BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
NORTHERN EDUCATIONAL SUPPORT
LAC DU FLAMBEAU SCHOOL DISTRICT
For the Lac du Flambeau School District: Attorney Steven
Garbowitz, O'Brien, Anderson, Burgy, Garbowitz & Brown, LLP, 221
1st Street, Eagle River, Wisconsin 54121-0639.
For the Northern Educational Support Team (NEST): Mr. Eugene
Degner, P.O. Box 1400, Rhinelander, WI 54501.
The Lac du Flambeau School District (hereinafter referred to
as District or Employer) and Northern Educational Support Team
(hereinafter referred to as NEST or Union) are parties to a
collective bargaining agreement covering the years 1998-99 and
1999-2000. The agreement provides for binding arbitration of
grievances as therein defined that may arise between the parties.
On June 15, 2000, the Union filed with the Wisconsin Employment
Relations Commission a request to appoint a WERC commissioner or
staff member to arbitrate a grievance that had arisen between the
parties. Commissioner A. Henry Hempe was appointed to hear and
decide said dispute. A hearing was conducted on September 19, 2000
in Lac du Flambeau, Wisconsin. A transcript of the hearing was
prepared. Each party filed an initial brief on November 10, 2000.
By letter dated November 14 and received November 16, 2000, the
District indicated that it did not intend to file a reply brief.
By letter dated November 15, and received November 20, 2000, the
Union indicated it did not intend to file a reply brief.
STATEMENT OF THE ISSUE
The parties do not agree on a statement of the issue.
The District suggests the issue be stated as follows: Did the
School District of Lac du Flambeau have just cause to terminate
Julienne Cross from her employment with the Lac du Flambeau School
NEST suggests the issue be stated as follows: Did the School
District violate Julienne Cross's rights under the collective
bargaining agreement, specifically the discipline procedure?
If as so, what is the appropriate remedy?
I define the issue as follows: Did the Lac du Flambeau School
District violate the just cause provision contained in Article XVI,
B of the collective bargaining agreement between the parties when
it terminated the employment of Julienne Cross as a Head Start
If so, what is the appropriate remedy?
FACTS OF THE CASE
On January 4, 1999, the grievant, Julienne Cross, transferred
from her position as an EEN Aide in the Lac du Flambeau School
District Head Start program to that of a Head Start Teacher Aide.
As an EEN Aide, Ms. Cross had had the principal responsibility
of shadowing one EEN student and providing assistance to that
student as needed. As a Teacher Aide, however, Ms. Cross had
broadened responsibilities. Her new duties included assisting the
teacher with daily routines in the classroom, attending to
sanitation needs of equipment, informing the teacher of changes in
behavior or concerns about students, and sundry clerical tasks.
Ms. Cross' job description as a Head Start Teacher Aide also
listed the scope of her work relationships as including "dealing
effectively with both pleasant and difficult staff, students,
teachers, parents of students, and community situations."
On May 17, 1999, Head Start Acting Director (now Director)
April Collins evaluated Ms. Cross' job performance as a Head Start
Teacher Aide. Only a few weaknesses were noted; none were
identified as being a critical performance deficiency. Overall,
appeared to fare reasonably well on the evaluation form. 1/ That
evaluation appears to be the only formal record of Ms. Cross's
performance as a Head Start Teacher Aide.
1/ For instance, Section
Two consisted of a Performance Rating.
The Performance Rating listed eleven categorical inquiries (A K),
with three possible responses for the evaluator in each category:
"Yes," "No," and "Needs Work." Ms. Cross received only two "Needs
Work" responses from the evaluator; all of the other categories
merited a "Yes" (i.e., satisfactory) response. Sections Three and
Four identified strengths and weaknesses; and Section Four
contained an "Individualized Self Improvement Plan. The
"weaknesses" noted seem relatively minor for a beginning aide,
e.g., "lack of experience in designing an appropriate program with
costumes." Ms. Cross was also faulted for (not) "using time
efficiently" and apparently needed improvement in "record keeping."
Other documents related to Ms. Cross' experience as a
teacher's aide were also received into evidence. These documents
included a New Employee Orientation Checklist, the job description
for the Head Start Aside position in effect when Ms. Cross was
hired, a new job description for the position dated April 5, 1999,
and a copy of the Tribal Early/Head Start Code of Ethics. Each
document had been signed or initialed by Ms. Cross.
As an aide, Ms. Cross was also subject to the CDA (Child
Development Associate) Training Plan that required her to take
certain classes to assist her in the effective performance of her
responsibilities. The coursework was to be completed within an
On or about September 17, 1999, Ms. Cross requested that she
be transferred to a then vacant teaching position in the Head Start
program. Director Collins offered no objection to the requested
transfer, and the District Superintendent approved it. Within a
month of starting her teaching responsibilities, however, Ms. Cross
began to encounter difficulties. In addition, several memorandums
documenting various performance deficiencies of Ms. Cross (as a
Head Start teacher), and one notice of a one-day suspension were
also received. 2/
2/ The memorandums and reprimands dealt
with a range of
including leaving the classroom for reasons other than a normal
break, "chain of command," proper call-in procedures and
classroom/teacher guidance issues. The suspension was for failure
to follow proper "call-in" procedures.
According to a summary prepared by the District in March 2000
by Director Collins, 3/ a litany of complaints had been lodged
against Ms. Cross. The complaints begin with October 1999: 4/
3/ Tr. 61.
4/ District Exhibit 1.
10-19-99 Terri Daubon* JC smelled of smoke
10-20-99 Alicia Thompson** JC left classroom
w/o Verbal warning
10-20-99 Julia Chapman Same as above
10-25-99 Terri Daubon* JC left child on
playground Verbal warning
12-6-99 Shannon Lerdal** Child crying; JC
used None listed
1-4-00 Julia Chapman Informed by 5
persons that None listed
(Ed. Coord.) JC took kids outside
cold weather, contrary
1-28-00 Amy Poupart JC'c classroom
2-9-00 Mabel Soulier** On 1/27, JC had bad
attitude, was abusive to
to JC & aide
2-11-00 Amy Poupart JC lacks teaching
skills Discussed w/JC
2-15-00 Mabel Soulier** JC left students alone at
end of school day
2-23-00 Roger Stone Lack of communication
Patty Clark w/parents; only 1
(parents) visit; child fears
hit by another
3-1-00 Roger Stone Child's behavior
gotten None listed
*Designates Head Start teacher in Lac du Flambeau School
**Designates Head Start aide in Lac du Flambeau School
The District had other complaints of its own against Ms.
Cross. On November 22, 1999, Ms. Cross had received a 1-day
suspension for failing to call in by 6:00 a.m. to advise the school
that she wouldn't be able to come to work due to the illness of her
As a Head Start teacher, Ms. Cross was also required to take
coursework leading to certification as a Child Development
Associate. She received "incompletes" in two courses, and needed
to repeat a third. Based on this record, the District terminated
Ms. Cross' employment in January 2000. But following the filing of
a grievance that challenged such termination, the District
reconsidered its action and reinstated Ms. Cross as a Head Start
On March 2, 2000 Director Collins "reassigned" Ms. Cross to
the position of Teacher's Aide, effective March 6, 2000, replacing
her with Mabel Soulier, up to then Ms. Cross' Teacher's Aide. The
Director advised Ms. Cross of her "reassignment" by a memo. The
same memo also directed Ms. Cross to attend and participate in the
Employee Assistance Program for counseling "to resolve personal and
professional issues." A date, time, and place certain was listed,
along with the name of the psychologist with whom Ms. Cross was to
Ms. Cross consulted Tribal Chairman Tom Maulson for advice.
He suggested that Ms. Cross agree to attend the scheduled EAP
session only with her attorney being present. In a note to Acting
Director Collins dated March 8, 2000, Ms. Cross did precisely that.
5/ Director Collins had also required Mabel
Soulier to attend
the same EAP meeting with Carl Adler. Ms. Soulier did report for
the meeting as scheduled.
Two days earlier, Ms. Cross had resurrected an earlier
complaint alleging child abuse that she had made verbally in
September 1999. She sent her resurrected written complaint to three
School District administrators, the Superintendent, Director
Collins, and Federal Program Administrator Sue Wolfe. She also
sent a copy to the Indian Child Welfare Committee. In her both her
initial verbal and subsequent written complaints, Ms. Cross accused
both Head Start Teacher Terri Daubon and Head Start Teacher Aide
Shannon Lerdal, by name, of abusive conduct towards a child in
their care. No child's name was included in Ms. Cross' written
complaint, but a description of the incident included the gender
and age of the child.
As a result of her written complaint, Ms. Cross was charged by
the District with violating its policy of confidentiality.
In a letter dated March 9, 2000, Acting Director Collins fired
Ms. Cross from her Teacher Aide position. In her letter, the
Director noted that since Ms. Cross' "reassignment" to the position
of Head Start Aide, she learned that Ms. Cross " . . . had sent a
letter out to various people regarding a confidential issue."
Director Collins further alleged that she had received a written
report " . . . stating that you told other staff people that you
were writing up people." Finally, the Director Collins wrote:
"In addition, as a condition for your employment you were
required to attend and participate in the Employee Assistance
Program (EAP) for counseling to resolve personal and professional
issues on March 8, 2000, I received a written notice from you
stating you would not attend the EAP session. Since you made this
choice, you leave me with no other alternative but to terminate you
from your position immediately. This is effective March 9, 2000 at
At hearing , Director Collins asserted Ms. Cross was fired for
3 reasons: 1) breach of confidentiality; 2) lack of performance;
3) failure to attend the EAP session.
Ms. Cross testified in her own defense. She suggested that
the attacks on her seemed to emanate in main from the same people,
namely Mabel Soulier, Terri Daubon, Shannon Lerdal and Amy Poupart.
She believes that Mabel Soulier is a good friend of Terri Daubon
and a confidante of Amy Poupart. Shannon Lerdal was an aide for
Terri Daubon. Prior to hearing Ms. Cross was apparently unaware of
the relationship between Director Collins and Mabel Soulier.
Ms. Cross described herself as an artistic person who
introduced different ethnic cultures to her class, including Native
American and African-American. She said she frequently took her
class to the Science Room, that her class helped her put up huge
mobiles and made hats for different themes. Ms. Cross indicated
that she'd lead her class on parades around the school, that her
class did a garden that it harvested and made "stone soup."
Ms. Cross had a puppet stage built in her classroom and provided
puppets. She further directed a class Christmas play. Ms. Cross
believes her teaching style differs from that of some other
With respect to the "confidentiality" issue, Ms. Cross
explained that she had initially reported the child abuse incident
to Family Services Coordinator, Louella Babbie Cobb. After
reporting the incident, Ms. Cross was told that as a "mandated
reporter" her child abuse complaints should be sent directly to the
Indian Child Welfare (Committee) and the Vilas County (Social
Ms. Cross said she had finally put her child abuse complaint
in writing for at least two reasons:
"I didn't feel that I guess I felt like I was being
out and why was no one else getting reprimanded when everyone was
doing these kind of things that I was not I'm not being accused
of child abuse . . . And then I felt it was not handled at the time
(when she'd made her verbal complaint.) I didn't see I was never
told anything about it . . ." Tr. 161.
Ms. Cross indicated that while she was a teacher she was in
charge of 19 children, some with special needs. She also testified
that during her experience as a Head Start teacher, 4 different
aides had been assigned to her class: Shannon Lerdal, Alicia
Thompson, an unnamed 60-year old volunteer, and Mabel Soulier.
Director Collins reassigned Shannon Lerdal to Terri Daubon's
classroom. The 60-year old volunteer and the teenaged Alicia
Thompson worked apparently worked harmoniously with Ms. Cross (as
had Shannon Lerdal), but were inexperienced. Finally, Mabel
Soulier was hired in January 2000, and assigned to Ms. Cross'
Ms. Cross testified that following her demotion to Teacher
Aide she worked only one day, March 6. Although she had been
enrolled in the required CDA coursework at the time of her
employment she had to drop out in order to qualify for Unemployment
Further facts will be developed in the course of this award.
POSITIONS OF THE PARTIES
The District begins with a recitation of a seven-part
definition of "just cause," which it attributes to "numerous
courts and arbitrators:"
Did the employee have knowledge of the probable
consequences of the
Was the rule or order reasonable?
Was there a reasonable effort by
the employer before filing charges
to determine whether a rule or order was violated?
Was that substantial effort fair and
Was there substantial evidence that
the employee violated the rule
Was the employer applying the rule
or order fairly?
Is the proposed discipline
reasonably related to the employee's
record with the employer?
The District points to Ms. Cross' initials or signatures on
job descriptions and Code of Ethics requirements as evidence that
she knew what was required of her. The District moves on to argue
that many of the facets of work involved with being an aide are
also present for a Head Start teacher, including certain required
CDA coursework. Julienne's problems did not start when she was a
teacher, but rather when she was an aide, according to the
Focusing on Julienne Cross' experience as a teacher, the
District points to performance deficiencies in September and
October that led to her being warned that serious consequences
could result if she left her classroom for any reason other than a
normal break. A month after this, the District recounts, Ms. Cross
had to be reminded of appropriate procedures to be followed when
calling in that she will be absent or tardy. Ms. Cross
subsequently received a 1-day suspension for failing to follow
correct call-in procedures, the District notes.
The District reviews the formal evaluation as a teacher that
Ms. Cross received. The District notes that she did not fare well
in this area, receiving ratings in most categories of either
average or below average. The District contends that the last two
pages of the evaluation indicate serious problems in the area of
working with co-workers.
The District believes other facts as well demonstrate
Julienne's difficulty with the concept of teamwork. It points to
an early February meeting with the Acting Director held in an
effort to resolve disputes with the classroom aide as well as
another February incident in which the children in Ms. Cross'
classroom were allegedly left without supervision by a teacher or
The District cites Ms. Cross' difficulties in the CDA
coursework as a further indication of her employment troubles.
The District describes Julienne's reassignment as an aide not
as a demotion, but instead as an attempt to increase her skill
level. According to the District, the child abuse report then
filed by Julienne not only deviated from District policy, but
represented an attempt by Julienne to lash out at her opponents.
The District argues that had Julienne sent her child abuse
complaint to only Vilas County (Social Services Department) no
action against Julienne would have taken place. Because of
apparent hostility towards co-workers perceived by the District
Julienne was ordered to report to an Employee Assistance Program
meeting. Julienne refused.
The District argues that a series of issues developed with
Julienne in her role as a Head Start teacher. The District lists
these as control of children, organizing time management issues,
conflicts with her aide, and failure to complete CDA coursework.
Thus, says the District, to prevent further turmoil with the
children in the classroom, Julienne was reassigned as an aide.
The District believes that the number of verbal warnings,
written reprimands, a suspension, letters indicating possible
termination if conduct was not reformed should have alerted
Julienne that she would be fired if she didn't go to the EAP
meeting. Yet, the District states, it is very clear that Julienne
"point blank" refused to attend the EAP meeting, as evidenced by
The District contends that its order to Julienne that she
attend the EAP meeting was reasonable. The District claims the
program was designed to help Julienne resolve the problems with her
co-workers as well as any personal problems that she may have had
that were adversely affecting her ability to do her job. The
District also believes it has complied with its duty of fairness,
as well, arguing that not only Julienne, but also her aide, Mabel
Soulier, was required to attend the scheduled EAP session. The
District finds further justification for its EAP order to Julienne
because of the confidentiality rule that Julienne allegedly
As to the confidentiality issue, the District first notes that
Julienne admits to sending the child abuse report. The District
argues that the information contained in Julienne's report was
confidential, contending that not only the Federal Government
requires confidentiality as to the Head Start program, but the
State of Wisconsin requires it as to student affairs by virtue of
its Pupil Confidentiality Statute. According to the District,
there is no evidence to suggest that a report of child abuse is
anything but confidential.
Finally, the District argues the termination was reasonably
related to the employee's record in the department. Given the
number of verbal warnings, written reprimands, and a suspension,
termination was the only alternative left.
The District is not impressed by the Union's argument that in
conjunction with the earlier demotion, the termination constitutes
a double penalty for one offense. Most of the incidents involving
Julienne that were reduced to verbal warnings and written
reprimands involved conduct that would not be tolerated elsewhere,
according to the District.
In summary the District argues that the reasons for which
Julienne was discharged (besides the EAP order) transcend her time
as a teacher and date back to her time as an aide. Instead of
discharging her as a teacher, however, the District claims that it
attempted to give Julienne another chance by transferring her to an
The majority of Julienne's problems, says the District, were
related to herself, not her co-workers. Since Julienne chose to
reject all the offers of assistance proffered by her employer, the
District asserts that her continued employment became impossible.
Dismissal, says the District, was the only alternative remaining,
and thus the grievance should be dismissed.
The Union admits that Ms. Cross does not have an unblemished
record, but argues that it does not meet the standard of "just
cause" for discharge.
In support of this contention, the Union first asserts that
termination of Ms. Cross' employment constitutes "double-jeopardy."
The Union notes that Ms. Cross had already been reduced from a Head
Start teacher to a Head Start Aide on March 2, 2000, effective
March 6, 2000. Then, according to the Union, without an evaluation
of Ms. Cross' work in the position to which she had been reduced,
she was fired for reasons related to her performance as a teacher.
In any event, says the Union, Ms. Cross was not allowed to
prove herself as an aide following her demotion to that position.
The Union believes Ms. Cross should have had a reasonable time to
reacquaint herself with her new assignment before being discharged.
Moreover, the Union adds, nothing in the record showed the District
was unhappy with Ms. Cross' previous work record as an aide.
The Union next argues that the District's complaints about Ms.
Cross' work record relate to her responsibilities as a Head Start
teacher. The Union urges that once Ms. Cross was removed as a Head
Start teacher, the District's complaints about her performance in
that position should have been disregarded.
The Union asserts that a triangle of persons Terri Daubon,
Mabel Soulier and Amy Poupart were the instigators of seven
complaints against Ms. Cross, some of which were quite petty. The
Union suggests that Ms. Cross was not the lone culprit in the
instances cited by this trio, and that if the District had
addressed the internal problems evidenced by the allegations of the
three there probably would have been no need for a grievance
Finally, the Union contends that the reasons for discharge
listed by Acting Director Collins are all bogus:
The confidential information released by Ms. Cross was given
only to the District employees who were in charge or Ms.
Cross' superiors, and does not constitute a violation of
Wisconsin confidentiality statutes.
The allegation that Ms. Cross was "writing up" other employees
was ridiculous on its face and would have been found to be
false and without merit with even a minimal investigation.
The directive that Ms. Cross attend an EAP session as a
condition of employment violated the voluntary and
confidential nature of that program and placed Ms. Cross'
employment in jeopardy, both contrary to explicit EAP
In addition, the Union notes that Ms. Cross did not refuse to
attend an EAP counseling session, but on the advice of a tribal
elder stated she would not attend without her attorney being
As a remedy, the Union asks for reinstatement of Ms. Cross to
her position as a Head Start Aide, along with a provision that she
be made whole for any losses suffered as a result of her discharge.
ARTICLE IV NEGOTIATIONS PROCEDURES
A. * * * *
B. Except as this Agreement
shall hereinafter otherwise provide,
all terms and conditions of employment applicable on the
effective date of this agreement to employees covered by this
Agreement as established by the rules, regulations and/or
policies of the Board in force on said date, shall continue to
be so applicable during the terms of this Agreement.
C. This Agreement shall not be
modified in whole or in part by
the parties except by an instrument in writing duly executed
by both parties.
* * *
ARTICLE VI GRIEVANCE PROCEDURE
A. * * * *
B. * * * *
Step 1: * * * *
Step 2: * * * *
Step 3: * * * *
Step 4: If no adjustment is reached under Step 3 it
appealed to arbitration. * * * *
Step 5: Either party may
request the Wisconsin Employment
Relations Commission to appoint a member of their staff to act as
an arbitrator. The decision of the arbitrator shall be final and
binding. The arbitrator shall have no right to amend, modify,
nullify, ignore or add to the provisions of this Agreement.
His/her decision and award shall be based solely upon his/her
interpretation of the meaning or application of the terms of this
Agreement to the facts of the grievance presented.
* * *
ARTICLE XVI DISCIPLINE PROCEDURE
A. All new employees shall serve a six (6) month
period. During such period they shall not be entitled to just
cause for discharge.
B. After serving a six (6)
month probationary period, no employee
shall be discharged, suspended, disciplined, or reprimanded,
or reduced in rank or compensation without just cause.
Information forming the basis for disciplinary action shall be
made available to the employe and the union.
C. * * * *
Julienne Cross was hired as a Head Start Teacher's Aide in
January 1999. Following the successful completion of a six-month
probationary period, Ms. Cross applied for and was awarded a Head
Start teaching position. She began her teaching responsibilities
in September 1999.
Ms. Cross remained a Head Start teacher until March 2000. By
memo dated March 6, 2000 from Head Start Director April Collins,
Ms. Cross was returned to her aide position. But on March 9, 2000,
after working at her reassigned aide responsibilities for only one-day, Ms. Cross received a
second memo from Director Collins
advising her that she was being discharged. At hearing, Director
Collins stated that Ms. Cross was discharged from the aide position
to which she had just been reassigned. 6/
6/ Tr. 142.
On this record, the District argues that it had just cause for
the discharge. I do not agree. In my view, the District lacked
"just cause" to discharge Ms. Cross. I base my conclusion on three
independent grounds, each established by the record:
District records established that Ms. Cross's record as an
aide was at least satisfactory;
Just cause for discharge as a teacher's aide is not
established by alleged deficiencies in Ms. Cross's record
as a teacher;
Ms. Cross' qualified refusal to submit to EPA counseling did
not establish a just cause basis for discharge.
Satisfactory Record as an Aide
Beginning in January 1999, Ms. Cross successfully served a 6-month probationary
period as a Head Start teacher's aide. During
her probationary period, Ms. Cross was evaluated only once. That
evaluation, dated May 17, 1999, reveals only a few performance
weaknesses, none of which appear to have been critical. 7/
7/ Q. (to April Collins). "So it
would be fair to say that
there was nothing in this evaluation that would have caused
you to recommend her discharge or discharge her as a teachers
aide in Head Start at that point; is that true?"
A. "True." Tr.
April Collins). "I found nothing in her formal
evaluation indicating a dissatisfaction by you with her in
the class room while she was a teachers aide.
A. Correct. Tr.
At hearing, Director Collins contended that even as an aide
Ms. Cross experienced problems "clashing with staff." 8/ But the
record contradicts that allegation: in her written evaluation of
Ms. Cross' job performance as an aide written in May 1999,
Supervisor Collins found Ms. Cross to be "courteous and cooperative
with fellow staff, students and (the) public and accepts and
implements constructive criticism." 9/
Thus, the District finds itself in the unenviable posture of
trying to establish "just cause" for its discharge of an employee
even though the District's own records fail to provide sufficient
evidence that the employee's overall performance was unsatisfactory
in the job from which she was fired. 10/Instead the
records arguably constitute affirmative evidence that as an aide
the employee was at least satisfactory. Following her demotion
from her teaching position, Ms. Cross worked as an aide for only
one day. No complaints were recorded against her. Very clearly,
Ms. Cross's employment record as an aide offers no just cause basis
for her subsequent discharge.
Just Cause for Dismissal as Teacher's
Not Established by Alleged Deficiencies in Ms.
Cross's Record as
Understandably then, the District broadens the scope of its
vision, and focuses on Ms. Cross' record as a Head Start teacher.
Arguing that many of the facets of work involved with being an aide
are also present for a Head Start teacher, the District cites Ms.
Cross's record as a Head Start teacher as a "just cause" basis "
for the discharge.
In support of this contention, the District recites twelve
complaints, 11/ each of which relates to some incident that
occurred after Ms. Cross became a Head Start Teacher. 12/ Some
complaints appear trivial, even petty (e.g., "smelling of smoke");
others appear on their face to be more serious (e.g., leaving
children unattended, leaving classroom without notifying aide,
leaving child on playground, taking children outside in cold
weather contrary to instructions).
I find the District's initial premise questionable.
Certainly, there are similarities between a teaching position and
an aide position: the duties of each are performed in the
classroom and involve substantial interaction with students,
parents, and other staff members. But a comparison of the
respective job descriptions for both teacher and aide reveals a
substantial difference as well: each reflects the underlying
policy that the teacher is in charge of the classroom, and the
aide's role is substantially a supportive one of the teacher. 13/
Moreover, there appears to be a fundamental unfairness in recycling
the same complaints originally used to justify a demotion for the
purpose of justifying a subsequent discharge of the same individual
from the position to which that employee had been demoted.
13/ Joint Exhibits 5 & 6 (Job Descriptions for
Aide); Joint Exhibit 7 (Job Description for Head Start
However, since Director Collins asserted at hearing that "lack
of performance" was one of three causes for Ms. Cross' discharge,
14/ and since it is unclear which of the complaints resulted in Ms.
Cross' demotion to aide, review and analysis of all of them is
appropriate and may be helpful.
14/ Tr. 118.
We begin with the twelve complaints listed in the District's
Summary (District's Exhibit 1). Two appear to refer to the same
incident (Ms. Cross left her classroom without notifying her aide),
thus reducing the total number of complaints by one. Five of the
remaining complaints were brought by fellow teachers or aides:
Terri Daubon, Shannon Lerdal and Mabel Soulier are all "repeat"
complainants. A parent, Amy Poupart, is responsible for two more
of the complaints. Roger Stone, another parent, is also
responsible for two complaints (in one the child's mother joined
him). The two Stone complaints are only one week apart.
Two complaints were filed by Julia Chapman, a Head Start
administrator. One of those was identical to that brought by
Teacher Aide Alicia Thompson (grievant left classroom without first
notifying her aide). The other was based on the reports of five
unidentified persons who said the grievant had taken her class
outside for recess even though Head Start administrators had deemed
the weather too cold for recess.
The complaint summary begins with one filed by Head Start
Teacher Terri Daubon and her Head Start Aide Shannon Lerdal. They
claimed that on October 19, 1999, Ms. Cross "smelled of smoke,"
for which Ms. Cross was given a verbal warning. On October 25,
fellow-teacher, Terri Daubon, this time in tandem with an Ann
Allen, made another complaint against Ms. Cross. This time the
complaint was that Ms. Cross had left a child on the playground.
Ms. Cross was again verbally reprimanded. There is no evidence in
the record that Ms. Cross' explanation of this incident was ever
sought, or that any investigation of the Daubon-Allen allegations
was ever conducted. Ms. Cross, however, offered a reasonable
explanation of the event 15/ that the District chose not to rebut.
15/ At hearing, Ms. Cross testified that on the day
incident occurred, she had an inexperienced, teenaged aide
assisting her, that the child had deliberately hidden himself,
that she discussed the child's action with him when he returned
to the classroom, and that he promised not to repeat it.
According to Ms. Cross, the boy has kept his promise. Tr. 178.
The District offered no contradicting testimony.
The next complaint listed against Ms. Cross is dated October
20, 1999. In the summary Alicia Thompson, a teenager and
apparently as inexperienced as an aide as was Ms. Cross as a
teacher, is reported as complaining that Ms. Cross left the
classroom without notifying the aide. No other particulars are
given. No substantiation is provided. The Summary indicates that
Ms. Cross received a verbal warning; however, it appears that this
incident may have been included as one of the two for which Ms.
Cross actually received a
written reprimand. 16/ The testimony did not indicate whether the
aide had remained in the classroom with the children during Ms.
Cross' absence or whether the children had been left unsupervised.
16/ Joint Exhibit
On December 6, 1999, Teacher Aide Shannon Lerdal accused Ms.
Cross of causing a child to cry through the use of excessive force.
No disposition was listed; inasmuch as the District did not pursue
this potentially serious allegation at hearing I shall disregard
Neither is a disposition listed for the complaint of January
4, 2000 from five unidentified persons. At hearing, however, Ms.
Cross defended herself against this charge. She explained that she
had received the administrative directive against taking the
children outside only after the children had already donned their
winter outerwear, that they were all enthusiastic about sledding
outside, and that she had taken them outside only for a walk around
the building to demonstrate that it was too cold for an extended
outdoor recess. 17/ I find this explanation reasonable. It is not
clear the District had ever sought one.
17/ Tr. 177.
In January 2000, a new aide was assigned to Ms. Cross. Mabel
Soulier, Director Collins' niece by a former marriage of the
Director, was placed by Director Collins in Ms. Cross' classroom.
Ms. Soulier was the last in a succession of 4 aides that had been
assigned to Ms. Cross: Shannon Lerdal (reassigned to Terri
Daubon), Alicia Thompson (inexperienced, teenager), and an unnamed
60-year old volunteer.
Ms. Cross described Ms. Soulier as a good friend of Cross'
apparent protagonist, Terri Daubon. In addition, Ms. Cross
believes Ms. Soulier to have been a "confidante" of complaining
classroom parent Amy Poupart. 18/
18/ In January 2000, Ms. Poupart wrote that
she had found Ms.
Cross' s classroom to be messy and chaotic; in February 2000, Ms.
Poupart alleged that Ms. Cross lacked teaching skills. The
District's Summary shows merely that the parent's complaint was
discussed with Ms. Cross.)
Overt friction was not long in developing between Ms. Cross
and her latest aide. 19/ On February 9, 2000, Ms. Soulier
complained that Ms. Cross had a bad attitude and was abusive to
her. Both women received a verbal warning.
19/ Ms. Cross testified "And then when Mabel
she worked against me, not with me." Tr. 170.
In mid-February, Ms. Soulier accused Ms. Cross of leaving
students alone at the end of the school day. The District's
Summary of complaints against Ms. Cross contains no disposition
with respect to this allegation, but Director Collins testified
that she met with both Ms. Cross and Ms. Soulier. Both received
verbal warnings that were memorialized in writing. 20/
20/ Joint Exhibit 25. At hearing, Ms. Cross
explained that at
the time she had allegedly left unsupervised children in her
classroom she was outside the building with other children from her
classroom and had directed Aide Mabel Soulier to stay with the
smaller group of children that had remained in the classroom.
Despite her apparent awareness of the obvious friction that
had developed between Mabel Soulier and Julienne Cross, 21/ Ms.
Collins did not assign Ms. Soulier to aide duties with another
teacher. Ms. Collins explained her reason:
"One of the reasons is because of the age group we're dealing
with. The issue of attachment and bonding is very important and
it's very important that at that age it's consistent that the same
teacher and the same aide be in the classroom with the children.
As a matter of fact, in the Head Start improvement plan, that was
one of the reasons stated in there, is that the Head Start and the
teacher aide will remain in that classroom with the same group of
children for two years . . ." 22/
In theory this rationale appears sound. Yet it did not appear
to serve as an impediment to Director Collins when she moved three
previous aides out of Ms. Cross' classroom between September 1999
and January 2000. Given this history of aide reassignment coupled
with the hostility that had developed between Ms. Soulier and Ms.
Cross, I find the explanation unenlightening.
Finally, on February 23 and March 1, 2000, a classroom father,
joined initially by the child's mother, made several complaints
that included a lack of communication, only one visit to the home,
fears of his child, and the deteriorating behavior of his child.
The father's concerns do not appear unusual for many parents.
Under disposition, the District Summary shows only that a parent-teacher conference took
place, a routine enough method of
resolution. Clearly, the District believed the matter would be
resolved. Given a reasonable amount of time, perhaps it would
have. But Ms. Cross was relieved of her teaching responsibilities
on March 2, and was thus deprived of the opportunity to resolve
those concerns in a satisfactory manner to both child and parent.
It is instructive that the same disposition (verbal warning)
was made for the trivial ("smelling of smoke") as for what appear
to be more serious (leaving the classroom without notifying the
aide; leaving a child on the playground; bad attitude, abusiveness
to aide). No disposition is listed on the summary for what are
arguably the most serious complaints (use of excessive force on a
child; taking class outside in cold weather contrary to
instructions; classroom messy and chaotic; leaving students alone
at the end of the school day).
Based on the disposition record listed in the District's
Summary, a logical inference is that the District did not regard
the conduct described in any of the complaints listed in its
summary as particularly egregious or remarkable. The Summary lists
no disposition of the complaints as greater than a verbal warning.
In some instances the only disposition noted was that a parent-teacher conference was
arranged. In others no disposition is
listed at all, leading to the inference that none was made. Had
the District determined that the matters covered by the complaints
constituted serious performance deficiencies, I would think its
dispositions would so reflect. They do not. Under this
circumstance, a logical conclusion is that the District did not
regard any of these offenses, individually or in their entirety, as
constituting just cause for discharge. Nor do I.
However, at hearing the District attempted to augment its
Summary of complaints with other evidence and testimony. For
instance, it appears that Ms. Cross received a written warning from
Ms. Collins for leaving her children's group on October 19, 20, and
earlier, on September 7. 23/ [One of those instances may have
also been covered in the District's Summary prepared by Director
Collins for which only a verbal warning is listed.]
23/ Joint Exhibit 11.
Director Collins also testified that she imposed a one-day
suspension to Ms. Cross for her failure to call-in her anticipated
absence or tardiness by the required early morning time (6:00 a.m.)
on November 22, 1999. 24/ (There had been two previous tardy call-ins of illness for which
a written warning was issued. 25/ Both
occurred in early February 1999 when Ms. Cross was still a
But the record also contains Ms. Cross' explanation for the
November instance given at hearing: on the morning of November 22,
1999 her young son had an asthma attack after the appointed hour
for Ms. Cross to call-in had already passed. Ms. Cross ministered
to her son's medical needs, then called-in at her first
opportunity. The record contains no evidence that the District was
aware of the emergency medical situation Ms. Cross faced that
morning. Notwithstanding the apparent recidivist nature of this
offense (3rd), under the circumstances it does not appear to be a
serious breach of work rules by the grievant. A work rule should
not be invoked to discipline an employee for failing to perform an
impossible act. Surely Director Collins is not suggesting that Ms.
Cross should have ignored her maternal responsibilities to her son
merely because she had discovered her son's illness after the
allowable time to call-in an anticipated tardiness or absence.
In the course of her testimony, Director Collins referred to
students that turned up "missing" from Julienne Cross' classroom or
supervision. The Director indicated that she herself had observed
that a student was "missing" from the classroom on two occasions.
The Director explained that what she meant by the term "missing"
was that a student had run away. She said that in one case the
child ran down the hallway to the classroom where he knew his
grandmother would be. The Director did not describe any other
specific instance. No instances of this nature had been recorded in
the District's Summary of complaints that Director Collins had
When Ms. Cross testified, she explained that the child in
question had been in a small group of children who were all under
the supervision of her aide at the time, Mabel Soulier. The
District did not contest Ms. Cross' explanation. Nor does it does
appear that any discipline was given to either Ms. Cross or her
aide, 26/ suggesting that at the time of the incident Director
Collins had found no fault with either.
26/ The incident reported by Director Collins
had sparked a
letter from the child's parents. The matter was discussed between
the parents and Ms. Cross and resolved to the apparent satisfaction
of all. Tr. 175 - 6.
Director Collins also testified that Ms. Cross was
unsatisfactory in the classroom in other ways besides inadequate
supervision. For instance, Ms. Collins stated that lesson plans
were not being turned in on time, that home visits were not
completed, and that Ms. Cross' attendance at classes leading to a
Child Development Associate (CDA) certification was a problem. 27/
But the documents submitted ostensibly in support of this
testimony give a contrasting picture. As to tardy lesson plan
submission, the Staff Monthly Summary Report issued at the end of
October 1999 states: "Lesson plans posted and reviewed. Hands in
plans on time and has done two weeks at a time." 28/ The Staff
Monthly Summary Report issued at the end of November 1999 states:
"She gets her (lesson) plans in on time and has made improvements
in writing them out." 29/
As to home visits, the Summary Reports do document that
approximately one-half of the visits (actually, 8 out of 19) had
not been completed and the necessary paperwork had not been
prepared for the ones that had. But the October Summary Report
also explains that some of the parents were not cooperating in
scheduling the required home visits, and that Ms. Cross would
reschedule. 30/ Moreover, these deficiencies do not appear to be
particularly unusual for a beginning teacher, particularly one
without formal teacher training.
With respect to CDA class attendance, both the October and
November Summary Reports indicate that Ms. Cross was attending her
CDA classes. 31/
31/ Joint Exhibits 13 &
Totally overlooked in testimony were positive performance
notations, particularly in the November Report: " Some
improvements have been in classroom environment. . . Creativity is
shown in activities and in parent involvement." 32/
32/ Joint Exhibit 14.
Neither of these Monthly Summary Reports
were prepared by Director Collins, but by Head Start Education
Coordinator Julia Chapman. Director Collins reviewed both, however,
for each contains a notation that Ms. Collins identified as her
handwriting. Tr. 33 - 4.
Based on these District records, the force of District charges
that Ms. Cross was ineffective in the classroom is considerably
Also overlooked by the District is the fact that all of the
documented complaints against Ms. Cross appear to have been made
after Ms. Cross had become a whistle-blower. The "whistle-blowing" occurred in
September 1999, 33/ when Ms. Cross witnessed
what she believed to have been an act of child abuse by another
Head Start teacher. Ms. Cross reported the event to then Acting
Director Collins, who also acted as Ms. Cross' immediate
33/ Ms. Cross was not
sure what month the incident occurred.
However, Director Collins was able to document the incident's
occurrence in September
Ms. Cross received a mixed response. She reports that one
program administrator observed that the accused teacher was "up to
her old stuff again." 34/ Director Collins merely instructed Ms.
Cross that all child abuse complaints were to be sent to the Indian
Child Welfare Committee or the Vilas County Department of Social
Services. 35/ Ms. Cross was never advised of the outcome of the
merits of her complaint.
Significantly, the two persons named as abusers by Ms. Cross
were Head Start Teacher Terri Daubon and Head Start Teacher Aide
Shannon Lerdal. Ms. Daubon and Ms. Lerdal, of course, subsequently
became "repeat" complainants against Ms. Cross. This sequence,
along with the relatively petty nature of their first complaint,
(Ms. Cross allegedly smelled of smoke) at least raises the question
of whether the Daubon-Lerdal complaints were not largely
The District also charges that Ms. Cross violated her pledge
to maintain confidentiality, a charge the District views as quite
serious. 36/ The District argues that by resurrecting her
September child abuse complaint and sending copies to persons not
authorized to receive them, Ms. Cross was guilty of transmitting
36/ Director Collins'
letter of discharge to Ms. Cross
characterizes Ms. Cross' sending " . . .a written report to
various people regarding a confidential issue" as "inappropriate"
that "does not follow proper procedure." Joint Exhibit 30.
The confidentiality pledge signed by Ms. Cross is part of a
document entitled "PRINCIPLES AS MY PERSONAL CODE OF ETHICS." The
portion dealing with confidentiality reads, "I dedicate myself to
maintaining high professional standards, safeguarding
confidentiality, and performing with intelligence, commitment and
The District acknowledges that no child's name was included in
Ms. Cross's written report, but argues that inasmuch as their
respective genders and ages were included their identities were
ascertainable. Ms. Cross acknowledged having sent the report to
School District Superintendent Richard Vought, Federal Program
Coordinator Sue Wolf 37/ and the Indian Welfare Committee. 38/ But
Director Collins stated, "(t)here was no purpose to have sent this
report to Mr. Vought or to Sue Wolfe," adding, "(t)he only person
this (report) should have went and doesn't even have to come in the
form of a report is Vilas County." 39/
37/ Ms. Wolf was also
described by Director Collins as the
Area Program Director. Tr. 131.
38/ The District charges
that Ms. Cross also sent her report
to the Head Start Policy Committee, a charge denied by Ms. Cross.
The District introduced no evidence in support of this
Absent an understandable desire to suppress information that
may be deemed by Head Start insiders to be unfavorable to the Head
Start program, I am not sure I understand the basis for Director
Collins' concern in this instance. I am at a loss to understand
how providing the District Superintendent a copy of a complaint
alleging misconduct by school district employees can be deemed a
violation of "confidentiality." I am at a similar loss to
understand why including Sue Wolfe, who is described by Director
Collins as the person who "oversees the program," 40/ is not also
entitled to a copy of the complaint. Parenthetically, I might add
that supplying only the gender and age of the alleged victims to
persons or entities authorized to receive such information seems to
me to be neither detrimental to the victims nor intrusive of their
Moreover, the confidentiality pledge signed by Ms. Cross did
not include a prohibition against relaying reports of possible
child abuse to the District Superintendent the Federal Program
Director, or the Indian Child Welfare Committee. The
Superintendent, after all, is responsible for maintaining a safe
habitat for District students. Federal Program Coordinator Sue
Wolfe who "oversees the program" would also seem to have an obvious
interest, for child abuse is an event that may impact negatively on
future federal funding. Finally, by Director Collins' own
description, the Indian Child Welfare Committee works in
conjunction with the Family Resource Center in Lac du Flambeau, and
not only receives reports of child abuse and neglect for the Lac du
Flambeau Native American children, but is part of the Vilas County
Social Services Department. 41/
In short, to interpret the confidentiality pledge as broadly
as the District now proposes would be, in my view, contrary to the
public policy of the State and detrimental to the best interests of
the very children the pledge seeks to protect. Even if Ms. Cross's
motivation in releasing her report included an element of
retribution against persons she regarded as her persecutors, under
all of the circumstances I am not persuaded that she violated the
pledge of confidentiality she signed.
Finally, Director Collins' letter of discharge to Ms. Cross
claimed Director Collins had received a written report " . . .
stating that you told other staff people that you were writing
up people." At the hearing, however, Director Collins was unable
to substantiate that charge. In fact she denied having any
knowledge of whether Ms. Cross had actually "written up anybody."
42/ It is also clear Director Collins did not bother to
investigate this charge, though she included the accusation in her
letter of discharge: "She was walking around with a tablet is all
was stated, a memo given to me stating that she was writing up
people . . . I did not check it out, I did not ask her for the
tablet, no." 43/
In summary, I do not believe the complaints recorded by the
District against Ms. Cross while she served as a Head Start teacher
constitute a just cause basis for discharge from her from her
position as an aide. None of them afford any reasonable basis for
a belief that Ms. Cross' performance as an aide was lacking in any
serious respect or offer a reasonable crosscheck to Ms. Cross'
ability to function successfully in the aide position.
As acknowledged by the Association, Ms. Cross' record as a
Head Start teacher is not flawless. But the peccadilloes recorded
by the District seem more attributable to Ms. Cross' status as a
neophyte classroom teacher who lacked formal training than to
general ineptitude or malign motives. Whether they constitute just
cause for dismissal as a teacher I do not here determine. In my
view, however, they do not constitute sufficient justification for
the discharge of Ms. Cross as an aide.
An Employee Refusal to Submit to EAP Counseling
Is Not a Just Cause Basis for
According to Director Collins, Ms. Cross was discharged from
employment for three reasons: 1) breach of confidentiality, 2)
lack of performance, 3) refusal to attend an EAP counseling that
she was ordered to attend as a condition of employment.
But Director Collins was unequivocal in her testimony that the
District was ready to forgive both the alleged "breach of
confidentiality" and "lack of performance".44/ The District's
offer of forgiveness, though, was in effect a conditional one: the
District would forgive if Ms. Cross availed herself of
psychological counseling to be provided by the School District's
Employee Assistance Program (EAP). The offer was contained in a
memo from Director Collins to Ms. Cross that also "reassigned" Ms.
Cross to her former aide position. After advising Ms. Cross of her
demotion from teacher to aide, and further inviting her to
terminate her employment if she disagreed with the demotion, the
"As a condition of employment you are
required to attend and
participate in the Employee Assistance Program for counseling to
resolve personal and professional issues. On Wednesday March 8,
2000 at 1:00 p.m. you are scheduled to meet with Carl Adler of
Koller Behavioral Health Services." 45/
44/ At hearing, Director Cross was
asked the following
questions and gave the following answers:
Now, had she attended the EAP meeting, however, is it
true you were prepared to overlook the other two
inadequacies, the breach of confidentiality and the
problems in the classroom if she had gone to that EAP
A. That was the final
Q. That was the straw that broke
the camel's back?
A. It was really important in
order to work with the staff,
I mean, and the children. To me that was a very that
was essential. We can't teach children if we're not
not being critical of your reasoning on this, but my
question is, if she would have attended that EAP meeting,
she would have kept her position as an aide; is that true,
assuming no other incidents happened since then?
A. I would say
Q. Is that true?
A. I would say I would say so,
Tr. 147 8.
45/ District Exhibit
At hearing, Director Collins expanded on her reasoning:
Q. Now how did you believe her EAP attendance would
her in her professional development as a teachers aide in the
Head Start program?
A I felt it would be able to help her
not only professionally but
personally in working.
Q. Were you aware of any personal
and you don't have to tell me
what they were but were you aware of any personal problems
that Ms. Cross was having at the time or did you just not
A. Well, some, you know.
Q. And did you relate those
personal problems to her professional
achievements or lack of achievements?
A. I would say yes, if I understand your
question right. 46/
In short, Director Collins ordered Ms. Cross to receive
counseling from a therapist of the District's choice for what the
Director perceived as both personal and professional problems.
Ms. Cross answered with what appears to be an acceptance (or
a refusal). But whether deemed an acceptance or a refusal, it was
as carefully qualified as was the District's "offer" of forgiveness
to which it responded. Acting on advice she had sought and
received from the Tribal Chief, Tom Maulson, on March 8 she wrote
and delivered a note to Director Collins indicating that she would
not attend the scheduled session unless her attorney could also be
present. 47/ At hearing, Ms. Cross explained her thinking:
Q. For the record, would you tell us why you did not attend
A. At that time I felt that all my
rights were being violated. I
felt like I was being forced into things and that I didn't
feel like going to that meeting that day. And I had told
April twice, I tried to make it very clear that I would not
attend the meeting today. I felt backed against a corner.
I called up Tom Maulson who is the grand T and someone who's
I respect, and he said, Julienne, just tell them not without
an attorney, and that's what I did. It's not that I did not
want to attend.
Q. For the record, who is Tom Maulson?
A. He was the tribal chief.
Q. Did you indicate in writing to April that
you would not be
A. That day. Just that day, yes, I did.
Q. That day?
A. Just that day. There was not
anything I would not attend in the
future. It was my first day as a teacher (sic). It was very
hard for me. 48/
Neither party addresses the issue of whether the labor
agreement between the parties grants the employer to mandate
counseling under the aegis of the Employee Assistance Program.
Their omission suggests that neither regard the ordered counseling
as "discipline" as the term is used in Article II, A, 4 in which
(t)he maintenance of discipline of students and employe control and
use of school system and facilities" appears as a management right
retained and reserved by the employer.
I am also persuaded that Director Collins did not intend
mandatory counseling as a tool of discipline. She was articulate
on that point in her direct examination:
Q. What was the purpose of the EAP suggestion?
A. To attempt to make better
relationships with the staff person,
to help address some of these issues that were coming up as
part of not only Julienne herself but also as part of her job
and relationship working with other people. So it's more than
just staff. It was for her also, resulting in professional
and personal relationships. 49/
I do not doubt that Director Collins had a sincere desire to
alleviate the stress and acrimony between Julienne Cross and Mabel
Soulier and others. Obviously, a stressful and uncooperative
relationship between teacher and aide or any co-employees is not
conducive to fostering the best interests of the students. Nor do
I underestimate the frustration Director Collins must have been
experiencing in March 2000: her attempts to direct and counsel both
women into improving their working relationship had not been
successful and there was no reason to believe that future
counseling efforts by her would yield a different result. Neither
did she wish to discharge either employee.
Her solution - third party counseling is understandable.
Mandatory counseling, however, is not always a remedy that can be
imposed on an unwilling employee. Furthermore, it appears that
Director Collins' counseling objectives may have impermissibly
extended beyond the work environment, as is suggested by her
allusion in her memo to "personal issues" she thought Ms. Cross
needed to resolve.
Thus forcing an employee to submit to counseling to resolve
"personal issues" can constitute an impermissible invasion of
privacy. If the counseling will ultimately lead to an intrusion
into a matter or matters that the employee has a right to keep
private and such an
intrusion would be offensive to a reasonable person, it does not
appear that the employee is required to submit to the counseling.
Marvin F., Jr. and Wright, James A., Employee
Lifestyle and Off-Duty Conduct Regulation, Bureau of National
Affairs, Inc., Washington D.C. (1993) at 33. Also see Restatement
(Second) of Torts,, sec. 652B.
This is not to say that an employer is not permitted to direct
an employee to cease engaging in offensive, disruptive or
quarrelsome conduct. But the means through which such an employee
chooses to effect the change desired by the employer cannot be
dictated or imposed by the employer. The ultimate sanction, of
course, if the desired change in conduct does not occur is
discharge. In the instant matter, Director Cross conceded that she
had never told Ms. Cross that her relationship with her Head Start
Aide or other teachers had to improve or Ms. Cross would be
51/ Tr. 149.
It is quite clear, however, that Director Collins was of the
opinion that Ms. Cross had both some personal and professional
issues, the resolution of which required the professional
assistance of a competent psychologist. 52/ It is equally clear
that Director Cross believed she had the authority to order Ms.
Cross into a counseling program. 53/ If Director Collins was
correct that Ms. Cross had personal emotional issues and needed
professional help to resolve them, no guarantees could be given
that the scheduled counseling sessions would not lead to intrusions
into matters that Ms. Cross had a right to keep private.
(Parenthetically, it should be noted that although Director Collins
appears to be a competent, caring administrator, she does not have
an educational background that qualifies her to make psychological
assessments of this nature. 54/ In fairness to her, however, she
was doubtlessly reacting to what she believed were poor
relationships between Ms. Cross and other staff members
particularly in light of Ms. Cross' weekly complaints about Mabel
Soulier). 55/ Acting on her opinion, the Director directed Ms.
Cross to attend and participate in psychological counseling.
54/ Tr. 148 9.
There is no evidence that Ms. Cross knew in advance that the
counseling would also involve Mabel Soulier, the aide with whom she
was having difficulty, or that it would essentially consist of a
form of conflict resolution. On the contrary, Ms. Cross felt
attacked, trapped, and being forced into something about which she
felt very insecure. Ms. Cross then asked for advice from a
tribal elder whom she trusted. She followed his advice: she said
she would go to the scheduled meeting if her attorney could also
attend. Director Collins refused that condition.
Under all of the circumstances, I do not find Ms. Cross'
conduct unreasonable. In my opinion, until she had the purpose and
procedures of the scheduled session explained to her she was not in
a position to make an informed decision. To refuse to attend the
session under these circumstances was within Ms. Cross' rights.
Moreover, the counseling session was offered under the aegis
of the Lac du Flambeau School District's Employee Assistance
Program. According to the District's literature, it ". . . . is
a diagnostic and referral service, on a voluntary basis . . . (in
which) ( j)ob security and promotional opportunities will not be
jeopardized by a request and/or referral to the program." 56/
(Emphasis supplied) If job security and promotional opportunities
will not be jeopardized by referral to the program, then it would
seem the converse should also be true: job security and promotional
opportunities should not be jeopardized by a refusal to participate
in the program.
I do not pretend to know whether Ms. Cross has "personal
issues" for which resolution requires professional counseling. I
am not qualified to make this kind of assessment. (I can say I saw
no evidence of any such issues in her demeanor as she testified).
Clearly, Ms. Cross had what appears to be an adversarial
relationship with several co-employees, but there are a number of
possible causes for this, unrelated to any "personal issues" of Ms.
Nor do I disagree that counseling focused on conflict
resolution could be helpful and may be necessary in restoring a
reasonable harmony in the Lac du Flambeau Head Start workplace.
Clearly this was the ultimate objective of Director Collins. But
Ms. Cross cannot be forced to counseling if she will not volunteer
for it. Based on her testimony at hearing, it sounds as if Ms.
Cross is willing to consider participation in a well-defined
professionally conducted conflict resolution program, reasonably
protective of her privacy, for the purpose of enhancing the
relationships between her and her co-workers. Almost needless to
add, however, her job cannot be held hostage to her continued
willingness to do so.
Unfortunately, Ms. Cross was fired because of her refusal to
attend and participate in an initial counseling session without the
security of her attorney being present. Inasmuch as I find her
refusal to be a reasonable exercise of her legal right to privacy,
such refusal did not constitute just cause for her discharge.
Julienne Cross did not deserve to be fired from her job as an
aide because of any deficiencies in her performance while she was
an aide. There is nothing in her record as an aide that remotely
approaches "just cause" for discharge.
Neither do any or all of her alleged performance flaws while
she was a teacher constitute just cause for discharge from her job
as an aide for several reasons:
The requirements of a teaching position appear to be
substantially more demanding than those of an aide,
and having been used once to demote, cannot be reused
to discharge from the new position.
The flaws noted in Ms. Cross' performance do not appear
to be unusual for a neophyte teacher with no formal
Ms. Cross was able to provide reasonable, plausible
explanations for the more serious complaints made by
Considered individually or in their entirety and in
conjunction with the explanations provided by Ms.
Cross, the complaints are simply insufficient to
constitute just cause for discharge.
Finally, Julienne's refusal to attend an initial counseling
session with her attorney being present does not constitute "just
cause" for her discharge. She has a constitutional right to
privacy. Under the circumstances that led to her qualified refusal
she had no reasonable assurance that the counseling session would
not be impermissibly intrusive and thus violate her right to
The grievance is sustained. The Lac du Flambeau School
District is directed to reinstate Julienne Cross to the employment
she held when she was discharged and is further directed to
make Ms. Cross whole with respect to any losses she incurred
(including wages, benefits and seniority) as a consequence of her
discharge, less any monies she either received or could have
received because of her discharge.
I shall retain jurisdiction over this matter for a period of 60
days hereafter in the event the parties have any questions
concerning the implementation of this award.
Dated at Madison, Wisconsin this 9th day of February, 2001.
A. Henry Hempe, Arbitrator