments would offend
whether disabled or not or "unusually fragile emotionally" and the comments are
will not be tolerated in a Social Services Department setting.
The County notes that the Procedural Manual provides that records are available to
District Attorney's Office but not for any purpose unconnected with the administration of
It claims that the grievant released confidential information unrelated to the administration of
Client X's paternity action which had been closed for four months. The County
information was requested by the District Attorney's Office only after the grievant telephoned
District Attorney's Office and informed that office that the Child Support Agency had
relative to the accused's relationship to the deceased child. It argues that had the grievant
call, the alleged request would not have taken place and it is speculative that the District
would ever have become aware of the closed paternity action had not the grievant
information. It submits that none of the Union's arguments excuse the grievant's misconduct
contrary to the Union's failure to recognize the seriousness of the grievant's actions, many
have upheld discipline and termination for such conduct. It concludes that a written
reasonable for the grievant's breach of confidentiality.
As to the grievant's failure to properly notify management when absent from work,
County states that it is baffled that a 13 year employe can claim a communications
she received several verbal warnings in addition to written notes and memorandums
irresponsibility in notifying her Employer of her absences. It insists that her conduct shows
a lack of
respect toward her Employer and is clearly misconduct.
The County maintains that a written reprimand was appropriate in light of the
cumulative conduct. It asserts that the record establishes that the County did not
bypass the verbal reprimand stage of progressive discipline. It notes that arbitrators
an admonishment of an employe constitutes a verbal reprimand. It also contends that
confidential information is serious enough conduct to bypass progressive discipline. It takes
position that in light of the facts of this matter, the written reprimand was appropriate. The
answers the Union's allegation of bad faith by issuing the written reprimand three months
breach of confidentiality by observing that the grievant's performance and conduct was
and addressed all concerns in the written reprimand and the decision when to do so does not
the fact that the grievant did commit the items in the written reprimand.
The County insists it had just cause for the written reprimand. The grievant
allegations in the written reprimand, she was put on notice as to treating everyone with
maintain confidentiality and the procedures for reporting her absences, and the penalty
reasonable in light of the grievant's actions. It concludes the written reprimand was for just
and the grievance should be dismissed in its entirety.
The Union contends that the County's brief is similar in many respects to the
discipline of the
grievant in that it has a foundation of erroneous or half-baked facts to support flawed
Union points out that in its brief the County contends numerous times that the grievant was
prior verbal reprimands; however, it contends the record is clear that the grievant was not
reprimanded, but rather, she was counseled as she was learning the various duties and
of her new job. It asserts that in 1998, the grievant was a new employe to the Child Support
and it was natural to make good faith errors in learning the job and the guidance of
not result in concocted reprimands which the County desperately attempts to do.
Contrary to the County assertion, the Union observes that the grievant and a
testified that they almost never referred to the Wisconsin Child Support Procedures Manual
everyday work. The Union denies that the record establishes that the grievant made
remarks and the County did not produce a single witness to directly substantiate these alleged
remarks. It denies that Ms. Bentley ever personally observed the grievant interact
with clients and
there was no direct testimony that a co-worker had witnessed such conversations. It asserts
County misstated that Huebsch received a verbal complaint when it was Tina Anderson who
then Social Services Director Dale Van Mieghen responded that no breach of confidentiality
misconduct could be attributed to the grievant. It claims that the grievant did not admit that
things to Client A that were taken in a demeaning fashion but that she may have made
Client A may have interpreted to be offensive. The Union objects to the evidence of
absence from January through November, 1999, stating that the discipline occurred in 1998.
Union states that grievant received informal memos about reporting her absences and
work but these did not constitute discipline of any sort. The Union states that the
inaccurate facts asserting that fellow workers were "angry"; rather, this was a reference to
It notes that the County gets its facts wrong and then makes bogus arguments based on these.
The Union concludes that the County's case is totally without merit. It argues that
County failed to prove the grievant demeaned or was otherwise offensive to a client. It
grievant acted in good faith in advising the District Attorney about information related to a
criminal matter. It maintains that the grievant also acted in a reasonably good faith manner
complying with her supervisors' request as to reporting absences. It notes that the grievant
is a long-term employe with a good work record. It insists that if some level of discipline is
found to be
appropriate, a written warning is too harsh.
The issue presented is whether there was just cause for the grievant's written
establish just cause, the following questions must be answered. Did the grievant commit the
Was she on notice that the offenses were prohibited? If so, does the punishment fit the
first question is whether the evidence establishes that the grievant committed the offenses for
she was reprimanded. The grievant is alleged to have made inappropriate and/or demeaning
statements to clients. The grievant tacitly admitted this charge in that her grievance seeks to
the written reprimand to a verbal reprimand claiming the punishment is too harsh (Exhibit 3).
her conversation with Client A, the grievant denied making any statement about
adoption and claimed
Client A was very demanding. She did not feel what she said to Client A was
Client A may have taken it that way. She noted that Client A suffers from a
learning disability and
may have felt demeaned whereas a normal person would not. The grievant is obligated to
everyone with respect and dignity and that includes persons with learning disabilities and not
normal people. The grievant's own admission that Client A may have taken the
as demeaning indicates that statements were made to Client A which were
example, statements made to a child may induce a different reaction than to an adult. The
understands her audience, and her statements that may lead the recipient of the statement to
demeaned indicate that the grievant did not treat Client A with respect and dignity.
were not necessary and not appropriate under the circumstances. The evidence establishes
As to the second charge of releasing confidential information, the evidence establishes
the grievant did so. The evidence established that in response to the news, the grievant
District Attorney's Office about information she had learned while performing her duties and
provided information to the District Attorney's Office. If the grievant was concerned that
information should go to the District Attorney's Office, she should have cleared it with her
before she did anything rather than after. It was not the
grievant's responsibility to clarify news reports by using confidential information from
a case record
that has been closed. The grievant had no authority to release the information and the
release of the information was prohibited by the Child Support Procedures.
With respect to the third charge, the failure to keep management informed when not
into work due to illness or personal emergency, the evidence established that the grievant did
follow the proper procedures. By a memo dated August 7, 1998, the grievant was
instructed that she
had to follow the contract and call in no later than one-half hour after she was scheduled to
and to notify her supervisor as well as a member of the clerical staff (Exhibit 10). The
excuse that a clerical employe did not forward her information to the supervisor indicates she
follow the proper procedure, plus the October 22, 1998 and April 21, 1999
notes attached to her
leave requests indicate that the grievant did not comply with the August 7, 1998
(Exhibit 10). The grievant's testimony that she did not get any direction as to calling in and
not properly trained is not credible based on the memo and other documentation (Exhibits 10
Thus, it is concluded that the evidence establishes this charge.
The next question is whether or not the grievant was on notice that her conduct was
The grievant was aware that making demeaning or inappropriate remarks was inappropriate
new worker training overview spells out the requirement to treat everyone with respect and
(Exhibit 12). It should be noted that the grievant began in her present position in October,
she had three years of experience in the position and dealt with clients during this time and
requirement to treat clients with dignity and respect.
With respect to maintaining confidentiality, the subject was addressed in new worker
(Exhibit 12), was discussed in staff meetings on a regular basis, is in the Child Support
Manual (Exhibit 13), and in 1997, the County discussed confidentiality with the grievant
As far as the failure to properly notify the County about absences and lateness, the
was given a memorandum on August 7, 1998, which spells out exactly what was
required of her with
respect to reporting her absences. Thus, it is concluded the grievant was on notice that her
The next issue is whether the punishment fits the crime. The grievant contends that
should receive a verbal reprimand rather than a written reprimand and the County alleges
that she has
already been given verbal reprimands. It is not necessary to say the magic words "verbal
for a verbal reprimand to be given. A verbal reprimand is merely an oral admonishment that
is not acceptable and should not be repeated. It is a "word to the wise." With respect to the
grievant's failure to inform her supervisor of her absences/ latenesses, the grievant was
a verbal reprimand. The memo of August 7, 1998, follows up on a verbal discussion
grievant was told her actions were unacceptable
and that the grievant will abide by the policy. It is obvious that ignoring these
result in more than just another verbal warning. As far as making demeaning statements to
if this were the only charge against the grievant then it may merit a verbal reprimand. With
to the breach of confidentiality, this is a serious offense and the grievant's rationale for its
simply makes no sense. This charge warrants a written reprimand.
Given all the facts and circumstances, when the three charges are considered in total,
written reprimand was not too harsh a punishment but, in fact, is appropriate for the offenses
Based on the above and foregoing, the record as a whole and the arguments of the
the undersigned makes the following
The County did not violate the collective bargaining agreement by issuing a written
to the grievant on May 7, 1999, and therefore, the grievance is denied.
Dated at Madison, Wisconsin, this 25th day of February, 2000.
Lionel L. Crowley, Arbitrator