BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WYALUSING ACADEMY YOUTH CARE
LOCAL 2276, AFSCME, AFL-CIO
(Patrick Nelson Discharge Grievance)
Mr. Daniel R. Pfeifer, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 18990 Ibsen Road, Sparta, Wisconsin 54656-3755, appearing on
behalf of the Union.
Leib & Katt, S.C., by Attorney Kelly B. Watzka, River Bank
Plaza, Suite 600, 740 North Plankington Avenue, Milwaukee, Wisconsin 53203, appearing
on behalf of Wyalusing Academy.
1/ The Commission has
designated this case as MA-11379, though
the Commission's docket books and the record indicate the Employer
is a private sector employer.
Pursuant to a request by Wyalusing Academy Youth Care Workers,
Local 2276, AFSCME, AFL-CIO, herein "Union," and the subsequent
concurrence by Wyalusing Academy, herein "Academy" or "Employer",
the undersigned was appointed arbitrator by the Wisconsin
Employment Relations Commission on April 13, 2001, pursuant to the
procedure contained in the grievance-arbitration provisions of the
parties' collective bargaining agreement, to hear and decide a
dispute as specified below. A hearing was conducted by the
undersigned on May 15, 2001, at Prairie du Chien, Wisconsin. The
hearing was not transcribed. The parties completed their briefing
schedule on July 9, 2001.
After considering the entire record, I issue the following
decision and Award.
1. Is the grievance appropriately before the arbitrator
decision on the merits pursuant to the terms of the collective
2. Did the Employer have just
cause to discharge the grievant, Patrick
Nelson, from his employment at Wyalusing Academy on October 25,
2000? If not what is the appropriate remedy?
Wyalusing Academy is a residential treatment center for
juveniles who have displayed behavioral problems and who are
generally placed there pursuant to an adjudication of delinquency
or a CHIP's petition. Because the Academy is licensed by the State
of Wisconsin, it is subject to regulations, reporting requirements
and inspection. Consistent with state regulations, the Academy has
written policies and procedures regarding staff conduct in order to
insure the safety and well-being of its residents.
The Academy has adopted a progressive disciplinary process
which contains four steps: verbal notice, written notice,
suspension and discharge. Gary Adams, Director of Youth Care
Services, testified that the progressive disciplinary process was
adopted to insure a fair process for dealing with employee conduct
requiring corrective action.
Patrick Nelson, hereinafter the "Grievant," was employed by
the Academy on October 26, 1998, as a Youth Care Worker. On June
16, 1999, the Grievant received a written disciplinary notice for
using "excessive force" with a resident while working on Unit 3.
On February 2, 2000, the Grievant received a notice of a one (1)
day suspension without pay for "gross misconduct" which included
swearing and being belligerent with a supervisor. The Grievant did
not appeal either of these disciplinary actions.
Nelson's Employee Performance Log indicates that between March
15, 2000 and May 21, 2000, the Grievant was "counseled" for being
tardy for group activities, failing to fully participate in group
activities, being punitive with residents, speaking in a
condescending and belittling manner to residents, and getting into
power struggles with residents.
Events Giving Rise to the Instant Dispute
On October 22, 2000, the Grievant reported to work on Unit 1,
which housed adolescent girls, at 11:00 a.m. On that day, which
was a Sunday, a number of the residents had received a group outing
as a privilege for good behavior. Those residents along with other
staff from Unit 1 left for their outing shortly after noon.
Approximately 4 or 5 girls remained on the Unit that afternoon.
The Grievant was the only staff member assigned to the Unit during
the afternoon of October 22, 2000. The Grievant acknowledged he
had "primary" responsibility for the conditions on the unit.
Later that afternoon, the Grievant called Ron Atkinson, who
was the Assistant Core Staff Supervisor at the time, and asked him
to come up to the Unit to cover for him while he took a break.
Atkinson greeted the Grievant at the staff desk of Unit 1 and
relieved the Grievant of his duties. The Grievant exited Unit 1 to
go on his break. Atkinson testified that the Grievant's demeanor
was good and that he was "joking" around. The Grievant did not say
anything to Atkinson about not feeling well.
At the time, the remaining girls on the Unit were watching
television in a room adjacent to the staff desk. One of the girls
told Atkinson that she needed to use the restroom. Atkinson told
the girls that they would all have to walk to the bathroom together
because he could not leave the rest of them unattended. All of the
girls and Atkinson walked down the hallway towards the bathroom.
Atkinson testified that when they reached the bathroom door, he
noticed that it was open and unlocked.
Atkinson testified that leaving a bathroom door open and
unlocked constituted a serious safety violation. Wyalusing Academy
Policy and Procedure No. YC-27, provides, in relevant part:
. . .
All unit bathrooms will be locked at all times when not in use.
Anytime a resident is in the bathroom, a staff is required to be in
close proximity to the doorway area. . .Staff must check the
bathroom after each usage to check for damage and flooding. Staff
will lock the bathroom door after it has been checked.
. . .
Shower areas are required to be locked
. . .
There are residents at Wyalusing Academy who are sex offenders
and there has been a prior incident involving inappropriate sexual
contact between residents. The above policy was enacted, in part,
to ensure the safety of residents, including protecting them from
inappropriate sexual contact. The policy regarding locking of
shower and bathroom doors was well known among staff. The Grievant
acknowledged that he was familiar with the policy.
Atkinson testified that he confronted the Grievant about the
open and unlocked bathroom door when he returned from break.
Atkinson testified that the Grievant denied leaving the door open
and said it must have been "left open before." The Grievant denied
that Atkinson said anything to him about the bathroom door when he
returned from break.
Atkinson testified that he saw the shower door open when he
was sitting at the desk. He also testified that he saw the shower
door open when he took the girls to the bathroom. Atkinson added
that he specifically checked that door on his way out because he
suspected it might be open after finding the bathroom door in that
The Grievant testified that Atkinson never addressed the above
problems with him on the Unit that afternoon. Rather, the Grievant
testified that he heard about it later when the Unit manager told
him that Atkinson informed him that he left the doors open.
The Grievant went to see Atkinson of his own volition later
that day. When he met with Atkinson, he first said, "I didn't
leave those doors open." After hearing that Atkinson was going to
report this violation, the Grievant responded, "If this is what you
say happened, then I guess I'll turn my keys in now." The Grievant
acknowledged that he had been warned in February of 2000 that he
would be discharged for any future violations. When asked why he
gave up so easily given the fact that he was facing termination,
the Grievant responded that he didn't "have any witnesses" and
didn't think that he could prevail in this dispute with management.
When asked why he didn't ask the girls that were on the Unit that
afternoon to corroborate his story, he testified that he didn't
think the girls would tell the truth.
Atkinson reported this incident to his immediate supervisor,
Steve Mergen. Gary Adams, Director of Youth Care Services/Trainer,
testified that he received a phone call at home from Mergen on
October 22, 2000 regarding the incident. Adams testified that he
investigated the incident when he talked to various supervisors
upon his return to work on October 23, 2000. After conducting his
investigation, Adams discussed the matter with David Hernesman
(Executive Director of the Academy) and it was their collective
decision that the Grievant had not supervised the Unit properly and
that he should be discharged for this safety violation. Adams
testified that in reaching this decision, they considered the
seriousness of the violation, as well as prior disciplinary action
taken against the Grievant.
On October 25, 2000, the Grievant reported for work as
scheduled at 1:00 p.m. When he arrived, Atkinson informed him that
Adams wanted to speak to him in the front office. The Grievant,
Adams, Bonita Reed and Vicki Taylor then met to discuss the October
22, 2000 incident. At that meeting, the Employer had a signed
termination document already prepared. Adams testified that he
could have "ripped it up" if he had heard anything to change his
mind. Adams informed the Grievant that he was being discharged for
leaving the bathroom and shower doors open and unlocked. The
Grievant testified that he thought to himself "this isn't possible"
because he had not done this before and would never knowingly leave
those doors open. The Grievant insisted to Adams that he was not
responsible for leaving any doors open or unlocked.
The Grievant testified that he next asked Adams to consider
giving him a medical leave, instead of firing him, because he was
having some medical problems. He explained that he hadn't been
feeling well when he was working on October 22, 2000. The Grievant
acknowledged that he was feeling well enough to report to work on
October 22, 2000, but that he started feeling bad in the afternoon.
According to a memo dated October 27, 2000 from Gundersen
Lutheran, the Grievant was diagnosed with hyperthyroid and is
"currently under care to help have that under control including lab
work and medication." The Grievant explained to Adams that he was
under treatment for this condition and was still experimenting with
the proper drug dosage to treat it.
Adams terminated the Grievant on October 25, 2000 for lack of
proper supervision on October 22, 2000. In the Employee
Disciplinary Form, the Employer noted that when Atkinson was called
to Unit 1 on October 22nd, he "observed the shower room and
bathroom unlocked and unsupervised. Mr. Nelson was the only staff
present on the unit. This is a violation of Wyalusing policy and
Filing and Process of the Grievance
The Union filed a grievance, on behalf of Patrick Nelson, on
November 6, 2000. In the grievance, the Union alleged a violation
of Article VI, the just cause provision of the agreement, and for
a remedy asked that the Grievant be returned to work and made
On November 14, 2000, Adams formally responded to the
grievance. In doing so, Adams asserted that 1) Nelson's grievance
was filed untimely; 2) Nelson had been discharged with just cause
for his lack of supervision on October 22, 2000; and 3) his
discharge was further justified by previous disciplinary actions
involving serious misconduct which included a written and verbal
warning on February 2, 2000, that any future violations would
result in his discharge. Adams also indicated that he had referred
Nelson's grievance to David Hernesman for the next step in the
Hernesman testified that Gary Adams had informed him about
Nelson's grievance. He testified that Wednesday before
Thanksgiving, Pam Ellifson, the union representative, spoke to him
regarding Nelson's grievance. Hernesman testified that he told
Ellifson he would meet with Nelson, but also that "I will not
change my mind." Ellifson testified that she remembered having
this conversation with Hernesman. She also testified that she was
going to set up a time to meet with Hernesman but was unable to do
so before he went on vacation. (Hernesman was on vacation from
December 6 to December 21, 2000.) Ellifson further testified that
she called Hernesman after he returned from vacation and that he
told her that "as far as he was concerned it was a dead issue."
Ellifson understood that Hernesman essentially had his mind made up
and, therefore, no meeting with him was necessary.
By letter dated February 13, 2001, Daniel Pfeifer, Staff
Representative for the Union, filed a request with the Wisconsin
Employment Relations Commission for arbitration to resolve the
Subsequent to the Grievant's discharge in October of 2000, the
Department of Health and Family Services conducted an audit of
Wyalusing Academy which included a review of employee personnel
files. The auditor discovered documentation of Crawford County's
1999 finding that the Grievant had used excessive force with a
resident and the disciplinary action that was taken by the Academy
in response to that finding. Adams was advised that, as a licensed
child care institution, it could not employ the Grievant after 1999
unless he successfully completed the rehabilitation process
mandated by the State of Wisconsin in Sec. 48.685 and 50.065
Stats., and Chapter HFS 12, Wisconsin Administrative Code.
4.0 DEFINITION: Any grievance is
defined as a dispute which may
arise between the parties, concerning the application, meaning
or interpretation of specific provisions of this Agreement,
and shall be settled in the following manner.
Only one subject matter shall be covered in any one
grievance. A grievance shall contain a clear and concise
statement of the grievance by indicating the issue involved,
the relief sought, the date the incident or violation took
place, and the specific section or sections of the Agreement
4.2 TIME LIMITATIONS: All
grievances must be presented promptly
and no later than twenty (20) calendar days from the date the
grievant first became aware of, or should have become aware
of, the cause of such grievance.
REPRESENTATION: An employee must have an appropriate Union
representative with him/her at any step in the grievance
4.4 STEPS IN
PROCEDURE: Grievances shall be filed and processed
through the following procedure:
STEP ONE: An employee having a grievance
it to his/her immediate supervisor. If satisfactory
settlement is not reached in three (3) business days:
STEP TWO: The employee
shall reduce the grievance to writing
as outlined in 4.1. The steward, employee and/or the union
representative shall take the matter up with the Director of
Youth Care Services within ten (10) days of the answer in Step
One. The Employer's response to the Union shall be in writing
within ten (10) days of the meeting. In the event resolutions
of a grievance cannot be obtained at this point, either party
may petition the Director of Wyalusing Academy to arbitrate
said grievance, and said Director shall be given a period of
ten (10) days to arbitrate and discuss said grievance with
both parties and offer a solution which may or may not be
accepted by both parties.
REQUEST: In the event a grievance, as defined in
4.0 has been timely processed through Step Two of the
Grievance procedure without agreement, the Union, or the
Employer, shall have the right at any time within twenty (20)
days following the receipt of the Employer's answer in Step
Two, to request arbitration.
4.6 ARBITRATION SELECTION: In
the case of any dispute or
misunderstanding relative to the provisions of the Agreement
which may arise and cannot be adjusted by the two parties to
this Agreement, the parties shall attempt to select an
impartial arbitrator with the cost born equally. If an
agreement cannot be obtained, then either party may request
WERC to appoint one of their staff members as sole arbitrator,
with the cost split equally between the Union and the Company,
and such decision shall be accomplished by written
notification to both parties within thirty (30) days of such
4.7 DISCHARGE GRIEVANCES: A
grievance involving the termination
of an employee shall start at Step Two of the Grievance
Procedure. The grievance shall be presented in written form,
signed by the employee terminated and the stewards.
. . .
LIMITATIONS: The arbitrator shall not have jurisdiction or
authority to add to, amend, modify, nullify, or ignore in any
way the provisions of this Agreement.
4.11 FINAL AND BINDING AWARD:
The decision of the arbitrator shall
be final and binding on all parties including the employees
. . .
6.0 JUST CAUSE:
The Employer may discharge or discipline an
employee for just cause, but in respect to discharge, shall
give a warning of the complaint against such employee, except
that no warning notice need be given to an employee if the
cause of discharge is dishonesty, theft, extreme carelessness
in the care of a resident, insubordination, excessive
absenteeism or excessive tardiness, or physical, sexual, or
other substantial harm to a resident of the institution, or
refusal to obey a reasonable directive from a supervisor, use
of alcoholic beverages or narcotics while on duty or reporting
for work with clear evidence of having used, or in possession
of, such beverages or narcotics, failure to report for work
without proper notice or good reason, or misconduct after
receipt of one (1) warning notice, and said warning notice
shall be placed in the employee's permanent file.
An employee shall be entitled to the
presence of a designated
grievance representative at an investigatory interview if the
employee has reasonable ground to believe that the interview
may be used to support disciplinary action against him/her.
Unless Union representation is present
during a performance
evaluation, disciplinary action cannot be taken at such
performance evaluation meeting. The occurrence of a
performance evaluation meeting shall not be used as the basis
for, or as, evidence in any subsequent disciplinary action.
Such a meeting can be used to establish that an employee has
been made aware of the circumstances which resulted in the
If the supervisor and the employee meet to
explain or discuss
the discipline, a Union representative shall be present.
. . .
6.2 NOTICE: The
Union will be promptly notified when a member is
disciplined, only in the event that discipline could result in
discharge (sic) does result in discharge, or results in a
written warning notice, then, in that event, said Employer
will notify the union within forty-eight (48) hours of such
. . .
NOTICE: When an employee has worked twelve (12)
consecutive months from the date of the warning notice, said
warning notice shall not be used against the employee in any
6.5 ORAL WARNING
NOTICE AND PROGRESSIVE DISCIPLINE: Except when
the Employer need not provide a warning notice before
discharge for just cause as specified in 6.0, oral warnings
appropriately documented shall precede written warnings when
discipline is needed. The Employer recognizes the concept of
progressive discipline and will utilize such in appropriate
cases. An employee may be disciplined only after the employee
has received basic due process. Any discipline levied will be
done within seven (7) calendar days of the time that the
Employer knew of the incident.
. . .
POSITIONS OF THE
The Union argues that it filed the grievance in a timely
manner and that its actions have been reasonable under the
circumstances, especially in light of the "Employer's actions that
caused all of the confusion in the processing of this grievance."
The Union also argues that its actions in processing the grievance
have not unduly prejudiced the Employer in any manner.
The Union next argues that the Grievant was not given due
process because the Employer had already made up its mind to
terminate his employment when he was called in to discuss what
happened on October 22, 2000.
The Union further argues that the Employer did not have just
cause to discharge the Grievant. In support thereof, the Union
first argues that the Employer did not prove that the Grievant was
guilty of the conduct complained of. The Union also argues that
even if the Arbitrator finds that discipline is appropriate, the
discharge should be reduced to a lesser discipline because the
written warning dated June 16, 1999, no longer exists pursuant to
Section 6.4 of the Agreement. The Union adds that the aforesaid
discipline was not related to this discipline which involved
leaving doors open and/or unlocked. The Union concludes that if
the discipline is upheld, the Grievant would be discharged for a
first offense of leaving doors open and/or unlocked.
Finally, the Union argues that the Employer did not take into
consideration the Grievant's medical condition.
Based on the record and the above arguments, the Union
requests that the Arbitrator order that the Grievant be reinstated
to his former position with a "make whole" remedy and that any
references to this incident be deleted from his personnel files.
If the Arbitrator finds that the Grievant would not be eligible to
return to work at the Academy until he completes "rehabilitation",
the Union asks that the Grievant be "made whole" from the time of
the discharge until the time that the Union was given written
notification of the Grievant's "rehabilitation" requirement because
if the Grievant had been informed of this requirement, he could
have been participating in "rehabilitation" during the pendency of
In its brief, the Employer first argues that the matter is not
appropriately before the Arbitrator for decision on the merits
because the Grievant and the Union did not follow the grievance
procedure. In this regard, the Employer claims that the Union did
not file the grievance at Step 2 within ten (10) days notice of
discharge as required by the agreement. The
Employer also claims that neither the Grievant nor any union
representative ever met with David Hernesman as required by Step 2.
Finally, the Employer claims that neither the Union nor the
Grievant ever requested arbitration as required by Section 4.5 of
the agreement which provides that the Union "shall have the right
at any time within twenty (20) days following receipt of the
Employer's answer in Step 2, to request arbitration." In this
regard, the Employer states that the Union and the Grievant "waited
well over two months" to request arbitration.
The Employer also argues that it had just cause to discharge
the Grievant. In this regard, the Employer points out that its
Policy requires the locking of bathroom and shower doors, that the
Grievant was aware of this policy, and that the Grievant failed to
properly supervise the Unit in question when these doors were left
open and unlocked under his supervision. The Employer further
argues that the Grievant's poor work record, prior disciplines and
prior verbal warning that his job was on the line are further
support for his discharge.
Finally, the Employer argues that due to his 1999 use of
excessive force with a resident, the Grievant is not eligible for
reinstatement and he is not entitled to back pay.
In its reply brief, the Employer argues that the Grievant did
not exhaust his remedies under the agreement because in addition to
not completing Step 2, he never sought to have a mutually
acceptable arbitrator selected by the parties as required by the
The Employer also argues that it did not deprive the Grievant
of due process by assuming the Grievant was the "guilty party"
without fully investigating the matter. In this regard, the
Employer argues that it conducted a full investigation of the
The Employer also states there is no persuasive evidence to
support the Union's claim that the Grievant's prior disciplinary
problems or behavior on the date in question were due to his
The Employer claims that the Union's argument that it is
unfair to discharge the Grievant for a first offense of leaving a
door open/unlocked misses the point. The Employer notes that this
was not his first "offense" and that he was discharged not only
because this was a serious safety violation, but because prior
disciplinary action taken against him, consistent with the
progressive disciplinary process, had not succeeded in correcting
Based on the foregoing, and the record, the Employer requests
that the grievance be denied.
At issue is whether the grievance is appropriately before the
Arbitrator for decision on the merits pursuant to the terms of the
collective bargaining agreement.
The Union argues that it is properly before the Arbitrator,
while the Employer takes the opposite position.
The Employer first claims that the Union did not file the
grievance at Step 2 within ten (10) days notice of discharge as
required by the agreement.
Section 4.7 of the collective bargaining agreement provides
that "a grievance involving the termination of an employee shall
start at Step Two of the Grievance Procedure." Step Two provides
that the employee has within ten (10) days of the answer in Step
One to reduce the grievance to writing and present it to the
Director of Youth Care Services. Section 4.2 of the agreement
provides that all grievances must be presented promptly and "no
later than twenty (20) calendar days from the date the grievant
first became aware of, or should have become aware of, the cause of
The Employer argues that the purpose of the agreement is to
move the grievance process along for the protection of the
discharged employee. As a result, the Employer opines that the
most reasonable interpretation of Section 4 of the agreement, as a
whole, is that the employee has 10 days within notice of discharge
to reduce the grievance to writing and present it to the Director
of Youth Care Services as required by Step Two.
The Union, on the other hand, interprets the above provisions
to mean that it had twenty (20) days to file the grievance, but
because it was a discharge grievance, it should be presented to the
Director of Youth Care Services at Step Two, rather than to the
supervisor at Step One. The Union points out that it did submit
the grievance, in writing, to the Director of Youth Care Services
within the twenty (20) day time limit. (In fact, Pam Ellifson
presented Nelson's written grievance to Gary Adams on November 6,
2000, twelve days after his termination.) The Union takes the
position that its interpretation of the language is not an
On the issue of "timeliness" of a grievance, it has been said
that "[a]s a general statement, forfeiture of a grievance based on
missed time limits should be avoided whenever possible. . ." (cite
omitted). Elkouri and Elkouri, How Arbitration Works (BNA,
Edition, 1997), p. 501. "While it is not for an Arbitrator to
rewrite the contract, if the contract is ambiguous insofar as time
limits are concerned, since the law abhors forfeitures, the
ambiguity should be resolved in favor of timeliness." Elkouri and
The contract does not specifically state how many days within
notice of discharge an employee has to present it at Step Two.
Section 4.2 provides that all grievances must be presented promptly
and no later than twenty (20) calendar days from the date the
grievant first became aware of, or should have become aware of, the
cause of the grievance. Except for discharge, grievances are filed
at Step One. However, if the grievance is not resolved in a
satisfactory manner in three (3) business days of filing at Step
One it may be appealed, in writing, to Step Two "within ten (10)
days of the answer in Step One." (Emphasis added). However, there
was no Step One answer in the instant case because the Union
started the discharge grievance at Step Two as provided in Section
4.7 of the agreement. Because there was no answer at Step One, it
would not make sense to apply the ten (10) day limit found in Step
Two. If the Arbitrator applied the ten (10) day notice requirement
as argued by the Employer, it would render meaningless the language
of Step Two noted above requiring the grievance to be filed "in
writing within ten (10) days of the answer in Step One." (Emphasis
added). It is axiomatic in contract construction that an
interpretation which tends to nullify or render meaningless any
part of the contract should be avoided because of the general
presumption that the parties do not carefully write into a solemnly
negotiated agreement words intended to have no effect. Elkouri and
Elkouri, supra, p. 493 and cases cited therein. Therefore, in
order to give meaning to all the words and clauses in Section 4 the
Arbitrator finds that the time limitations of twenty (20) days to
file a grievance found in Section 4.2 apply to the filing of a
discharge grievance at Step Two. It is undisputed that the
Grievant complied with this requirement.
The Employer also claims that neither the Grievant nor any
Union representative ever met with David Hernesman as required by
The record indicates that shortly before Thanksgiving, Pam
Ellifson, the Union representative, spoke to Hernesman about
Nelson's grievance. Hernesman told Ellifson that he would meet
with the Grievant, but that he would not change his mind. Ellifson
was going to set up a meeting with Hernesman, but was unable to do
so before he left on his vacation. When she called him upon his
return from vacation to set up a meeting, he told her that "as far
as he was concerned it was a dead issue." Ellifson understood that
Hernesman had made his mind up and, therefore, no meeting with him
As noted above, Hernesman is the Executive Director of
Wyalusing Academy. Step 2 provides that in the event resolution of
the grievance cannot be obtained between the Director of Youth Care
Services and the Grievant "either party may petition the Director
of Wyalusing Academy to arbitrate said grievance." (Emphasis
added). Said provision states that the Director shall be given ten
(10) days to arbitrate and discuss said grievance with both parties
and offer a solution which may or may not be accepted by both
parties. Here, since the Union knew the Employer's answer to the
grievance ahead of time there was no need to have the meeting.
Since a meeting with Hernesman was optional at Step 2 the Union
for such a meeting the Union did not violate the language of Step
2 for failing to request such a meeting.
The Employer also argues that neither the Grievant nor any
Union representative ever requested arbitration as required by
Section 4.5 of the agreement.
Section 4.5 provides that in the event a grievance has been
timely processed through Step Two of the grievance procedure
without agreement, the Union, or the Employer, shall have the right
at any time within twenty (20) days following the receipt of the
Employer's answer in Step Two, to request arbitration.
The record indicates that the grievance was referred to the
Executive Director of Wyalusing Academy, Dave Hernesman, for the
next step in the grievance procedure. (Joint Exhibit No. 4).
However, there is no evidence in the record that the Executive
Director "arbitrated" said grievance or discussed the grievance
with both parties or offered a solution "which may or may not be
accepted by both parties" as provided in Step Two. Nor is there
any persuasive evidence in the record that the Employer made the
necessary "answer in Step Two" which would trigger the twenty (20)
days period for requesting arbitration contained in Section 4.5.
Finally, there is no evidence in the record that the parties have
strictly enforced the time limits in Section 4.5 in the past.
Based on the foregoing, the Arbitrator also rejects this procedural
argument of the Employer.
Finally, the Employer argues that the Grievant did not exhaust
his remedies under the agreement because he never sought to have a
mutually acceptable arbitrator selected by the parties as required
by the agreement.
Section 4.6 of the agreement provides that in the event of a
grievance that cannot be resolved by the parties, "the parties
shall attempt to select an impartial arbitrator with the cost born
equally." The section continues: "If an agreement cannot be
obtained, then either party may request WERC to appoint one of
their staff members as the sole arbitrator. . ."
In the instant case, following the Union's request for
arbitration, the Arbitrator contacted the Employer to obtain
concurrence to proceed to arbitration. The Employer agreed. The
Employer never raised an issue with the Arbitrator that it wished
to first attempt with the Union to jointly select an arbitrator to
decide the dispute. If the Arbitrator had received such a request,
he would have honored it. Therefore, the Arbitrator finds that the
Employer has waived its argument herein by its actions in agreeing
to proceed to arbitration. Furthermore, the Employer offered no
evidence that it has been prejudiced in any way by the parties'
failure to jointly attempt to select an arbitrator in the instant
case. In view of the foregoing, the Arbitrator likewise rejects
this procedural argument of the Employer.
Based on all of the above, the Arbitrator finds that the
answer to the first issue stipulated to by the parties is "YES",
the grievance is appropriately before the Arbitrator for a decision
on the merits, pursuant to the terms of the collective bargaining
At issue is whether there was just cause to discharge the
The Employer argues that there was just cause for the
discharge while the Union takes the opposite position.
There are two fundamental, but separate, questions in any case
involving just cause. 2/ The first is whether the employee is
guilty of the actions complained of which the Employer herein has
the duty of so proving by a clear and satisfactory preponderance of
the evidence. If the answer to the first question is affirmative,
the second question is whether the punishment is contractually
appropriate, given the offense.
2/ Each disciplinary action involves two
there was just cause for the imposition of discipline for the
particular wrongdoing, and whether there was just cause for the
penalty the quantum of discipline imposed on the Grievant.
Labor and Employment Arbitration, Volume 1, Tom Bornstein, Ann
Gosline and Marc Greenbaum General Editors, Chapter 14, "Just Cause
and Progressive Discipline" by Arnold Zack, s. 14.03, 14-5
Basis for Discipline
Applying the above standard to the instant case, the
Arbitrator first turns his attention to the question of whether the
Grievant is guilty of the actions complained of.
According to the Employee Disciplinary Form dated October 25,
2000, "On 10/22 Mr. Atkinson was called to Unit 1 to cover a break.
At this time, Mr. Atkinson observed the shower room and bathroom
unlocked and unsupervised." The Form states that the Grievant "was
the only staff present on the unit. This is a violation of
Wyalusing policy and procedures." The recommendation was for the
Grievant to "be terminated for lack of supervision" on said date.
The Grievant was subsequently discharged on October 25, 2000.
The applicable policy and procedure states that all bathroom
and shower areas are required to be locked at all times when not in
use. The Grievant was aware of this policy and acknowledges that
it was not unreasonable.
The Grievant testified that he did not leave the bathroom or
shower room doors open. There is no direct evidence in the record
that proves that it was the Grievant who left the doors open. The
Grievant testified that he did not come on duty until 11:00 a.m.
and that the other employees left at approximately 1:00 p.m.,
leaving him alone on the unit with several female residents. He
further testified that from 1:00 p.m. until 2:30 or 3:00 p.m. none
of the girls requested to use the bathroom or shower room,
therefore he would not have checked them. The Union argues that it
could just as reasonably be assumed that one of the other employees
could have left the doors open. The Arbitrator agrees.
Nevertheless, the Grievant acknowledged that he was the person
responsible at the time for the conditions on the unit. Therefore,
the Arbitrator finds that there is some factual basis on which to
discipline the Grievant, although perhaps not as much as claimed by
Appropriateness of the Disciplinary Action
A review of this question may be undertaken within the context
of the other issues raised by the Union in arguing against
discharge as well as the other arguments by the Employer supporting
The Employer argues that it enacted the aforesaid policy,
which requires the locking of bathroom and shower doors, in order
to protect the safety of its residents and in order to be in
compliance with state regulations. The Employer argues that
enforcement of this policy is absolutely necessary based upon the
presence of residents who have a history of inappropriate sexual
behavior and given a prior incident involving inappropriate sexual
contact between residents. The Arbitrator agrees.
The Employer cites as reasons for the discharge the Grievant's
poor work record and his conduct on October 22, 2000. In
particular, in the Employee Disciplinary Form the Employer stated
as bases for the termination the Grievant's written warning on
February 28, 1999 for the use of excessive force, and his
suspension on February 2, 2000 for insubordination. The Form also
stated that, "Pat will be terminated for lack of supervision on
10/22/00." In Gary Adams' communication to the Union President
dated November 11, 2000 regarding the instant grievance, Adams
stated that this was "clearly a case of insubordination as listed
in Section 6.0 and a violation of Staff Rules of Conduct PP 11."
Adams added that the Grievant received a written warning on June
16, 1999 for use of excessive force with a resident; a suspension
on February 2, 2000 for gross misconduct; "and is terminated for
the 10/22/00 incident for lack of supervision. Wyalusing Academy's
progressive discipline process is noted under article VI, 6.5., in
As noted above, the record supports a finding that the
Grievant was guilty of a lack of supervision on the date in
question. However, the Union raises an issue regarding the
culpability of the other supervisors who had left on a group outing
which the Employer never
persuasively addresses. Therefore, the Arbitrator finds that while
the Grievant bears responsibility for the doors being left open
others may have shared in this violation. This raises a question
as to whether the discipline imposed on the Grievant may have been
The Union also argues that the discipline imposed was too
harsh based on the other reasons cited by the Employer in support
of the Grievant's discharge.
The Grievant received a written warning dated June 16, 1999
for using excessive force with a resident. The Employer cited this
as one of its bases for discharge. However, as pointed out by the
Union, Section 6.4 provides: "When an employee has worked twelve
(12) consecutive months from the date of the warning notice, said
warning notice shall not be used against the employee in any
disciplinary proceedings." Therefore, according to the aforesaid
clear contract language the aforesaid warning notice cannot be used
as a basis for the discharge.
The Employer argues, however, that it used progressive
discipline in discharging the Grievant. However, as noted above,
the Employer may not use the prior written warning dated June 16,
1999 as part of its progressive discipline because it was issued
more than twelve (12) months earlier. In addition, the Grievant
did not receive six verbal warnings for misconduct between March
15, 2000, and May 21, 2000 as alleged by the Employer. According
to the Employee Performance Log (Employer Exhibit No. 3), the
Grievant was "counseled", not verbally warned, regarding his
conduct during this period of time.
The Union argues that the Grievant was not given due process.
In support thereof, the Union points out that on October 25, 2000,
the termination document was written and signed and the Employer
had already made up its mind to terminate the Grievant's employment
when he was called in on the 25th to discuss what happened on
October 22, 2000.
The Union is correct in pointing out that the Employer had
already made up its mind to terminate the Grievant prior to meeting
with him on October 25, 2000. Prior to that date, the Employer had
not talked to the Grievant as part of its investigation. (Atkinson
had talked informally with the Grievant about the matter but Adams
who, according to the Employer, "conducted a full investigation of
this incident" never bothered to discuss the incident with the
Grievant prior to making his recommendation to terminate the
Grievant's employment.) Adams testified that he "could have ripped
the termination notice up" at the October 25th meeting if he heard
something to change his mind about discharging the Grievant.
However, it is clear that the Employer had made up its mind to
terminate the Grievant at said meeting, not only for the events of
October 22, 2000, but for his prior work record, and nothing the
Grievant could say would change its mind.
Due process is more than a technical requirement. In the
instant case, Section 6.5 of the agreement provides that an
employee may be disciplined "only after the employee has received
basic due process." (Emphasis added). Despite compelling evidence
of the grievant's serious misconduct which would have made it
"possible, even probable" that the discharge would otherwise have
been sustained, Arbitrator Mikrut nevertheless found that the
Company had treated the grievant as "guilty until proven innocent,"
and reinstated him to his job because:
quite simply. . .the Company's handling of this matter was
woefully lacking several of the more fundamental due process
considerations which are normally applicable in this particular
type of situation. Great Midwest Mining Corp., 82 LA 52, 56
Likewise, the Employer's handling of the instant dispute lacks
one or more of the fundamental due process considerations in
violation of Section 6.5. As noted above, the Employer failed to
interview the Grievant as part of its investigation of the matter.
The Employer also made up its mind to terminate the Grievant before
meeting with him on October 25, 2000 to give him the termination
In addition, Section 6.0 and Section 6.5 provide that the
Employer may discharge an employee for just cause if it gives a
warning notice before discharge except in certain specified
instances not applicable herein. The Arbitrator finds no
persuasive evidence that the Grievant ever received a prior written
warning notice for lack of supervision the offense for which the
Grievant was terminated herein before his discharge.
The Employer claims, however, in Adams' response to the
grievance dated November 14, 2000, that the Grievant's conduct was
"clearly a case of insubordination as listed in Section 6.0.
Section 6.0 provides that the Employer may discharge an employee
for just cause, but shall give a warning of the complaint against
such employee, except that no warning notice need be given to an
employee if the cause of the discharge is insubordination.
The above clause does not define insubordination. The
American Heritage Dictionary of the English Language, New
Edition (10th Ed., 1981) p. 667, defines "insubordinate" as
submissive to authority: has a history of insubordination." The
question then is whether the Grievant was insubordinate when he
failed to see that the bathroom and shower doors were left open on
the date in question or whether he simply was guilty of a "lack of
supervision" as noted on his Employee Disciplinary Form dated
October 25, 2000. Based on the entire record, the Arbitrator finds
that his behavior on that date is more appropriately described as
a lack of proper supervision as originally noted by the Employer
when it wrote up his discipline.
Based on all of the foregoing, the Arbitrator finds that the
answer to the second issue stipulated to by the parties is "NO",
the Employer did not have just cause to discharge the Grievant,
Patrick Nelson, from his employment at Wyalusing Academy on October
In reaching the above conclusions, the Arbitrator has
addressed the major arguments of the parties. All other arguments,
although not specifically discussed above, have been considered in
reaching the Arbitrator's decision.
A question remains as to the appropriate remedy for the
Employer's unjust discharge of the Grievant.
The Employer argues that due to his 1999 use of excessive
force with a resident, the Grievant is not eligible for
reinstatement and he is not entitled to back pay. The Union, on
the other hand, argues that if the Grievant's eligibility to return
to work mitigates the "make whole" remedy, the Grievant should be
"made whole" from the time of discharge until the time that the
Union was given written notification of Mr. Nelson's
"rehabilitation" requirement because if the Grievant had been
informed of said requirement, he could have been participating in
"rehabilitation" during the pendency of this issue.
The record is undisputed that the Grievant would have to be
successful in his application for rehabilitative review before he
could resume working for the Employer as a youth care worker.
Despite a lack of proper notice to the Grievant regarding his
ineligibility for employment as a youth care worker for the
employer, the record does not support a finding that it was the
Employer's fault. The Employer was not aware of this requirement
until an audit was conducted by the State of Wisconsin subsequent
to his discharge. Nor is the record clear that the Employer,
rather than the State of Wisconsin, had the obligation to inform
the Grievant of his ineligibility. Therefore, the Arbitrator
rejects this argument by the Union.
However, if the Grievant successfully completes his
rehabilitation requirement he would be eligible for reinstatement
and certain "make whole" remedies.
Based on all of the foregoing, it is my
The grievance is sustained.
2. The discharge of the Grievant is reduced to a thirty (30)
3. Upon successfully completing his "rehabilitation"
requirement, the Employer shall immediately offer the Grievant
reinstatement as a youth care worker and make him whole for all
losses he incurred as a result of the Employer's actions, minus the
thirty (30) days suspension and all wages the Grievant earned in
the interim that he would not have received except for his
discharge and any benefits he may have received from unemployment
The Arbitrator will retain jurisdiction over the application
of the remedy portion of the Award for at least ninety (90) days to
address any issues over remedy that the parties are unable to
Dated at Madison, Wisconsin this 24th day of August, 2001.
Dennis P. McGilligan, Arbitrator