BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
NORTHERN EDUCATION SUPPORT TEAM
LAC DU FLAMBEAU SCHOOL DISTRICT
Mr. Gene Degner, Executive Director, Northern Tier UniServ
Central, 1901 West River Street, P.O. Box 1400, Rhinelander, WI 54501, on behalf of the
O'Brien, Anderson, Burgy, Garbowicz & Brown, by Attorney Steven C.
Garbowicz, Arbutus Court. P. O. Box 639, Eagle River, WI 54521, on behalf
of the District.
According to the terms of the 1998-2000 collective bargaining
agreement between Northern Educational Support Team (Union) and
Joint School District No. 1, Town of Lac du Flambeau (District),
the parties requested that the Wisconsin Employment Relations
Commission designate a member of its staff to hear and resolve a
dispute between them regarding the discharge of Grievant Gerald
Christensen. The Commission designated Sharon A. Gallagher to hear
and resolve the dispute. Hearing was scheduled for and held on
December 18, 2000, at Lac du Flambeau, Wisconsin. A stenographic
transcript of the proceedings was made and received by the
undersigned on January 9, 2001. The parties agreed to file their
initial briefs directly with each other postmarked 30 days after
their receipt of the transcript, with a copy to the Arbitrator.
The parties reserved the right to file reply briefs. By March 8,
2001, the parties advised that they would not file reply briefs in
this matter and the record was then closed.
To maximize the ability of the parties we serve to utilize the
Internet and computer software to research decisions and
arbitration awards issued by the Commission and its staff, footnote
text is found in the body of this decision.
The parties stipulated that the following issues should be
determined in this case:
Did the District violate Article V, B and Article XVI of the
master agreement when it terminated the Grievant? If so, what is
the appropriate remedy?
ARTICLE V EMPLOYE RIGHTS
. . .
B. No employe shall be required to
appear before the Board
or its agents concerning any matter which could adversely affect
the wages, hours, or conditions of employment unless there has been
prior written notice given of the reason for such a meeting or
interview. The employe shall be entitled to have a representative
of NEST present during such interview.
. . .
ARTICLE XVI DISCIPLINE
A. All new employes shall serve a six
(6) month probationary
period. During such period, they shall not be entitled to just
cause for discharge.
B. After serving a six (6) month
probationary period, no
employe 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. All employes shall at all times be
entitled to have
present a representative of the union when being discipline [sic]
for any infraction of the rules or delinquency in job performance.
The District employs approximately eight custodians. In
approximately October, 1998, the Grievant, Gerald Christensen was
hired as a full-time custodian by the District. Prior to his hire
as a full-time custodian, the District had employed Christensen as
custodian. Until his discharge on July 28, 2000, the Grievant
worked the 3 p.m. to 11 p.m. shift during the school year but had
different hours during the summer, starting in the morning between
5 a.m. and 10 a.m. The Grievant never received an orientation or
training period after the District hired him. Nor did the District
give the Grievant any information regarding how to access the
District Employee Assistance Program (EAP). The job description
for the calendar year custodian position in the District reads in
relevant part as follows:
. . .
Reports to: Director of Building
Education: High School
Starting Pay: Level II, ($9.52 -
$10.82 per hour)
Closing Date: August 4, 2000
Duties include, but are not limited to the
Daily clean rooms, hallways,
offices, entrances and bathrooms.
Assist teacher needs; such as
additional desks, soap, paper towels
Occasional dump runs.
Help with and deliver in-coming
and out-going supplies and
Assist in student discipline.
Ready building for extra-curricular
activities or evening
Board meeting preparation.
Any other duty as requested by
office or administration.
. . .
During his tenure as full-time custodian, the Grievant was
assigned to clean the "primary wing" of the District's facility,
which includes the primary grade classrooms. During the 1999-2000
school year, while the Grievant was assigned to clean the primary
wing, Teacher Susan Ziebart was in charge of that wing. In this
capacity, Ziebart fielded all concerns and complaints regarding the
primary wing as well as organizing activities having to do with the
primary grades. Teacher Ziebart stated that she had received no
complaints regarding the Grievant's work in the primary wing during
the 1999-2000 school year and that there were no problems with the
Grievant's work or his demeanor during the 1999-2000 school year.
On or about July 28, 2000, Building and Grounds Director
William Cross terminated the Grievant. Prior to his termination,
the Grievant had received several warnings from Cross
regarding his absenteeism and/or failure to call in prior to not
coming into work on various days. On June 30, 1999, Cross issued
the Grievant the following written warning:
. . .
This letter is to inform you that days absent from work and not
calling in are the reasons for this warning. You were given a
verbal warning the last time you were off without pay and unexcused
This letter will be placed in your personnel
file, and the next
occurrence you will be given a three-day suspension. Any
occurrence after three-day suspension will be grounds for
termination of employment.
. . .
Approximately one month later on August 3, 1999, Cross issued
the Grievant another written warning, which included a three-day
suspension without pay:
. . .
On June 30, 1999, you were given a letter
stating that if you
had another unexcused absence that you would be given a three-day
suspension without pay. You were absent on July 30, 1999, which
was an unexcused absence. You elected to start your three days off
without pay on August 2nd through August 4th. If
you are having
problems and you need help, you should request help. Your
employment status now stands that you could be terminated at the
time of another unexcused absence.
. . .
On August 11, 1999, Cross issued another letter to the
Grievant, urging him to make use of the District's Employee
Assistance Program (EAP) 1/ and giving the Grievant time off on
sick leave status, as follows:
. . .
This letter is to inform you that the School
District has an
Employee Assistance Program set up for employee's [sic] with
personal problems. I would like to see you use this program or
seek help from other resources.
I have put you on sick leave status as of August 5, 1999
through August 25, 1999 and you return to work full time.
. . .
1/ The District placed EAP brochures in
once each year and had an EAP poster in the Teachers Lounge (which
is not used by custodians for their breaks). The District
submitted no evidence to prove that the Grievant ever saw or
received any EAP information.
Approximately four months later, on December 15, 1999, Cross
issued the Grievant the following memo, suspending him for three
. . .
This memo is to inform you that as of
December 16, 1999 you are
hereby suspended for three working days due to your failure to call
in on December 14, 1999. It is your responsibility to inform the
School District your reason for not reporting to work. Also, since
you planned on leaving work early on December 10, 1999, you asked
your fellow worker's to punch you out at 9:00 p.m.
I strongly recommend that you seek help
and counseling through
the Employee Assistance Program for your problems. The next
occurrence calls for termination; you have been warned prior to
these last occurrences verbally as well as written notices.
. . .
Again, approximately four months later, Cross issued the
Grievant the following letter, suspending him for one week without
. . .
You have failed to call in when you have
been scheduled to
work. On past occasions you have been warned both verbally and
with written correspondence, regarding this matter. You are here
by [sic] suspended without pay for one week. The next occurrence
will be grounds for termination. If you are having personal
problems, you are advised to seek help with the Employee Assistance
. . .
Christensen did not grieve any of the above disciplinary
actions taken against him. Christensen stated that he was unaware
that a grievance could be filed regarding these matters. In regard
to the April 25, 2000 suspension, the Grievant stated that he could
not call into work because he was incarcerated in the Vilas County
Jail on the day that he was to work and that the police would not
allow him an extra call to the District. In addition, as the Vilas
County Jail is not in Lac du Flambeau, Wisconsin, the Grievant
asserted that the District would not have taken a collect call from
him in any event. Within a day or two of April 25, 2000, the
Grievant told William Cross that he did not call in because he had
been incarcerated on the date in question. Cross did not recall
In regard to the written warning the Grievant received on June
30, 1999, the Grievant stated that he called in on the day in
question and took a floating holiday rather than lose the day that
year, as it was the end of the District's fiscal year. The
Grievant filled out a leave slip for this day and did not
understand why he had been issued the warning on June 30, 1999.
Despite these facts, the Grievant did not object to or file a
grievance regarding these two disciplinary actions. Christenson
did not offer any explanations for the other warnings/suspensions
issued to him.
The District has an Employee Assistance Program (EAP) which
reads in relevant part as follows:
The EAP is a diagnostic and referral service available,
voluntary basis, to all employees, spouses and dependent
children (including those employees and families on district
approved leaves) to overcome personal and family problems that
affect job performance. For clarification purposes, "personal
problems" may include, but not be limited to: stress,
financial, physical, chemical dependency, emotional, marital,
legal and family discord.
The EAP will be available to all
employee groups on a year-round
basis. Individuals may use the appropriate existing fringe
benefit packages for appointments and professional services.
Job security and promotional
opportunities will not be jeopardized
by a request and/or referral to the program. Participation in
this program does not, however, remove the responsibility of
the employee to perform his/her job.
The program can be used by the employee requesting the
by the union representative or supervisor/administrator
offering the service to an employee based on job performance
Assessment/diagnosis is the responsibility of the
resource agency and will not be a function of district staff
State and federal confidentiality guidelines will be strictly
adhered to by the district and the screening resource when
processing all referrals.
Employees are encouraged to seek assistance through the
person(s). Names of the contact person(s) will be presented
at the start of each school year.
As a part of the District's EAP, the District provided the
following "Wellness Program Mission Statement":
The Lac du Flambeau Public School Wellness Program is
to provide an opportunity for employees and their family members to
develop healthier lifestyles by adopting habits and attitudes that
contribute in a positive way to their health and wellbeing. It is
expected that participants will experience greater productivity and
fewer health problems. Another major goal of the program is to
help reduce the costs associated with ill health and injuries among
Over time, the program should also
contribute in a tangible way
to the development of a healthier school culture, where wellness
oriented behaviors are encouraged and supported without condemning
in any way those who do not choose to participate or pursue healthy
Some of the general goals that guide our
program are as
Provide trained Volunteer Resource
Coordinators for support and
Provide a Wellness Committee to
plan activities throughout the
Provide programs and activities that
are interesting and satisfying
Promote employee participation in
Reduce health risks among
employees and their family members.
Improve health screening test
Improve work efficiency,
productivity, and morale.
Contribute to lower rates of sick
Contribute to the stabilization of
health benefit costs.
The incident which triggered the Grievant's discharge occurred
on July 21, 2000. On that day, the Grievant arrived at work and
went to the Head Start area kitchen to make some coffee. Fellow
custodian Ken Jack came into the kitchen and began talking to the
Jack had been working outside on the District grounds. Jack was
irate because Building and Grounds Director Cross had put Kevin
Allen (a newly hired full-time custodian) in charge of the grounds
crew as lead grounds keeper. Jack told the Grievant that he
thought he (Jack) should have been given the lead grounds keeper
position as he had been employed by the District longer than Kevin
Allen. The Grievant replied that he thought that Allen was a
better grounds keeper than Jack. At this point, Jack and the
Grievant began shouting at each other and Jack swore at the
Grievant. The Grievant swore back at Jack and this point Jack left
the kitchen and the argument was over. The Grievant stated without
contradiction that both he and Jack raised their voices but did not
call each other names during the argument.
Approximately 30 minutes later, the Grievant had a
conversation with Anita Snow (employed in the Head Start area) and
John Snow (a fellow custodian) in the Head Start kitchen area.
John spoke to the Grievant and stated that he had heard that the
Grievant and Ken Jack had quarreled. John Snow then stated that he
had had a quarrel with Ken Jack that day and asked the Grievant why
Ken was so upset. The Grievant told John Snow why he had quarreled
with Ken Jack -- because the Grievant felt that Kevin Allen was a
better grounds leadman than Ken Jack would have been. At this
point, Anita Snow got into the conversation, apparently indicating
that she believed that Ken Jack was a very good grounds keeper. At
this point, the Grievant stated to Anita Snow "You don't know what
you're talking about. Don't get in the conversation unless you
know what you're talking about." Ultimately, the Grievant stated
to Snow "To hell with you, I'll see you later. I'm getting the
hell out of here."
The Grievant stated (without contradiction) that no physical
confrontation occurred between him, John and Anita Snow; that
although both Anita Snow and the Grievant raised their voices
during their confrontation, neither one called the other names and
the Grievant did not touch Anita Snow during their conversation.
The Grievant stated that he apologized to Anita Snow shortly after
their argument because he felt it was wrong for him to raise his
voice and quarrel with her. The Grievant stated that Anita Snow
accepted his apology and forgave him.
After the Grievant apologized to Anita Snow, he called the
District Administrator Vought and asked if he could take leave that
afternoon. District Administrator Vought granted the Grievant's
request to take off that day and signed a leave slip for him.
District Administrator Vought told the Grievant that they would
sort out the arguments/confrontations the following week.
When Building and Grounds Director Cross came to work around
10:00 a.m. on July 21st, he was told by the building secretary that
there had been a fight in the building and that the Grievant, John
Snow and Ken Jack had been involved. Cross attempted to
investigate the fight by asking John Snow and Ken Jack what had
happened. (Cross did not ask the Grievant for his version of what
occurred on July 21st as the Grievant had already gone home on
leave.) Neither Snow nor Jack admitted to engaging in any
On Tuesday, July 25, 2000, District Administrator Vought and
Cross held a meeting in which Ken Jack, John Snow and the Grievant
were asked about what had occurred on July 21st. No one advised
these employees that they had a right to a union steward at this
meeting. The three employees basically stated that nothing had
happened on July 21st. At this meeting, Cross did not ask the
Grievant about his confrontation with Anita Snow on July 21st.
After this meeting, Cross went to Anita Snow and asked her to
write a statement regarding what had happened between her and the
Grievant on July 21st. Cross never asked the Grievant for his
version of what had occurred between him and Anita Snow on July
21st and Cross never asked Snow what words the Grievant used in
their July 21st confrontation. 2/
2/ Anita Snow was not a witness in the instant
hearing nor did
the District offer Anita Snow's statement as evidence in this
record. Cross apparently also received statements from John Snow
and Ken Jack regarding what occurred on July 21st, but these
statements were not offered and these employees were not called as
witnesses herein. Therefore, the Grievant's testimony regarding
what occurred on July 21st between him, Anita Snow and Ken Jack
must be credited in its entirety.
At some point after July 25, 2000, Cross decided to terminate
the Grievant. Cross took this action without a recommendation in
support of termination by the District Administrator. On July 28,
2000, William Cross handed the Grievant a termination letter
without discussing its contents with the Grievant. The Grievant
stated that this letter made no reference to the EAP. This letter,
however, was lost as the Grievant misplaced it and the District did
not keep a copy thereof. Therefore, on August 1, 2000, Director of
Building and Grounds Cross issued the following letter to the
. . .
This letter is to reaffirm the decision to
employment with the Lac du Flambeau Public School effective July
29, 2000. You were given ample verbal and written warnings and
time to seek help through the School Employee Assistance Program or
other similar programs of your choice. Your failure to follow this
recommendation, the warnings and the subsequent altercation with
fellow employees are the reasons for your termination.
. . .
The Grievant stated herein that he had no idea that his actions on
July 21st were being investigated. 3/ After his discharge, the
Grievant showed his discharge letter to District Administrator
3/ In his testimony, Cross asserted that the
threatened him when he gave him his discharge letter -- that the
Grievant stated he was going to get back at Cross or he was going
to get rid of Cross.
The Grievant was never asked to confirm or
deny making these
statements to Cross on the day of his discharge. However, the
Grievant stated that he was very upset over his discharge and that
it had come as a surprise to him. This is understandable. As
Cross remembered very little detail regarding his contacts and
conversations with Christenson over Christenson's tenure with the
District and because I find Christenson a credible witness, I do
not find Cross' assertions credible.
Cross stated herein that he decided to discharge the Grievant
because of his constant absenteeism and failure to call in, because
the Grievant failed to get treatment for his problems in the EAP
and because Christenson cursed at Anita Snow in the Head Start
kitchen on July 21, 2000. During the hearing in this case, Cross
also asserted that there had been teacher complaints about the
Grievant's work either in 1999 or 2000 and that there had been
reports that the Grievant came to work with alcohol on his breath.
As the latter two reasons were neither corroborated by any
witnesses in the instant hearing nor previously cited as reasons
for the Grievant's discharge and as the Grievant was never
disciplined therefor, I have disregarded all evidence on those
POSITIONS OF THE PARTIES
The District urged that it had just cause to terminate the
Grievant. The District noted that over a 13-month period, the
Grievant had had at least five incidents of discipline; that the
Grievant had been warned and advised repeatedly regarding what he
should do and that he could be suspended and/or terminated for
continued violations of District rules and policies. Yet, the
Grievant ignored the District's clear warnings and on July 21,
2000, the Grievant engaged in an unacceptable confrontation with a
female employee, Anita Snow, for which he had to apologize. In the
District's view, this was the last straw.
The District noted that Supervisor Cross interviewed employees
and took statements regarding what the Grievant's role was in the
July 21, 2000 incident. Cross determined that the Grievant's
apology to Snow was not sufficient to correct the situation and,
taking into account the Grievant's prior disciplinary record, as
well as the Grievant's refusal to go to the District's EAP,
Supervisor Cross terminated the Grievant. The District also noted
that the Grievant had received an unsatisfactory performance
evaluation in February, 2000. Thus, the District urged that it had
no alternative but to discharge the Grievant.
The District contended that the Grievant was given sufficient
opportunity to correct his deficiencies. The District noted that
the Grievant had been warned repeatedly about his failure to call
in and about his absenteeism. In these circumstances, the District
noted that it should have simply followed its own memos and
discharged the Grievant earlier. However, the District claimed it
tried to give the Grievant extra help and assistance to become a
In regard to the violation of Article V of the collective
bargaining agreement, the District noted that the Grievant never
asked for Union representation during any of his interviews with
District management and that the Grievant admitted that he knew
nothing about the operation of the contract. In these
circumstances, the District argued that it should not have to
educate union members on the applicability of and use of their own
union contract. As the District never denied the Grievant Union
representation and as the Grievant never asked the District for
Union representation, no violation of Article V should be found.
The District therefore urged that the grievance be denied and
dismissed in its in entirety.
The Union argued that the District lacked just cause to
terminate the Grievant. Although the Grievant admittedly had
received prior warnings and discipline from the District, the Union
noted that the discipline was for attendance and/or call-in
problems, which have nothing to do with the Grievant's purported
inability to get along with employees on July 21st. The Union also
urged that one verbal confrontation could not support a discharge.
Here, the District denied the Grievant due process by essentially
punishing him twice for past offenses.
The Union noted that regarding the July 21st altercations,
Supervisor Cross had no evidence that a physical confrontation ever
occurred between any employees. Indeed, Cross never asked the
Grievant for his version of what occurred between the Grievant and
Anita Snow on July 21st. Rather, Cross merely concluded that the
Grievant had engaged in an altercation with employee Anita Snow
based a written statement submitted by Snow at Cross' request and
this formed the major basis for the Grievants' discharge.
The Union urged that the Grievant's prior work record should
not have been considered as no similar incidents (absenteeism and
failure to call in) had occurred on July 21st. Thus, Supervisor
Cross discharged the Grievant for past incidents for which the
Grievant had already been disciplined as well as for an
uncorroborated confrontation that the Grievant had with employee
Anita Snow. Furthermore, the Union noted that the District
appeared to have discharged the Grievant for failure to attend the
District's EAP. On this point, the Union urged that the District's
EAP states specifically that it is a voluntary program and that
employees cannot be forced to attend it. In addition, the Union
noted that the District never gave the Grievant sufficient
information to allow him to access the EAP.
The Union also noted that the District failed to make its work
expectations clear for the Grievant. In this regard, the Union
noted that the Grievant never received any training; and that
although Supervisor Cross asserted that teachers had complained
about the Grievant's work, the teacher who testified herein failed
to confirm Cross's statement that teachers had complained. In
regard to the value of the District's prior disciplinary actions
against the Grievant, the Union noted that the documents of record
showed that Cross had failed to properly investigate these
incidents and had failed to specifically state the purpose of the
warnings and the actions that should be taken by the Grievant to
avoid future problems.
Indeed, the Union noted that Supervisor Cross's testimony was
incredible as he failed to demonstrate that he knew what due
process would require in a collective bargaining context. The
Union also contended that Cross repeatedly stated that he could not
remember or could not recall the facts during both his direct and
cross examination in this case. In any event, the Union argued
that if the District had followed Article V and given the Grievant
proper Union representation, the Grievant would not have been
terminated in this case. In all of these circumstances, the Union
urged that the grievance be sustained in its entirety, that the
Grievant be made whole and reinstated to his position.
Article XVI requires the District to have "just cause" before
it may discharge an employee. Article XVI, Section C and Article
V, Section B, also guarantee employees will have Union
representation at interviews regarding matters that could adversely
affect wages, hours or conditions of employment, as well as
whenever the employee is being disciplined for any infraction of
rules or delinquency in job performance. It is in this context
that the discharge of Gerald Christenson must be judged.
According to the termination letter of August 1, 2000, the
District discharged the Grievant based upon his past disciplinary
record, Cross's investigation of incidents on July 21st and the
Grievant's refusal to attend the District's EAP. Christenson's
past disciplinary record includes a written warning dated June 30,
1999 for failing to call-in an absence and one three-day suspension
dated August 3, 1999, again for absenteeism without excuse, which
indicated that if the Grievant was having problems and needed help,
he should "request help," without specific reference to the
District's EAP. On August 11, 1999, the District issued a letter
to the Grievant urging him to use the District's EAP and granting
him time off on sick leave from August 5, 1999, through August 25,
1999. In my view, this August 11, 1999 letter does not constitute
discipline as it failed to recount any incidents of misconduct,
which triggered the issuance of the letter.
Four months later, on December 15, 1999, the District issued
the Grievant another three-day suspension for failing to call-in
and asking a fellow employee to punch the Grievant out. This
letter also strongly recommended that Christenson seek help and
counseling through the EAP program. Finally, in April, 2000, the
District gave the Grievant a one-week suspension without pay for
failing to call-in when scheduled to work. This letter also stated
that if Christenson was having "personal problems" he was "advised
to seek help with the Employee Assistance Program."
The difficulty with the District's approach and analysis in
the case is that all of the prior disciplinary actions taken
against Gerald Christenson had to do with absenteeism and/or
failure to call-in his absences. In addition, for each of these
infractions, Christenson suffered
disciplinary action ranging from a written warning to a one-week
suspension. 4/ Therefore, the Union's argument that the District
was essentially subjecting Christenson to double jeopardy
(punishing him twice for offenses he had committed in the past) is
In my view, the prior disciplinary actions taken by the
District against Christenson were not relevant to the incident
which occurred on July 21, 2000, and as such, the District was not
privileged to use Christenson's prior disciplinary record as a
basis for bootstrapping his discharge for wholly unconnected and
unrelated reasons. Indeed, I note that Christenson's evaluation
indicated that he had no difficulty getting along with his fellow
workers. In addition, evidence from teacher Ziebart indicated that
she had received no complaints regarding the Grievant's work or his
demeanor while at work in the primary wing during the 1999-2000
school year. In these circumstances, the District's use of
Christenson's past work record as support for his discharge was
4/ The Union argued that the District failed to
the Grievant and that it never gave him an orientation program.
Although this is regrettable, I do not find it particularly
relevant to this case. The Union also complained herein about the
quality of Cross' investigation of the Grievant's prior misconduct
regarding call-ins and absenteeism. The time to complain of these
deficiencies is long past and as Christenson failed to file any
grievances regarding the discipline issued, I find this evidence
The second reason for Christenson's discharge was the July
21st incident. It is clear from this record that the District
performed an insufficient investigation of the altercations which
occurred on July 21, 2000, thus denying Christenson due process.
In this regard, I note that Supervisor Cross never sought the
Grievant's version of what occurred on July 21st, preferring to
rely solely upon a written statement by Anita Snow. Furthermore,
in my view, this record failed to prove that any physical
altercation occurred on July 21st. Indeed, the meeting, which
Cross held with Superintendent Vought after the July 21st incident,
failed to garner any admissions from any of the employees that an
altercation had occurred. It is significant that none of the other
employees who were reportedly involved in the various
confrontations that day were called as witnesses in this case.
Thus, I am left with the Grievant's account of his
interactions with Ken Jack and Anita Snow on July 21st. The
Grievant's conversation with Jack was entirely uneventful.
Although the Grievant admitted using the word "hell" twice during
his conversation with Snow, I find that the Grievant's verbal
confrontation with Snow was merely a verbal disagreement which
involved no physical contact and that the Grievant was remorseful
after engaging in this disagreement and sought Snow's forgiveness,
which Snow readily gave, according to the Grievant. In these
circumstances, the altercation with Snow (if you could call it
that) was insufficient basis upon which to terminate the Grievant.
The District's third reason for discharging Christenson was
his failure to attend the District's EAP. This reason for
discharge must also fail. I note in particular that the policy
itself states that attendance at the EAP is completely voluntary
and that employees cannot be forced to attend the program. The
simple fact that the District listed Christenson's failure to
attend the EAP as a reason for his discharge, demonstrates that the
District was violating its own policy by attempting to force
Christenson to use the EAP in this manner.
Furthermore, I note that the evidence failed to show that the
District gave the Grievant sufficient information to access the
EAP. It is also significant that in the various warnings which
Christenson received, the EAP was not mentioned in either the
warning of June 30, 1999 or the three-day suspension dated August
3, 1999. On August 11, 1999, Cross mentioned the EAP for the first
time and did not make Christenson's attendance at the EAP mandatory
in that letter or in the subsequent suspension letters of December
15, 1999, and April 25, 2000. In those letters, Cross "advised"
Christenson to use the EAP or he recommended EAP use, but Cross did
not require Christenson to use the EAP or risk discharge. In these
circumstances, this reason for discharge must fail as well.
The Union has argued that Christenson was denied union
representation as guaranteed by Articles V and XVI of the
collective bargaining agreement in his various contacts with
Supervisor Cross. The contract language is clear that union
representatives are guaranteed to employees in interviews regarding
matters that could adversely affect their wages, hours and
conditions of employment and where employees are being disciplined
for any infraction of the rules or delinquency in job performance.
Given the broadness of the language in Articles V and XVI, it is
clear that the District is under an affirmative obligation to
assure that employees receive union representation in interviews
involving matters which could adversely affect their wages, hours
and working conditions, as well as where the employee may be
disciplined. Thus, the District failed to afford Christenson union
representation in the meeting which Christenson had with Cross
regarding his termination and for that reason, I find that the
District violated the collective bargaining agreement in that area
as well. 5/
5/ The Union has argued that the District
failed to afford
Christenson proper union representation during all of the
disciplinary interviews he had prior to his discharge. Given the
fact that the grievance covers only the Grievant's discharge and
that the Grievant failed to grieve any of the prior disciplinary
actions against him in a timely fashion, the only allegation
properly before me is that Christenson was denied proper union
representation at his interview regarding his discharge and that is
the sole basis for my ruling herein.
Based upon the relevant evidence and argument, as well as the
above analysis, I issue the following
The District violated Article V, Section B and Article XVI,
Sections B and C of the Master Agreement when it terminated the
Grievant without just cause and when it denied him Union
representation. The District shall, therefore, immediately
reinstate Gerald Christenson to his former position of Calendar
Year Custodian with full back pay and benefits. The District shall
also expunge Gerald Christenson's personnel records of any and all
reference to the discharge with occurred on or about August 1,
2000. 5/ The District is also ordered to offer employees NEST
representation whenever they are involved in Article V, Section B,
and Article XVI, Section C, situations.
5/ I shall retain jurisdiction for purposes of the
for a period of sixty (60) days after the issuance of this award.
Dated at Oshkosh, Wisconsin, this 2nd day of April, 2001.
Sharon A. Gallagher, Arbitrator