BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SCHOOL DISTRICT OF SOUTH MILWAUKEE
(Grievance Regarding One-day Suspension of R_ C_)
Ms. Jennifer Sielaff, Director of Personnel/Administrative
Services, School District of South
Milwaukee, 1225 Memorial Drive, South Milwaukee, WI 53172, appearing on behalf of the
Mr. Troy M. Hamblin, Executive Director, Council #10, 13805
West Burleigh Road, Brookfield,
WI 53005, appearing on behalf of the Association and Grievant.
At the joint request of Council #10 on behalf of the South Milwaukee
bargaining unit (Association) and of the South Milwaukee School District (District), the
Employment Relations Commission designated the undersigned, Marshall L. Gratz, as the
to hear and decide a dispute concerning above-noted grievance, arising under the parties'
The grievance was heard at the South Milwaukee Community Center on April 25,
proceedings were not transcribed, but the parties authorized the Arbitrator to maintain an
recording for his exclusive use in award preparation. The parties summed up orally at the
of April 25 hearing, marking the close of the record.
At the hearing, the parties authorized the Arbitrator to decide the following issues:
1. Was a one-day suspension appropriate for the incidents
occurred in the library?
2. If not, what shall the remedy be?
ARTICLE II - MANAGEMENT RIGHTS
The District possesses the sole right to operate the District and all
management rights repose in
it subject only to the provisions of this contract and applicable law. These rights include, but
limited to, the following: . . . E. To suspend, demote, discharge and take other disciplinary
against employees for just cause; . . . .
ARTICLE XIII - FAIR DISCIPLINE
The District shall utilize progressive discipline in dealing with its
employees, except when the
alleged conduct giving rise to the disciplinary action warrants a stronger penalty.
disciplinary action is defined as the following:
A. Oral reprimand, with a
statement outlining the oral reprimand in the employee's personnel file;
B. Written reprimand;
C. Unpaid suspensions;
At the time disciplinary material is placed in
the employee's personnel file, a copy will be
provided to the employee.
The District and Association are parties to a collective bargaining agreement covering
aides and paraprofessional employees of the District. The Grievant, R__ C__, has been
by the District as the library aide at E.W. Luther Elementary School for about four years.
It is undisputed that "the incidents that occurred in the Library" referred to in ISSUE
above, consisted of Grievant's interactions in the Luther library on January 10 or 11, 2001,
District's Director of Information Technology, Charles Hillman, and with James Willis, a
vendor for the District.
By memo dated January 26, 2001, to the Grievant and the Association, District
Personnel Jennifer Sielaff directed Grievant as follows:
R__, I have scheduled a meeting on Tuesday, January 30, 2001,
at 1:00 pm., to discuss concerns
that the district has regarding your work performance. The meeting will take place in my
the administrative offices at 1225 Memorial Drive. I have also invited [Council #10
Director] Troy Hamblin and [Luther Principal] Fred Kelroy to be present.
You are excused from your scheduled hours
at Luther for the duration of the meeting. If you
have any concerns regarding staffing, please discuss them with Mr. Kelroy before the
At that meeting, Sielaff identified various incidents that were of concern to the
regarding Grievant's work performance, including Grievant's interactions with Hillman and
January 10 or 11, but also including other incidents. In doing so, Sielaff referred to and
a two page typed letter, copies of which Sielaff ultimately presented to Grievant and had her
acknowledge receipt. The letter was dated January 30, 2001, addressed to Grievant and
written notice of the one-day suspension at issue in this case. It read as follows:
This letter will serve as official notice of a one day suspension
regarding unacceptable conduct
that you had demonstrated at school. Specifically, you have acted inappropriately by yelling
students, fellow staff members, administrators and outside vendors.
You have been observed yelling at students to be quiet and to stop
asking so many questions.
On one occasion, when approached by a staff member and asked if you needed any help, you
that you could not "do library" with so many questions. On another occasion, you were
yelling to students and staff that you could not do work with such a mess (meaning
construction). You did not offer an apology to students or staff members at either time.
behavior is unacceptable. Students within our district are encouraged to ask questions and
should not discourage this process or refuse to answer questions. Further, the disruption of
library due to the technology construction is not the fault of students or staff members. You
act in a professional manner and not yell at students or staff.
On January 11, 2001, an owner of one of the companies the
district is working with to improve
technology in every school came to the library at E.W. Luther to investigate a concern you
regarding loose wiring. When he entered the library with Chuck Hillman, the district's
director, you yelled at them that the library was a terrible mess and a danger to students.
that students had been injured by the construction "mess." You then threw posters and a
bracket off a desk onto the floor. You did not give either gentleman an opportunity to
when they tried to explain that a worker would be there shortly to address your concerns.
Hillman and myself also investigated your safety concern and did not find any student that
injured due to the technology construction.
On January 15, 2001, two gentlemen asked
you how things were going. You were overheard
to respond "I can't stand all this shit left around--if you guys would pick up." The
visitors to our school and should not have been addressed in this manner.
This behavior is unacceptable. You are an
important resource at E.W. Luther and a focal point
in the school. It is important that you act in a professional manner towards students, staff
in the school. The district would like you to continue in your role as the library aide;
outbursts similar to those described above will lead to further discipline, up to and including
Your suspension will take place on
Wednesday, January 31, 2001.
Very truly yours,
/s/ Jennifer L. Sielaff
Jennifer L. Sielaff
Director of Personnel/Administrative
Cc: Personnel File
Received by R__ C__ on January 30, 2001:
The grievance giving rise to this arbitration was filed by Hamblin on January 30,
2001. It read
The [Association] is filing a step three grievance for excessive
discipline and violation of Article
XIII of the collective bargaining agreement for the discipline handed out to Ms. C__ on
Please let me know when the South Milwaukee Board of
Education will hear the grievance.
The Board of Education heard the grievance on February 14, 2001, and voted to
one-day suspension. The Board's grievance denial letter read as follows:
The School Board heard the grievance of R__ C__ on February
14, 2001. Ms. C based the
grievance on a violation of Article XIII of the current paraprofessional aide contract.
her position was that she should not have received a one-day suspension.
The Board first heard evidence from
Jennifer Sielaff, Director of Personnel/Administrative
Services, regarding alleged incidents with Ms. C__ and students. Ms. Sielaff stated she
information from Mr. Kelroy and teachers at E. W. Luther Elementary School.
A teacher had observed Ms. C__ yelling at
students to be quiet and to stop asking so many
questions. On one occasion, Ms. C__ was approached by a staff member and asked if she
help. Ms. C__ replied that she could not "do library" with so many questions. On another
Ms. C__ was observed yelling around students and staff that she could not work with such a
from the technology construction. Ms. C__ replied at the hearing that she could not think of
that this had happened. Ms. C__ believed the first situation could have been a time when
were asking her personal questions and she asked the students to stop asking those types of
questions. It was later stated that a student went to a teacher to ask a question because the
could not obtain an answer from Ms. C__.
Another teacher reported that when two
gentlemen asked Ms. C__ how things were going, she
was overheard to respond "I can't stand all this shit left around -- if you guys would pick
C__'s reply to this was that she did not believe that it happened at all and she could not find
the construction crew that admitted to hearing this.
The Board also heard about conversations
that took place in January and February 2000
regarding concerns that Mr. Fred Kelroy had with Ms. C__'s interaction with staff members.
was brought to her attention at that time and meetings were held with Ms. C__, Mr. Kelroy,
Hamblin, and [former District Personnel Director] Mr. Mike Salkowski. Ms. C__ stated
matters had been resolved.
The Board then heard from Jim Willis, owner of Connectivity
Solutions, which is a vendor for
the District for the technology updates in all schools. He stated that he went to the library at
in response to a concern Ms. C__ had with the wires on the walls. He stated that when he
the library with Chuck Hillman, the district's technology director, Ms. C__ yelled at them
library was a terrible mess and a danger to students. Mr. Willis said that he asked Ms. C__
down so he could answer her, and at that time she became even more irate. Ms. C__ threw
and a metal bracket off a desk onto the floor. She then asked them to leave the library. Mr.
said that they then left without being able to communicate with Ms. C__.
Mr. Hillman then stated that the incident
happened essentially as Mr. Willis described. Mr.
Hillman said he went back in the library to tell Ms. C__ that a worker would be in the
library later that
day to fix the wires, but he did not know if she heard him. Mr. Hillman expressed
frustration that he
tried to answer Ms. C__'s concerns but that she would not listen.
At the hearing, Ms. C__ replied that Mr.
Willis and Mr. Hillman did come to the library in
response to her concerns. She said that she had been concerned about the status of the
the construction process due to the mess that the workers left in the library. Ms. C__ also
she was concerned that the wires on the walls would fall and injure children or library
as computers. When Mr. Willis and Mr. Hillman entered the library, Ms. C__ said that she
immediately yell, but she did admit to raising her voice at some time. She also stated that
she did not
throw the posters on the ground, but when she swept her arm gesturing at the library, the
to the ground. When asked if this type of incident could occur again, Ms. C__ said she
knew it was
inappropriate but, while not an excuse, she had been under a lot of stress and could not
factors coming into place at the same time again. Therefore, Ms. C__ said that this would
Based on the evidence presented at the
hearing, the Board voted to uphold the one-day
Following the Association's receipt of the Board's grievance response, Hamblin sent
a written notice that the Association intended to proceed to arbitration. Hamblin's letter
read, in part,
I received your letter dated February 19,
2001 regarding the Board's decision to uphold the one-day suspension of Ms. C__. In your
letter you mention a number of incidents. However, Ms. Jennifer
Sielaff stated at the hearing that Ms. C__ was specifically being suspended for the incident in
library, not the
other incidents listed in the letter or brought up at the hearing.
This was not mentioned in your
letter, and I would like to make sure it is part of the record.
The Association does not agree with the
Board's determination, so we would like to proceed to
arbitration. . .
The matter was thereafter submitted for arbitration as noted above. At the arbitration
the District presented testimony by Hillman, Willis and Sielaff. The Association presented
by the Grievant and Hamblin.
It is undisputed that Grievant's personnel record was free of any prior disciplinary
any kind prior to the January 30, 2001 meeting. However, it is also undisputed that during
previous school year a meeting had been convened as referenced in the Board response
discuss communication difficulties that were being experienced between the Grievant and
District employee. After that meeting with Grievant and Hamblin concluded, the District's
Director of Personnel told Hamblin that if further difficulties of the sort discussed during the
were experienced in the future that the District would pursue disciplinary action against the
The District did not communicate that warning to Grievant directly, however.
It is also undisputed that, during the January 30 meeting, the Grievant did not state
recollections concerning any of the incidents referred to by Sielaff in the suspension letter. It
unclear whether Sielaff specifically offered Grievant an opportunity to do so during that
Sielaff testified that she may have done so but was not sure; Hamblin testified that Sielaff did
so. Sielaff also testified that had Grievant offered a persuasive basis for doing so, Sielaff
modified the penalty in and wording of the January 30 letter before issuing it to Grievant. It
however, undisputed that Sielaff at no point said anything to that effect during the meeting.
Many aspects regarding Grievant's interactions with Hillman and Willis in the library
undisputed. The District's five buildings were all being rewired to enable better use of
including the Internet. The project spanned some 2.5 months, with work on-going to a
during the school day but to a greater extent at night. Because of its location and function,
at Luther was significantly affected by the construction activity. On the morning in question,
found that bundles of wires hanging down near the library wall from the corners of the
drooping because they had come loose from the ties temporarily holding them near the
to their insertion into external raceways. Grievant also found tables and chairs out of place
tracked with workers' footprints. Grievant reported those conditions to the school custodian
office and then did what she could to prepare the library for the first class of the morning.
office contacted Hillman who had been meeting on other matters with Willis, and the two
went to the
library where they spoke with Grievant.
By all accounts, Grievant was upset about the mess left in the library by the workers
apprehensive about the wires falling down and possibly injuring, frightening or upsetting the
The evidence establishes that during the course of their interaction, Grievant raised her voice
Hillman and Mr. Willis and ultimately told them leave the library.
Hillman and Willis described the library interactions as outlined in the Board's
Grievant testified at the arbitration hearing that when she came to work on the
morning of the
interactions at issue, she found footprints on the table and books that had been knocked off
counter top and left on the floor. The Grievant testified that she cleaned up and straightened
best she could, but noticed the wires suspended from the ceiling near the wall were drooping
She became concerned that if the wires were to fall further they could be quite startling for
students and could potentially disrupt the entire day of some of the special education students
were scheduled to be in the library that day. She also testified that when Hillman and Willis
the library, she pointed out the problem with the drooping wires. She stated that she did not
her voice initially, but that she did speak in an angry tone from the beginning of the
When Hillman and Willis did not share Grievant's concern that the falling of the wires could
the students, Grievant then became angrier and did raise her voice. Grievant denied that she
thrown posters during the interactions. Rather, she explained, when she grasped one of the
that the workers had taken down and laid on the table, a tack popped off, surprising Grievant
causing her to drop the poster, causing other posters on the table to fall behind the table.
Additional background is set forth in the positions of the parties and in the
POSITIONS OF THE PARTIES
The January 11th incident in the library warrants the one-day
suspension imposed by the
District in this case. Grievant acknowledges that she became angry and loud during her
with Hillman and Willis in the library; that the posters did wind up on the floor during the
and that she ultimately told the two to leave the library. However, both Hillman and Willis
testified further that Grievant became loud and irate from the time Hillman and Willis
library; that Grievant's lack of control prevented them from effectively communicating with
responding to her concerns; that efforts on their part to calm her down only further
Grievant to the point where she threw posters and swept a metal bracket off a desk onto the
and ultimately told them to leave the library. Hillman further testified that after the two left
library, Hillman returned shortly thereafter to inform Grievant that a worker would be in the
later that day to fix the wires, and that Hillman found it frustrating that Grievant was
listen to his efforts to respond to her concerns.
The incident in the library -- as described by Grievant or by the District's witnesses
serious enough in and of itself to "warrant a stronger penalty" than a verbal or written
Accordingly, the District was within its rights under Article XIII to impose that stronger
Grievant's conduct was unprofessional. It involved Willis, an outside vendor whom she had
before. The one-day suspension is warranted not only to correct Grievant's misconduct and
it from recurring, but also to maintain order and professionalism in the District.
The other instances of conduct on Grievant's part referred to in the District's letters
evidence did not constitute the basis for the one-day suspension in this case. Rather, they
pattern of unprofessional conduct on Grievant's part that makes it more likely that the
witnesses' version of the library incident were more accurate than the less intense
described in Grievant's version of the interactions. They also show that during the previous
year, the District had met with Grievant and Hamblin and attempted in a positive way to help
Grievant avoid such incidents in the future.
At the January 30th meeting, the Grievant could have offered her
side of the story, but she and
Hamblin, after hearing Sielaff's review of the information contained in the letter chose not to
information at that time. Had Grievant and the Association presented a persuasive basis for
other outcome on January 30, the letter would have been withdrawn or changed before it was
to Grievant and placed in her file. When Grievant did take advantage of her additional
to respond to the District's concerns at the Board hearing, she did not present a persuasive
a different disciplinary outcome. Thus, even if Grievant had responded on January 30 as she
the Board hearing, the one-day suspension would have been appropriately imposed.
For those reasons, the grievance should be denied.
The District violated Article XIII of the collective bargaining agreement which
calls for progressive discipline. The Grievant's disciplinary record was entirely clean prior
issuance of the suspension at issue here. The incidents in the library did not warrant
steps in the contractual discipline procedure.
On the day of the library interactions in dispute, Grievant was concerned for the
the students when she noticed the wires hanging down. The ongoing construction process
almost daily problems for Grievant and for other staff members. On the day in question as
occasions, Grievant was forced to clean up after the construction workers in order to put the
back into suitable condition for the students and the Grievant to use it.
In any event, the District did not conduct a fair and impartial investigation in this
Grievant was never asked for her side of the story at the January 30 meeting. The District
already decided to impose a one-day suspension when it met with Grievant and Hamblin on
The District should, instead, have met with Grievant and Hamblin, discussed the incidents of
to the District and obtained Grievant's side of the story, and then decided whether and to
to discipline Grievant. Furthermore, despite the District's assurances to the contrary at the
hearing and at the arbitration hearing, the suspension letter appears to base the suspension
on what happened on in the library in January of 2001, but also on other incidents, as well.
various incidents listed in the suspension letter warranted a one-day suspension, then the
incident alone would warrant a less severe disciplinary penalty.
For those reasons, the Arbitrator should declare that the one-day suspension violated
XIII and order the District to reduce the penalty to an oral or written reprimand.
ISSUE 1 asks whether the one-day suspension was appropriate for the incidents that
in the library. The initial question in that regard is whether District had just cause to
Grievant for the incidents that occurred in the library on January 10 or 11, and if so whether
imposition of a one-day suspension was appropriate in the circumstances.
The Arbitrator is persuaded that the District had just cause to discipline Grievant for
nature of her conduct during her interactions with Hillman and Willis in the library on
January 10 or
11. By all accounts, Grievant was angry that the workers had left footprints on the library
for her to clean up, had left various library furniture out of place such that she had to move
had left wires hanging low from the ceiling near the wall. In addition to reporting the
appropriately, however, Grievant expressed her anger inappropriately in her interactions with
and Willis. While it is understandable that Grievant would be frustrated by the conditions
found in the library that morning, that frustration does not excuse the unprofessional manner
she interacted with Hillman and Willis, whether Grievant's or the District witnesses' versions
interactions is credited.
The Arbitrator is also persuaded, however, that the District's imposition of a one-day
suspension was not appropriate in this case. In Article XIII, the parties have agreed that the
"shall utilize progressive discipline in dealing with its employees except when the alleged
giving rise to the disciplinary action warrants a stronger penalty." Because the Grievant had
record of discipline, utilization of progressive discipline in this case would have been defined
Article XIII as an "oral reprimand, with a statement outline the oral reprimand in the
personnel file." The District would ordinarily be entitled to a reasonable degree of deference
judgments as to whether the misconduct giving rise to disciplinary action "warrants a
penalty" than that otherwise prescribed by the order progressive disciplinary penalties listed
XIII. However, in this case, the District's disciplinary action against the Grievant is
While the District has asserted both at the Board hearing and at the arbitration
it was basing the one-day suspension only on the January 10 or 11 incidents in the library,
District's letter of suspension in this case and the Board's letter denying the grievance
that the Board was also basing its action on the other incidents referenced in those
the Association argues, if a one-day suspension was warranted by the various misconduct
in the Board's suspension letter, it is reasonable to conclude that some lesser penalty would
warranted by only the library interactions with Hillman and Willis referred to in that letter.
Salkowski's earlier warning to Hamblin about possible discipline in the event of future
on Grievant's part has not been shown to have been communicated to the Grievant by the
or to have been memorialized in her personnel file. Accordingly, that warning did not
oral reprimand or any other form of discipline within the meaning of Article XIII.
The District's judgment that a stronger penalty is warranted in the instant
circumstances is also
undercut by the fact that the District had clearly made up its mind regarding the penalty
before it gave
the Grievant an opportunity to respond to the District's concerns about her conduct. Sielaff
intended the letter she was reading from at the January 30 meeting to be subject to
change, but it is undisputed that she never told that to Grievant or Hamblin. Nor do the
that letter appear in any way to be intended to be a draft subject to modification before
fact that the Board of Education heard and considered Grievant's responses to the suspension
a persuasive basis on which to disregard the fact that the District had made up its mind
penalty to be imposed before giving Grievant an opportunity to be heard in the matter.
For those reasons, the Arbitrator concludes that the one-day suspension imposed in
was not appropriate and did violate Article XIII. By way of remedy, the Arbitrator has
District to reduce the penalty to the default penalty as defined by Article XIII for an
no record of prior discipline, to wit, an "oral reprimand, with a statement outlining the oral
in the employee's personnel file." The Arbitrator has also ordered that the conduct referred
to in the
statement outlining the oral reprimand in the Grievant's personnel file be limited to
interactions with Hillman and Willis in the library on January 10 or 11, 2001.
DECISION AND AWARD
For the foregoing reasons and based on the record as a whole, it is the decision and
the Arbitrator on the issues submitted that:
1. The one-day suspension was not appropriate for the
that occurred in the library.
2. By way of remedy for the violation
noted in 1, above, the District, its officers and agents,
shall immediately reduce the one-day suspension of Grievant imposed by the District by letter
January 30, 2001, to an oral reprimand by
a. removing the January 30, 2001 suspension letter and all
other records of the one-day
suspension imposed by that letter from Grievant's personnel file and record;
b. replacing the suspension letter with
a statement outlining an oral reprimand only for
Grievant's interactions in the library with Hillman and Willis on January 10 or 11, 2001, and
a copy of that statement to Grievant and the Association; and
c. making Grievant whole for any
wages and benefits she lost by reason of the one-day
suspension imposed in this case.
3. The Arbitrator retains
jurisdiction for at least 60 days to resolve, at the request of
either party, any dispute that may arise regarding the meaning and application of the remedy
Dated at Shorewood, Wisconsin, this 23rd day of July, 2001.
Marshall L. Gratz, Arbitrator