BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AFSCME LOCAL 560
EAU CLAIRE AREA SCHOOL DISTRICT
(David C. Steindl Grievance)
Mr. Steve Day, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, 318 Hampton Court, Altoona, Wisconsin 54720.
Weld, Riley, Prenn & Ricci, by Attorneys Stephen L. Weld and
Brian K. Oppeneer, 4330 Golf Terrace, Suite 205, P.O. Box 1030,
Eau Claire, Wisconsin 54702-1030,
On January 31, 2000, AFSCME Local 563, AFL-CIO and the Eau Claire Area
requested the Wisconsin Employment Relations Commission appoint William C. Houlihan, a
of its staff, to hear and decide a grievance pending between the parties. The parties waived
evidentiary hearing and submitted a joint stipulation of facts, received May 9, 2000. The
thereafter filed briefs and reply briefs, which were received and exchanged by July 13, 2000.
This award addresses the discharge of employee David Steindl.
The parties have stipulated to the following issue:
Did the District have just cause to discharge the grievant for his
non-work related misconduct
and, if not, what is the appropriate remedy?
The parties have stipulated to the following facts:
Grievant Steindl, classified as a Hauler/Shuttle, was hired in February, 1988. His
evaluations have been favorable. Steindl received a letter of admonishment on May 14,
stated that he had failed to properly secure the buildings for which he was responsible. He
another such letter on December 4, 1998, which criticized his work. Neither letter
terms "discipline" or "written warning", nor made any specific reference to discipline.
The grievant on April 6, 1999, was charged on three felony counts of theft
(Class C), and one
misdemeanor count of theft (Class A). The alleged thefts all took place away from the
premises when Steindl was off-duty and none of them involved District property or
Steindl on October 12, 1999, pleaded no contest to one felony (Class C) count of theft and
(Class E) count of theft. On November 29, 1999, he was found guilty by the court of those
and he was sentenced to four years of probation and up to 120 days of jail time with Huber
Steindl's immediate supervisor, Charlie Kramer, Director of Buildings and Grounds,
aware in April or May of 1999 that Steindl had been criminally charged. Kramer did not
District's Central Office staff, including Human Resources, of the charges. Steindl continued
in his regular position until he was suspended on December 17, 1999, and discharged on
2000. Steindl was available to work at the time of his suspension/discharge and he is still
There were media reports of the theft charge, investigation, pleadings, and
media reports did not identify Steindl as a District employee.
Throughout Steindl's career with the District, there were no allegations of theft or
misappropriation of school property levied against him. Other Union employees who have
with Steindl at the main facilities shop do not object to his return to work.
RELEVANT PROVISIONS OF THE COLLECTIVE
ARTICLE I RECOGNITION
. . .
Section 4. The Board reserves the right to discipline or discharge for
. . .
POSITIONS OF THE PARTIES
The Union argues that the District lacked just cause to terminate the grievant because
failed to prove that his off-duty conduct bore any "nexus with the employment setting." The
also claims that Steindl had a discipline-free work record; that he was, and is, available to
there is nothing in the record showing "what Board policy or rule the grievant violated"; that
District has subjected him to double jeopardy by terminating him even though he was
jail and four years' probation; that the District failed to conduct any independent
the grievant's nolo contendere plea was "not
synonymous with a plea of guilty"; and that the
District's reputation did not suffer as a result of the grievant's actions. As a remedy, the
requests a traditional make-whole remedy that includes Steindl's reinstatement and a backpay
The District contends that it had just cause to discharge Steindl because "off-duty
can constitute just cause for discharge"; because his felony theft convictions impair his
given his lack of trustworthiness; and that the "reputation of the District requires the denial
grievance." It also maintains that his guilt is shown by the fact that the court convicted and
him; that the record is silent as to whether it conducted an independent investigation; and that
grievant's duties as a security custodian require trustworthiness."
At the outset, it must be noted that the Circuit Court of Eau Claire County on
1999 ruled: "the defendant is guilty as convicted and sentenced as follows. . ." for two
felony theft (Joint Exhibit 9). Hence, he was in fact found guilty of the criminal conduct
by the District as the basis for his termination. The parties dispute the adequacy of the
record on this
key fact. In light of my conclusion below, it is unnecessary to resolve this dispute.
The record is silent as to what, if any investigation, the District conducted. The
dispute the implications to be drawn from this portion of the record. I believe it is
the District to establish that it looked into the matter sufficiently to establish that the facts
conduct which prompted the discharge did occur.
The Union is right in pointing out that the May 14, 1997, and December 4, 1998,
admonition to Steindl referenced above did not refer to discipline. As a result, I conclude
that he had
a discipline-free record during his nearly twelve years of employment. The Union also is on
in stating that the District has failed to establish any specific District rule or policy that the
supposedly violated, as none has been identified by the District.
The Union errs, however, in claiming that the discharge must be overturned because
supposedly was subjected to "double jeopardy". Steindl, in fact, was punished under the
laws because he was convicted of theft. That is a separate question than whether the District
the contract had just cause to terminate him because of his off-duty conduct which the
no longer makes him fit for his job. Since the principles and purpose surrounding the
and the contractual just cause are dissimilar, and since the District in any event was not
for Steindl's prior criminal sentencing, no double jeopardy exists here.
For its part, the District argues that Steindl's convictions for theft have jeopardized
District's reputation because "the public wants to be assured that its tax payments are not
the lifestyle of a thieving custodian." In fact, though, there is no evidence establishing that
grievant was ever publicly identified as a District employee. To the contrary, the parties'
agreed-to Statement of Facts states: "The media reports did not identify David C. Steindl as
employee of the Eau Claire Board of Education." That being so, it is hard to envision just
Steindl's criminal conviction has damaged the District's reputation.
The District also asserts that public employees should be held to a higher standard
employees and that it therefore had just cause to terminate Steindl in part because his
shows that he has breached the public's trust. While some arbitrators have reached such a
I do not agree that Steindl's off-duty conduct here should be measured by a higher standard.
not a position which serves as a role model or which serves as a keeper of the public trust.
no extra weight can be given to the fact that he was a public employee.
Given all of the above, this case turns entirely on whether the grievant's criminal
for theft represents enough of a nexus so as to be an exception to the general rule that an
off-duty conduct ordinarily is unrelated to the employer-employee
relationship and that, as a result: "The right of management to discharge an employee
away from the plant depends upon the effect of that conduct upon plant operations (footnote
omitted). See How Arbitration Works, Elkouri and Elkouri, p
896 (BNA, 5th Ed., 1997).
The Union cites W.E. Caldwell Co., 28 LA 434, 436-437 (Kesselman, 1957), in
of its position that such a nexus does not exist. The District cites the following
cases in support of
its claim that such a nexus does exist: Great Atlantic and Pacific Tea Co., Inc.,
45 LA 495
(1964); Inland Container Corp., 28 LA 312 (Ferguson, 1957); Spooner School District
(WERC Case No. 28477, MA-2158, 3/83); CSX Hotels, 93 LA 1037 (Zobrak, 1989);
Stores, Inc., 74 LA 1293 (Doyle, 1980); Inspiration Consolidated Copper Co., 60 LA 173
(Gentile, 1973); Hilton Hawaiian Village, 76 LA 347 (Tanaka, 1981); Fairmont Hospital, 58
LA 1295 (Dybeck, 1972); Polk County, 80 LA 639 (Madden, 1983); Genessee County, 90
48 (House, 1987).
There is little point in here describing the factual patterns surrounding each of these
cases, as the decisional line that cuts across them holds in effect that the question of nexus
on the particular facts of each case.
Arbitrator Kesselman's analysis in W.E. Caldwell, supra, is quoted in
Works, p. 896, and provides as follows:
. . .
The Arbitrator finds no basis in the contract or in American
industrial practice to justify a
discharge for misconduct away from the place of work unless:
1.) behavior harms [sic] Company's reputation
or product. . .
2.) behavior renders employee unable to
perform his duties or appear at work, in which
case the discharge would be based upon inefficiency or excessive absenteeism. . .
3.) behavior leads to refusal, reluctance or
inability of other employees to work with him.
. . (foonote citations omitted).
. . .
Factor 1 does not apply since the parties have stipulated that no media reports
identified Steindl as
a District employee and since there is no proof that Steindl's off-duty conduct in any way
affected the District's reputation or the manner in which it provides its educational services.
3 does not apply since the parties have jointly stipulated: "Other Union employees who have
with David Steindl at the main facilities do not object to his return to work."
As for Factor 2, there is no evidence that Steindl's arrest prevented him from
work. To the contrary, the record shows that he continued working from the time of his
arrest to the time of his December 17 suspension. Hence, this is not a case involving
whether an employer had just cause to terminate an employee for being absent.
Factor 2 goes on to provide, however, that just cause exists if the "behavior renders
employee unable to perform his duties. . ." . The arbitral authority cited by the Employer
this standard. Steindl works alone as a custodian and possesses keys to most, if not all,
buildings. It is the District's view that Steindl's conviction for theft renders him
dischargeable for cause
There are two components to the grievant's job; hauling and shuttle. The hauling
the hauling of snow. The job additionally entails maintaining and repairing the physical
buildings, furniture and equipment. I see no nexus to the complained-of conduct relating to
aspect of the job.
The shuttle portion of the job appears to require the grievant to go from building to
on the weekend to check equipment and building security, including doors, windows, and
unsupervised student activity. Other employees secure the buildings. The security aspect of
requires someone who will not pilfer from the buildings he secures. In that respect, the theft
relates to the job. However, that must be kept in context. The record establishes that the
has worked for nearly 12 years without discipline and without any allegation of theft or
misappropriation of school property. Kramer, the grievant's supervisor, was aware of the
for 7-8 months and was not sufficiently alarmed to intervene and/or change Steindl's
There is no applicable work rule involved.
The bottom line here is that Steindl has keys to the buildings. In the overall context
dispute, that is insufficient nexus to justify his termination for conduct away from work.
The grievance is sustained.
The Employer is directed to reinstate the grievant, and make him whole for lost
benefits. The Employer is free to offset the directed backpay with Unemployment
any, and interim earnings, if any. The grievant's record should be expunged of any
reference to this
I will retain jurisdiction for purposes of resolving any dispute as to remedy.
Dated at Madison, Wisconsin this 1st day of November, 2000.