BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN COUNCIL 40, AFSCME,
AFL-CIO, LOCAL UNION 560
EAU CLAIRE AREA SCHOOL DISTRICT
(Robert Gehl Grievance)
Mr. Steve Day, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, on behalf of the Union.
Weld, Riley, Prenn & Ricci, S.C., by Ms. Victoria L. Seltun and
Mr. Stephen L. Weld, on behalf of the District.
The above-captioned parties, herein "Union" and "District", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Eau Claire, Wisconsin, on January 11, 2000. There, the parties agreed I should retain my
jurisdiction if the grievance is sustained. The hearing was transcribed and both parties filed
were received by February 29, 2000.
Based upon the entire record and arguments of the parties, I issue the following
The parties have jointly agreed to the following issue:
Did the District discharge
grievant Robert Gehl for just cause under Article 1, Section 4, of the
contract and, if not, what is the appropriate remedy?
Custodian Gehl began his employment in 1988. He received a written warning on
1999 (unless otherwise stated, all dates herein refer to 1999), for "Negative Interactions with
Students" which accused him of telling one high school student, "Would you like it if I
map up your ass?" and which also asserted that he referred to another student by asking
whether they had noticed "our little nigger bitch standing on the corner again yesterday?"
received a second written warning on April 26 for telling a student he had accessed his
student file and that "Any employe can get into student files." Gehl did not grieve either
warning. They were the only two instances of discipline in Gehl's tenure of employment.
Gehl was suspended on July 14 and was terminated via an October 13 letter from
Stephen L. Weld which stated in pertinent part:
. . .
Pursuant to Article I, Section 4, of the collective bargaining
agreement, please be advised that
the Eau Claire Area School District has determined that your employment should be
termination is effective immediately. Because you have been on an unpaid leave of absence,
action does not affect your pay status. The determination is based on the fact that, in a
search of your
home conducted by the Altoona and Eau Claire Police Departments as authorized by a search
warrant, several items of School District property were found which had not been authorized
removal. These items include a cordless telephone, a flag, a surge protector, a stool,
toiletries, and other items. You did not follow District procedures (as set out in a
dated July 15, 1998), which established that no School District equipment could be removed
School District facilities for personal use without a supervisor's permission. Your immediate
supervisor, Tim Woodford, advises that you were not given permission by him or other
to take the items home.
It is the District's understanding that,
following the search, criminal charges were filed and you
subsequently pled guilty to disorderly conduct.
Theft from an employer ordinarily is grounds for discharge in and
of itself but, in the context of
the series of disciplinary actions taken against you during the second semester of the 1998-99
year, discharge is the only viable discipline option available to the District.
. . .
The facts leading up to Gehl's suspension and termination are as follows:
Technology Assistant Jake Schoeder, who is in charge of the District's network and
audio/video equipment, testified that when he came to work Monday, July 12, he
discovered that the
Lucent telephone in his room was missing; that it had been replaced with a telephone taken
O'Connell's adjacent classroom; and that Dr. O'Connell's telephone had been replaced with
Panasonic telephone that did not belong to the District. The battery pack in the Panasonic
said Schoeder, was dead and could not be recharged, but it was nevertheless able to display
speed-dialed telephone numbers which he dialed and which subsequently revealed that the
belonged to Gehl.
Schoeder that day reported the missing phone and told Gehl on the loading dock that
equipment had been missing over the weekend from the A/V department. Schoeder did not
specifically mention the phone and Gehl at that time never volunteered that he had taken a
home. Schoeder subsequently met with Head Custodian Tim Woodford and Gehl where he
that certain equipment was missing from the A/V room. Gehl again did not volunteer that he
taken the phone home.
Biology teacher John Phelps testified that Schoeder told him about the missing phone
Monday, July 12; that he then told Gehl and custodians Jim Studley and Gale Helwig in the
that a phone was missing from the A/V room and that Gehl never volunteered that he took
home. Phelps added that he had a subsequent conversation with Woodford in Woodford's
that he then told Woodford, in Gehl and Studley's close presence, about the missing phone,
time Gehl again did not volunteer that he had taken a phone home. Phelps said that he also
the missing phone with Gehl on the next day.
On cross-examination, Phelps stated that Schoeder was not present during his
July 12 hallway
conversation with Gehl, Studley, and Helwig; that he was not "a hundred percent sure"
then mentioned the missing phone; and that he was not sure whether Helwig was present;
Gehl was not directly involved in the conversation that Phelps had with Woodford later that
he mentioned the missing phone.
Terry Downen, the principal at North High School, testified that former Director of
and Grounds Dave Nilssen "retired under a great deal of duress of public scrutiny. . ." in
it was discovered in that he had misappropriated District property, i.e., scaffolding. Downen
explained that in response to the Nilssen situation, the following July 15, 1998, memorandum
Exhibit 10), was issued:
TO: Charles Kramer, Director of Buildings and
And All Head Custodians
FROM: Dr. Craig Vogt, Deputy
This fall we will be drafting new and
revised board policies regarding personal use of school
equipment and property. There are many issues to deal with and I will be involving several
in making suggestions on a policy to be recommended to the Board of Education.
In the interim no school district equipment
under the control of maintenance and custodial staff
shall be removed from school facilities for personal use.
Additionally, procedures will be set up for
the disposal of surplus or salvage materials and
equipment. In the interim no material shall be removed for personal use without a
Any questions regarding clarification of
these temporary directives can be made to Charles
Kramer or Craig Vogt.
. . .
Thereafter, said Downen, the memo was "distributed to the administrative team at that
point, but it
came directly to Mr. Woodford from the buildings and grounds department, I'm sure", and
Woodford then shared it with the custodians. He added that some custodians, including
Gehl, spoke to him about the memo because they did not believe it was fair to "leave them
the bag" because of what Nilssen had done. He added that the District has specific forms
Exhibit 3), to be used if employes want to borrow District property; that Gehl never asked
to take the phone home; that he on Wednesday, July 14, told the Eau Claire Police
Gehl had taken the phone home; that he and Associate Principal Earl Garrison later that day
Gehl's home when the police went there; and that the police then found that Gehl had taken
missing telephone, along with other District property, i.e., "assorted toiletries", a stool, an
flag, and a surge protector. He also said that he subsequently recommended Gehl's
he no longer can be trusted.
On cross-examination, Downen stated that he did not personally see the July 15,
posted on the bulletin board; that the memo only applied to custodians and that no finalized
has yet been promulgated on that subject; that District administrators held a retirement party
Nilssen in May, 1998, before the District learned he had taken District property and before
pleaded guilty to "theft-false representation", a misdemeanor; that he never asked Gehl for
of the story relating to the telephone and other District goods found in his home; and that he
suggested to Gehl on July 14 that he resign even before he asked Gehl for his side of the
also said that the District's Board could have decided not to bestow certain benefits on
his retirement but, that if it did so, Nilssen then could have sued the District.
Head Custodian Woodford testified that he "just laid" the July 15, 1998, memo on
table for them all the custodians "to look at"; that custodians then complained about the
he met with Gehl and Phelps on July 12, at which time the missing telephone was
discussed; that he was "not really too sure" about a subsequent meeting; that because broken
protectors are easily fixed, they are never discarded; and that the stool found in Gehl's home
useable and not normally thrown away.
For his part, Gehl testified that he received a lot of telephone calls at home because
officiating; that he regularly took his phone with him when he went across the street to visit
neighbor, Chris Helmareich; that when visiting there, he often experienced great difficulty
Panasonic phone, which is why he decided to buy a new 900 megahertz phone; that he took
District's Lucent phone, a 900 megahertz phone, on Friday, July 9, because he wanted to
across the street before he bought a new phone; that he did not tell anyone he had done so;
replaced the District's Lucent phone with his own Panasonic phone which was working at
"so that they had a phone to use in the A/V. . ."; and that the Lucent phone was in the A/V
that time and not in Dr. O'Connell's office. He also stated that he tested the Lucent phone
Helmreich's house that Friday afternoon; that he intended to do further testing because "I
any calls that came in"; that he intended to return the phone "after a week or two weeks,
it to see. . . if it works or not"; that he previously had borrowed District tools without
that he never had seen the July 15, 1998, memo because it was never posted.
He also said that neither Phelps nor Schoeder ever told him on July 12 or 13 that the
was missing and that he never told them he had taken the phone because, "When they said
missing A/V equipment. . .I'm thinking of TV's, camcorders, computers, but not the
added that he told both Downen and the police on Wednesday, July 14 that he had "screwed
Downen on July 14 asked him to resign, to which he replied, "No, I not gonna resign over
like this"; that he picked up the toiletries in a slop sink room because he thought they were
that he took home an American flag because it had started to shred and because it was going
discarded; and that he retrieved a stool without
a top from the garbage. He denied ever telling the police he had stolen the phone and
said that he
pleaded guilty to the theft, a misdemeanor charge, only because he lacked the $2,000 -
$3,000 in legal
fees needed for a court proceeding. He also said: "I screwed up by not asking the
after what had come down with Dave Nilssen's job."
On cross-examination, he stated that he did not overhear Phelps' conversation with
on Monday, July 12, wherein they discussed the missing phone; that he never had any
with Phelps on Tuesday, July 13; that the custodians knew in July, 1998, that because of
situation, "there was a rumor that [the rules on taking home District property] were gonna
and that the custodians believed that Nilssen "got the goods" and that the custodians "got the
because they heard in early July, 1998, that custodians would no longer be able to take home
Helmreich, Gehl's neighbor, testified that Gehl's Panasonic telephone was out of
range on his
property; that Gehl told him he was borrowing the District's phone because he "wanted to
far it would actually reach"; and that he told the police on July 14 what Gehl had told him
borrowing the phone.
Custodian Studley testified that he over the years retrieved light fixtures from the
that he had never seen the July 15, 1998, memo at work; that he and custodian Mike Omodth
to Phelps on Monday, July 12, at which time Phelps mentioned the missing telephone; that
who did not speak, also was present at that time and that Gehl was not present during that
conversation; and that when he and Gehl later that day passed by Woodford's office, he did
Woodford or Schoeder say anything about a missing telephone.
On cross-examination, he acknowledged hearing rumors about not being able to
District tools for personal use.
Custodian Bruce Remington testified that he over the years retrieved trash out of the
garbage can or dumpster, including stools; that it was "standard policy" to do so without
permission; that he saw the July 15, 1998, memo posted in the maintenance shop in either
of 1999 or 1998; that the memo is somewhat misleading; and that he has thrown away surge
He also said that the District was "setting up new rules. . ." relating to the use of
property; that he would not take tools home under those rules; and that he would not have
home a working telephone home under those rules.
Custodian Helwig testified that he was not present at North High School in July,
that Phelps therefore erred when he said he in July spoke to Helwig, Gehl and Studley about
missing phone. Helwig also said that he had taken home discarded garbage cans, chairs, old
and A/V carts and that prior to January, 2000, he had never seen the July 15, 1998,
On cross-examination, he stated that he and other custodians were "upset" and that
complained to Associate Principal Earl Garrison about the District's new rules that prevented
from taking home District tools; that the custodians basically felt that administrator Nilssen
goods" and that the custodians "got the shaft"; and that he had taken home a broken phone
found in the garbage.
He also said that he would never take home a working phone without permission,
I can go to the store and get one and take it back."
The parties stipulated that custodians Dave Schleppenbach, Dave Ketels, and Bill
also took home materials before June, 1999, without asking for permission to do so.
Maintenance man Bob Bennett, who is also the President of Local 560, testified that
now feel they need to ask permission to borrow tools pursuant to the July 15, 1998, memo;
memo does not pertain to whether items can be retrieved from the garbage; and that he in the
has taken home discarded football helmets and a broken Tonka truck. He also said that
Eugene Plante was suspended for five days for sick leave abuse (Union Exhibit 6), the
he had been disciplined for that infraction, and that custodian Steve Paulson received a letter
reprimand in March, 1999, for eating $73.60 worth of cafeteria meals without paying for
he subsequently repaid (Union Exhibit 7).
He added that because of the July 15, 1998, memo and the Nilssen situation, "things
gonna get tighter", but that things got back to normal because "we didn't see anything come,
didn't see anything come in the summer of '99." He also said that he would not have taken
phone in June-July, 1999, without permission because: "I just ask permission that's
the way that's
the way I am, I guess."
Custodian Chuck Gumness testified that he saw several school principals borrow a
canoe. On cross-examination, he acknowledged that he did not know whether they had
permission to take the canoe.
Maintenance man Terry Henricks testified that metal shop area instructor Earl
him that he had taken home several large District fans and that he, Henricks, then retrieved
from Gregory's home and brought them back to the maintenance facility. He added that he
to believe" that Gregory did not ask permission to take the fans home.
Associate Principal Earl Garrison testified that the July 15, 1998, memo was posted
bulletin board in the custodians' room at North High School; that custodians complained to
the District's new rules on taking home District property, and that he is unsure whether Gehl
present during any of those discussions.
POSITIONS OF THE PARTIES
The Union asserts that the District lacked just cause to terminate Gehl because he was
guilty of theft or of violating the July 15, 1998, memo and that, moreover, the District failed
any of the "seven tests" spelled out in Just Cause: The Seven
Tests (Kovin & Smith, 1985). As a
remedy, the Union seeks a traditional make-whole order that includes Gehl's reinstatement
The District maintains that the grievance should be dismissed because Gehl has
taking home District property without permission; because "where the facts are in dispute,
grievant's testimony is not credible"; and because it had just cause to terminate him for
School District property".
This case mainly turns on whether Gehl's testimony should be credited. If it is
discharge will be overturned for many of the reasons advanced by the Union. If it is not
if the District has met its burden of proving that Gehl in fact intended to steal the District's
phone, his discharge will be sustained. (There is no need to address his taking of other
property if the theft charge has been proven.)
On this score, I credit Schoeder's testimony that except for the three speed-dialed
numbers stored in the phone's memory, the Panasonic phone left behind by Gehl was totally
could not be recharged. This is a critical issue because Gehl testified that his Panasonic
was not dead and that he left it at school so that others could use it. Since it
was dead, and since
Gehl must have known that it was dead, there was no plausible reason for Gehl to have
phones except to cover his tracks by leaving a dead telephone in a room that was not used
summer. This switch would have worked except for the three speed-dialed telephone
in the Panasonic phone in spite of its dead battery a fact that Gehl apparently did not
Moreover, I do not accept Gehl's claim that he took the Lucent phone home to "test"
he easily could have purchased a phone and then returned it if it did not work properly.
is exactly what fellow custodian Helwig testified that he would do if he needed to buy a new
In addition, while neighbor Helmreith testified that Gehl told him he had taken home the
phone to test it, Helmreith's testimony was directly challenged by
police officer Sean Lester who wrote that Helmreith told him that he did not know
where the phone
came from. Hence, I am unable to credit Helmreith's testimony.
In addition, if Gehl really wanted to "test" the phone, he easily could have telephoned
someone from his home and told that person to telephone him in a few minutes while he
to Helmuth's property. In that way, he could have returned the phone back to school on
July 12. His failure to perform that elementary "test" shows that he intended to keep the
Furthermore, while Gehl claimed that he was entitled to borrow the phone under the
lax rules, no other custodians testified that they would ever borrow a working phone without
permission. To the contrary, custodians Remington and Bennett both said that they would
home a phone without first asking for and receiving permission.
Given all this, I find that Gehl was guilty of theft which is normally a
Here, though, the Union claims that Gehl is the victim of disparate treatment because
District never terminated former Director of Buildings and Grounds Nilssen even though he
misappropriated over $1,000 worth of District property. The Union therefore quotes
Arbitration Works, Elkouri and Elkouri, p. 934 (BNA, Fifth Edition, 1997),
for the proposition:
"Absolute consistency in the handling of rule violations is, of
course, an impossibility, but that
fact should not excuse random and completely inconsistent disciplinary practices."
The Nilssen situation is troubling because it indicates that the District has dual
standards: one for its
administrators who steal, but who then are not terminated, and another standard for rank and
workers who steal a much smaller amount (such as a phone), but who then are terminated.
But having said that, one other fact looms large: here, Gehl knew he
not free to steal
since he tried to cover his tracks by leaving his dead Panasonic phone and since he also
actually happened throughout this proceeding. As a result, he cannot claim that he thought
free to steal merely because Nilssen was not fired over his stealing and because he was
retire shortly thereafter.
The Union also points out that the District did not fire Plante for committing his
of sick leave abuse and that it did not fire Paulson for eating $73.60 worth of cafeteria meals
paying for them. Both of these offenses can constitute dischargeable offenses
under many circumstances because they both involve theft: the first, theft of time; the
This record does not reveal all of the circumstances surrounding those prior incidents.
However, it appears that both Plante and Paulson at some point admitted to their
counts for something because the District did not have to go through the time and trouble of
at an arbitration hearing that they had engaged in wrongdoing. Here, by contrast, Gehl has
admitted to stealing the Lucent phone and he therefore has forced the District to expend
resources in proving its case. As a result, he is not entitled to the same treatment accorded
and Paulson particularly since he received two written warnings before his discharge.
The Union also asserts that Gehl's termination should be overturned because the
failed to meet all of the "seven tests". I find that the only meaningful violation of those tests
on the District's failure to get Gehl's side of the story before he was suspended and then
Under certain circumstances, a disciplinary action can be overturned on this basis alone. But
Gehl was not prejudiced by the District's action because he steadfastly has maintained that he
intended to steal the Lucent phone. That being so, Gehl certainly would have made that
claim before his suspension and termination had he been asked for his side of the story. He
would not have offered any extenuating information regarding his situation, which is why he
no adverse effect from the District's failure to comply with this important procedural
Absent any such prejudice, his discharge cannot be overturned on this basis alone.
In this connection, it is certainly true that the District has yet to clearly
delineate under what
circumstances District property and equipment can be taken home, as different employes
different responses to this question. There is simply no excuse for this confusion to exist
District's right to promulgate rules that are clearly set out and openly posted for all to see
posting requirement can be easily met by having all employes sign a receipt acknowledging
have received the rules). If the District does not fulfill this responsibility, it is possible that
misunderstandings will continue.
If Gehl honestly misunderstood the District's policy on taking home the Lucent
termination would be overturned. But since this case involves stealing and not an honest
misunderstanding about taking home discarded school property, it is my
That the District had just cause to terminate grievant Robert Gehl. His grievance is
Dated at Madison, Wisconsin this 15th day of May, 2000.