BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
COLUMBIA COURTHOUSE EMPLOYEES,
LOCAL 2698-B, WCCME, AFSCME,
Mr. David White, Staff Representative,
Wisconsin Council 40, AFSCME, AFL-CIO, 8033 Excelsior
Drive, Suite B, Madison, Wisconsin 53717-1903, for Columbia Courthouse Employees,
Local 2698-B, WCCME, AFSCME, AFL-CIO, referred to below as the Union.
Murphy & Desmond, S.C., by
Attorney Daniel G. Jardine, 2 East Mifflin Street, Suite 800,
Box 2038, Madison, Wisconsin 53701-2038, for Columbia County, referred to below as the
or as the Employer.
The procedural background to this matter is set forth in detail in The County of
et. al., Dec. No. 30197-A (McLaughlin, 11/01), and will not be repeated here, except to
each proceeding is guided by the Stipulation executed by the parties on May 21, 2001,
and taken into
evidence as Joint Exhibit 5. The Stipulation states:
1. The parties, Columbia County, Erica Raddatz, and the
Wisconsin Council 40,
AFSCME, agree that all of Ms. Raddatz's grievances against Columbia County, and the
prohibited practices complaint against Columbia County, can be consolidated and are to be
consolidated before Arbitrator Richard McLaughlin, in one proceeding.
2. Specifically, the grievances include
all three grievances filed by Ms. Raddatz on
April 17, 2000 (relating to alleged wrongful discharge, denial of job opening in
and denial of use of sick leave donation), and case number 212 (no. 59234; MP-3683) filed
State of Wisconsin's Wisconsin Employment Relations Commission.
3. For mutual
consideration, the parties agree that neither of them will contend that the
aforementioned matters should be conducted separately, and none of the parties will object to
Arbitrator Richard McLaughlin deciding the merits of the grievances and the complaint in
The parties did not stipulate the issues for decision. I have determined the record
Grievance No. 00-AC-005
Did the County have cause, under Section 15.1 D), to
If not, what is the appropriate remedy?
Grievance No. 00-AC-004
Did the County violate Section 7.6 by denying Erica Raddatz
the position of Deputy County
If so, what is the appropriate remedy?
Grievance No. 00-AC-003
Did the County violate the Side Letter Agreement Re: Sick
Leave Donation when it denied
employee requests to donate sick leave to Erica Raddatz?
If so, what is the appropriate remedy?
ARTICLE 7 SENIORITY RIGHTS
. . .
7.6 Selection of applicants to fill job vacancies or new
positions shall be determined by
the employee's skill, ability as reflected in his/her personnel file, and seniority. Where all
comparatively equal, the employee with the greatest seniority shall be entitled to preference.
Employer retains the right to establish necessary qualifications for all positions.
. . .
ARTICLE 15 MANAGEMENT
15.1 The County possesses the sole right to operate county
government and all
management rights repose in it, subject only to the provisions of this contract and applicable
These rights include, but are not limited to the following:
. . .
D) To suspend, demote, discharge, and take other
disciplinary action against
employees for cause, and subject to the procedure of Article 5 of this contract . . .
. . .
SIDE LETTER AGREEMENT
Re: Sick Leave Donation
Donation of Sick Leave: In the event extraordinary
circumstances arise under which an employee
has depleted all of his/her sick leave (including catastrophic account) and is still unable to
work, individual employees may voluntarily donate a portion of their accrued sick leave, in
of one (1) day, not to exceed five (5) days per donator, to the employee. It is understood
donation will be on a day-for-day basis, without regard to any difference in the hourly rate of
between the donor and the receiver.
This litigation spans a complaint and four grievances, three of which must be
The background to each culminates in Raddatz's termination on April 13, 2000.
References to dates
are to 2000, unless otherwise noted.
The April 13 letter reads thus:
Please be advised that your employment with Columbia
Wisconsin, is hereby
terminated, effective immediately, pursuant to Article 15 (Management Rights) of the
Bargaining Agreement between AFSCME Local 2698-B and Columbia County, Wisconsin,
Sections 7.18 and 7.19 of the Columbia County Personnel Policies and Procedures Manual.
decision to terminate your employment was made after consultation with the Columbia
Corporation Counsel and Columbia County Board Chair.
The specific grounds for the termination
your employment include, but are not necessarily
limited to, gross insubordination, misconduct and unsatisfactory performance, as evidenced
1. Abusive behavior and
language toward department supervisors.
2. Inappropriate and
unprofessional conduct such as violently slamming office doors and
angrily throwing objects in the office.
3. Disrupting and
interfering with normal department operations and preventing other
department employees from completing their work.
4. Failure to complete
assigned tasks within specified deadlines, failure to perform tasks
within departmental performance standards and transferring assigned tasks to other
employees rather than completing work as assigned.
Refusal to comply with departmental rules regarding punctuality, appropriate
professional attire, limiting personal telephone calls and not conducting personal
business during normal office hours.
6. Refusal to comply
with specific direction of department supervisors to return county
property, specifically, office key.
7. Refusal to comply
with work assignments issued by department supervisors and
instead arguing with department supervisor, demanding right to audio tape record all
conversations with department and repeatedly threatening to bring legal action against
department supervisors if department supervisors did not comply with your demands
regarding work rules and assignments.
Pursuant to Section 7.25 of the Personnel
Policies and Procedures Manual, you are directed
to immediately return all county property in your possession including keys, and parking
On April 17, the Union filed Grievance No. 00-AC-005 to challenge whether the
County had just
cause for the termination. The Union also filed two other grievances on that date. The
stated here will first address points common to all the grievances, then deal specifically with
The County hired Raddatz as an Accounting Assistant on May 4, 1998. She worked
position until her discharge. Lois Schepp is the County's Comptroller and the head of the
Department. Catherine Schmit serves the County as an Accounting Supervisor. Schepp is
immediate supervisor, and Schmit is Raddatz's immediate supervisor. Cindy Devine is the
Manager of the Accounting Department. Schmit began work for the County in mid-April of
Carole Lyons works for the County as a Deputy Register of Deeds. She has worked for the
for sixteen years, and serves as the Union's President.
Grievance No. 00-AC-005
The County maintains a Personnel Policies and Procedures Manual, referred to below
Manual. Section 7.18 of the Manual is entitled "Misconduct-Unacceptable Performance."
Subsections (a), (b), (c) and (d) of Section 7.18 enumerate State law and County rules of
that can prompt discipline by the County, and state other more general considerations
conduct in which the County has a disciplinary interest. Subsection 7.19(a) of the Manual is
"Disciplinary Procedures", and contains the following provisions:
(1) The following disciplinary procedures shall be
employed in disciplinary matters of County
employees, unless these procedures are superseded by more specific procedures contained in
a current employment or collective bargaining contract, whenever rules and policies of the
County are broken or an employee performs unsatisfactorily. In each instance, the
disciplinary action taken is to be fair, just and in proportion to the seriousness of the
(2) Whenever an employee
violates any of the rules and regulations outlined in this Personnel
Manual, the County may begin progressive disciplinary action in any of the steps listed
depending on the seriousness of the offense committed and provided that immediate discharge
is not warranted by the seriousness of the violation. . . .
Subsection 7.19(b) of the Manual is entitled "Classification of Misconduct," and states:
(1) Minor Offenses.
Violations or conduct which are unacceptable if repeated, but for which
the employee will not be discharged for the first offense.
Offenses. Willful or deliberate violations or conduct of such a nature that the
firstoffense may indicate that continued employment of the employee may not be in
the best interest of the County.
Subsection 7.19(c) of the Manual is entitled "Disciplinary
Considerations," and states the following:
(1) Prior to taking disciplinary action, the Personnel
Director, the employee's supervisor or other
authority reviewing the violation should give full consideration to the following guidelines:
a. Do the reviewing officials know all the
b. Is the rule that has
been violated reasonable?
c. Did the employee
know the rule or should he/she reasonably have known it?
d. Has the rule been
strictly enforced in the past? If not, what recent notice to
employees warned of enforcement on violations of certain rules?
e. In this instance, is
the rule being applied reasonable?
f. Is this employee
personally guilty of the violation or is he/she guilty by association
g. Can the employee's guilt be
proved by direct, objective evidence, or is the evidence
circumstantial or hearsay?
h. Does the employee
have a reasonable excuse for the infraction of this rule or not
following a direction of his/her supervisor(s)?
i. What is the
employee's record of past violations, warnings, disciplinary action, etc.?
j. What is his/her
length of service?
k. Is the employee
receiving the same treatment others received for the same offense?
l. Does the discipline
fit the offense?
Section 7.19(d) governs "Progressive Disciplinary Procedures," and specifies a four
consisting of oral warning, written warning, suspension and dismissal for those matters in
"immediate discharge is not warranted by the seriousness of the violation."
Section 7.19(e) governs
"Serious Violations" and states:
The County is not required to go through all the steps (Steps One
- Three above) involved in this
disciplinary procedure. Discipline may begin at any step in the procedure depending on the
seriousness of the offense committed. Any discipline should be commensurate with the
committed. In addition, the County may repeat any of the firstthree
steps of this procedure when
it feels it is necessary, so long as the discipline is commensurate with the offense committed.
Section 7.19(g) of the Manual notes that the "requirements of the Wisconsin Statutes or
collective bargaining contract shall supersede the provisions of this Section when in conflict."
The Accounting Department maintains, among its policies, a "Dress Code" which
The Accounting Department is a professional office within the
Columbia County government.
Accordingly, all employees will dress in appropriate office work attire. Jeans, "after-hour
overly casual clothes are not acceptable. Adequate grooming is also expected.
The balance of the background to Grievance 00-AC-005 spans a considerable period of
The Early Evaluations
Schmit gave Raddatz her first performance evaluation on July 27, 1998. The County
printed evaluation form that requires a supervisor to evaluate an employee's performance in
separate areas. Each area is to be evaluated on the following scale: Outstanding; Exceeds
Requirements; Meets Job Requirements; Below Job Requirements; and Poor Job
Schmit checked the "Exceeds Job Requirements" entry for each of the performance areas.
In November of 1998, Schmit completed the same form for Raddatz's six-month
Schmit checked the "Meets Job Requirements" for each of the performance areas. With this
evaluation, Raddatz passed her probation period.
On June 22, 1999, Schmit met with Raddatz for Raddatz's annual evaluation. Schmit
Raddatz the evaluation form, on which she had checked the "Exceeds Job Requirements"
three of the performance areas, and the "Meets Job Requirements" for eight of the
Sometime prior to this evaluation, Schmit became concerned with the time Raddatz spent on
her compliance with the departmental dress code and with the number of personal phone calls
to and from Raddatz's phone. Schmit attached the following written supplement to the June
Good Work Qualities:
1. Erica is willing to take on
any assigned tasks. She consistently completes all tasks as per
expectations and meets all deadlines.
2. Demonstrates a positive
attitude, initiative, and timeliness on new project assignments.
3. Maintains positive
professional relationships with co-workers and demonstrates the ability to
communicate effectively with staff of various county departments.
4. Asks questions when
5. All work and work area are
neat, clean, and organized.
Goals for Future:
1. Continue positive support to
Highway Dept., assist new staff when possible.
2. Monitor assigned grants on
a monthly basis, reconciling to ledger.
3. Assist Supervisor with
4. Reconcile payroll taxes and
fringe benefits on a quarterly basis.
5. Per conversations with
supervisor June 10 and 11, practice punctuality when returning from
breaks and lunch.
6. Log all deadlines on
calendar to ensure they are met.
7. Always follow office dress
code and conduct yourself in a professional manner that is a
positive reflection of the Accounting Department.
8. Continue to expand
knowledge of overall county system.
9. Continue to pursue
continuing to achieve advance degree.
Item 5 in the "Goals" section refers to events starting with Raddatz's morning break on
1999. The following three paragraphs afford an overview of witness testimony on those
Schmit testified that Raddatz informed her at 9:50 a.m. that she was going on break.
stated that she had informally counseled Raddatz prior to this against taking too long at
some time around 10:20 a.m. Schmit left the accounting office to summon Raddatz back to
She went to the break room, and asked Raddatz if she would be coming back to work soon.
Raddatz responded in the affirmative, Schmit returned to the accounting office. Schmit was
other employees were in the room. Later that afternoon, Raddatz came to Schmit's office,
shouted at Schmit in a belligerent manner. Schmit remained calm.
Raddatz testified that she had, as was her custom, taken her break with Jessica Koss,
Corporation Counsel's Executive Secretary, and with a number of employees from the Child
Department, including Linda Kay Samsel. She stated that between ten and fifteen minutes
break, Schmit came into the break room. Schmit asked, in a sarcastic tone, whether Raddatz
to come back to work or to break all day. Raddatz did not respond in kind, but returned to
Accounting Department. She stated she was embarrassed, and that other employees noted
sarcastically Schmit had treated her. She and Schmit discussed the incident the following
neither of them raised their voices.
Samsel testified that Raddatz had not overstayed her break, and that Schmit's request
return to the Accounting Department was very sarcastic, designed to publicly embarrass
Raddatz testified that Item 7 in the "Goals" section refers, at least in part, to an
which David McClean, then County Corporation Counsel, advised Schmit and Schepp that
was wearing a skirt that was too short. Schmit and Schepp discussed the matter with
was disappointed neither attempted to defend her with McClean, and believed Schmit and
treated her as an embarrassment to the department. Raddatz did not believe her skirt was
than those worn by other departmental employees.
The Deteriorating Relationship From June, 1999 Through February,
Schmit and Raddatz agree that their relationship deteriorated markedly from the June,
evaluation and the incidents it encompasses. Schmit did not believe Raddatz was conforming
conduct regarding break time usage and work attire with County policy. From
June of 1999 through February of 2000, Schmit observed and documented what she felt
continuing series of violations by Raddatz of the departmental dress code and of the
period. On June 28, 1999, Schmit instructed Devine to observe and to document Raddatz's
and her clothing. Schmit also documented her own observations, including five file entries
June and July of 1999 concerning what Schmit viewed as inappropriate attire and three
break time usage. Schmit's file includes an entry summarizing a meeting on July 8, 1999 at
Schmit met with Raddatz to address the violations noted in Schmit's file. The summary
at the close of this meeting Schmit advised Raddatz "that any future violations of either the
dress code policies will be addressed with formal written disciplinary action." Raddatz
that she met with Schmit at some time to address her compliance with the dress code, but
Schmit warned her that future violations would result in discipline.
Tension between Raddatz and Schmit heightened during and after the July 8, 1999,
Schmit continued to maintain a file on Raddatz's compliance with the dress code and break
The file contains ten entries between October 4, 1999 and February 4, 2000. The entries
number of items of clothing, but each contains a reference to either a flannel or denim shirt.
The Events of February
On February 18, 2000, Schmit observed Raddatz and Koss visiting during work hours
morning, and then observed Raddatz return late from lunch. Schmit's file summarizes the
that afternoon thus:
Was late arriving back from lunch. On passing thru her office
after lunch, found her visiting with
Jessica again. Asked Jessica to go home to her office as Erica had a lot of work to get done.
office area Jessica was still there.)
1:45 P.M. Erica approached me in a
hostile manner, and in a raised voice stated that she
did not appreciate how I treated her. I asked that she be specific. She shouted that she did
appreciate my sending Jessica from her office. She should be free to visit as she pleases,
just as I do.
That she is not afraid to file a grievance or harassment suit. I stated that this did not
surprise me. She
stated that my work performance was not a good example to her that I do not meet the
which she is held. I responded that my performance is an issue for
my supervisor to address, not her.
At this time she stomped out of the office and slammed the door. Staff from the front
office heard the shouting and slamming of the door and were concerned enough to come back
office to verify that everything was O.K.
. . .
3:00 P.M. After waiting for her to
complete personal phone call (I love you . . .)
suggested to Erica that she go home for the day as she has since been unproductive and spent
subsequent time on personal phone calls. Erica refused the opportunity to leave as she did
to use her sick leave or vacation time. I told her to consider it paid leave as she was
trouble being productive in her present state of mind. She again declined. I stated that if
she was expected to be productive. She then shouted in a (raised) voice that "she was
just leave her alone!" I walked out of her office with no response.
Raddatz believes she was doing homework during her break period, since she had
the office to take breaks due to the ongoing difficulties between her and Schmit. Raddatz
Schmit never attempted to determine if she was on break, and chose to address her
asking whether she needed more work to do. On February 18, Raddatz had lunch with
learned during lunch that another courthouse employee had just been killed in a car accident.
and Raddatz were discussing the death at lunch, and after lunch when Schmit approached
Raddatz's desk to send Koss "home" to work. Raddatz acknowledges she went to Schmit's
to discuss the matter. Raddatz denies approaching Schmit in an angry or hostile fashion, and
she did no more than try to make Schmit understand that Koss was upset over a friend's
Raddatz believes she tried to highlight to Schmit that supervisors including Schmit were
the death in the office and that Raddatz was continually being singled out by Schmit for
reasons. Raddatz denies slamming the door, and asserts she left the office to speak with
her difficulties with Schmit. Raddatz testified that she received a call from her mother after
returned to the office, and made no personal calls. She denies raising her voice to Schmit.
Devine testified that she heard Raddatz say something "really loud" (Tr. at 275) to
and then heard a door slam. Devine did not hear Schmit raise her voice. She was
to go to Schmit's office, finding the blinds on the door still rattling. Devine asked Schmit
happened, and Schmit responded that Raddatz "flipped out" (Tr. at 275).
On a form dated February 21, 2000, Raddatz filed Grievance No. 00-AC-002. This
and the events related to it are discussed at length in Dec. No. 30197-A, and will not be
here except to note the events related to Grievance No. 00-AC-002 heightened the continuing
deterioration in the relationship between Raddatz and her supervisors.
The Events of March
Sometime in early March, Raddatz prepared a spreadsheet for Rowe concerning funds
available under a program by which the Sheriff's Department was to be made an independent
network, separate from the mainframe to which other departments were connected. The
spanned at least two fiscal years and involved the expenditure of from one to one and
dollars. The accounting department would periodically prepare spreadsheets for Rowe that
the expenditures made and the funds available for the program. Schepp maintains the ledger
tracked the actual expenditures of the program. The spreadsheets were to be reconciled to
The spreadsheet prepared by Raddatz showed a negative balance of $15,480.41. Rowe
program closely, and believed he had a positive balance in February and March. He had
purchase orders based on that belief. When he saw the negative balance on the spreadsheet,
directly to the Accounting Department. He first saw Devine, who reported the matter to
Schmit then reported to Schepp.
Rowe testified that when they arrived at Raddatz's desk, Raddatz was on the phone.
Ultimately, Schmit or Schepp instructed Raddatz to get off the phone to discuss the problem.
waited at the desk until it became evident that no resolution could come until the spreadsheet
been reviewed. He left Raddatz's office, and terminated all expenditures under the program.
stated that the mistake brought the program to a stop for from two to three weeks, and led to
problems between his department and the County Board. He thought the ultimate
the error placed him three years behind the original projected completion of the program. It
first mistake he had encountered in his dealings with the Accounting Department.
Schmit testified that Raddatz sent the spreadsheet to Rowe prior to having a "second
eyes" within the Accounting Department review it. Rowe arrived at the Accounting
extremely upset. She and Schepp went to Raddatz's desk, only to find her on the phone.
terminated the phone call by saying "I love you." Schmit instructed her to speak to Rowe,
still at the front desk, about the spreadsheet. Raddatz did so, essentially telling Rowe that
spreadsheet was accurate. She then returned to her desk. Schepp, Schmit and Rowe
matter, then returned to Raddatz's desk. Raddatz was again on a personal phone call, and
terminate the conversation until Schepp instructed her to. Schmit ultimately reviewed the
spreadsheet, found the errors made by Raddatz, and gave a corrected spreadsheet to Rowe.
corrected spreadsheet showed a positive balance of $5,042.19.
Schepp testified that Raddatz failed to reconcile the spreadsheet to the ledger and
have the spreadsheet verified within the department before sending it to Rowe.
Raddatz testified that she prepared spreadsheets for Rowe on a weekly basis. She
prepare the spreadsheet, then give it to Schmit, who would review it and return it after
accuracy. Raddatz would keep a copy for her file, for Schepp and for Rowe. She gave the
spreadsheet that showed a negative balance to Schmit who "handed it back to me . . . like
(Tr. at 533). She added that when she noted the balance in Rowe's account was negative,
discussed the matter with Schepp, who "didn't say anything to me" (Tr. at 535). She learned
problem when Schepp, Schmit and Rowe came to her office to ask her to discuss the matter.
was, at the time they arrived, speaking on the phone with an Accounting Assistant at
another building. She verified her opinion of the accuracy of the document with
Rowe, then returned
the phone call to the Accounting Assistant. She denied that the phone calls were for personal
business, and that she had to be directed to get off the phone to discuss the matter.
Sometime on or about March 10, Schmit issued a "verbal counseling verification" to
The warning was one of four separately headed sections of a one-page form document
"Progressive Discipline Notification System For Employees." The four sections are entitled:
counseling verification"; "written warning notification"; "second written warning or work
suspension"; and "employee termination notification." Schmit filled in the "summary"
section of the
verbal counseling verification section thus:
According to the Accounting Office Policies and Procedures
Manual: "if an employee believes
he/she may miss a deadline, the supervisor must be notified immediately."
Attached to the verbal warning, were attached two memos from
Schmit to Raddatz. One memo,
dated March 6, states:
This is to confirm ourconversation of this
morning and toreiterate Accounting Department
policy regarding job responsibilities and deadlines. You stated that you had given Mark
Register of Deeds A/P to reconcile and were reconciling A/R yourself, but that neither
"coming out". During fiscal year 1999 it was your responsibility to reconcile these accounts
monthly basis. Your deadline for having these and all balance sheet accounts reconciled and
to close was 3/l/00. Office policy dictates that in the event that your work is incomplete or a
can not be met, your supervisor is to be notified immediately. I have never been notified
that you had
not reconciled these accounts monthly as required. Neither had I been notified that you
unable to meet your year-end close reconciliation deadline. In addition, neither your
the Department Director were notified of your efforts to reassign your job tasks to a
The second memo, dated March 9, states:
The schedule of outstanding Register of Deeds receivables that
you prepared and presented to
me yesterday was in error. I have prepared a corrected analysis. Please revise the attached
and forward it to me by noon today. I will then review it before forwarding it to the
Schmit continued to document what she perceived as continuing violations by Raddatz
departmental dress code. Her file includes four such entries between March 1 and March
On the morning of March 16, Raddatz approached Schmit, and gave her a physician's
statement to excuse Raddatz from work for a two week period. Schmit's notes detail what
after this point thus:
At 8:45 A.M. she approached my desk and laid a copy of a Dr.'s
excuse on my desk and said,
"This is a copy of my Dr.'s excuse, I am waiting for personnel to complete my paperwork."
went to her office. I asked, "What is this for?" She stated, "Stress." I responded, "Then we
all get one." I reviewed the document and made note that it excused her from work for two
and was dated 3-15-00. I went to Erica's office where she was writing on
notepaper, and told her
she could leave the office and wait in personnel for her paperwork. She said no, that she
here. I stated that as long as she was on leave, she did not need to be in the office and could
personnel for any paperwork. She said, "I will go over there when I am ready. Leave me
can just stand there and stare at me as long as you want!" I gave her several moments to
then said again, "I am asking you to leave the office and wait in personnel for your
then snatched up her notes, grabbed her purse out of the drawer, gave me a dirty look and
"gladly" directly into my face. She then retrieved her coat and exited the accounting office
the front entrance in a hostile manner.
Raddatz does not dispute the essential accuracy of Schmit's description of the events of
On March 17, Raddatz returned to the accounting department to remove certain items from
Schmit approached her. Schmit asserts she asked whether Raddatz had a key to the office,
Raddatz responded in the affirmative told Raddatz to return it. Schmit asserts Raddatz
made a statement to the effect that she was not quitting. Raddatz denies that Schmit told her
return the key, and asserts she responded that she was not quitting in response to Schmit's
questioning whether she was coming back. Raddatz denies being ordered to return the key,
refusing to return it. She acknowledges she left the accounting office without returning the
took a leave of absence from March 16 until April 13.
Sometime after Raddatz left on leave, Schmit completed the "written warning
of the "Progressive Discipline Notification System For Employees" form noted above. She
form March 20, and completed the "summary" portion of that section of the form thus:
1. Speaking to Supervisor in a raised voice;
disrespectful manner. 2. Abuse of County property.
3. Failure to obey directives of immediate supervisor. 4. Failure
to return County property at the
direct request of immediate supervisor.
Schmit did not give this form to Raddatz until Raddatz returned
The Events of April 13
The events of the day on which Raddatz returned from leave are best set forth as an
of witness testimony.
Schmit stated that when Raddatz arrived at work, she instructed Raddatz to get
report to the conference room for instructions to get her integrated into the work flow. As
approached the conference room, Raddatz confronted her with a tape recorder and asked
she should record their conversation or request to have a Union representative present.
responded that "she could do either as she wished" (Tr. at 95). Raddatz summoned Lyons,
meeting did not start until Lyons arrived.
After Lyons arrived, Schmit asked Raddatz for a physician's statement to return to
Raddatz supplied it, but the meeting then devolved to a discussion of who would make the
the file. Schmit then asked Raddatz to return her office key. Raddatz questioned why, and
"very argumentative" (Tr. at 97) on the point, as did Lyons. The discussion, in Schmit's
bogged down into minutiae. Schmit then presented Raddatz with the March 20
Further discussion ensued. Schmit then gave her the following memo, dated March 15:
The following tasks for which you had responsibility and
over to other office staff to
complete for you, are being returned to you and are to be completed according to the time
1. Register of Deeds - Accounts
Receivable : monthly
2. Register of Deeds - Accounts
Payable : monthly
3. Health Insurance Payable
4. Life Insurance Payable
In addition, be aware that it is still your
responsibility to reconcile all Payroll Deductions Payable
Any questions or concerns regarding
problems you have while doing any project should be
referred directly to me. Should it be necessary I can defer to other office staff at my
Any discrepancies found in your daily work
that may involve communication with other
department staff, is also to be brought to my attention first. There may have been prior
communications or insight on my part that may reconcile the matter without disturbing others
The memo was discussed in some detail, and Schmit then gave Raddatz the following
As always, you are to be at your workstation and prepared to
work at 8:00 A.M. and shall remain
at work until 4:30 P.M. It is your responsibility to open the office blinds in the morning
start work, and close the blinds in the evening after you finish work.
In addition, your breaks shall be from 10:00 10:15 A.M.
and 2:45 3:00 P.M. Your lunch
break will begin at Noon and end at 1:00 P.M. If you do not leave on time for your break,
still be expected to return on time. There will be no exceptions unless there is prior
your supervisor. All personal business, visiting, phone calls, etc. are to be conducted at this
Any family or friends that may findit necessary to contact you on a
daily basis, should be notified that
this is the time you are available for non-emergent communication.
Schmit prepared this memo, after consulting the County's Corporation Counsel, in the
hope it would
clarify a number of potential areas of dispute, including personal phone calls. No other
Department employees are on such a schedule. Schmit hoped that the documentation would
the air and permit them to have a functional working relationship. Lyons took the position
Schmit was behaving in a discriminatory fashion toward Raddatz.
Schmit then attempted to outline for Raddatz the unfinished tasks that she needed to
complete, and to explain that another employee needed to use Raddatz's office to complete
work before Raddatz could work out of her office. Schmit directed Raddatz to use the
room until her office became available. Raddatz argued the point. Raddatz also questioned
County failed to advise her of some computer training that took place during her leave of
Lyons assisted Schmit in explaining why that could not be done. At some point during this
of the discussion, Raddatz made a statement to the effect that there are some people she
work with. Either expressly or by implication this statement put Schmit in the category of
Raddatz could not work with. The meeting then ended. Schmit returned to her office, and
turned to her work.
Schmit testified that Raddatz went onto break without advising her. When Raddatz
Schmit attempted to advise her that she needed to inform Schmit when she left for break.
responded, in a "(v)ery confrontational and hostile" (Tr. at 105) manner, that she had been
as dictated by the memo, and this should have been sufficient notice to Schmit regarding
Schmit believes Raddatz received a series of personal phone calls during the morning
April 13. Schmit's notes state the calls came at 10:07 a.m., 10:20 a.m.,
11:50 a.m., and 12:05 p.m.
Schmit became convinced that she and Raddatz could not work together without disruption,
reported the events of the morning to Schepp. Schmit played no role in drafting the
letter, but was consulted regarding the discharge decision.
Schmit characterized the morning meeting as "awful" (Tr. at 814), and that Raddatz
as if she wished to lose her job or did not care if she kept it.
Schepp noted that Raddatz was originally well-liked in the department, and there was
considerable hope that when she returned things could go back to normal. Schepp did not
in any face-to-face meeting with Raddatz until the end of the day on April 13.
while the County was closing the books on its fiscal year, and it was a busy and chaotic
reported the events of the morning to Schepp, who then conferred with the Finance
the Corporation Counsel. Schepp considered Schmit's characterization of Raddatz's behavior
constitute a serious offense under the Manual. Schepp, in consultation with the Corporation
made the decision to discharge Raddatz. Ruf conducted the final meeting, at which the
Raddatz her termination letter, and stated the reasons for it. Neither Lyons nor Raddatz
to discuss the matter in any detail. From Schepp's perspective, Raddatz had behaved in a
insubordinate fashion that it was impossible for her and Schmit to have an effective working
Shortly after Raddatz reported for work on April 13, Schmit approached her
and stated she
wanted to talk over some points to bring Raddatz "up to speed" on work issues. Before
the conference room, Raddatz displayed a tape recorder, then asked if Schmit wanted
record their conversation or to call Lyons to attend the meeting. Schmit responded that
should do whatever she wanted. The meeting did not start until Lyons arrived. Schmit
meeting by presenting the March 20 discipline and two memos stating new work rules for
Schmit then asked for the office key. Raddatz confirmed that they discussed each of these
well as the other issues noted in Schmit's testimony. She acknowledged that there was
on each of these points, but the discussion was business-like and did not involve raised
She acknowledged receiving two calls in the morning from a prospective employer.
call noted in Schmit's records may have been from Raddatz's mother. Raddatz made no
calls on April 13. She acknowledged that she left for break without noting it to
Schmit, and was
counseled on the point by Schmit when she returned from break. The conversation was
to Raddatz, who felt the memo covered the issue. She did not confront Schmit on the point.
Raddatz returned from lunch, she found her belongings packed up, in a box in the conference
The conference room is next to Schepp's office, and Raddatz watched as County Board
entered and left the office throughout the afternoon. Sometime around 4:00 p.m., Schmit,
and Ruf came to her and told her they wanted to meet with her. Raddatz asked for Lyons,
meeting started when Lyons arrived. Ruf went over the termination letter. Raddatz and
call a Union representative, but there was little discussion at the meeting. The other
been sent home, and a police officer waited outside the conference room. At the end of the
Ruf and Raddatz took care of some personnel details, and Raddatz left.
Lyons responded to Raddatz's request for a representative at the meeting. Schmit
meeting by handing Raddatz some paperwork, including the two memos and the disciplinary
noted above. She could not recall in what order Schmit addressed the paperwork. She could
Schmit requesting an office key from Raddatz, and Raddatz questioning why. Raddatz did
key over to Schmit. Lyons noted the parties discussed a series of issues, and did so without
or hostility. She acknowledged she took the position that the break memo discriminated
Raddatz. Neither she nor Raddatz threatened Schmit with a lawsuit, although Lyons
Raddatz that some of the problems pointed to by Schmit would be addressed in a complaint
Grievance No. 00-AC-004
The grievance form states the "Circumstances of Facts" thus:
Grievant denied opportunity for opening in treasurer's office.
Posting dated March 21, 2000,
position advertised Daily Register 4/5/2000.
The form alleges the County's action violates Article 7, Paragraph 6, and seeks that
receive opportunity of employment in treasurer's office."
The County posted the vacancy on March 21. Raddatz and one other unit employee
the posting. The other employee did not meet the minimum qualifications to be considered
position. In a letter to Raddatz dated April 3, Raimer stated:
You recently applied for the Accounting Assistant position in my
office. Unfortunately, I can not
offer you this position because you do not meet the required criteria. Specifically, I refer
you to items
7, 9, 12 and 19 in Section III of the enclosed Position Description. . . .
The cited portions of the position description read thus:
III. Knowledge, Skills, Licensure and
. . .
7. Ability to handle large amounts of cash and
. . .
9. Ability to meet deadline and work effectively
. . .
12. Ability to establish and maintain effective, ethical
public working relationships and maintain
positive co-operative attitude with public and staff members.
. . .
19. Must be willing to work considerable additional
hours when necessary.
. . .
This position carries the same pay rate as that occupied by Raddatz when she signed
Raddatz testified that her prior experience establishes she meets each of the posted
requirements. She currently works as a cost accountant. Since High School, she has worked
tax season at a CPA firm in Portage. She also worked in the accounting department at
at Pritchard Construction Company prior to being hired by the County. She has an
Degree in Accounting. Each of her jobs required her to meet the requirements stated above.
handled large sums of money at Wal-Mart, and has worked under deadline pressure at each
positions. She never declined the opportunity to work extra hours at the County, and
schooling while working. Her ability to establish and maintain favorable working
demonstrated by favorable recommendations from prior employers as well as County
Lyons stated that in her experience the County posts openings, then gives those
meeting the stated qualifications a test. Of those employees who successfully complete the
County selects the most senior unit member to fill the vacancy.
Raimer has served as County Treasurer since 1985. She noted that the posted
titled Deputy County Treasurer/Accounting Assistant and is the main accounting position in
office. Raimer is not an accountant. She relies heavily on the position for accounting
for working without significant oversight. Unlike the Comptroller's office, her Accounting
is the sole degreed accounting position, not one of several. The incumbent of the position
regularly deal with clients, including members of the public as well as County officials and
She deputizes the position because the incumbent has the authority to sign Raimer's name on
documents and to act in her absence.
She knew Raddatz prior to the March posting. She viewed Raddatz as less than
in her dress, and prone to visiting with other County employees during work hours. The
unit applicant had a criminal record, and thus could not meet the minimum qualifications for
When Raimer learned of Raddatz's interest in the position, she contacted Schepp.
not have a favorable impression of Raddatz, but felt those impressions had to be tested.
she reviewed Raddatz's work history. She was not impressed with Raddatz's history of sick
usage. Her Accounting Assistant position is a high stress position, particularly at the times
when property taxes are paid. Her office is not staffed to a level that can withstand absence
this period. Raddatz's difficulties with the dress code also concerned Raimer, who
similar code for her office to project a professional image to the public. Raimer also became
of the difficulty involving Rowe, and the strained working relationship between Schmit and
Raimer regards her office as considerably more stressful than Schepp's and was concerned
Raddatz's ability to manage that stress. She did not interview Raddatz.
Schepp noted that Raimer approached her to assess Raddatz's qualifications. Schepp
that Raimer's Accounting Assistant is one of a three person office, and the sole member with
accounting expertise. Raddatz rarely worked a month in which she did not use sick leave,
the only person Schepp flexed time for. Schepp did not think Raddatz had a good history of
cooperation with employees in other departments, and did not give Raddatz a favorable
recommendation to Raimer.
Grievance No. 00-AC-003
The grievance form states the "Circumstances of Facts" thus: "Grievant was denied
opportunity to use sick leave donation."
When Raddatz left on medical leave, she thought the leave would be for two weeks.
not, however, return to work until four weeks had passed. She had a small balance available
at the start of her leave, but it was insufficient for even the originally intended two week
Raddatz's mother works for the County, and was willing to donate sick leave to her. Lyons
volunteered to do so. Raddatz contacted the Corporation Counsel's office and Personnel
to determine how the donation could be made. She understood that she needed to have her
and Lyons execute some form of writing to confirm their willingness to donate sick leave.
someone in Personnel advised her she could not receive a donation. She did not file a form
donation, since the County has no such form.
When Raddatz left County employment, she still had a small balance of sick leave.
worked for the CPA firm during her leave, and the County did not think it appropriate that
sick leave during her leave of absence to the extent she was able to work. Raddatz looked
employment during her leave.
During her leave, on or about March 21, Raddatz filed a worker's compensation
the State of Wisconsin, stating the "type of injury or illness" thus: "Migraines, Nosebleeds,
Blood Pressure, Loss of Appetite, Stress, Anxiety, fatigue, hemorrhoids, Digestive
Diarrhea, Depression, Sleep Problems, Mental Anguish."
At the time of Raddatz's request, no County department required the execution of a
a sick leave donation. A secretary in the Personnel Department informed her that Raddatz
receive donated sick leave because the County did not consider her situation to constitute
extraordinary circumstances. Lyons received no more detailed explanation.
Lyons testified that she had sought to obtain a sick leave donation for another
Cathy Manthe, who was off work due to surgery. Lyons spoke with Manthe, and understood
be concerned about her ability to make ends meet financially due to her absence. Lyons
Manthe about the possibility of sick leave donation, and believed Manthe wanted to pursue it.
sought and received donations from various employees, and passed the information to the
Department. Manthe returned to work, and the Union filed a grievance to secure the
leave, as backpay, for Manthe. The Union did not secure Manthe's consent to the grievance
to filing it. Manthe did not want to pursue the grievance, and so informed Lyons and the
Department. Lyons withdrew the grievance, but did not agree with what she understood
reasons for the withdrawal. Lyons believed supervisory personnel informed Manthe that the
would constitute a financial hardship for the department.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The County's Brief
The County contends that "the only grievance . . . that can survive summary
dismissal is the
grievance relating to alleged wrongful discharge." The background surrounding that action
establishes that for "all practical purposes, Ms. Raddatz gave the County a 'me or her'
To accept the Union's position would "make a mockery of Wisconsin county and municipal
governments' ability to operate a work place."
The sick leave grievance "fails for several reasons." Raddatz "never actually
request for sick leave donation." Beyond this, any evidence on which employees wished to
sick leave and in what amounts "is anecdotal, at best." Most significantly, however,
for stress is insufficient to trigger the operation of the side letter, which demands
circumstances." Raddatz in fact worked for another employer during this period,
granting "the side letter such a liberal interpretation would essentially make it meaningless,
result in the CBA being amended by the arbitrator to allow persons to receive donated sick
under virtually all circumstances." Lyons' testimony establishes that the Union seeks to
apply the side
letter even to employees who do not wish to accept the donation.
Acknowledging that Raddatz "was the only Union employee to submit a timely
for the position that would not be automatically disqualified for reasons such as a criminal
cannot change the fact that the agreement requires a determination of "skill, ability as
reflected in her
personnel file, and seniority." Raimer was the County employee authorized to make that
determination. She appropriately determined that the "position is one of great responsibility"
Raddatz "was not qualified for the very important County position for which she applied."
opinion of Raddatz played no role in this determination, which was "simply based upon
own observations of Ms. Raddatz." The record of absenteeism is established in Raddatz's
file, and the problems of excessive personal phone calls, dress code violations and accounting
were readily apparent in Raimer's investigation. A review of the record establishes that
determination cannot be characterized as arbitrary or capricious, and thus "should not be
punished at arbitration."
Even if a violation of the labor agreement could be found, the Union has failed to
evidence of any amount of wage loss or other lost income that might have
been incurred by Ms.
Raddatz." Thus, the only possible remedy available in the event a contract violation exists is
issuance of a cease and desist order, since "there is not a basis in the record for an award of
This turns the analysis to the discharge, which "is the only one that has even a
justification." The Union's case is a "shotgun" approach to litigation, by which the Union
number of claims into the mix in hopes of subconsciously convincing the eventual arbitrator
finding of a violation by the County" on any one claim will constitute an "'easy compromise'
That the County did not follow the Manual's progressive discipline system manifests
than that the County "is not alleging that there were a series of minor infractions" that
termination. Rather, the County asserts Raddatz's conduct is "willful and deliberate" thus
constituting a major infraction. Beyond this, Raddatz's provocative behavior should not be
Evidence concerning minor rule violations demonstrates that a series of minor
became a basis for Raddatz's willful acts of insubordination. The insubordination was
evident on the
day Raddatz left on sick leave and on the day she returned. Her first act on her return from
was flagrantly confrontational. If the threat to tape all conversations did not make the
plain, Raddatz's statement that she could not work with Schmit did. Raddatz effectively gave
County "a 'her or me' ultimatum" which "resulted in an 'impossible situation' for Ms.
Standing alone, this ultimatum establishes cause for the discharge.
To the extent doubt exists on this point, it is resolved by an analysis of witness
Schmit answered questions directly and candidly, unlike Lyons or Raddatz. Raddatz's
portray Schmit as a liar is unsupported by the testimony of other witnesses.
That the Union began preparing its complaint of prohibited practice before the
on the requested sick leave donation and job posting matters establishes how little merit
exists to the
non-discharge grievances. An examination of the evidence concerning the discharge
Raddatz brought the termination on herself. The grievance should be dismissed.
The Union's Brief
After a review of the evidence, the Union contends that it "is axiomatic in grievance
arbitration that the Employer has the burden of establishing 'just cause' for discipline it has
Noting that arbitral definitions of just cause vary, the Union contends that the seven
Enterprise Wire Co., 46 LA 359 (Daugherty, 1966) establish a useful statement of just
This statement is often made simpler by arbitrators who prefer the following two element
a. Is the grievant guilty of the alleged "crime(s)"?
b. Is the punishment
reasonably proportionate to the seriousness of the proven offense(s)?
An analysis of arbitration precedent establishes that most arbitrators demand that an
its burden of proof by "clear and convincing evidence."
The basis for the discharge rests on the seven numbered paragraphs of the
April 13 letter. The
evidence falls far short of establishing that Raddatz treated Schmit abusively on
April 13. Raddatz
never "demanded" to tape record her conversations with Schmit. Schmit's testimony on the
of hearing strayed beyond that given on the first day. Her notes fail to underscore the more
testimony on the final day, and in fact underscore that Raddatz did no more than ask to have
present or to tape record the conversation. This evidence shows no more than an
the incident over time" and Schmit's "hostility and lack of objectivity" regarding Raddatz.
Nor is there any indication that Raddatz behaved abusively during the discussion
the office key. An examination of the evidence shows Raddatz "may have been curt, and she
have been terse." This fails, however, to establish she was abusive. Even less persuasive is
assertion that the passing mention of a complaint of prohibited practice on April 13
abusive behavior. Significantly, if Raddatz was defensive on April 13, "she had good
Schmit's assertion that she wanted to start with a "clean slate" on April 13 is belied by
a "sucker punch" to Raddatz through "written reprimands for past incidents." There is, then,
evidence of abusive behavior.
Nor is the next numbered paragraph well rooted in the evidence. The record "is
any evidence whatsoever that the grievant threw any objects in the office,
angrily or otherwise." At
most, the evidence regarding the February 18 door slamming incident is "conflicting." That
neglected to mention the emotional background to the incident is revealing. Whether Schmit
to make her actions appear more reasonable or simply did not consider the co-employee's
important cannot obscure that her testimony is unreliable.
The next alleged area of misconduct is "astounding." That the County would assert a
disciplinary interest in an individual employee's attempt to seek help or direction from
or other employees "flies in the face of reason." Schmit's testimony that Raddatz "somehow
disrupted the office simply by being at work" is speculative and unsupported.
The fourth numbered allegation concerns the timeliness of Raddatz's reconciliation of
Register of Deeds account. The evidence establishes that the problem in the Register of
predated Raddatz's employment, and that Raddatz was not "solely responsible for this
Since she was not solely responsible for the reconciliation, Raddatz cannot be held solely
for the task not being timely completed.
Raddatz's failure to comply with departmental policies is subject to "significant
Significantly absent from the evidence on this point is any effort on Schmit's part to
Raddatz's view of the problem. The "guidance" afforded Raddatz regarding the dress code
"singularly unhelpful." Lyons' testimony establishes that Raddatz wore clothing "little
what is worn by employees throughout the Courthouse." That Schmit's notes allege
violations cannot obscure that she "never followed through with any discipline."
Record evidence concerning personal phone calls or performing schoolwork on work
is flawed by Schmit's consistent refusal to seek any information from Raddatz prior to
The sixth allegation turns on "a claim of insubordination." Analysis of this claim in
arbitral precedent establishes that "Raddatz was not insubordinate when she failed to return
key." Schmit never made a direct order, and requested the key when Raddatz was cleaning
desk. Raddatz did no more than declare her desire to return to work.
The final allegation restates earlier allegations and is "lacking merit of any kind."
a whole, the April 13 letter establishes no conduct warranting discharge. The letter in
"double jeopardy" since it seeks to terminate Raddatz for conduct subject to earlier
The termination is further flawed by the County's refusal to undertake "a full and fair
investigation" prior to imposing the termination. This undercuts "(o)ne of the most
procedural precepts of the just cause standard." Raddatz was never consulted as County
conferred with each other to justify the termination.
The Union characterizes Raimer's selection process as "biased." Lyons' testimony
that arguably qualified internal applicants receive a test prior to the award of a position, and
position is given to the senior applicant who passes the test." Raddatz was never afforded
opportunity, since Raimer rejected her application "out of hand." A detailed examination of
stated bases for the denial establishes a "degree of bias . . . so extreme as to render the
decision-making process corrupt." It follows that the County's refusal to grant Raddatz's
request to transfer
violated the labor agreement.
The side letter states "two conditions which must be met for an employee to have a
contractual right to receive donated sick leave." The first is that "the employee must have
all sick leave" and the second is "the employee must still be unable to return to work."
meets both conditions, she should have received donated sick leave from Lyons and from
mother. It follows that "the County violated the contract when it denied her the ability to
donated sick leave."
The Union concludes that each grievance should be granted, and that Raddatz should
returned to work at the County with "the option of taking the Accounting Assistant" position
Treasurer's Office. Beyond this, the Union seeks that Raddatz "be made whole for all losses
as a result of the violations of the contract by the County."
As noted above, three grievances demand resolution. Fundamental among them is
No. 00-AC-005. It is fundamental because Raddatz's claim to employment is the most basic
posed, and because the factual determinations it requires impact the other two.
Grievance No. 00-AC-005
Section 15.1 D) demands the County have "cause" to discharge. "Just cause" and
synonymous: "The term 'just cause' is generally held to be synonymous with 'cause,'
or 'reasonable cause.'" Hill & Sinicropi, Management
1986) at 99. See also Bornstein, Gosline & Greenbaum, Labor and
(Matthew Bender, 1999) at Section 14.01. My statement of the issue posed by
thus turns on whether cause exists for Raddatz's discharge on April 13.
In my opinion, two elements define the cause analysis where the parties have not
the standards defining it. First, the employer must establish the existence of conduct in
which it has
a disciplinary interest. Second, the employer must establish that the discipline imposed
reflects the interest. This does not state a definitive analysis to be imposed on contracting
such as the seven tests posited by Arbitrator Carroll Daugherty in Enterprise Wire. It does
a skeletal outline of the elements to be addressed and relies on the parties' arguments to flesh
outline. As the Union notes, the Daugherty standards afford persuasive guidance. In the
a stipulation, however, they do not bind the parties.
The first element is troublesome, since the conduct in which the County asserts a
interest is difficult to isolate. The termination letter outlines a course of conduct culminating
events of April 13. The course of events reflects an ongoing personality conflict
and Schmit. However the specific allegations of the April 13 letter are viewed, it
that the conflict reached a point where Schmit and Raddatz could not maintain a functional
relationship. The April 13 letter holds this against Raddatz. The Union asserts a
The April 13 letter is vague and broad regarding the conduct on which the
County based the
discharge. The letter lists "specific grounds," but declines to rest the discharge on them,
or collectively. The Union analyzes the seven numbered items as the basis for the discharge,
letter cites them as evidence for the "specific grounds" which are "gross insubordination,
and unsatisfactory performance." The Union's analysis is forceful and persuasive on a
points. For example, there is no persuasive evidence Raddatz engaged in the "unprofessional
conduct" of "angrily throwing objects in the office." Nor does the evidence support the
Raddatz threatened "legal action against department supervisors", assuming such action
The April 13 letter manifests a weakness the County attempts to use against the
position. It states a "shotgun" approach to the discharge, casting a wide range of arguments
increase the likelihood that any one of them will find its mark. What is gained in spread is,
lost in focus.
In any event, analysis of the first element must turn on the stated grounds for the
and on whether those grounds have a proven basis. The allegation of "gross
persuasive evidentiary support. "Insubordination" is a term of art in labor relations, and
"deliberate defiance of . . . supervisory authority." Labor and Employment
Arbitration, at Sec.
20.04. It is not uncommonly treated as a terminal offense, accordingly demanding some
in its usage. The severity of the sanction is rooted in the willful nature of the offense, which
the deliberate undermining of work place management.
Arbitrators have stated the elements to insubordination in a variety of ways. In my
to establish insubordination, the County must demonstrate that Raddatz understood and
defied a clear, work-related order issued by a known supervisor. See, for example,
Dictionary of Industrial Relations, (BNA, 1986); and Labor and
Employment Arbitration at Section
16.04. The record will not support applying this against Raddatz. The evidence falls short
establishing Schmit clearly demanded the office key on March 16 or 17. It is undisputed
returned the key on April 13. Schmit's direction that Raddatz leave the Accounting
return to the Personnel Department on March 16 is similarly oblique. Nor will the
demonstrate Schmit clearly ordered Raddatz not to wear a specific item of clothing.
weakness in the County's position on insubordination is that it asserts Raddatz engaged in a
continuing pattern of conduct of an insubordinate nature, rather than any specific act of gross
insubordination that itself warrants discharge.
The asserted conduct supporting the County's disciplinary interest thus focuses on a
continuing pattern of misconduct of an insubordinate nature and on unsatisfactory work
The County has established persuasive evidence of unsatisfactory work performance.
in the preparation of the March spreadsheet constitutes conduct in which the County had a
disciplinary interest. The evidence affords no basis to doubt that Raddatz made an error that
had to correct. More significant to the County's disciplinary interest is Raddatz's response.
Raddatz showed poor judgement in responding to the error is evident in her testimony. Even
Raddatz was not on a personal phone call when Rowe came to the Accounting Department, it
evident she took only a passing interest in a significant account that had shown its first
balance. Her own testimony establishes she left the phone call, summarily informed Rowe
spreadsheet was accurate and then returned to the phone call. It is evident that Rowe was
angered by the spreadsheet that he had the undivided attention of the supervision of the
Department. Raddatz's casual response is inexplicable.
More significantly, while her testimony on other points is credible and persuasive, it
unpersuasive on this. Raddatz contends she showed the spreadsheet to Schmit and to Schepp,
receiving either an approval or no response. Whatever is said about the conflict in
Schmit's and Schepp's attention to detail and to the reputation of their department is
and unequivocal. That they would attach no significance to a spreadsheet showing the first
balance in a significant account defies belief. Their deference to other department heads was
throughout their testimony, and makes it unpersuasive to conclude that they took no more
in the negative balance than to have Raddatz pass it on without comment to Rowe. Their
after learning of the error underscores this. Unlike Raddatz, they felt the problem required
immediate and sustained response.
This prefaces the most troublesome aspect of the County's allegations, which is that
engaged in a pattern of willful conduct undermining Schmit's authority. As is noted below,
troublesome aspects of this evidence concern the application of the second
element of the cause analysis. The record supports County assertions that Raddatz
engaged in a
"Chinese water torture" pattern of conduct by which individual acts of little independent
came to acquire a crushing weight.
That Raddatz occasionally extended breaks or made personal phone calls poses no
dispute. Devine's testimony credibly corroborates Schmit's regarding breaks. The ill-will
Schmit and Raddatz is palpable, but there is no reliable basis to doubt Devine's testimony.
significance to the County's case is Raddatz's conduct and testimony regarding compliance
The Accounting Department's dress code is, at best, vague. Little greater clarity
from Schepp's or Schmit's attempts to specify it for Raddatz. To admonish Raddatz not to
clothes on which she had a doubt presumes she has the sensibilities that, if actually present,
admonition unnecessary. An admonition that she dress like her supervisors may offer to lead
example, or may simply highlight that she does not share the wardrobe or taste of her
In any event, the admonition affords no guidance.
This is not, however, a matter of taste in clothing. Raddatz's testimony highlights
compliance with the dress code became a significant issue when Schmit and Schepp passed
complaint from the then incumbent Corporation Counsel that Raddatz wore too short a skort.
Raddatz took the admonition personally, feeling her supervisors had inappropriately failed to
or to guide her. She characterized her response, after a ten to fifteen minute discussion of
with Schepp and Schmit, thus:
I guess I really didn't know how to feel. I didn't think that I did
anything wrong. I was hurt that
they didn't defend me to him since they had known me for, you know, over a year at this
This incident is coupled in the June 22, 1999 evaluation with the conflict over the June
break. These incidents mark a sort of watershed in what was to become an ongoing
her relationship with management. The focus on feelings in the cited testimony is a
backdrop to the problems that were to follow. Notably absent from the statement is any
that Raddatz understood that, however any of them felt about the issue, the behavior of
specific item of clothing had caused trouble, and would do so again if repeated.
This is remarkable because the record establishes that however vague the dress code
supervisors' counsel on the code might be, she refused to modify her behavior. She
to questions concerning clothing worn roughly a year after the incident noted above:
Q . . . would you agree that what you wore on
March 1 of 2000, you wore again on subsequent
A No. I'm not going to agree
to that. (Tr. at 622)
. . .
Q Okay. So is it fair to say that the attire . . . the
attire that you were wearing on March 1 that
they said was inappropriate, you wore an outfit similar to or identical to it roughly a week
A I was told by the Union it
wasn't inappropriate. (Tr. at 624).
This inconsistency crystallizes a consistent pattern in her testimony on this point. It is
evident she did
not agree with Schepp's and Schmit's directives, and acted to ignore or to subvert them.
conduct stands without regard to the vagueness of the policy.
This pattern is not isolated. On March 16, she and Schmit sparred about whether she
wait in the Accounting Department while the Personnel Department processed matters
relating to her
leave. On March 17, she and Schmit sparred concerning the office key. It is unnecessary to
issues of credibility to note that in each case, she had only to comply with Schmit's requests
the confrontation. The February 18 incident mirrors this. That issue poses credibility
Raddatz contends there was no more than a businesslike discussion of how Schmit treated her
Koss. Devine's testimony, however, stands uncontradicted, and establishes that voices were
and a door slammed. Whether Schmit behaved insensitively or patronizingly to Koss and
it is evident Raddatz provoked the confrontation. Significantly, there is no dispute that
initiated the controversy on April 13 concerning the tape recorder. The evidence
leaves no doubt that
Schmit was prepared to take the meeting to issues of discipline without regard to any issues
assignment. There is, however, no dispute that Raddatz started the confrontation, without
Nor, in my opinion, does it pose significant issues of credibility to characterize the
meeting as confrontational. I do not agree with the County's assertion that Lyons failed to
credibly. This cannot, however, obscure that under any view of the testimony of
April 13, the matters
discussed had notably little to do with getting Raddatz back to work. This is not solely
Raddatz, since Schmit had prepared to start the "clean slate" by delivering, early in the
formal discipline. Whether or not this was well-advised, it is evident that Raddatz came
fight. What possible bearing the computer training that occurred in her absence had to do
returning to work is a point that Lyons' credibility cannot address. No less evident is that it
Schmit's and Lyons' combined efforts to get Raddatz off the point.
In sum, the County has established that Raddatz engaged in a pattern of misconduct
June of 1999 through April. This pattern concerns a series of events, arguably insignificant
independently, but manifesting a consistent pattern of willful conduct challenging Schmit's
of authority. During this period, Raddatz also committed acts involving unsatisfactory work
performance. The County has then, established conduct on her part in which it has a
The more difficult issue is whether discharge reasonably reflects that interest. This
contrary to the County, is a close one. The closeness of the issue turns less on any
of credibility than on whether the County's unwillingness to follow its stated procedures
its proven disciplinary interest in Raddatz's conduct.
The County accurately states that by April 13 the tension between Raddatz and
reached a point where it faced an all or nothing decision regarding Raddatz's employment.
tension, palpable at hearing, is beyond dispute. Raddatz took a leave of absence on
March 16, yet
worked in an accounting position during that leave and looked for other employment. She
applied for a transfer to free herself from the Accounting Department. The existence and
the stress is unmistakable. Raddatz acknowledged on April 13 that she could not work
It is, then, established that the work environment posed an extremely high level of tension
to a personality conflict between Schmit and Raddatz.
The problem posed under the second element is whether this dilemma can be resolved
Raddatz. There are difficulties with doing so. That the conflict between Raddatz and Schmit
beyond issues of behavior or, more importantly, work performance, is not traceable to
Under the Manual, the County's disciplinary interest in workplace misconduct is to be
and acted upon based on proven conduct. Schmit's visit to the breakroom on June 10 hardly
this standard. If Schmit believed she had a disciplinary interest in Raddatz's conduct, under
7.19(c) of the Manual, she had a duty to determine the facts. Presuming she determined the
adversely to Raddatz, the Manual calls on her to identify the wrongful behavior, state the
sanction and the implications of repeating the behavior. Presumably, this is a process
requiring a one-on-one meeting between supervisor and employee. Schmit chose, instead, to
make a sarcastic
response that humiliated Raddatz in front of her friends. This determination poses no issue
credibility. On this, as well as the events of February 18 and March 16, Schmit's use of
a vehicle for the exercise of authority is apparent in her notes and her testimony.
Section 7.19(d) of the Manual states a system that, if applied as written, should
"Chinese water torture" patterns of behavior. Minor incidents are highlighted as they occur
should seldom number greater than four in number: oral warning, written warning,
discharge. However uncomfortable the disciplinary process may be, the Manual's system
wrongful behavior, and sanctions it in a way to assure that an employee has the opportunity
incentive to modify it. In spite of this, Schmit's notes highlight at least sixteen dress code
nine break violations, and a number of personal
call violations. It is less than clear if Raddatz was specifically advised of all of these
is evident that no progressive discipline resulted, unless an informal discussion, such as that
8, 1999, is treated as an oral reprimand. Doing so, however, does not meet the
requirements of Sec.
7.19(d)(1) of the Manual.
The Manual's provisions are written to set a blueprint by which behavior
achieved with a minimum of personality conflict. In this case, however, Raddatz's request
on the dress code was not even met with a "whatever you wear, don't wear that" type of
documented under the Manual's requirements. Rather, the personality conflict between
her supervisors predominates. The testimony reflects broad personality judgements less than
assessment of observable behavior. Any personnel decision, including discharge, should
assessment of workplace behavior, not of personal worth.
These considerations cannot, however, obscure that by April 13 Raddatz could
not work with
Schmit. Raddatz said so on April 13, and acknowledged this in her testimony. Her
April 13 confirms this. Raddatz, not Schmit, provoked the confrontation. Had
Raddatz not joined
the fray, the memos, including the disciplinary memos, would have been noted in passing.
to them could have been left to the grievance procedure, with work time being left for work.
this, Schmit's failure to follow the Manual's demands did not prejudice Raddatz. Rather, it
the time available to move beyond the personality conflict. Ultimately, Raddatz's best
what she perceived as Schmit's personal attack on her was the quality of her own work. As
controversy with Rowe underscores, this response was flawed. Most significantly, Raddatz's
behavior affords no persuasive basis to believe that progressive discipline could resolve the
personality conflict. Her testimony affords little basis to undercut this conclusion. She
responsibility for few of the confrontations, and none of the performance-based issues.
Ultimately, the strength of the County's case is that the events of April 13
manifest not a
minor offense, but a serious offense. The difference, under the Manual, is the "(w)illful or
nature of the offense, and that difference, under Sec. 7.19(e) opens the possibility of
than progressive discipline. These provisions are not, in my view, inconsistent with the
cause standard. The record establishes that Raddatz's behavior, up to and including
April 13, was
willful. The record also establishes that on that date, after a four-week leave, Schmit and
interacted as if there had been no separation. The Union forcefully notes that Schmit
displayed a high
level of hostility toward Raddatz. For example, two of the four "personal" calls Schmit
against Raddatz fell within the time slots Schmit's March 30 memo reserved for such calls.
difficulty with the Union's defense is that however hostile Schmit may have been, there is no
persuasive evidence she interfered with Raddatz's work. The difficulty in getting Raddatz
away from the personality conflict and onto work cannot persuasively be held against Schmit.
makes the County's determination that it faced an either/or choice that warranted Raddatz's
reasonable. Thus, the County has met both elements of a cause analysis.
The depth and breadth of the personality conflict posed by this record is unlike any in
experience. The conclusions stated above resolve that conflict as I interpret the contract in
the evidence. This should not be taken for more than that. The evidence affords no reason
Raddatz cannot be an effective employee. The recommendations received into evidence
this. The evidence manifests a regrettable conflict that overshadowed everything else in the
relationship. The case is close for the reasons noted above. Raddatz's defense fails
because its persuasive force is rooted in her work response, not on the County's or an
assessment of responsibility for the personality conflict. The conflict colored Raddatz's work
performance to the point the County could reasonably perceive an all or nothing dilemma.
It is worthy of some note that the videotape submitted by the County plays no role in
conclusions stated above. The dress code issue does not involve the interpretation of the
of any particular piece of outerwear or underwear worn by anyone other than Raddatz. With
to Raddatz the issue is not the propriety of any particular piece of clothing, but whether she
deliberately wore clothing her supervisors informed her violated the dress code. As noted
is not a matter of taste in clothes. Nor is it a matter of Lyons' or Raimer's credibility as
The videotape, even if considered evidence, is irrelevant.
Grievance No. 00-AC-004
The personality conflict colors each grievance. As noted above, Raddatz applied for
opening in Raimer's office to free herself from the Accounting Department. Raimer knew of
prior to the posting and learned more of her by consulting with the supervision within the
she sought to leave.
Resolution of the dispute turns on Section 7.6. That section demands that the
of applicants to fill job vacancies . . . shall be determined by the employee's skill, ability . .
seniority." Raddatz was the sole unit applicant who met the requirements of the posting on
and thus seniority plays no role. If Raddatz was qualified, the position, under Section 7.6,
since she had the greatest seniority.
Raimer's letter of April 3 stated that Raddatz was not qualified under
Items 7, 9, 12 and 19
in Section III of the governing job description. The Union contends that County
that Raddatz be tested and that her performance be evaluated in an unbiased fashion.
discussion with Schepp cannot meet this standard.
The Union's arguments have persuasive force as a contractual matter, but lack a solid
evidentiary basis. Lyons' testimony establishes that the County has tested in the past, but
of establishing any consistent pattern that could establish a binding practice.
Section 7.6 demands
that her "skill (and) ability as reflected in her personnel file" be evaluated. Testing can do
this, as can
an interview. This cannot, however, obscure that Raimer consulted Schepp to assess
and ability as reflected in her personnel file.
Raimer's April 3 letter stands in marked contrast to the April 13 letter of
discharge. It is
specific and focused. The Union's arguments cannot rebut the evidentiary basis that focus
The Union appropriately notes that Raddatz's work experience demonstrates she can handle
amounts of cash and checks efficiently. However, Raimer learned of the incident involving
Her knowledge of Raddatz's role in the incident is limited. Schepp's knowledge of the
not so limited, and the impact of her adverse assessment of Raddatz has a proven basis. At a
minimum, this casts some doubt on Raddatz's ability to meet Item 7.
More significantly, the dispute regarding Item 7 prefaces the application of
Items 9, 12,
and 19. The evidence casts doubt on Raddatz's ability to meet deadlines in the
Department. More significantly, the evidence leaves little doubt that the pressure of the
personal relationship with Schmit adversely affected the quality of Raddatz's work
a minimum, Raimer had substantial reason to question how the pressure of her office would
There is no evidence to cast doubt on Raddatz's ability to maintain, under Item 12,
working relationship with other employees or the public. However, it is not necessary to
on Raddatz for her conflict with Schmit to note that the existence of that conflict is
Beyond this, the impact of that conflict on her work performance is evident. Raimer became
of it through her conversation with Schepp. However brief that conversation was, the
covered has a proven basis as well as a proven effect on Raddatz's work.
Raimer had substantial basis to question Raddatz's willingness to work considerable
hours. This is not an issue of Raddatz's stated willingness to work additional hours. Rather,
it is an
issue of Raddatz's ability to do so. As Raimer discovered, Raddatz had a history of using
leave. This is not improper, but affords a reasonable basis to question her ability to work as
during the "crunch times" in Raimer's office. That Raddatz would act as the sole degreed
accentuates the significance of this point. Unlike the Accounting Department, there is no
available in the Treasurer's Office.
Against this background, Raimer's conclusion that Raddatz could not meet the listed
qualifications cannot be dismissed as unreasonable. The evidence establishes that she
Raddatz's skill and ability as reflected in her personnel file in light of the job requirements of
position of Deputy Treasurer/Accounting Assistant. There is, then, no demonstrated
Grievance No. 00-AC-003
The language of the side letter is directed to "individual employees" who wish to
donors of sick leave to another employee. The donation is possible if:
circumstances arise"; (2) the other employee "has depleted all of his/her sick leave"
and (3) the other
employee "is still unable to return to work."
As preface to the application of the side letter to the grievance, it is appropriate to
what has no persuasive bearing on the dispute. It is evident the Union and Lyons believe the
letter should be interpreted broadly and that the County believes it should be interpreted
This affords no basis to draw any inference on Lyons' credibility. The Manthe grievance has
bearing on this one. Nor is the record unclear on the request for the donation. Lyons and
mother hoped to donate sick leave, and understood the County's position to be that such a
was not possible. Raddatz did not deplete her sick leave balance, but this affords no basis to
the grievance. The County did not believe her use of sick leave during the leave of absence
appropriate. This mirrors its contention that, under the side letter, Raddatz cannot
"extraordinary circumstances." The interpretation of the side letter cannot, however, turn on
denial of sick leave without posing the risk that the County could read the side letter out of
by denying employee use of sick leave.
Thus, the application of the side letter turns on whether Raddatz was, during the
March 16 through April 13, "unable to return to work" due to "extraordinary
Union's contention that the side letter permits the County no discretion over the matter once
employee has exhausted sick leave and cannot return to work is a plausible reading of the
language. Under this view, the donation is a matter involving an employee exchange
and donee. This has some support in the language of the provision, since there is no specific
of a County role in the exchange.
The weakness of the Union's contention is that it fails to give meaning to
circumstances." Under the Union's view, the willingness of a donor to give and a donee to
the sick leave defines the exchange. This view cannot be accepted without reading
circumstances" out of existence, since the donor and donee are free to agree on the exchange
regard to the circumstances prompting it.
Thus, the interpretive issue is whether Raddatz's leave, from March 16 through
constitutes "extraordinary circumstances." As noted above, the circumstances are unique in
experience, but this is not a persuasive means to interpret the contract. Any leave from
unique in some sense. "Extraordinary" presumes that some circumstances exist that will not
the operation of the side letter. As the County persuasively argues, interpreting Raddatz's
circumstances to meet the side letter effectively reads it to apply to any request. Raddatz
to work during her leave and took the opportunity to look for another job. This does not
make the leave improper, but does make it a poor vehicle for a County subsidy.
To conclude that Raddatz's circumstances are "extraordinary" puts pressure on the
to return to work" reference. If the circumstances were extraordinary, was Raddatz "unable"
"unwilling" to return to work? The documentation for the leave affords little insight on the
the request. Raddatz told Schmit "stress" was the cause. Stress is, in a sense, a constant in
workplace. The issue becomes whether the "stress" in this case resulted
from extraordinary circumstances. As noted above, the circumstances were unique,
but the stress
arose from a personality conflict in which Raddatz played an active role. This cannot, on the
posed here, trigger the side letter unless the side letter is interpreted to cover any request.
In sum, the County's refusal to permit the sick leave donation did not violate the side
The County did have cause, under Section 15.1 D), to discharge Erica Raddatz.
Grievance 00-AC-005 is, therefore, denied.
The County did not violate Section 7.6 by denying Erica Raddatz the position of
County Treasurer/Accounting Assistant.
Grievance 00-AC-004 is, therefore, denied.
The County did not violate the Side Letter Agreement Re:
Leave Donation when it
denied employee requests to donate sick leave to Erica Raddatz.
Grievance 00-AC-003 is, therefore, denied.
Dated at Madison, Wisconsin this 7th day of December, 2001.
Richard B. McLaughlin, Arbitrator