BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
DEFOREST AREA SUPPORT STAFF/CAUN
DEFOREST SCHOOL DISTRICT
For the DeForest Area Support Staff (DASS): Ms. Anne F.
Boley, UniServ Director, Capitol Area UniServ-North, 4800 Ivywood Trail,
McFarland, Wisconsin 53588
For the DeForest Area School District: Attorney Heidi S.
Tepp, Lathrop & Clark, Attorneys at
Law, 740 Regent Street, Suite 400, P.O. Box 1507, Madison, Wisconsin 53701-1507.
The DeForest Area School District (hereinafter referred to as District or Employer)
DeForest Area Support Staff (hereinafter referred to as DASS or Union) are parties to a
bargaining agreement covering the period from July 1, 1998 through June 30, 2000. That
provides for binding arbitration of grievances as therein defined that may arise between the
On February 8, 2000 the Union filed a request with the Wisconsin Employment Relations
Commission for a 5-person panel consisting of WERC commissioners and/or staff arbitrators
which panel the parties would select one person to arbitrate a grievance that had arisen
parties. Commissioner A. Henry Hempe was selected by the parties to hear and decide said
A hearing was conducted on May 17, 2000 in DeForest, Wisconsin. A transcript of the
prepared. Each party filed an initial brief on June 20, 2000. A reply brief was filed by the
on July 6, 2000 and by the Union on July 7, 2000.
STATEMENT OF THE ISSUE:
The parties do not agree on a statement of the issue.
DASS suggests the issue be stated as follows: Did the District violate the contract
suspended Barbara Anderson for one (1) day without pay as a form of discipline for an
between two (2) District employees? If so, the District should reimburse Anderson for her
wages, remove from her file all mention of this discipline and whatever else is deemed
by the arbitrator.
The District suggests the issue be stated as follows: Did the District violate
Section B of the Collective Bargaining Agreement by suspending Barbara Anderson for one
without pay for her actions on September 1, 1999?
If so, what is the appropriate remedy?
I adopt the following statement of the issue: Did the District violate the contract
parties when it suspended the grievant for one (1) day without pay as a result of the
that took place on September 1, 1999?
If so, what is the appropriate remedy?
FACTS OF THE CASE
The grievant, Barbara Anderson, has been employed by the DeForest Area School
(hereinafter District or Employer) for 10 years. Until the discipline imposed leading to the
a grievance in this matter, Barbara Anderson has never been disciplined by the Employer,
and in fact
has compiled an excellent employment record. At all times material herein, Ms. Anderson
employed as the Pupil Services Department secretary.
Katherine Ashley has been employed by the District for 6 years as a school
Barbara Anderson, Katherine Ashley also reports to Director of Pupil Services, James
From time to time it is necessary for Ms. Ashley and Ms. Anderson to work together
with the preparation and filing of required reports and other paperwork. Prior to September
Ms. Ashley and Ms. Anderson had maintained a friendly working relationship.
That changed on September 1, 1999.
On that date both Ms. Anderson and Ms. Ashley were among Pupil Services
present for a 3:00 p.m. meeting that had been called by Pupil Services Director
Kohlmetz. The two women were seated around one of the corners of the four-table
square at which
eleven other meeting participants were seated. The meeting had not yet formally begun, and
Anderson asked Ms. Ashley about the status of certain reports that were overdue. Ms.
responded that she didn't wish to discuss the matter. Ms. Anderson persisted in her inquiry.
Ashley again expressed her unwillingness to discuss the matter and added that she was
Ms. Anderson replied, "we're all stressed out." Ms. Ashley's answer was marginally
"what do you have to be stressed out about?" The tones of the colloquy were not pleasant at
point, and Ms. Ashley acknowledges her tone was rude. Ms. Ashley turned away from Ms.
in a dismissive manner.
At this apparent snub, the grievant rose from her chair, and picked up a packet of
informational brochures she had brought to the meeting. The packet was about 1 inch thick
weighed at least half a pound. Holding the packet with two hands, the grievant raised it
approximately to her eye level, and smartly rapped Ms. Ashley on the top of her head with
The grievant describes her action as ". . . like a three stooges kind of thing
of okay I'll hit
her with these to wake her up, you know, how dare she ask me what kind of stress I'm
The grievant denies her action was violent, but characterizes it as stupid. The
believes that she was more frustrated than angry when she struck Ms. Ashley with the
grievant acknowledges that her action was " . . . probably a little more (than in a kidding
now when I think about it." The grievant adds, "I intended it in a kidding manner, but it
a little bit harder than if I were really just, you know, tapping." The grievant acknowledged
struck Ms. Ashley harder than she had intended.
In any event, the blow was struck with sufficient force to be heard by other meeting
participants. There was a sudden pause in the private conversations going on around the
Ms. Ashley experienced pain from the blow. She covered her head with her hands
to cry. Almost immediately, Ms. Anderson grasped Ms. Ashley's arm and apologized.
Director Kohlmetz, who claims not to have witnessed the incident but heard the noise it
observed Ms. Ashley had slumped in her chair, that her eyes were glassy, and that she was
He asked Ms. Ashley if she wanted an aspirin. Ms. Ashley declined the offer of an aspirin.
remained in the room and apparently participated in what turned out to be a 40-minute
Shortly following the incident the grievant was called out of the meeting to attend to
After the meeting ended, the grievant met Ms. Ashley in the hallway and apologized
action. She seemed both contrite and embarrassed. Ms. Ashley accepted the apology with
statement, "That's all right, Barb, I accept your apology, but you assaulted me and that's
The grievant ultimately wrote a note of apology for her action to all present at the meeting,
Ms. Ashley, and sent Ms. Ashley a box of notepaper.
Following the hallway meeting with the grievant, Ms. Ashley walked to the office of
Services Director Kohlmetz. He asked if the grievant had apologized. Ms. Ashley doesn't
answer but did tell him that her head hurt. She again declined an aspirin
Mr. Kohlmetz offered. Ms.
Ashley said she turned down the offer of an aspirin because the head pain she was
not like the pain from a "normal" headache; it was, instead, like a "bruise" headache, and
from the point on her head where she had been struck.
Ms. Ashley then drove to her "moonlight" job at a chain bookstore on Madison's
an approximate 15-minute drive. When she arrived, she said she felt nauseated and that her
badly. When a co-worker led her to a back room and asked what was the matter, Ms.
broke down and began crying. The co-worker drove Ms. Ashley to Urgent Care where a
examined her. The examination included some neurological tests. The doctor reportedly
Ashley that she had experienced a concussion and that her injury would have been more
severe if she
had not been wearing a metal headband over her hair when she was struck.
Ms. Ashley was offended, however, apparently by what she perceived as the
which Pupil Services Director Kohlmetz responded to the incident. When she returned to her
that evening, she reported the incident to her high school principal, who was
Ms. Ashley's immediate
supervisor. He seemed shocked, and he assured her that the matter would be dealt with the
day. Still shaken, Ms. Ashley then telephoned her sister and her sister agreed to spend the
The next day, Ms. Ashley's principal suggested Ms. Ashley write an account of what
occurred, and Ms. Ashley did so. In addition, the principal referred the matter to the School
District's Human Resources Director, Ann Smith. Ms. Ashley also verbally described her
with the grievant to the school's liaison police officer. The officer said the incident could
basis for charges to be filed against the grievant, but Ms. Ashley did not press any criminal
As it happened, at the time this incident took place Ms. Ashley was experiencing a
emotional trauma in her life. Ms Ashley also suffers from hypoglycemia and depression.
Ms. Anderson also was experiencing a high level of stress at the time of the incident
multiple, serious emotional traumas in her personal life. Ms. Anderson had survived cancer
the pervious year, was being treated for thyroid difficulties, and had experienced several
due to the cumulative stresses in her personal life. Each woman appears to have been
unaware of the
stress the other was experiencing. Each woman appears to have been unaware that the other
under medical treatment for good and sufficient reasons.
Following Ms. Ashley's completion of her written account, District Human Relations
Ann Smith interviewed other witnesses to the incident, including the grievant. The grievant
ultimately disciplined for her actions with a one-day suspension without pay. The District
verbally advised Ms. Ashley that her own statements to the grievant immediately prior to
had been unprofessional.
Article IV Grievance Procedure
. . .
D. Initiation and Processing
. . .
Level Four. . . . Upon notice to the Board of
if the parties are unable to agree on an
arbitrator, either party may request that the Wisconsin Employment Relations Commission
appoint an arbitrator who will hold hearings on the grievance and issue a decision on the
grievance in a timely fashion. The arbitrator's decision will be in writing and will set forth
findings of fact, reasoning and conclusions of the issues submitted and shall be binding upon
both parties. The arbitrator will be without power or authority to make any decision which
requires the commission of an act prohibited by law, or which relates to any grievance that
arises outside the term of this agreement. The arbitrator shall have no power to add to,
subtract from, modify or amend any provision of the contract. The parties by mutual
agreement may modify the contract. In the event there is a charge for the services of an
arbitrator, including per diem expenses, if any, and/or actual; and necessary travel and
subsistence expenses, or for a transcript of the proceedings, the parties shall share in the
. . .
Article XIII - Discipline and Discharge
B. Non-probationary Employees.
Employees who have completed the probationary period
satisfactorily and are continued
thereafter shall be entitled to all rights and protections granted by this Agreement retroactive
to the original date of employment. Such employees may be disciplined for reasons that are
not arbitrary or capricious, or may be discharged for just cause.
POSITIONS OF THE PARTIES
The Union points to Ms. Ashley's admission that her response to the grievant was
Union describes Ms. Anderson's reaction as ". . . tapping Ms. Ashley with a packet of
papers in a
kidding manner," and notes that Ms. Anderson had not intended to injure Ms. Ashley.
adds that the grievant immediately apologized to Ms. Ashley and later checked to see no
come to her.
The Union points out that the grievant is a good employee with a positive work
Union believes the District acted in an arbitrary or capricious manner when it enacted a
rather than imposing a lesser progressive disciplinary measure.
The Union acknowledges that the grievant's action again described as one
done in jest
without any intent to harm caused heads to turn because of the noise caused when
the packets came
into contact with Ms. Ashley's head. The Union believes the noise is not an accurate indicia
force with which the packets struck, contending that "(t)he phenomenon occurring here is
Second Law: F = MA (Force equal mass times acceleration). Thus the Union's explanation
noise is that it resulted from the air trapped between and in the tri-folded pamphlets escaping
presumably when the pamphlets came into contact with the top of Ms. Ashley's head.
The Union notes that the grievant was not reprimanded by her immediate supervisor,
Kohlmetz who apparently saw no need for an apology.
Thus, the Union asserts that the District overreacted to the incident and subsequent
filed by Ms. Ashley.
The Union also accuses the District of failing to provide a fair and objective
In this regard, the Union believes the District gave more weight to Ms. Ashley's statement
of any other person. The Union quotes one witness as stating that no one at the meeting
Ms. Ashley "because it didn't look like a real significant incident that had happened." The
claims that other witnesses regarded the incident as merely embarrassing, not an act of
Union further contends that the District added unwarranted weight to Ms. Ashley's complaint
requesting documentation from Urgent Care as to treatment provided Ms. Ashley.
The Union further charges that the District failed to take a written statement from the
and put the grievant at an extreme disadvantage by not showing her the full realm of charges
by the complainant. The Union cites arbitral authority for sustaining a grievance when the
does not conduct a fair and objective investigation.
The Union believes the punishment was excessive and punitive. The Union
District took the grievant's immediate apology and expression of concern as well as the
subsequent written apology into account. But the Union claims the District 1) failed to take
consideration the grievant's exemplary personnel record, 2) failed to consider the use of
corrective discipline, 3) failed to consider the undue hardship a loss of wages would cause
grievant, 4) failed to consider the emotional stress of the day working on the grievant, and 5)
to recognize the incident as merely horseplay.
The Union defines horseplay as conduct that is without malice, is playful, childish, or
impulsive. Citing an arbitration hornbook as authority, the Union suggests that four
be asked when analyzing horseplay:
Was the conduct intentional or accidental?
Was there any risk of injury or
damage to other employees or company property?
Was the workplace atmosphere
generally conducive to playful acts?
Did the employee react with regret
or remorse for the injury or damage he or she caused.
The Union believes the conduct was accidental, that there was no risk of injury or
other employees or company property, that the employer tolerated joking, kidding and
by its employees, and that the grievant apologized both verbally and in writing.
The District points to Article XIII, Section B in which the employer is authorized to
employees for reasons that are not arbitrary or capricious, and argues the District's decision
impose a one-day suspension was neither arbitrary nor capricious. Citing Wisconsin case
definitional assistance, the District contends the discipline imposed was both rational and
in fact. It does not shock a sense of justice nor indicate a lack of fair and careful
According to the District, it conducted a thorough investigation into the alleged
imposed the discipline only after giving great consideration to all of the facts.
The District believes it has met its burden of proof in this matter. The District
"preponderance of evidence" rule is the appropriate one for arbitrators to use in determining
issues presented by ordinary discipline and discharge cases.
The District argues that there is no dispute that the grievant struck Ms. Ashley on the
with a banded pack of approximately 50 brochures. The District notes that witnesses have
to the incident, and the grievant, herself, admitted her conduct.
Contrary to the Union's contention, the District argues the evidence does not support
notion that the action in question was merely a tapping done in a joking or kidding manner.
District argues that the loud noise that resulted from the contact between the brochures and
Ashley's head was described by witnesses as sounding like a "big bang" or a "clipboard."
District does not believe a simple tapping would have created such a noise.
Moreover, the District argues, the blow was made with sufficient force that it caused
Ashley physical pain. Ms. Ashley's immediate reactions and contemporaneous declarations
consistent with the notion that the blow caused pain, according to the District. In addition,
District notes, Ms. Ashley ended up seeking medical attention for the pain she was
The District also cites the grievant's testimony as additional evidence that Ms. Ashley
struck with force sufficient to cause her pain.
The District believes the discipline it imposed was reasonable, and suggests that an
should not second-guess every disciplinary action taken by an employer. The District
the discipline imposed in this case was issued only after an investigation, that the discipline
related to the conduct in which the grievant engaged, and there has been no allegation of
The District describes its investigation as detailed and exhaustive. Besides
Ashley and the grievant, the District says it also interviewed all of the witnesses cited as
by both women, except one.
The District argues that the discipline it imposed was extremely reasonable based on
According to the District, one employee striking another is never permissible in the
employers have a duty to provide a safe workplace for their employees. The District views
grievant as acting out of anger and frustration, and describes such conduct as warranting
However, says the District, it did not view the grievant's conduct in a vacuum.
District states that in reaching its discipline determination it took into consideration all of the
surrounding factors. These factors, according to the District, included the personal
experienced by the grievant, the grievant's prior exemplary employment record, the
contrition and apologies for her conduct, and the inappropriateness of Ms. Ashley's
led to the striking.
But, argues the District, these mitigating factors do not negate the seriousness of what
Even if the grievant's actions were merely a joke that got out of hand as contended
Union, says the District, the discipline imposed should be sustained. A grievant should not
punishment for action involving involuntary physical contact between employees just because
action was not motivated by personal malice, the District concludes, citing arbitral authority
believes supportive of this proposition.
In its reply the Union attempts to minimize the injury to Ms. Ashley, citing testimony
James Kohlmetz that Ms. Ashley participated in the meeting following the incident. The
skeptical that Ms. Ashley suffered a bruise on her head, because there is no mention of a
bruise in the
report submitted from Urgent Care. Since the District failed to provide a copy of the Urgent
report to the Union before the hearing, the Union urges the arbitrator to downplay or
mention of a head injury.
The Union objects to the District's reference to the grievant's "frustration and anger,"
point to the grievant's testimony that characterized the grievant as "more frustrated I think
angry" at the time of the incident.
The Union again asserts its belief that "(t)he force of the blow was minimal," and
to Newton's Second Law and its belief that noise of the blow was caused by escaping air that
been trapped in the pamphlets
The Union is dubious that the District took the grievant's good employment record
consideration since the District's Human Relations Director testified at hearing that she had
reviewed the grievant's personnel file prior to issuing the discipline.
The Union continues to believe that the discipline imposed was arbitrary or
Union believes it reached a verbal agreement with the District as to a concept of progressive
discipline, and cites arbitral authority that verbal agreements can be binding. The Union
attempts to distinguish a case cited by the District in support of its discipline on the grounds
discipline imposed in the case cited was only a written reprimand.
The Union also believes that a list of arbitration cases cited by the District in support
District's view that it had met its burden of proof all involved progressive discipline except
and in that case the arbitrator found in favor of the grievant.
The Union reasserts that the conduct of the grievant was not sufficiently egregious to
the one-day suspension. The Union contends that the contact was not forceful, that a simple
would have caused a loud noise, and that Ms. Ashley's bruise is completely unsubstantiated.
Union further argues that the grievant clarified her admission ("I'm sure it hurt her") by
she did made me think that I had hurt her, and I didn't intend that."
Finally, the Union argues the discipline imposed was not reasonable because the
viewed this action in a vacuum. The District did not review the grievant's personnel file
imposing discipline, did not understand Newton's Second Law, and did not consider all of
The Union notes Ms. Ashley had received a verbal indication that her responses to
grievant's initial inquiries were unprofessional. Therefore, says the Union, the grievant
received only the next higher step in a progressive discipline procedure, i.e., a written
Union cites arbitral authority in a case where both employees deserved to be disciplined in a
The Union believes the grievant went overboard in her apologies and notes the
involved work at different work sites. The Union does not believe the District has any
work rules. Neither does the Union believe the grievant has any history of breaking any
policies or rules.
In its Reply, the District argues that the Collective Bargaining Agreement between
does not include the concept of progressive discipline, but provides that "employees may be
disciplined for reasons that are not arbitrary or capricious." The District believes that this
is clear on its face and refutes the Union's claim that during bargaining the District agreed to
The District further emphasizes that it conducted a fair investigation of the incident
due consideration to all of the evidence gathered. The District acknowledges that it did not
a written statement from the grievant, and simply took a verbal statement from her. But,
District, the Union has failed to cite any harm or disadvantage resulting to the grievant
notes the grievant's acknowledgment that she was given every opportunity to present her side
Neither does the District believe it overreacted to the incident. It explains that
had not actually seen the incident take place and therefore was unable to make an intelligent
assessment as to its severity. The District denies that it chose to add extra weight to the
by requesting medical documentation from Ms. Ashley. Ms. Ashley, says the District,
supplied the medical information pertaining to her injury. In any event, the District
medical documentation as not constituting a critical factor in its investigation.
The District believes that one employee striking another is a serious matter. In
the Union's argument that a one-day suspension was excessive and punitive, the District
the Union of attempting to insert a "just cause" provision in the collective
bargaining agreement. This, says the District, is contrary to the (not) "arbitrary and
standard that is actually contained in the parties' agreement.
In any event, the District argues that it considered all of the facts present in reaching
discipline decision. The District points to testimony of the District's Human Relations
the District took into consideration that the grievant had no record of misconduct with the
The District does not believe that a good conduct record means a suspension can never be
for a first offense.
The District also points to the disciplinary letter given to the grievant in which the
acknowledged that both participants in the incident were under stress prior to and at the time
incident. The District further notes that the District's Human Relations Director specifically
the District took this factor into account.
The District does not believe it was under any obligation to impose a form of
discipline." According to the District, employees should recognize that certain kinds of
(e.g., striking a fellow employee) are not acceptable, whether or not there is a specific rule
The District disagrees with the Union's assertion that it should have considered that a
pay would create an undue hardship for the grievant. First, says the District, the wage loss
grievant was for only one day. Second, says the District, if it had to consider the issue of
hardship every time it made a discipline decision, it would never to able to suspend or
Finally, the District takes issue with the Union's characterization of the incident as
"horseplay." The District contends the evidence shows the following sequence of events:
and the grievant were having an unpleasant verbal exchange; Ms. Ashley made a comment to
grievant that the grievant found offensive; the grievant became angry and frustrated; in her
frustration the grievant struck Ms. Ashley on the head with the packet of brochures.
Even if this sequence of event could be characterized as horseplay, says the District,
is still appropriate. The District does not question that the grievant's conduct was impulsive.
adds the District, the grievant still intended to strike Ms. Ashley on the head with the packet
brochures. When an individual forcefully strikes a co-worker on the head with a packet of
there is a risk of harm, according to the District. In this case, the blow did cause Ms.
pain and resulted in a bruise on her head.
In summary, the District argues that the grievant's conduct speaks for itself. Her
cannot nor should be tolerated by the District. The one-day suspension imposed by the
neither arbitrary nor capricious. It took into account the mitigating factors present as well
District's duty to provide a safe workplace. Thus, the District concludes, the grievance
By no means was it the "Perfect Storm:" 1/ it was not inevitable, it ended more
it began, and the human emotions that produced it are not unique. But however brief, the
1, 1999 encounter between two DeForest School District staff members qualifies as a squall
and appears to have been an unusual occurrence for District staff.
1/ The Perfect
Storm, a recent book (on which a movie was based), describes an ocean storm of
violence and intensity that took place in the North Atlantic, off the North American coast.
The term "perfect storm"
refers to the unique meteorological conditions that then existed, which in combination with
each other apparently
made the occurrence of that storm inevitable.
The event was presaged by the low rumblings of an acerbic verbal exchange between
DeForest School District employees. Driven by personal anxieties and stresses unrelated to
subject of the exchange, each of the two women seemed oblivious not only to the squall
being hoisted by the other, but that she herself was contributing to the rising tension.
The developing squall finally erupted when the grievant, by then frustrated and
picked up a one-inch stack of brochures, rose to her feet, raised the brochures with both
hands to her
eye level, and brought the stack down smartly on top of her protagonist's head. As a result
blow, the woman who was struck suffered bruising and a possible concussion.
Contrary to the urging of the Union, this action cannot be accurately characterized as
"playful," "joking," "kidding," "horseplay," "minimal," or a mere "tapping." Indeed, even
grievant candidly acknowledged that she had struck Ms. Ashley harder than she had
probably harder than if she had been "just tapping," and that the blow probably represented
The blow was impulsive. It was not malicious, but neither was it playful. Clearly,
such as this creates a risk of injury to the person being struck, and the grievant should have
this. Quite obviously, in this case the blow the grievant administered was struck with
to injure its recipient. It wasn't trapped air escaping from the 1-inch stack of pamphlets that
the bruise on Ms. Ashley's head, it was the force of the blow. 2/ Force, indeed, equals
acceleration, of which the bruise suffered by Ms. Ashley is some evidence. In providing
to that mass and directing that mass to Ms. Ashley's head, the grievant went beyond the pale
acceptable expression of disagreement.
2/ The Union argues that
the Urgent Care report received into evidence without objection makes no mention
of a bruise on Ms. Ashley's head. That is true, and I regard the report as merely
corroborating Ms. Ashley's
testimony that she obtained medical treatment. But Ms. Ashley also testified that the blow
struck by the grievant
caused a bruise, and I find her testimony both competent and credible. Her testimony on this
point, moreover, is
supported by other evidence and testimony: the force of the blow caused a noise loud enough
to be heard in the
entire room and stop conversation; Ms. Ashley's assertion that she experienced pain
following the blow to her head;
following the blow Ms. Ashley immediately put her hands on the afflicted spot of her head
and began weeping (a
normal enough reaction from someone experiencing pain); the uncontested testimony of one
that Ms. Ashley appeared "glassy-eyed" when he viewed her immediately after hearing the
sound of the blow. That
Ms. Ashley was able to regain her composure, remain in the room and subsequently even
in the discussion being conducted at the meeting, in my opinion, does not mean she
experienced no pain or suffered
no injury: I rather credit this to her courage, determination, self-discipline, and reawakened
The Union also complains that it did not
receive a copy of the Urgent Care report until the
hearing was in progress. However, the report did not contain any sophisticated medical
that required expert analysis, and the Union was able to review fully the extremely sparse
data the report contained. The report does serve as independent corroboration that Ms.
obtained medical examination and treatment as a result of the blow, but that fact does not
have been in serious issue, if at all. Presumably, the Union already knew this through other
documentation the District had provided in response to an earlier Union demand. In any
event it does
not appear that the Urgent Care report was considered by the District in determining the
to be imposed. Neither is it clear at what point the District even received a copy of the
Certainly, it would have been better practice to include the report in the materials pertaining
discipline decision that the District did provide the Union, assuming the District had custody
Under all of the aforesaid circumstances, however, it does not appear the Union was
tactically or strategically by its belated receipt of the report.
Under these circumstances, some form of discipline was appropriate.
The District imposed a 1-day suspension on the grievant.
The Union attacks this discipline as arbitrary and capricious. The Union describes
discipline as excessive, contending that the District failed to consider the grievant's
record, failed to consider "the emotional stress of the day working on the grievant," failed to
that the 1-day suspension constituted an undue financial hardship to the grievant, and failed
consider that the grievant's protagonist (Ms. Ashley) received only a verbal reprimand. The
argues that under the precepts of progressive discipline Ms. Anderson should have
received no more
than a written reprimand, and that the discipline imposed was punitive, not corrective.
The parties' collective bargaining agreement requires that discipline not be arbitrary
capricious. (The exception to this is that discharge from employment must be supported by
cause"). Based on this contract language, the District urges that any discipline imposed that
arbitrary or capricious must be sustained even though it may not meet a "just cause"
the District's analysis, "not arbitrary or capricious reasons" is necessarily a lesser standard
I agree. For example, as a general proposition discipline imposed without giving the
fundamental due process would probably not meet the "just cause" standard, but is not
arbitrary or capricious. 3/
3/ At the same time,
although the "not arbitrary or capricious reasons" standard is a lesser standard than "just
cause," it is also an included element of the higher standard: discipline that meets the "just
cause" standard by
definition cannot be arbitrary or capricious.
But analysis of District action taken after the incident occurred does not support
charges that the 1-day suspension was arbitrary or capricious. Union attempts to support
charges by alleging the discipline was excessive are not persuasive. 4/
4/ The District suspects
that Union allegations that the discipline was excessive reflect a Union effort to erect
a "just cause" standard. Certainly a "just cause" standard would not tolerate excessively
harsh discipline. But the
"not arbitrary or capricious reasons" standard does not necessarily appear to tolerate it either.
Evidence that an
employee was disciplined by a measure not reasonably related to the facts or seriousness of
the offense uncovered
by the employer's investigation, or that the discipline followed an investigation that was
egregiously less than
thorough or complete, or that the discipline has been applied in a patently discriminatory
manner could conceivably
lead to the conclusion that the employer's reasons for the discipline were arbitrary and
For in contrast to the apparent initial casualness displayed by Mr. Kohlmetz, other
management persons seem to have regarded the incident with the utmost gravity. Following
occurrence, it appears the District's Human Relations Director conducted a thorough, indeed
exhaustive, examination of what had occurred. She interviewed a number of witnesses to the
including Ms. Ashley. Contrary to the Union's charge, I find no evidence that undue weight
accorded to Ms. Ashley's version of the events by any District representative.
Neither do I find the District's failure to ask the grievant for a
written statement or account
of the incident to be either unusual or insidious. Indeed, the absence of a written
statement by the
grievant as to the event in question may be arguably to the grievant's advantage. However,
account was requested and received from the grievant.
The Union complains that the District failed to show the grievant a copy of
written account before giving her own version. But the account prepared by
Ms. Ashley was not a
formal legal document to be answered or otherwise responded to. The District was in an
investigatory stage and was entitled to obtain the grievant's observations, undiluted and
by the statements of other witnesses.
All in all, the District's investigation of the facts of the incident appears to have been
conducted in a fair, impartial, and professional manner.
No discipline was imposed until the District had concluded its investigation, and
facts, including mitigating circumstances. According to the District's Human Relations
those mitigating factors specifically included the absence of any previous discipline in
history, the emotional stress affecting the grievant, 5/ and the apologies expressed by the
Absent consideration of those mitigating factors, a more severe District response to the
act of physical assault may well have been justified and imposed. Thus, I cannot find the
excessive on the basis that the District ignored any mitigating circumstances, for the record
5/ The District's letter
imposing the discipline included a direct reference to the stress both the grievant and Ms.
Ashley were experiencing prior to and at the time of the incident.
The Union also argues that since Ms. Ashley, in effect, received a verbal reprimand
unprofessional responses to the grievant's initial inquiries, the grievant should have received
than a written reprimand.
But the Union overlooks the fundamental difference between Ms. Ashley's conduct
of the grievant. The grievant physically struck Ms. Ashley with a 1-inch stack of pamphlets,
her physical injury and discomfort. Although Ms. Ashley's initial responses to the grievant
and unprofessional, at no time did Ms. Ashley physically strike anyone. In my opinion, this
is significant and justifies a more disparate response than that suggested by the Union. Thus,
find the discipline excessive on the basis of that greater disparity.
The Union describes the 1-day suspension as constituting an undue hardship on the
The grievant and her husband had suffered a relatively recent financial embarrassment. It
appears that the grievant is now a single parent and is helping to maintain two children in
I do not doubt that the grievant is a responsible parent and has challenging financial burdens.
However, I am not persuaded that the loss of a single day's pay would appreciably increase
burdens. I cannot find the discipline excessive on this basis.
The Union also argues that the District should have applied the precepts of
discipline, noting that 1) the District has no work rule against "horseplay," and 2) this was
grievant's first offense. I have already indicated that I regard the incident as something
more serious than horseplay. It was a deliberate action that represented a danger (albeit, not
intended) to the safety of another that the grievant should have recognized. It was arguably
disorderly and certainly disruptive to the good order and conduct of legitimate business in the
district. The tenets of progressive discipline do not require a minimal response to deliberate,
disruptive actions that endanger the safety of others. Based on the conduct involved, the
entitled to deviate from a progressive discipline approach.
Finally, the Union attacks the discipline as "punitive" instead of "corrective." But
of an erring employee is not the only legitimate element of discipline. Other legitimate
include 1) deterrence of other employees from similar actions, 2) safety of the work
protection of property, and 4) retribution (but only to a small degree, and not to be confused
"vengeance"). As a practical matter, any discipline more severe than a written reprimand
deemed punitive, for it punishes or exacts a penalty.
In the instant matter, Barbara Anderson committed what I do not doubt was for her
aberrant action. I have no apprehension that Barbara Anderson will ever again lose control
emotions as she did when she struck Ms. Ashley with the stack of brochures. In my view
continue to be a valuable District employee. Moreover, I find her contrition to be genuine
praiseworthy, as well as her understanding that her action was unacceptable. Arguably, Ms.
needs (and needed) no further education (or correction) on that point. 6/
6/ I am also satisfied that
the grievant was appalled by her action, as evidenced by her instant apology to Ms.
Ashley. The grievant was then called out of the room and remained out on an unrelated
matter, but after the
meeting had ended renewed her apology when she saw Ms. Ashley walking down the hall.
The grievant later sent
a written apology for her action to all persons present at the meeting (including Ms. Ashley),
and further sent Ms.
Ashley a box of notepaper.
In fact, so prolific were Ms. Anderson's
apologies that the Union suggests that the grievant
went "overboard" in offering them.
I do not agree.
In my view Ms
Anderson's apologies and small gift to Ms. Ashley identify Barbara Anderson as a woman of
inherent decency, honesty, and graciousness. Her apologies and obvious contrition were
appropriate and on the
mark. For notwithstanding the attempts of the Union to convert Ms. Anderson's striking of
Ms. Ashley into jocular
horseplay, Ms. Anderson understood almost immediately that her act was one of physical
regardless of any verbal provocation that preceded it. This is demonstrated by her
subsequent apologies, which were
also (appropriately) expressive of her genuine regret and contrition for that
But as the District points out, it has a responsibility to provide
safe workplace for its
employees. It cannot tolerate physical conflict between its employees, for not only is that
activity disruptive to the conduct of school business, but it sets a bad example for District
who may witness or learn of it, and creates a potential financial liability to the District in
serious injury. This is the message I believe the DeForest School District Administration
attempting to give in dealing with the Anderson-Ashley incident. At the same time, it
message by taking into account the mitigating factors that both contributed to the incident and
Based on the record of this case, I cannot find the discipline imposed was arbitrary or
capricious. On the contrary, the discipline appears to have followed a thorough, fair
consideration of all relevant factors uncovered by the investigation. It bore a reasonable
to those factors and does not appear to be discriminatory in any sense.
What is needed now is closure of the incident in the minds of both Ms. Ashley and
Ms. Anderson. As this opinion makes clear, the record justifies a finding that each is
a woman of
excellent credibility, work habits, and character. Ms. Anderson's action was unusual,
conduct for her; Ms. Ashley bears some responsibility for escalation of the incident. Each
has paid a consequence for her unthinking insensitivity to the other. It is time for each to
to other matters.
The grievance is dismissed.
Dated at Madison, Wisconsin this 27th day of September, 2000.
A. Henry Hempe, Arbitrator