BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 150, SERVICE EMPLOYEES
INTERNATIONAL UNION, AFL-CIO, CLC
PEWAUKEE SCHOOL DISTRICT
Mr. Steven J. Cupery, Union Representative, SEIU Local 150,
appearing on behalf of the Union.
Davis & Kuelthau, S.C., by Attorneys Mark L. Olson and
Gregory B. Ladewski, appearing on behalf of the District.
Local 150, Service Employees International Union, AFL-CIO, CLC, hereinafter
as the Union, and Pewaukee School District, hereinafter referred to as the District, are
parties to a
collective bargaining agreement which provides for the final and binding arbitration of
thereunder. The undersigned was selected from a panel of Wisconsin Employment Relations
Commission employes to act as an arbitrator to hear and decide a grievance over a discharge.
Hearing was held in Pewaukee, Wisconsin, on March 30, 2000. The hearing was
transcribed and the
parties filed post-hearing briefs which were exchanged on July 11, 2000. The parties
right to file reply briefs but only the District filed one, which was sent to the Union on July
and the record was then closed.
The facts underlying the grievance are not in dispute. The grievant was employed by
District as a substitute custodian in 1994-1995, was hired as a part-time custodian on August
1995 and became a full-time custodian on November 4, 1996. (Tr. 193, Ex. 5). The
terminated by a letter dated June 21, 1999, which stated, in part, as follows:
1. During your second shift assignment at Pewaukee
Elementary School, you removed the
evaluation form pertaining to another custodial employee from a desk in the school building
office. According to the statement of the secretary from whose desk the evaluation report
was taken, the report was located face down on the bottom of a stack of papers on her desk.
2. You further admit to
photocopying the custodial evaluation of another employee, Dean
Grunau, and sharing the evaluation with another custodial employee.
3. You have admitted to
retrieving an absence/attendance printout from the recycling container
of the school principal, Joan Marley, and sharing the printout with another custodian.
4. You have admitted to
unauthorized retrieval of confidential voice mail messages from the
voice mailbox of your Head Custodian, Cheryl Christian. (Ex. 3).
The grievant admitted that during his normal work hours on June 2, 1999, he removed
of Dean Grunau, a fellow custodian, from the desk of the Principal's secretary, copied parts
of it, and
put the evaluation back on the desk. The grievant then showed the documents he copied to
Jones, another custodian. The grievant admitted he went into the recycling bin in the
office and took part of an absence/attendance report and discussed this with Jones. The
admitted that he had accessed the confidential voice mailbox of his lead worker, Cheryl
two occasions. Jones reported these incidents to her lead worker. The grievant testified that
conduct was not appropriate (Tr. 194-195). Investigative meetings were held on June
7 and 8, 1999,
and the grievant could not explain his actions, but said he was sorry. By letter of June 21,
grievant was discharged effective June 25, 1999 (Exs. 3 and 5). The grievant grieved his
on June 30, 1999 which was denied at each step of the grievance procedure (Ex. 2).
The matter was
then appealed to the instant arbitration.
The parties were unable to agree on a statement of the issues. The District stated the
1. Is the grievance arbitrable pursuant to the
procedure stated in Section 7.1.3 of the collective
2. If so, did the District violate Section 220.127.116.11 of
the collective bargaining agreement when it
terminated the grievant for various admitted acts of misconduct?
3. If not, what shall the
The Union frames the issue as follows:
Did the District violate the just cause provisions of the
when it discharged the
If so, what should the remedy be?
The undersigned frames the issues as follows:
1. Is the grievance timely?
2. If so, did the District have
just cause to discharge the grievant?
3. If not, what is the
ARTICLE II RECOGNITION
. . .
2.3.2 The School Board has powers, rights,
authority, duties and responsibilities for
operation of the school system conferred upon it and vested in it by the laws and
constitution of the State of Wisconsin. It is the right of the Board, in accordance with
applicable law and in compliance with this agreement, to promulgate and apply
reasonable rules and regulations to:
. . .
18.104.22.168 Terminate, suspend,
demote, discharge or take other
appropriate disciplinary action against an employee for just cause.
. . .
ARTICLE V WORKING CONDITIONS
5.1.1 The basic purpose of the custodial and
maintenance activities of the school shall be
to provide conditions most conducive to carrying out the educational program of the
. . .
5.2.2 The building principal in each school
serves as the administrative officer responsible
for the total educational program in the school. Therefore, while school is in session,
the building custodians work under immediate direction of the principal of the school
or his/her designee.
. . .
ARTICLE VII TERMINATION OF SERVICES
. . .
7.1.2 In the event an employee is terminated for
cause, notice thereof shall be given to the
Union and the employee may file a grievance.
7.1.3 As hereinafter
provided, the grievance shall be filed within five (5) days after
termination and in the event such termination is found to be without cause, the
employee shall be reinstated with back pay.
. . .
ARTICLE X GRIEVANCE PROCEDURE
. . .
10.2.1 Step 1. Any
bargaining unit member or group of employees who feel they have a
grievable issue shall attempt to resolve that issue with the Director of Buildings and
Grounds within twenty (20) working days after the grievant(s) knew or reasonably
should have know (sic) of an incident giving rise to a grievance. A working day is any
day on which employees are regularly scheduled to perform work for the District. If
the issue cannot be resolved, the matter may be appealed in writing to the Business
Manager within ten (10) working days of the date upon which the grievant(s)
discussed the problem with the Director of Buildings and Grounds.
POSITIONS OF THE PARTIES
The District contends that the grievant's violation of work rules, Board policies and
duties justifies his termination. It submits that his misconduct in rifling through a
secretary's desk for someone's confidential record and his conscious decision to read, copy
it were in gross violation of Board procedures and are a gross dereliction of his assigned job
It argues that this misconduct was uniquely disturbing and no "correction" is possible and a
chance is out of the question. It cites arbitral authority that holds the seeking and accessing
confidential information cannot be condoned even once and the only appropriate response is
The District claims that a separate and complete basis for his termination is the
breach of his employer's trust. It believes that the grievant cannot be trusted with keys and
be trusted to cease his atrocious conduct. It observes that his Principal, Lead Worker and
cannot trust him and thus, he lacks an indispensable job qualification. It insists that as the
cannot be trusted as a custodian and the District cannot take steps to assure that his
not occur again, discharge is appropriate and is valid, reasonable, justified and supported by
precedent. It states that the grievant did not act as a "custodian", but rather as a spy, rifling
roaming through private voice mail for his own amusement demonstrating that he was not
handle the responsibilities given to him.
The District takes the position that the grievant's misconduct was unique and directly
the District and went to the heart of the employment relationship. It notes that this is not a
performance problem like tardiness, carelessness or simple mistake which correction or
could cure; rather, it goes to the grievant's dishonest character and only the fear of being
would be the incentive to refrain from repeating his misconduct but there would be no
to catch him. It points out that too many people were hurt by the grievant's misconduct to
a lesser penalty than termination.
The District alleges that the Union's evidence with respect to disciplinary incidents
two other employes is irrelevant because of the uniqueness of the grievant's misconduct. It
the use of progressive discipline for the two employes involves performance issues or
problems with alcohol, but here the gravity of the grievant's misconduct in both degree and
support discharge. The District observes that the grievant has no excuse or justification for
misconduct and only confirms the validity of his discharge.
The District submits that the grievant's allegation that he was looking for a school
is not supported by the facts, as he could have easily obtained one and fails as a matter of
logic as he
had no need to look for a calendar during working hours. It also suggests that the grievant
admitted to what was demonstrated by other witnesses and attempted to shift the blame for
misdeeds. It argues that the pattern of misdeeds over a period of time was concealed by the
so his assertion of a lack of progressive discipline merely confirms the need for discharge. It
that the grievant's excuse that he was "nosy" confirms the validity of his discharge simply
the job is not for a nosy person. The District rejects the grievant's claim that he is
states that there was no sign of remorse, only a concession that his many acts of misconduct
appropriate. It insists the grievant's conduct is much worse than inappropriate, and is far
he is willing to admit. It argues that this is spin control, not rehabilitation. It speculates that
grievant called his supervisor about confidential documents after he had found them and
to shift any blame to the confidential secretary. It submits that the grievant is still denying
did, and is far from rehabilitated.
The District contends that the grievance is procedurally non-arbitrable because the
was not filed within five days after the termination as required by Section 7.1.3 of the
It concludes that for the reasons set out above, the grievance should be dismissed.
The Union notes that the District raised a threshold issue related to the timely filing
grievance. It contends that the grievance was timely filed and was filed five days after the
date of the termination. It points out that the issue of timeliness was not raised until the
hearing and thus was waived, citing Levi Strauss & Co., 69 LA 1 (Goodstein, 1977)
Carbon Co., 47 LA 1120 (Merrill, 1967).
Turning to the merits, the Union argues that the District did not have just cause to
the grievant as it failed to administer discipline equitably, enforced rules where it had no
grievant was aware or had knowledge of such rules, did not apply progressive discipline and
take into account the grievant's overall good work record.
The Union applies the seven tests of just cause offered by Arbitrator Daugherty in
Enterprise Wire Co., 46 LA 359 (1966).
The Union asserts that the District failed to equitably enforce its rules by charging the
with malice toward a fellow employe without even investigating the allegation that Nancy
also made remarks about Dan Grunau. The second area is that the grievant entered another
voice mail box, yet Union Steward Haberman had reported to his supervisor that someone
into his voice mail and although his supervisor told him he would look into it, there was no
The Union submits that the next area is enforcement of rules against the grievant
District had no proof that the grievant was aware or had knowledge of the rules or the
gravity of the
consequences. The Union states that it is not denying that the grievant should have known
was doing was wrong, but the District did not make known the gravity assigned a violation.
If it were
spelled out to the grievant there was a potential for discharge, the Union believes he would
dissuaded from engaging in his overly-curious behavior.
As to the confidentiality of the paper in the recycling bin, the Union observes that the
failed to show the arrangements the head custodians had made on retrieval of recycling
did it prove that the grievant read or discussed anything beyond his own personal records.
further points out that there was no evidence that the grievant was aware of the rule on the
use of copiers.
The Union alleges that its most important argument that the District failed to adhere
just cause test is its failure to adhere to progressive discipline. It notes that the District
because of the number of infractions over a period of time, the grievant should not
be afforded a lesser discipline; however, there was no discipline for these "infractions"
so the grievant
could be expected to be held to a higher standard should additional infractions occur. It
the District argues that the infractions involve significant issues of trust and malice toward
employes but the Union notes the disciplinary records of O'Hern and DiTorrice which
a long period of time and involved theft of time and malice toward another employe merely
in multiple suspensions. It insists that the District gave little if any weight to the grievant's
record which had no prior discipline of any kind.
The Union refers to the grievant's testimony that he had apologized to Mr. Grunau
Grunau was made aware of the grievant's actions, the grievant admitted what he did was
made a commitment that he would not jeopardize his job again, a job he loved. The Union
that the grievant's re-employment would serve both the District and the grievant well.
It concludes that the District has failed to meet the standard of just cause and the
actions should be overturned and a lesser discipline imposed more in line with the offense
and the grievant be made whole for any losses less appropriate discipline.
The District contends that the Union's brief is an exercise in misdirection and denial.
responds to the seven tests of just cause quoted by the Union. It argues that it is outrageous
Union would pretend that the grievant would not know his misconduct would warrant
It asserts that the grievant knew what he was doing and he just didn't care. It submits that
employes have the legal and moral right to expect that their personnel records will "not be
like chewing gum" and "become fodder for office gossip at the water cooler", yet this is
grievant intended to do with Mr. Grunau's evaluation and personnel file. It points out that
District offers any number of temptations to the "nosy" or "overly-curious" employe who is
with a master key. It submits that the District has to have full confidence in its employes
grievant violated his trust and should not be returned to duty as this would send the worst
message to the rest of the staff.
Contrary to the Union's claim that the District did not properly investigate the
misconduct before administering discipline, the District maintains that all the evidence and
demonstrates that the District immediately and thoroughly investigated the grievant's
It argues that the hint that Ms. Jones should have been disciplined is merely an attempt to
issue because engaging in private banter about Grunau when he was not around, even if
of an entirely different magnitude than the grievant's conduct. It alleges that the Union's call
discipline Ms. Jones, one of its members, is merely an attempt to retaliate or discriminate
for her reporting the grievant. The grievant admitted his misconduct, so there is substantial
The District contends that the Union's attempt to compare the grievant's misconduct
of others is comparing apples and oranges and is simply inapt. All the other examples,
the District, are far different in degree and kind from the complete breach of trust at issue
argues that following progressive discipline in other cases demonstrates that it understands
follows the principle of just cause but where the misconduct is so serious as is the grievant's,
summary termination is required. It states that the situation is unique, the grievant's guilt is
gravity of the offense is profound, so the penalty of discharge is appropriate and richly
asserts that none of the other employes engaged in the conduct which the grievant has in this
the discipline cannot be judged upon the discipline in other cases.
The District denies that the penalty of discharge is excessive. It insists that the
confidentiality is a most serious matter, and the only appropriate remedy is discharge. It
Arbitrator not to substitute his judgment for the District's where the District has not acted
unreasonably, arbitrarily or capriciously. It notes that the grievant has a clean record but has
three years of full-time employment. It observes that the grievant's motives for prying are
colorably proper as he was snooping for the sake of snooping, and discharge is the only
remedy. The District concludes that the grievance should be denied.
The District has raised an arbitrability objection alleging that the grievance was not
filed. This issue was first raised at the arbitration hearing and was not mentioned in the
prior steps of the grievance procedure. (Exs. 2B, 2D, 2F). Under the circumstances,
it would appear
that any objection to timeliness had been waived by the District. Additionally, the letter of
termination, although dated June 21, 1999, indicates that the grievant is terminated effective
1999 (Ex. 3). The grievance was filed on June 30, 1999, which is within five (5) days after
termination (Ex. 1 and 2A). Thus, it is concluded that the grievance is timely filed.
Turning to the merits, the grievant admitted that he took Mr. Grunau's evaluation off
Principal's confidential secretary's desk, read it, copied portions of it and showed it to
another co-worker. Additionally, he admitted accessing the voice mail of his lead worker on
two occasions and
that he reviewed confidential information from the Principal's recycling bin. The grievant
that this conduct was inappropriate. Additionally, he knew the material he read and copied
Principal's secretary's desk was confidential, as he called his supervisor about the propriety
confidential information laying around (Ex. 11). The evidence failed to establish that anyone
read, copied and disseminated confidential information. In fact, other custodians denied
conduct similar to the grievant. (Tr.
172-173, 192, 204-205). The District's investigation was fair and objective as the
the charges against him which was verified by others.
The only real issue in this matter is whether the penalty of discharge was warranted.
are certain offenses which are serious offenses, sometimes called cardinal offenses, such as
striking a foreman, deliberate sabotage, certain safety violations, which normally justify
discharge without the requirement of progressive discipline or consideration of the length of
employe's service. For example, arbitrators generally uphold discharge for theft without
the value of the item taken or the employe's seniority and prior clean record because the
effect could be great and grant each employe the right to steal at least once. Also, resident
an elderly person in a nursing home will generally result in discharge because abuse cannot
to happen again; otherwise, abuse would become rampant.
The issue here is whether the admitted actions of the grievant constitute a cardinal
A review of arbitration cases reveals that the mere accessing of confidential material without
authorization results in termination. Duke University, 103 LA 289 (Babiskin, 1994); Norton
Community Hospital, 106 LA 970 (Hart, 1996). A discharge for illegal eavesdropping by a
long-term employe merited discharge. Claridge Products and Equipment, 94 LA 1083
1990). Discharge was upheld for the disclosure of confidential information to a third party.
Telephone Co. of Kansas, 100 LA 541 (Pratte, 1993).
In the instant case, the grievant not only accessed confidential information, but
it. Additionally, he surreptitiously entered his lead worker's voice mail on two occasions.
conduct constitutes a cardinal offense for which discharge is appropriate. Any lesser penalty
allow every employe to obtain and dispense confidential information at least once. Such a
would be so harmful that it cannot be tolerated.
The grievant has admitted that he is overly-curious, nosy or snoopy; however, given
grievant's demonstrated predilection for prying into confidential matters, he cannot be trusted
conform to the requirements of a custodian with keys and access to confidential information.
grievant has lost the trust of his supervisors and co-workers by his willful misconduct. The
established that the grievant lacks the responsibility to perform as a custodian. No mitigation
found to overturn the District's decision to discharge the grievant.
Based on the above and foregoing, the record as a whole and the arguments of the
the undersigned issues the following
1. The grievance is timely filed.
2. The District had just cause to discharge the grievant and therefore, the
dismissed in all respects.
Dated at Madison, Wisconsin this 18th day of September, 2000.