BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
NEKOOSA SCHOOL DISTRICT
NEKOOSA EDUCATIONAL SUPPORT PERSONNEL
(Kathy Smith Grievance)
Dr. David J. Scarpino, Superintendent of Schools, Nekoosa
School District, 600 South Section Street, Nekoosa, Wisconsin 54457, on behalf of the
Mr. Thomas S. Ivey, Jr., Executive Director, Central Wisconsin
UniServ Council, P.O. Box 158, Mosinee, Wisconsin 54455, on behalf of the Grievant and
According to the terms of the 1999-2001 collective bargaining agreement between
Board of Education (hereafter District) and Nekoosa Educational Support Personnel
(hereafter Association), the parties requested that the Wisconsin Employment Relations
designate an impartial arbitrator to hear and resolve a dispute between them regarding the
of Kathleen (Kathy) Smith. Sharon A. Gallagher was designated Arbitrator by the
hearing in the matter was originally scheduled at Nekoosa, Wisconsin, for October 3,
2001, but was
postponed, at the Association's request, to November 6, 2001. No stenographic
transcript of the
proceedings was made. The parties jointly agreed to present all evidence and argument on
of hearing and to orally argue the case, waiving the right to file any briefs. The hearing was
concluded on November 6, 2001, and the record was then closed.
6322 Page 2
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties stipulated that the following issues were properly before the Arbitrator:
Did the District violate the terms and conditions of the
Agreement when it reprimanded Kathy
Smith for her handling of the situation in the boys' bathroom in the second grade area on
If so, what is the appropriate remedy?
. . .
ARTICLE II MANAGEMENT
The Board possesses the sole right to
operate the school system and all management rights
repose in it, subject only to the provisions of this Agreement and applicable law. These
but are not limited to the following:
A. To direct all operations
the school system;
B. To establish and require
observance of all reasonable work rules and schedules of work;
C. To hire, promote,
transfer, schedule and assign employees in positions within the school
D. To suspend, discharge
and take other disciplinary action against employees for cause;
E. To take whatever action
necessary to comply with state or federal law and to comply
with orders or settlements with state or federal agencies;
F. To introduce new or
improved methods or facilities;
G. To change existing methods or facilities;
H. To contract out for goods
or services as long as bargaining unit employees are not
deprived of their regular normal hours of work;
I. To determine the methods,
means and personnel by which school operations are to be
J. To determine the
educational policies of the school district;
K. To manage and direct the
work force, to make assignment of jobs, to determine the size
and composition of the work force, to determine the work to be performed by employees and
to determine the competence and qualification of employees;
. . .
ARTICLE III DEFINITION OF
. . .
. . .
Employees in this
classification may be full-time or part-time, and may be calendar year or
school year employees. Employees in this classification shall be responsible for assigned
including cleaning of the building to which they are assigned and assigned tasks in the
operation of all District approved events, games, or activities. Cleaners will also be
responsible for any and all duties assigned by their immediate supervisor, the building
principal or Superintendent of Schools.
. . .
The Board and the Association agree that
the purpose of evaluation is to improve the delivery
of services and performance of employees. Any employee who is shown to have any
be provided with specific assistance to be provided by internal and/or external sources to
problem that the employee is having.
All probationary employees will be evaluated at least once but not
more than three (3) times
during their probationary period. Thereafter, all employees will receive an annual evaluation
the employee's performance. If the employee's performance is judged to be unsatisfactory in
major area of the employee's work, specific corrective activities will be given to the
correction does not result, the employee will be suspended. The suspension shall state the
for the suspension, the length of time, the correction required, additional suggestions for
and a statement that if correction does not occur within twenty (20) working days upon
employee may be discharged. If no correction is made or unsatisfactory progress is made
correction, the employee may be discharged. Discharge shall occur for a major offense, and
normally be preceded by suspension with or without pay.
Each employee will be provided with a copy
of any material placed in his/her file, once the
material has been initialed. They shall have the opportunity to react in writing to any
contained in the file. With the approval of the employee, the union representative may
contents of the employee's file.
Non probationary employees shall only be
disciplined, suspended, reduced in rank or
compensation, or discharged for just cause.
. . .
The grievant, Kathleen (Kathy) Smith, has been employed as a cleaner by the District
past seven years at Humke Elementary School. Smith has been employed on the second
3:00 p.m. to 11:00 p.m. Pamela Amundson is also employed on the second
shift as a cleaner.
Approximately three years ago, Smith was in the maintenance room at the District
Humke Elementary Principal Leonard Englert (Englert) entered with a boy who had an eye
over his eye. Englert had caught the boy in the kindergarten bathroom urinating all over the
the toilet. When Englert entered the maintenance room, Smith asked him who Englert
clean the kindergarten bathroom and stated that Englert should decide. Englert said that the
would clean the bathroom and Smith went and got supplies for this cleaning process and
the maintenance room with the boy.
Teacher Jackie Look essentially confirmed herein that a student in her kindergarten
been involved in urinating in inappropriate places and had, in fact, urinated on another
student, as well
as been involved in looking under the stalls and talking and rough-housing in the boys'
When Look was informed by the student who had been urinated on that this had occurred,
Principal Englert involved in this situation. Look confirmed that Englert told her that he
make the boy clean the bathroom, although Look did not know whether, in fact, Englert had
At the time of this incident three years ago, Smith stated that Englert had told her to
a note if any vandalism occurred at the school and he would take care of it. 1/
Former employee Dan
Gallagher 2/ and employee Jerry Bredl testified herein regarding their understanding of
policy concerning cleaning up urine and excrement in the bathrooms. Bredl stated that his
has never told him not to clean a bathroom; that he used to work second shift (although he
works first shift) and he has had messes in his bathrooms which he cleaned up, including
urine and feces spread around the bathroom. Bredl stated that he always cleaned up urine
excrement because he believed this was his job.
1/ Smith stated herein that
Englert told her to leave the mess and then leave him a note and he would take
care of the vandalism. Also, Smith stated herein that Englert told her to let him know or
leave a note and leave the
mess and he would take care of it.
Gallagher is no relation to the Arbitrator.
Former employee Gallagher stated that when he found messes in the bathroom, he
contacted either Englert or whoever was in charge of the building and then cleaned up the
Englert was not there because the bathroom could not be used until it was cleaned and there
terrible odor. Gallagher stated that he never closed an entire bathroom during his tenure
District by putting an "out of order" sign on it, although once he locked one stall and put an
order" sign on it, awaiting the principal's review of the situation. Gallagher stated that for
approximately half of his 18 years at the District, he worked on the first shift and for the
he worked on the second shift.
Building and Grounds Supervisor Ed Robatcek stated that he is the person who
deals with vandalism at the District; that he checks the school grounds and the exterior and
of the school buildings and asks employees to notify him if vandalism occurs. If a cleaner
vandalism, Robatcek expects the cleaner to write a note or call him and to clean up the mess.
past, Robatcek stated he has never heard of students cleaning up bathroom messes like the
discovered on April 11th, although students have scrubbed off
graffiti on the outside of the building and swept up bark chips in the past that they have
inappropriately spread around. Finally, Robatcek stated that at approximately
7:00 a.m. children
begin to arrive at school for day care that is available there; and that regular classes begin at
approximately 8:20 a.m.
Principal Englert has been employed by the District for approximately 12 years as the
Elementary Principal. Englert stated herein that he never told Smith or any other cleaner not
up urine and excrement in the bathroom. 3/ Englert stated that he has directed
employees that whenever vandalism occurs that it should be cleaned up as soon as possible
custodian or cleaner hired to do that work, but that Englert has asked employees that he be
of all vandalism so that he can have students clean it up if that would be appropriate.
that leaving urine and feces on the floors and walls in the boys' bathroom is a health hazard
that kind of mess should be cleaned up immediately. Englert stated that he has told
including Smith, that they can feel free to call him at home if there is a problem or question.
3/ Initially in his testimony,
Englert did not recall the incident of approximately three years ago involving the
boy with the patch over his eye who was a student of Ms. Look's. However, after
Ms. Look testified, Englert
confirmed that he recalled the problem with that boy in Look's class.
On April 11, 2001, Smith began her work as usual after 3:00 p.m. and went
down to the
second grade wing to clean the boys' bathroom. She began cleaning the bathroom but in the
stall she found urine all over the stall, on the stall floor, in the toilet paper dispenser and in
and excrement was smeared behind the stall door and on the stall walls. At this point, Smith
to stop cleaning the boys' bathroom and to put an "out of order" sign on the entry door to
bathroom. She then saw Pam Amundson, second shift cleaner, and asked her to look at the
had been made by the boys. Amundson viewed it and asked if Smith would like her to help
the mess. 4/ Smith declined, saying that they should leave notes for Englert and Bredl
is what she (Smith) had been told to do in the past. Thereafter, Smith wrote two notes (one
Bredl 5/ and the other to Mr. Englert), while on her break time. The notes read as
I have a (sic) Out of Order sign on
grade Boys' restroom door. they are still peeing on
stalls, floors in stalls, toilet paper dispenser wiping poop on walls.
I have a wet mop bucket a big pail with rags in bucket paper
towels and gloves as you walk
in south maintenance room.
All the boys down 2nd
grade can clean it up.
Maybe they won't do that for awhile, or
. . .
4/ During her testimony, Smith
denied that Amundson offered to help her clean up the mess on April 11, 2001.
Amundson stated herein she asked if Smith needed help cleaning up the mess and that Smith
replied as recounted
above. I find that as there is no reason for Amundson to lie and because her credibility was
attacked, Amundson's testimony is credited on this point.
5/ In her
note to Jerry Bredl, Smith merely asked that Bredl pass on the note to Mr. Englert.
thereof were otherwise the same. Amundson was present when Smith wrote the
Smith otherwise completed her work on April 11th and was
vacation on April 12th. On
April 12, 2001, supervisor Ed Robatcek issued Smith the following letter:
MEMORANDUM OF RECORD
On Thursday, April 12, 2001, when I
came to work I saw 2 letters you had written, one to Jerry
Bredl and one to Leonard Englert stating that the second grade boys bathroom was out of
I went down to the bathroom and looked at
the mess on the wall of 3 or 4 smears of excrement.
Then I instructed Jerry Bredl to clean up the mess and mop the floor.
I will request Mr. Englert have a talk
with the boys in that wing, but as I see it, according to your
job description, "Cleaner" that it is in fact, your job to clean these bathrooms as
you are assigned to
that end of the building and that duty.
You spent more time writing a sign "Out of
Order" and the two letters attached to this letter than
what actual time you would have taken to clean up the entire bathroom.
In the future you will clean up all messes left like
that and report it to me and Mr. Englert so that
we can deal with it. It is not your place to discipline the children, but the (sic) is the
of the school principal.
Due to the fact that I will be out of the
District on vacation from April 12 23, please plan to
meet with me about this matter on Wednesday, April 25, 2001 at 9:30 A.M. in
my office. At that
time you will be able to respond to my letter.
Robatcek stated herein that he issued Smith the written warning quoted above because
did not do her job on April 11th. Robatcek further stated that he has
never told employees to leave
messes in the bathrooms; that Smith did not call him on April 11th,
although Smith knows that she can
always call him if she has a question or a problem. Robatcek stated that Smith has called
her shift in the past regarding other questions she has had concerning her work.
Principal Englert stated that custodians and cleaners do not have the authority to close
entire bathroom or even a stall; that they should clean up the mess and then report that there
problem. Englert admitted that there are no District documents in existence stating how
expected to deal with these kinds of situations. Englert was emphatic that he had never
anyone to leave a mess so that he could see it later.
Smith stated herein that she had had conversations with former employee Gallagher
he had told her that Englert had stated to him that he (Gallagher) should leave a note or
of any vandalism and that Englert would then take care of it. 6/ Smith stated that she
Robatcek and Englert to take the second grade boys into the bathroom after the
April 11th incident
and show them how to use the bathroom properly and she expected that the boys would then
up the mess that was left in the bathroom. Smith stated that she thought she was authorized
a bathroom, although she admitted she was never told this by management. Smith also
is responsible to clean and disinfect all bathrooms as part of her job duties and that she was
to clean the second grade boys' bathroom on the evening of
April 11th. Smith stated that given the
warning she received, she is now aware what she should do if a similar situation occurs in
future - that she should clean up the mess and then let Mr. Englert know
that it occurred.
6/ In his testimony, Gallagher
was not asked to confirm that he had told this to Smith.
On April 25, 2001, Smith responded to the letter she had received from
April 12), as follows:
Received a letter from Ed Robatcek in the mail on
April 13, 2001. This is in regard to the to the
(sic) incident that took place on April 11, 2001. This was about the out of order sign
and the pee on
the stall floors in the stalls, toilet paper dispensers and wiping excrement on the walls. I
talked to Ed
about this problem over Spring Break. Also what was happening on boy's (sic) bathroom by
That someone was crawling using their feet up the stall and walking on top of the urinals and
on them. And I was afraid one of the kids would get hurt. A while ago I was cleaning the
End. I was in the Maintenance room at the time when Mr. Englert stopped me
Kathleen Smith and
asked for a bucket and a rag and some rubber gloves. He also had a boy with a patch over
with him. Mr. Englert said he made a mess in the Kindergarten bathroom and that the boy
to clean up the mess and maybe he won't do it again. Mr. Englert said if something
like this ever
happens again to leave it and leave him a note and he will take care of the situation. So
2001 when I went into the 2nd grade bathroom and found it like it was, I
cleaned everything else. I
left the pee on the floor and stall walls and Excrement on the wall. I Kathleen Smith left a
Jerry Bradle (sic) a note of what happened and what I had did. I asked Jerry
Bradle (sic) to give this
note to Mr. Englert. It sounded like Ed would be on vacation the next day and I had
April 12, 2001 that is why I gave the note to Jerry to give to Mr. Englert. I
also wrote a note to Ed
on green paper from Jerry's desk about the bathrooms. This was done on my break not
while I was
working. So I thought I was doing my job after the conversation that I had With (sic)
on the problem with the Kindergarten bathroom incident.
. . .
On April 30, 2001, Robatcek issued Smith the following letter:
. . .
After considering your request for me to
remove the Letter of Reprimand dated April 12, 2001,
that I placed in your file, I find the following:
1. You failed to
do your assigned job by not cleaning the excrement off of the bathroom
wall, and scrubbing the bathroom floors.
2. You should not have taken yellow
caution tape 7/ and closed the second grade boys
(sic) bathroom because it was not within your authority.
As a result of these findings the letter will
stand and not be removed from your file.
. . .
7/ There was no evidence
submitted to show that Smith used yellow caution tape to close the bathroom on
April 11th. Rather, Smith admittedly posted an "out of order" sign
on the bathroom door.
The Union filed the instant grievance on or about May 5, 2001. On
May 17, 2001,
Dr. David J. Scarpino, Superintendent of Schools, denied Smith's grievance as
. . .
After interviewing Kathy Smith, Len
Englert, and Ed Robatack (sic) about this matter, I find that
Kathy Smith failed to do her assigned job of properly cleaning the boys (sic) bathroom at
Mr. Robatcek, Building and Grounds
supervisor, has the right to write an employee up for not
doing his/her job and the employee has the right to react in writing to what the supervisor
about him/her. If Kathy Smith disagrees with the content of the letter of reprimand, she has
opportunity to react in writing. Please read Article V, Evaluation/Discipline page 9.
As a result of these findings, the grievance
is denied and the letter of reprimand will remain in
Kathy Smith's file.
. . .
Thereafter, the Board of Education held a hearing on
June 12, 2001, regarding Smith's grievance.
On June 22, 2001, the Board issued the following findings with regard to that
. . .
1. After listening to Kathy's side of
the story, the Board wanted to hear from the building
principal, Mr. Len Englert. Mr. Englert told the Board that he never told
Kathy to not clean the
bathrooms when the children intentionally or unintentionally make a mess.
2. Mr. Englert also told the
Board that he never directed Kathy to close the bathroom in the event
that the children intentionally or unintentionally make a mess.
3. When Board member Tom
Pangburn asked Kathy, "Have you had this happen before m(what
(sic) did you do? (sic) Kathy responded: "I've cleaned it up and I let Ed know about I it
Board wondered if Kathy cleaned up the mess before, why didn't she clean it up this time?
Based upon the above gathered information,
the Board denies your grievance. The Board wants
to remind Kathy that she does have the option to write a letter of rebuttal to her letter
. . .
8/ During the instant hearing
Board Representative Pangburn stated that Smith made a statement at the Board
hearing which Smith denied making herein. As Smith's statement at the Board hearing on
June 12, 2001, was not
a part of the reason for disciplining her on April 30, 2001, it is unnecessary for the
Arbitrator to resolve this
credibility resolution and the evidence regarding this issue has not been considered in
reaching the decision herein.
POSITIONS OF THE PARTIES
The parties chose to orally argue the case and waive the right to file any briefs
arguments are summarized as follows:
The District argued that this case turns upon credibility resolutions raised in the
herein. The District noted that Smith asserted that Amundson never volunteered to help her
up the mess Smith discovered in the second grade boys' bathroom on April 11. Yet,
specifically stated herein that she volunteered to help. In addition, the District
pointed out that Smith stated herein that Englert is an honest person. The District
asserted that it
would make no sense for Building Principal Englert to tell a cleaner not to do their job.
testified herein that he has never seen an "out of order" sign on a bathroom in his 12 years
District, and that he never directed anyone to leave a mess in the bathroom so that he could
The District contended that Smith was attempting to blame others for her own
the District's view, there is no debate that Smith failed to perform her duties as assigned on
and that Smith admitted that she has cleaned up similar messes in the past, yet she failed to
do so on
April 11th. The District urged that Smith's testimony was incredible.
In this regard, the District noted
that Smith initially admitted that Englert had told her, after both the boys' bathroom mess
ago as well as after the April 11th bathroom mess was discovered,
that she could call him at home if
she had any problems. Later, in her testimony, Smith retracted the statement saying that
the April 11th incident had Englert told her to call him at home. The
District urged, therefore, that
the grievance be denied and that the discipline stand.
The Association argued that the letter of reprimand issued to Smith constituted
without cause. In this regard, the Association noted that Smith did not decide to leave the
grade boys' bathroom in order to shirk her responsibilities. Rather, Smith had the best of
based upon her experience and her understanding of what Mr. Englert wanted done in
Furthermore, no evidence was submitted to show that Smith had been a problem employee or
she had had a history of doing substandard work. In fact, the evidence showed that Smith
prior warnings and that the District had considered Smith a good employee and had
for a commendation in the past. Therefore, in the Association's view, the District did not
progressive discipline in this case.
The Association urged that Smith had had no forewarning that her acts of
April 11th were
inappropriate. Both former employee Dan Gallagher and Principal Englert stated herein that
had told employees not to clean up bathroom messes (such as the one Smith found on
April 11th), but
to let Englert see the messes before cleaning them.
The Association observed that Article V demonstrates that employee discipline
progressive. Here, Smith merely followed Englert's prior instructions to her and her actions
April 11th were, therefore, reasonable under the circumstances. The
Association also noted that unit
employees have not been evaluated and that the District could submit no documents to prove
Englert's expectations were in circumstances such as those Smith
faced on April 11th. Therefore, the Union urged that Smith
should not have been issued a written
warning for following Principal Englert's prior directives and that the grievance should
sustained and Smith's file should be expunged of any reference to the written warning issued
April 30, 2001.
The record evidence showed that in the seven years she has been employed by the
Kathleen Smith never received any warnings or any other disciplinary actions as a District
employee prior to the written warning which led to the filing of the instant grievance. In
in the year prior to April 11, 2001, the District offered Smith a commendation for her good
which Smith declined for her own reasons. Thus, the record herein shows that Smith was a
employee with a clean work record prior to the District issuing her the written warning for
conduct on April 11, 2001.
The central question in this case is whether Smith knew or should have known that
District expected her to clean up the urine and fecal matter she found in the second grade
bathroom on the second shift on April 11. In this regard, I note that the evidence
showed that such
messes have happened repeatedly at the District and that the evidence was conflicting
instructions, if any, employees had been given regarding how to treat urine and fecal matter
discovered in the bathrooms at the District.
Smith testified herein that three years ago, Principal Englert told her not to clean up a
bathroom mess involving urine made by a male kindergarten student (with an eye patch),
Smith that the student would clean up the mess and that if Smith ever discovered such a mess
she should leave a note for Englert and leave the mess so that Englert could take care of
it. 9/ In
contrast, Englert flatly denied making these statements to Smith or any other District
Englert stated that he expects cleaning staff employees to clean up urine and fecal matter
because these present a health hazard. However, Englert also stated that he has told District
to notify him of vandalism so that he can have students clean up the vandalism. In addition,
Supervisor Robatcek stated that he is the person responsible to deal with vandalism at the
not Englert. Neither Englert nor Robatcek made any distinction between the various types of
9/ One could argue that this case
is different from the one which occurred three years ago on which Smith
relies, as the latter case involved urine only and Mr. Englert was present in the
building and viewed the vandalism.
I note also that Smith asked Englert who should clean up the mess on the prior
Several employees and one former employee testified herein regarding how they have
with bathroom messes involving urine and fecal matter. For example, leadman Jerry Bredl
Englert never told him not to clean up such messes and that he has cleaned up both urine and
matter immediately when he has discovered them. Retired employee Dan Gallagher (who
both first and second shift during his tenure) stated that in the case of urine and fecal matter,
cleaned up these messes (because the bathroom could not be safely used and the smell was
unpleasant) and he has then left a note for Englert. However, Gallagher also stated that
indicated to him that he (Englert) wanted to see bathroom vandalism involving excrement
was cleaned up. Gallagher stated that if Englert was not present in the school, he notified
was in charge and he then cleaned up the mess. Finally, Gallagher stated that he placed an
order" sign on a bathroom stall and locked the stall so that he could show the mess to
before cleaning it. 10/ Finally, cleaner Pamela Amundson implied in her testimony
that she did not
know how to deal with messes consisting of urine and fecal matter in District bathrooms by
interaction with Smith on the evening of April 11. Amundson was not asked questions
regarding her understanding of how to deal with such messes.
10/ Gallagher was not asked what
part of the instructions he received applied to his tenure on first shift and
what applied to his tenure on second shift.
It is clear from this record that the District has not issued any documents, nor has it
any orientations or in-services informing employees how to deal with urine and fecal matter
bathrooms, and that the District has failed to instruct employees regarding what constitutes
and who at the District is responsible to deal with it. However, it is also clear that both
Englert and Supervisor Robatcek have told employees, including Smith, to call them at home
have questions or problems at work after regular school hours.
In the Arbitrator's opinion, the record demonstrates that it was not clear what the
expected Smith to do upon discovering the serious mess in the second grade boys' bathroom
April 11th. I note that the situation which occurred three years ago
involved only urine and that it
occurred at a time when Englert was present in the building to give instructions. Assuming
that at that time, Englert actually told Smith to leave such messes in the future for him to
see, this was
said in the context of Englert's being available in the building to view the mess at that time
Englert expected someone to clean the mess up that day. Englert never told Smith to leave
messes overnight and he never told her she could close a bathroom rather than clean up such
In any event, and assuming that Englert spoke over broadly to Smith three years ago,
clear that if Smith had any questions or problems on her shift, she knew that she should call
or Englert after school hours. Smith admitted that she has done this in the past when she
question or a problem at work. Yet, Smith failed to call anyone on
The Arbitrator is struck by Englert's statement that leaving the bathroom dirty
posed a health hazard to students and staff. It is also significant that Smith admitted herein
to April 11, she had never been instructed that she had the authority to post a
bathroom "out of
order." Further, it is also undisputed on this record that no employee prior to Smith has
an entire bathroom "out of order" in at least the past 12 years. Finally, Smith admitted
prior to April 11, 2001, she cleaned up both urine and excrement in District
bathrooms and thereafter
Thus, whether the District managers in fact instructed employees what to do
and fecal messes in the bathrooms, it is a matter of common sense that such messes should
not be left
in District bathrooms overnight to be dealt with by the following shift, as students normally
arriving at Humke Elementary at 7:00 a.m., just when the first shift begins. In this
case, there is no
evidence that any employee was ever told that it would be acceptable to leave urine and fecal
in the bathrooms from one shift to the next. 10/
The Union argued that the discipline meted out against Smith was not progressive. In
regard, I note that generally a first instance of misconduct is normally punished by an oral
However, where an employee's misconduct is serious, employers can be privileged to skip
progressive discipline procedure (from oral to written to suspension to discharge) and issue
at a higher level for a first instance of misconduct. In the instant case, the District
Smith's conduct was serious enough to warrant a written warning despite her clean work
In the instant case, the District failed to distinguish between bathroom vandalism and
types of vandalism and it failed to clearly instruct employees how they were expected to deal
bathroom messes involving urine and fecal matter. Given the fact that the District
Smith's confusion regarding what she should do on April 11th and the
fact that Smith has been a good
employee who had a clean work record prior to April 11th, it is the
Arbitrator's view that the District
should, in fairness, have issued Smith an oral warning for her misconduct on
April 11th. However,
by reducing the discipline in this case, the Arbitrator does not wish to detract from the fact
Smith's actions of April 11th in leaving a foul mess overnight in a
District bathroom and posting the
bathroom "out of order" certainly justified disciplinary action. 12/
12/ It is unnecessary to deal with
the several credibility issues raised in this case given my analysis of the facts
The Union has argued that Article V Evaluation/Discipline should
apply to this case. I agree
in part and disagree in part. The first paragraph of Article V addresses, in a general
way, the purpose
of evaluation and the second paragraph speaks to the evaluation of employees, both
non-probationary. The instant case does not concern evaluations. The third paragraph of
addresses material which can be placed in an employee's personnel file. This provision is
me in this case. Paragraph four of Article V merely states the standard (also contained
in Article II,
Section D) that non-probationary employees are not to be disciplined, suspended or
reduced in rank
or compensation or discharged except for just cause. 13/ Although all of Article V
was cited in the
grievance, I believe only paragraph four thereof is relevant to this case and only it has been
13/ I note that Article II,
Section D, states a "cause" standard while Article V, paragraph four, states a
cause" standard. To the extent there is any real difference between these two provisions, let
me state that I have
applied the just cause standard of Article V in this case.
Based upon all of the relevant evidence and argument in this case, I issue the
The District did not violate the terms and conditions of the agreement when it
Kathy Smith for her handling of the situation in the boys' bathroom in the second grade area
April 11, 2001. However, in all the circumstances of this case, the District, in
fairness, should have
issued Smith an oral warning for her misconduct on April 11, 2001. Therefore, the
to Smith shall be reduced from a written warning to an oral warning. Therefore, the
granted in part and denied in part.
Dated at Oshkosh, Wisconsin, this 7th day of January, 2002.
Sharon A. Gallagher, Arbitrator