BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AFSCME LOCAL 995
(Grievance of James S. Voightlander)
Mr. David White, Staff Representative, AFSCME, Council 40,
8033 Excelsior Drive, Suite B , Madison, Wisconsin 53717-1903, on behalf of the Union.
Attorney Joseph Ruf, III, Columbia County Corporation
Counsel, 400 DeWitt Street, P.O. Box 256, Portage, Wisconsin 53901, on behalf of the
The above-captioned parties, herein "Union" and "County", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Portage, Wisconsin, on May 16, 2000. The hearing was transcribed. Both parties filed
the record was closed on August 14, 2000.
Based upon the entire record and arguments of the parties, I issue the following
The parties agreed to the following issue:
Did the County have just cause to discharge grievant James S.
Voightlander and, if not, what is
the appropriate remedy?
This case centers on the heads-on credibility clash between temporary summer
Jaimie Heaps and grievant Voightlander, with Heaps claiming, and Voightlander denying,
Voightlander in the summer of 1999 on four separate occasions sexually harassed her.
Thus, Heaps testified that Voightlander, who headed her work crew, told her in June,
when she got in his truck: "Oh good, I got the woman with the nice ass." No one else, she
present at that time. The second incident arose near the end of the summer when Heaps
she wanted to go on a rafting trip. She said that Voightlander then said in the
presence of fellow
employe Nate Davis (who did not testify) that she could go if she slept in his tent
"with no clothes
on the whole weekend." She said that Voightlander on a third occasion told her he would
money at her if she got on a table and danced. She said that he on a fourth occasion showed
pornographic magazine to Davis in her presence out on a painting job and that she then
She added that Voightlander's comments made her feel "Very uncomfortable, very, very
uncomfortable to be around him"; that she mentioned Voightlander's remarks to fellow
Davis and Ann Deich; that Deich told her to report them to management; and that she finally
Deich said that Heaps in the summer of 1999 told her that Voightlander was sexually
harassing her; that she was upset and crying when she did so; and that she, Deich, then
to Assistant Highway Commissioner Wayne Cornford. On cross-examination, she
never saw any interaction between Heaps and Voightlander.
Employee Daniel Barden testified about an incident in about 1997 or 1995 where
Voightlander supposedly put his arm around his wife when he went to the store where she
(Voightlander was never disciplined at the time over this incident, which is why it is not
detail and why it cannot be given much weight in this proceeding.)
Employee Thomas E. Killoran testified about the sexual harassment allegations
Voightlander and Barden's wife, and said that employees are not allowed to bring
magazines to work under the County's sexual harassment policy.
Summer employee Carrie Kidd testified that Voightlander in the summer of 1999
her the guys would throw one dollar bills at her if she danced on a table; that such dancing
referred "to like the strip club type deal. . .giving us dollars for it or dancing lewdly for
Heaps told her that Voightlander once made the same remark about dancing for money; that
found his remark very offensive; and that pornographic magazines were kept in the back of
Assistant Highway Commissioner Cornford testified about the incident involving
and Barden's wife, wherein Voightlander supposedly touched her shoulder in July, 1997.
said that he discussed the incident with Voightlander. Cornford also testified about the
harassment training that was once offered to all Highway Department employes and said that
employees are prohibited from keeping pornographic materials under the County's sexual
Highway Commissioner Kurt Dey testified about the County's sexual harassment
(County Exhibits 4 and 5), and said that employees receive annual training on that policy.
that he has torn down "generic pin-ups, calendars or pictures from time to time"; that
not allowed to have pornographic materials in their vehicles or in the work place; that he
down one of Voightlander's pin-ups; that Voightlander at an August 13, 1999, meeting
otherwise stated, all dates herein refer to 1999), was given the opportunity to resign and to
"Separation Agreement, General Release and Waiver" (Union Exhibit 1), but refused to do
so on the
ground he had not engaged in any sexual misconduct; that Voightlander was terminated for
harassing Heaps; and that then-County Human Resources Director David A. McLean decided
terminate Voightlander after he, Dey, recommended Voightlander's termination.
On cross-examination, Dey said that McClean on August 13 explained the sexual
charges to Voightlander without mentioning Heaps' name; that he could not recall whether
Voightlander was given the opportunity to give his side of what happened; and that he could
answer why Voightlander was not given that opportunity.
Union Steward Steve Mael testified that Highway Commissioner Dey in the past had
expressed animosity against Voightlander; that McLean had refused to provide him with any
information regarding the sexual harassment charges against Voightlander when he asked for
there were pornographic materials in the shop before the County ordered them banned; and
County earlier had ordered all pornographic materials and calendars removed from the
Highway Department employee Tom Jones testified that pornographic materials were
prevalent in the shop and that said material "wasn't [Voightlander's] anymore than anybody
that Cornford knew about the pornographic materials in the back of the shop; that he once
management person examine a pile of pornographic magazines in the office; that he never
Voightlander make any inappropriate comments to Heaps; that he was present when Kidd
had once danced on tables for money; that he did not "hear every word that was said"
Voightlander and Heaps after Heaps mentioned she wanted to go on a camping trip; and that
was no mention of Heaps being naked or sleeping in a tent. He also said that he was not
sure" that Voightlander did not say anything about Heaps being naked; that if Voightlander
mentioned dancing on tables "I did not hear it"; that it
was improper under the County's policy to say a female had a "nice ass" and to ask a
to dance on a table for money; and that he could not see what kind of magazines the
person he earlier testified about was looking at.
Voightlander, employed since 1987, denied all of the sexual harassment allegations
Heaps and claimed that he was not in charge of the pornographic materials kept in the shop.
After initially suspending him on August 13 pending its investigation, the County by
dated September 14 terminated Voightlander because of his "continuing, ongoing violation of
County's policy against sexual harassment, as set forth in the County's Personnel Policies
Procedures Manual ("Manual"), which is incorporated into the County's ordinance by
(Joint Exhibit 3).
Section 7.02 of the Manual states:
Section 7.02 Sexual Harassment
(a) Sexual harassment is illegal and unprofessional
and will subject the employee committing such
activities to disciplinary action.
(b) No employee shall be
penalized or punished for rejecting or objecting to behavior that might
be construed as sexual harassment.
(c) Sexual harassment, for
purposes of this Section, which may involve a person of either sex
against a person of the opposite or same sex, may consist of unwelcome sexual advances,
requests for sexual favors, or other forms of a verbal or physical nature when:
(1) Submission to such
conduct is made explicitly or implicitly a term or condition of an
(2) Submission to such
conduct by an individual is used as the basis for employment
decisions affecting such individuals; or
(3) Such conduct has the
purpose or effect of unreasonably interfering with an
individual's work performance or creating an intimidating, hostile, or offensive
(d) Other forms of harassment in employment may
consist of repeatedly addressing or directing
epithets, comments or gestures, or displaying or altering visual elements that explicitly
demean an employee's gender, race, cultural background, ethnicity, or sexual orientation.
. . .
Section 7.18 of the Manual states that employees can be disciplined if "The employee
violated the Sexual Harassment regulations as set forth in this Manual."
POSITIONS OF THE PARTIES
The Union argues that "Due process considerations militate for a ruling favorable to
grievant" because the County never asked for Voightlander's side of the story, thereby
his ability to defend himself and because the County's investigation was "highly biased". It
contends that "The veracity of the allegations against the grievant is, at best, questionable."
Union requests a traditional make-whole remedy that includes Voightlander's reinstatement
The County asserts that it had just cause to terminate Voightlander because he
harassed Heaps and because it met all of the so-called "seven tests" enumerated in Enterprise
Co., 46 LA 359 (Daugherty, 1966).
As related above, this case turns on the heads-on credibility clash between
Heaps as to whether Voightlander sexually harassed Heaps by: (1), telling her she had a
(2), showing her the cover of a pornographic magazine when they were out on a job
telling her she could go on a camping trip if she slept naked in his tent; and (4), asking her
on a table so that she could take her clothes off when money was thrown at her.
The Union argues that Heaps' testimony cannot be credited in part because fellow
Jones testified that he never heard Voightlander tell Heaps that she could go camping if she
naked in his tent and that Voightlander similarly never suggested that she, Heaps, get on the
dance for money by taking her clothes off.
While that was Jones' initial testimony, he added that he did not "hear every word
said" between Voightlander and Heaps and that he was not "100 percent sure" that
not say anything about Heaps being naked. In addition, Jones flatly contradicted
claim that: "I don't. . .ever recall [Heaps] asking about going
camping with us on this trip. That was just between Nate and myself." Jones
testified: "It was about
that time that [Heaps] jumped into the conversation and wanted to know if she could go
Given all this, I find that Jones' testimony was tentative at best, and that it is
discredit Heaps' testimony. However, Jones' testimony directly contradicted Voightlander's
that the subject of camping never came up between him and Heaps.
I therefore credit all of Heaps' testimony on these issues, as she testified in a highly
manner. In addition, I find it inherently improbable to believe (as the Union urges), that she
up all of these accusations, as Deich testified that Heaps was crying and upset when she
to Deich what had happened. Hence, I find that Voightlander engaged in four separate acts
harassment against Heaps.
There is only one possible valid reason for not sustaining his discharge and that
centers on the
County's failure to give Voightlander a chance to respond to the charges levied against him
time of his discharge and the County's failure to inform Union Steward Mael about those
that the Union could properly defend Voightlander after he was discharged. These failures
inexcusable and in other circumstances might well warrant setting aside an employer's
action on this basis alone. For, it is well recognized that: (1), an employer must give an
chance to defend himself before discipline is imposed; and (2), the specific
nature of any alleged
wrongdoing must be spelled out in detail in order for an employee to properly mount his/her
See How Arbitration Works, Elkouri and Elkouri, pp. 919-920
(BNA, 5th Ed., 1997); Enterprise
Wire, supra., p. 363-364.
Contrary to the Union's claim, however, that does not automatically mean that
termination must be overturned because of the County's failure to follow these two important
procedural safeguards of the just cause standard. Rather, the determinative test is whether
failures unfairly prejudiced Voightlander's case. See How Arbitration
Works, supra, pp. 919-920;
Amax Coal Co., 85 LA 225 (Kilroy, 1985). If they did, his discharge must be overturned.
did not, his discharge must stand.
Since Voightlander chose in this proceeding to falsely deny the sexual harassment
levied against him, it is fair to assume that he would have made the same false denials had
asked for his defense before he was terminated. That being so, he would not have offered
evidence that could have had a material effect on the County's discharge decision. Hence,
not prejudiced by the County's actions and his termination must stand.
Lastly, and pursuant to the County's request, I am mailing back to the County all of
pornographic materials gathered from the shop and provided at the hearing (County Exhibit
is difficult to describe all of the filth depicted therein, which is why it is highly unfortunate
of the "men" in the Highway Department found it necessary to indulge their juvenile
reading and keeping such filth on County property. Indeed, one wonders if any of the "men"
ever show such garbage to their mothers, wives, sisters, daughters or partners. I mention
because any employee caught with such filth can be subjected to discharge. That is
"men" may want to ponder before they ever again bring such filth on County property.
In light of the above, it is my
That the County had just cause to terminate grievant James S. Voightlander; his
Dated at Madison, Wisconsin this 17th day of October, 2000.