BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
THE NEENAH JOINT SCHOOL DISTRICT
BOARD OF EDUCATION
NEENAH EDUCATIONAL SUPPORT
(Tim Zentner Termination)
Attorney Robert Torgerson, Attorney at Law, Torgerson Law
Offices, S.C., 675 Deerwood Drive, Suite 2, Neenah, Wisconsin 54956, appeared on behalf
of the District.
Mr. Roger W. Palek, Executive Director, Winnebagoland
Educational Staff Council, 921 West Association Drive, Appleton, Wisconsin 54914,
appeared on behalf of the Association.
On February 2, 2000, the Neenah Joint School District Board of Education and the
Educational Support Personnel Association jointly requested that the Wisconsin Employment
Relations Commission appoint William C. Houlihan, a member of its staff, to hear and
grievance pending between the parties. Hearing on the matter was conducted on June 13,
Neenah, Wisconsin. The proceedings were not transcribed. Post-hearing briefs were
exchanged by July 31, 2000.
This Award addresses the termination of employee Tim Zentner.
BACKGROUND AND FACTS
Tim Zentner, the grievant, was hired on August 26, 1996 as a Custodian I. His
subsequently retitled to Operator I. Zentner worked for the District until he was terminated
September 16, 1999. During his tenure with the District, Zentner worked on the third shift,
p.m. to 7:00 a.m., with no on-site supervision. His work tasks included performing
duties and security functions for the High School. He performed minor maintenance on the
and equipment within the building.
Mr. Zentner's evaluations were generally satisfactory. His 1998 evaluation indicated
maintained a good working relationship with his supervisors, that his work met District
and that he took pride in maintaining clean restrooms and locker room features, but pointed
he needed to pay more attention to dusting of locker tops and foam disinfecting of showers.
Mr. Zentner's work history did contain some discipline. On December 18, 1996, he
a written reprimand for failure to report to work timely, and to notify his supervisor. That
was not grieved. On January 7, 1999, Mr. Zentner was given a verbal warning for his
failure to arrive
at work on time, and for his use of the garage for personal purposes. He was also warned to
leave the building during work unless it was approved by a supervisor. This warning was
On June 24, 1999, Zentner received a written warning, portions of which provided as
On Tuesday, June 1, 1999, you were scheduled to work your
normal hours of 11:00 p.m. to 7:00
a.m., which is an eight-hour work shift. On the above date and time you: (1) failed to
direction of your supervisor; (2) left the work site at 5:20 a.m. without the permission of
supervisor; (3) failed to notify your supervisor that you left the work site early nor give the
why. These incidents are not acceptable.
. . .
The above three incidents are unacceptable. Any incidents such
as above must not occur again
or I will recommend disciplinary action or the termination of your employment with the
David R. Bowser
Supervisor of Operations
Zentner testified that on June 1 he was working in the high school when the police
search of a bomb. He assisted the police in opening doors to facilitate their search. He
being scared and upset, without supervision or direction in how to react under such
Ultimately, he simply went home.
The District has a policy prohibiting the use of tobacco on school property. The
posted on December 14, 1998. The building has a number of prominent signs that indicate
building is a no-smoking area.
David Bowser, Supervisor of Operations, testified on behalf of the District. Bowser
that the collective bargaining agreement provides for a 20-minute lunch break. It is Bowser's
testimony that there exists a practice which additionally grants a 10-minute break. Bowser
that a number of co-workers had complained about the grievant not getting his work done,
his breaks, and not helping out as assigned. Bowser, along with Randy Bockin, the
Manager, inspected some of Zentner's work. They did so late in the 1998-1999 school year,
found a number of areas assigned Zentner were not clean, particularly the music room. In
the fall of
1999, Bowser, along with Bockin, did a daily inspection of the grievant's work area. They
the music area had not been completely cleaned, and that the restroom floor had not been
In the context of work not being completed, and co-worker complaints, Bowser and
went to observe the grievant. On September 15, 1999, at approximately 2:30 a.m., the two
stood outside the high school and observed the grievant and another employee smoke two
outside the building from 3 until 3:20 a.m. From 3:20 to 3:55 a.m., Bockin observed the
a co-worker in the teacher lounge eating lunch. At approximately 5:25 a.m., Bowser and
encountered one another in the parking lot and, according to Bowser, had the following
Bowser: You cannot deny you were out smoking at
Zentner: How do you know it
Bowser: There were two
Zentner: I can understand not
smoking in the day. . . It's not a big deal . . . in the fresh
Following this exchange, Bowser sent Zentner home. He testified he did so because
the latter man
was evasive. Following that, Bowser checked Zentner's work area and found a good deal of
not yet accomplished; more than could have been accomplished in the remaining one hour
minutes of the shift.
On cross-examination, Bowser acknowledged that he had never spoken with Zentner
his breaks, or smoking. He never told Zentner of complaints from co-workers. Bowser
acknowledged that he had heard of other employees who stretched their breaks. He was
other District employees who smoked, and were given verbal warnings.
Randy Bockin, the grievant's direct supervisor, also testified. It was his testimony
Zentner was not getting his work done. Bockin did worksite walk-arounds twice a month in
months of January through June, 1999. He observed that sometimes the work was complete,
sometimes it was not. He and Zentner discussed the situation. Bockin indicated that he
understand why the work was not being completed. He testified that Zentner indicated there
much work. This conversation repeated itself periodically. Bockin also testified that he
complaints from co-workers relative to Zentner's work. Employees were directed to
plans, consisting of job descriptions with applicable work assignment areas. The grievant did
complete and return his. Bockin testified that most other employees did.
The record indicates that employee Kim Robertson was caught smoking and given a
warning. The grievant's co-worker was given a verbal warning for the smoking incident
involved the grievant. Former lead worker Dan Neubauer testified that a number of
smoked on the job after the enactment of the no-smoking rule. According to Neubauer, the
administration confronted a smoking employee and talked to that employee.
A disciplinary meeting was held on September 16, 1999 at the conclusion of which
grievant was terminated. His termination was confirmed by letter dated September 20, 1999,
portions of which provide as follows:
Mr. Timothy Zentner
. . .
During the disciplinary meeting on
September 16, 1999, areas of your work performance were
addressed. Work performance concerns addressed included: 1) failure to follow supervisor
directions; 2) failure to complete assigned work responsibilities; 3) taking an unauthorized
break on September 15, 1999 from 3:20 a.m. to 3:55 a.m.; 4) failure to follow State statute
District policy regarding the prohibited use of tobacco products on September 15, 1999. It
be noted that your employment with the Neenah Joint School District was terminated
on September 16, 1999. . .
On September 28, 1999, a grievance was filed protesting the decision to terminate.
grievance was denied at Step Two in a letter dated October 18, and signed by Victoria L.
Director of Human Resources. On November 12, 1999, Richard L. Carlson,
the grievance at Step Three.
On December 15, 1999, the District sent the following letter to Mr. Roger Palek, the
Association Executive Director, with a copy to Zentner, among others. This letter, a
Step Four, provides as follows:
Please be advised that the Board of Education of the Neenah
Joint School District, as a
response to the Step Four meeting regarding the Timothy Zentner grievance dated
1999, hereby offers to reinstate Timothy Zentner to the position he held on September 15,
full back pay and benefits. If Timothy Zentner desires, all reference to the current grievance
expunged from his personnel file. However, the smoking on school property incident on
15, 1999, will be noted in his personnel file inasmuch as such facts have not been disputed.
Please advise Timothy Zentner to report
for work at Neenah High School at 11:00 p.m. on
December 19, 1999, if he wishes to accept such offer.
Richard L. Carlson
The letter was sent to the grievant by both certified and regular mail, and to the
through the regular mail.
Zentner did not return to work on December 19, nor did he respond to the District's
Four offer. That prompted the District to send the following letter, dated December 1,
Dear Mr. Zentner:
This letter is to inform you that the
Neenah Joint School District is contemplating your
termination of employment for failure to show up for work on December 19 and December
per our letter to Mr. Palek and you dated December 15, 1999.
If extenuating circumstances have
prohibited your ability to return to work, I invite you to
meet with me on Tuesday, December 28, 1999, at 10:00 a.m. at the Administrative
Offices of the
Neenah Joint School District.
Effective today, December 21, 1999, you
are not to report to work at Neenah High School.
Richard L. Carlson
cc: Roger Palek
. . .
This letter was sent by both certified and regular mail to the grievant and regular
On December 28, 1999, the District sent the grievant the following letter:
Per my letter of December 21, 1999, I
extended to you an opportunity to meet with me on
December 28, 1999 at 10:00 a.m. to discuss any extenuating circumstances that may have
you from returning to work.
In that I did not hear from you, I assume
you are no longer interested in working for the
Neenah Joint School District. Therefore, you are terminated effective December 28, 1999.
Richard L. Carlson
cc: Roger Palek
. . .
This letter was also sent by certified and regular mail to the grievant, regular mail to
All certified letters were returned to the District, unopened. The grievant
receipt of the December 21 letter. It was his testimony that he needed to provide his
employer with five (5) days notice. He contends he communicated that fact to his union
representative, but that he had no communication with the District. I believe the grievant
all letters sent to him, through the course of the regular mail. I also believe the Union was
of all correspondence.
The parties stipulated to the following:
Did the District violate the collective bargaining agreement with
the Association when it
terminated the grievant on September 16, 1999? If so, what is the appropriate remedy?
The parties further stipulated that this
matter is properly before the Arbitrator.
RELEVANT PROVISIONS OF THE COLLECTIVE
PROBATINARY STATUS/JUST CAUSE/DISCIPLINARY
. . .
B. Non-Probationary Employees
Non-probationary employees shall not be
reprimanded in writing, discharged, suspended or
reduced in rank or compensation without just cause. Any such action which has been
by the District or any agent or representative of the Board shall be subject to the grievance
procedure of this Agreement. All information forming the basis for disciplinary action shall
be made available to the employee. The Association President shall be notified when a
bargaining unit member receives a written reprimand or is suspended or discharged. Details
of the reprimand, suspension, or discharge will be made available to the Association
upon the District's receipt of written consent from the employee.
C. Alleged Misconduct
1. Before any employee can be suspended or
dismissed for alleged misconduct, he/she
shall be notified in writing of such proposed action stating the reason(s) therefore.
2. Both parties
recognize that advance notice may not be practical where the infraction
is of a serious nature warranting immediate removal of the person from the job site,
in which event, the written notice shall immediately follow the action taken.
POSITIONS OF THE PARTIES
It is the Employer's contention that the grievant was terminated for just cause. The
contends that the grievant failed to perform his assigned work. The Employer argues that
grievant was given a verbal reprimand on January 7 for, among other things, the failure to
work on time, and leaving the school building during work hours. On June 24, the grievant
a written reprimand for failure to complete his assigned work, failure to follow directions,
leaving the job site without permission. The Employer contends that the grievant failed to
his assigned work regularly after June 24 through September 15, in spite of being notified of
deficiencies and in spite of his supervisor's attempts to increase his efficiency. On
September 15, the
grievant was observed taking a 20-minute smoking break at approximately 3 a.m. and a
lunch break from 3:20 to 3:55 a.m. when, in fact, he was not on schedule to complete
The Employer contends that the grievant failed to comply with the District's
The District received numerous complaints by co-workers that the grievant was smoking on
property in violation of the District rule against such activity. On September 15 he was
smoking two cigarettes on school property during an extended break. The no-smoking policy
mandated by Section 120.12(20), Wis. Stats., and was communicated to the grievant.
smoking signs are posted on school property. After having been observed smoking cigarettes
September 17, the grievant initially stated that his supervisor would have to prove it, not
two persons had observed him smoking. Not only did the grievant violate the no-smoking
he expressed little remorse for doing so and considers such violation to be of little
Citing authority, the Employer contends that the accumulation of relatively minor job
performance infractions constitutes grounds for termination. The District contends that both
smoking and the extended breaks violations are major infractions, inasmuch as they impacted
The District contends that it acted reasonably and in a non-discriminatory manner in
investigating and reaching its decision to terminate the grievant. The District did not act
or precipitously in deciding to discharge the grievant. The District contends that it reviewed
matter on September 15, scheduled a meeting with the grievant and his union on September
granted the grievant an opportunity to present his version of the incidents, caucused, and
subsequently determined to terminate the grievant. The District contends that it complied
spirit of the procedural notice requirement.
It is the position of the Union that this termination should be measured against the
articulated by Arbitrator Daugherty in Enterprise Wire Co., 46 LA 359 (1966). The
contends that the Employer satisfied few, if any, of those standards. Particularly, the
contends that the Employer did not give the grievant forewarning or foreknowledge of the
or probable consequences of the conduct for which he was disciplined. The Association
that there is no record indication that the grievant was advised that his failure to complete his
cleaning, his smoking on school grounds, or taking an extended break would lead to his
The Association contends that while the managerial orders involved are inherently
their application in this circumstance has not been so. The Association contends that the
given additional work responsibilities, and he was unable to complete the volume of work
him. The grievant's smoking occurred in the evening, outside the presence of
Union contends that there is no rule defining work breaks, and that the testimony indicated
breaks varied in length, depending on the amount of work performed.
It is the Association's contention that the Employer did not engage in an effort to
whether or not the employee violated the rule or order of management. The Association
that Bowser indicated that he had received complaints from co-workers on the quality of the
grievant's work. Those co-workers were not called as witnesses, nor were the complaints
to the attention of the grievant. Neither he nor Bockin approached the grievant directly to
whether there was anything preventing the grievant from completing his work to their
There was no investigation into the appropriate length of work breaks. No one ever
past practice relating to the length of work breaks with the Association or any representative
The Association contends that there was not an impartial investigation conducted. No
discussed with the grievant his perspective on the various concerns held by management.
there was a clandestine surveillance of the grievant, followed by a quickly-convened meeting.
Association contends that it is not too speculative to assume that the decision to terminate the
grievant was already a fait accompli prior to the
The Association contends that the Employer did not obtain substantial evidence or
the grievant was guilty of anything dischargeable. According to the Association, there is no
indicating that the grievant was culpable for failing to clean. Similarly, there is no proof that
grievant violated any order relative to breaks.
The Association contends that the application of discipline has not been even-handed,
fact has been discriminatory. The co-worker with whom the grievant took his break was not
disciplined. Other employees who have smoked have not been seriously disciplined.
The Association contends that the degree of discipline was not reasonably related to
seriousness of the offense as proven. With respect to the smoking allegation, the grievant
been previously disciplined for smoking. As to the other offenses, the Association contends
disciplinary warnings did not address the matters that supplied the basis for discharge. The
Association goes on to note that the grievant's performance evaluation should have occurred
his anniversary date in August. Neither Bowser nor Bockin had an explanation as to why
not been done. The Association contends that an evaluation would have been the appropriate
for sharing and correcting work deficiencies.
The Association contends that Article XII(C)1, and 2 was violated in that the required
was not sent in this instance. The Association contends that nothing occurred which was so
as to waive the required notice.
The grievant rejected the settlement offer tendered by the school board because he
a week to restructure his personal life after three months of being out of work. Similarly,
the follow-up letter of December 15th provided the grievant with less than
three days to be available for his work
shift. The Association contends that the reinstatement offer was a conditional offer and cites
Consolidated Freightways v. National Labor Relations Board, 892 F.2d 1052; 133
L.R.R.M. 2320 as authority for the premise that the grievant was not required to accept the
conditional reinstatement offer. The Association argues that there was no acknowledgement
grievant or the Association that the incident of smoking was undisputed, or even more
that it was undisputed as of December 15, 1999. The grievant had no requirement to accept
conditional offer, particularly in light of the limited time provided for the acceptance of its
The termination letter lists four performance concerns that prompted the termination.
first is the grievant's failure to follow supervisor directions. That appears to be a reference
failure of the grievant to return the self-designed work plan. It may also refer to the specific
behaviors subsequently set forth in the termination letter. With respect to the
work plan, it appears from the record that the grievant was not the only employee that
failed to return
that work plan. The record is silent as to what, if any, discipline followed those employees
that task. Standing on its own, this does not appear to be a matter so serious as to warrant
The second concern prompting termination was the grievant's failure to complete
work responsibilities. The grievant was on notice of the Employer's dissatisfaction with the
of work he performed. The grievant claimed that he had too much work to accomplish.
acknowledged the need to address teachers eating in the music room, and the corresponding
left behind. There was testimony that co-workers came forward with complaints about the
of work performed by the grievant. However, these complaints were never brought to the
attention. None of the prior discipline specifically addressed the grievant's failure to perform
work. Neither the June 24 letter, nor the prior performance evaluations of the grievant,
The third concern prompting termination was the grievant's unauthorized extended
September 15. It appears the grievant did stretch his work breaks. Testimony establishes
existence of a 10-minute break by operation of practice. The grievant's breaks exceeded
practice and the contractually provided-for lunch breaks. This appears to be the first
the grievant was confronted with having stretched a work break. As such, this matter had
previously addressed with him. He had no prior discipline for this, although his prior
make reference to his timeliness and his utilization of time.
The fourth matter prompting termination was his use of tobacco that same evening.
record establishes that he did use tobacco, and that he used it on school grounds. The record
establishes that he was well-aware of the school policy prohibiting the use of tobacco on
grounds. The record indicates that a number of other employees used tobacco on the
premises, and that little, if any, discipline was meted out to those employees.
The Employer contends that there was just cause because the grievant failed to
assigned work. It appears the grievant did not perform the quantity of work to which he was
assigned. It further appears that the grievant stretched his non-working times,
fact that he was not accomplishing the work assigned. However, this is precisely the kind of
deficiency progressive discipline is designed to address. Similarly, performance evaluations
ideal mechanism to communicate to employees deficiencies in their ongoing work
Here, the Employer did not bring the concerns surrounding work performance to the grievant
either his evaluations or a disciplinary progression.
The Employer contends that the grievant's refusal to comply with the no-smoking
constitutes a basis for his termination. No other employee has been so treated. This is a
which has prompted an enormous disciplinary reaction, well beyond what the behavior
calls for. Absent a record that the Employer applies this magnitude of discipline
consistently for such
behavior with the acquiescence of the Association, it cannot constitute a basis for
The Employer contends that the accumulation of a number of relatively minor job
performance transgressions constitute grounds for termination. While I agree with the
this record does not establish numerous and compounding transgressions such as would
The District failed to provide the grievant with the notice required in Article VII,
C(1). The District points to paragraph 2, contending that the infractions were significantly
as to warrant the grievant's immediate removal. I disagree. There was no urgency to
grievant. There was no need to by-pass the procedural provisions of paragraph 1.
In conclusion, I do not believe the District had just cause to terminate the grievant.
The grievance is sustained.
The traditional remedy for improper termination is reinstatement and back pay. The
offer dated December 15 does just that. The grievant, and his Association, received that
Association claims two flaws in the reinstatement offer. The first is that it is conditional,
upon noting a smoking on school property incident in the grievant's personnel file. The
second is that
the time frame for a report back to work was too short.
On its face, the response offers to reinstate the grievant, and to expunge reference to
termination from his file. It goes on to note that the smoking incident will be noted in the
file. The latter is found in a declarative sentence. It does not on its face appear to require
grievant to waive whatever objection he has to the smoking notation in order to be reinstated.
Furthermore, the reference to the smoking on school property incident is predicated on the
Employer's perception that "such facts have not been disputed". That appears to be true. In
evidentiary hearing on this matter, the smoking incident was not disputed.
The Union's reliance upon Consolidated Freightways is misplaced. In Consolidated
Freightways, an employee discharged for refusing to drive a tractor he believed to be unsafe
ordered reinstated unconditionally by the National Labor Relations Board. The Company
exception to the Board rule, claiming that its reinstatement offer, which did contain a
was unconditional in that it was consistent with an arbitration panel award reinstating the
on this same matter, and that the Board had
refused to grant deference to that panel. In rejecting the Company's contention, the
concluded that the National Labor Relations Board could reasonably take the position that if
allowed an employee to be penalized for engaging in protected conduct, it would be
responsibility to remedy violations of the national labor law. There are no such law or
implications in play here.
In this proceeding, the Association has acknowledged that the no-smoking rule is, on
reasonable. The rule is a by-product of statute. The grievant was clearly on notice of the
Finally, there is little dispute that the grievant violated its terms. A note to the file is a
appropriate reaction to the smoking incident.
The second union objection relates to the amount of time allowed by the School
Zentner to report back to work. I agree that the District placed Zentner on a very short
Zentner's testimony was that that timetable was inadequate to permit him to give notice to his
then-current employer. I would not allow the employer to condition reinstatement on such a
horizon. The grievant was under an obligation to mitigate his losses and evidently did so.
District is obligated to accommodate reasonable notice to that employer. Had the District
on such a short timetable, I would regard the Union's claim as well-placed. However, that is
circumstance in this dispute. Rather, on December 21, Superintendent Carlson extended an
the grievant to meet on December 28 to discuss the matter. It does not appear that the
availed himself of this opportunity, or meaningfully responded to either letter.
The grievant testified that he "accepted" the offer of reinstatement, but could not
short return to work timetable. He further testified that he never dealt with the District
Nothing in the record indicates that this acceptance was ever communicated to the District.
I do not believe that the District was required to forever hold the position open.
nothing in this record to suggest that the grievant advised the District that he needed to
(5) days' notice to his employer.
Under the foregoing circumstances, I am not directing reinstatement or back pay. I
the grievant rejected a legitimate reinstatement offer.
Dated at Madison, Wisconsin this 6th day of December, 2000.