BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
NORTHEAST WISCONSIN TECHNICAL COLLEGE
NORTHEAST WISCONSIN TECHNICAL COLLEGE
(Grievance dated 1-26-01 concerning the termination of R___ E___)
Mr. David B. Kundin, Executive Director, Bayland UniServ,
1136 North Military Avenue, Green
Bay, WI 54303, appearing on behalf of the Association.
Mr. Robert W. Burns, Davis & Kuelthau, S.C., 200 South
Washington Street, Green Bay, WI
54301, appearing on behalf of the Employer.
At the joint request of the parties, the Wisconsin Employment Relations Commission
designated the undersigned Marshall L. Gratz as arbitrator to hear and decide a dispute
the above-noted grievance under the parties' August 16, 1999 - August 14, 2002 Master
The grievance was heard by the Arbitrator at Northeast Wisconsin Technical College
Bay on September 13, 2001. The proceedings were transcribed. Exchanges of post-hearing
and reply briefs were completed on November 30, 2001, marking the close of the hearing.
The parties did not agree on a statement of the issues for arbitral determination, but
agree to authorize the Arbitrator to frame the statement of the issues based on the evidence
The Employer proposed that the issues be "[d]id the [Employer] violate the
it terminated the employment of probationary employee R___ E___ on January 4, 2001? If
shall the remedy be?"
The Association proposed that the issues be "[w]as there just cause for the
termination of on January 4, 2001? If not, what shall the remedy be?"
The Arbitrator adopts the Employer's proposed statement of the issues because it is a
issue statement that permits consideration of the full range of arguments presented by both
PORTIONS OF THE
MANAGEMENT RIGHTS RESERVED
The Employer, unless otherwise herein provided, hereby
and reserves unto itself, all
powers, rights, authority, duties and responsibilities conferred upon and vested in it by the
the Constitution of the State of Wisconsin, and of the United States, including, but without
the generality of the foregoing, the right:
1. To the executive management and
administrative control of the District and its
properties and facilities, and the activities of its employees as they relate to their
2. To hire all employees and, subject
to the provisions of law, to determine their
qualifications and the conditions for their continued employment, to relieve from duty
because of lack
of work, to discipline, demote, suspend, non-renew, or dismiss for proper cause, and
. . .
The exercise of the foregoing powers,
rights, authority, duties, and responsibilities by the
Employer, the adoption of policies, rules regulations, and practices in furtherance thereof,
and the use
of judgment and discretion in connection therewith shall be limited only by the specific and
terms of this agreement and Wisconsin Statutes, Section 111.70, and then only to the extent
specific and express terms hereof are in conformance with the Constitution and laws of
and the Constitution and laws of the United States.
. . .
CONDITIONS APPLICABLE TO TEACHING DUTIES
. . .
SECTION P. FAIR DISMISSAL POLICY
1. A teacher hired by the Board shall
serve a three-year probationary period. During this
period, the teacher must be given guidance, assistance, and recommendations for
improvement by the
2. A teacher shall not be dismissed,
non-renewed, suspended or discharged except for
just cause; but this shall not abridge the normal management rights as regards probationary
employees. Such action against any teacher shall follow these specific procedures:
a. Notification in writing to the
teacher of dismissal, including reason for such action.
b. Notification in writing to the
Association President of dismissal of a teacher,
including reason for such action at the time the teacher receives such notification.
c. The teacher shall have the
option of hearing with full benefit or representation and
counsel before the Board within thirty-five days after receipt of notification or in the
initiate a grievance in accordance with the prescribed grievance procedure. If dismissal was
to be unjustified, then full pay and benefits will accrue to teacher during this period.
d. If the teacher and/or the
Association are not satisfied with the Board action that
fair and equitable procedures have been followed or that the decision as to the teacher's
not entirely impartial judgment, the employee and/or the Association shall have the right to
said decision to arbitration in accordance with the prescribed grievance procedure as outlined
agreement beginning immediately at Step Three.
. . .
. . .
SECTION A. DEFINITIONS
1. A grievance is a complaint by an
employee in the bargaining unit, or the Association,
where a policy or practice is considered improper, or unfair; where there has been a
or the misinterpretation or misapplication of a practice or policy; or where there has been a
misinterpretation or misapplication of any provision of any agreement existing between the
. . .
SECTION C. PROCEDURE FOR ADJUSTMENT OF
. . .
. . .
c. Nothing in the foregoing
shall be construed to empower the arbitrator to make any
decision amending, changing, subtracting from, or adding to the provisions of this
PORTIONS OF WISCONSIN
[Wisconsin Fair Employment Act]
. . .
111.321 Prohibited bases of discrimination. Subject to ss. 111.33
to 111.36, no employer . . .
may engage in any act of employment discrimination as specified in s. 111.322 against any
on the basis of . . . conviction record . . . .
111.322 Discriminatory actions prohibited.
Subject to ss. 111.33 to 111.36, it is an act of
employment discrimination to do any of the following:
(1) To . . . terminate from employment . .
. any individual . . . because of any basis enumerated
in s. 111.321.
. . .
111.335 Arrest or conviction record; exceptions and special cases.
(1) . . . (c) Notwithstanding
s. 111.322, it is not employment discrimination because of conviction record to . . .
employment . . . any individual who:
1. Has been convicted of
any felony, misdemeanor or any other offense the
circumstances of which substantially relate to the circumstances of the particular job or
activity; . . . .
. . .
The Employer is a public educational institution providing vocational, technical and
education and training to individuals and businesses in northeast Wisconsin. The Association
represents a bargaining unit of the Employer's certified personnel teaching at least 50% of a
teaching schedule. The Employer and Association have been parties to a series of Master
dating back at least to the 1968-69 school year.
Prior to his termination by the Employer on January 4, 2001, R___ E___ (the
been employed since August of 1999 as a full-time faculty instructor in the Employer's
Specialist program. Throughout his employment by the Employer, the Grievant was an
instructor who generally enjoyed the respect and admiration of both his students and his
Prior to his employment with the Employer, the Grievant was employed from
1997 until August of 1999 as a one-person Information Technology department for a private
employer, M___, Inc. in Denmark, Wisconsin. While working for M___, Inc., the Grievant
a long-standing outside personal business helping individuals and small businesses select,
up and use computers and computer-related equipment.
On January 14, 2000, the Grievant was questioned by a Brown County Sheriff's
investigator, Sgt. Phillips, regarding computers and computer-related equipment purchased on
Inc.'s account and at M___, Inc.'s expense from M___, Inc.'s vendor, but which were either
the Grievant for his personal use or sold to other persons with the Grievant keeping the
not reimbursing M___, Inc. During that interview, the Grievant initially asserted that he had
personally paid for the items involved, but upon further questioning admitted that he had not.
Before consulting an attorney, the Grievant met with his immediate supervisor,
Dean Lori Fisher. The Grievant informed Fisher that he was under criminal investigation for
which he generally described as involving the "resource issues" at his former employer. In
to Fisher's questions, the Grievant assured her that the
investigation did not involve conduct that would present an immediate threat to
(e.g, sex-related or violent crimes.) On the same day he spoke with Fisher, the Grievant
advised co-workers that he was under criminal investigation and that whatever they might
hear that he was being
investigated for they could presume that he had done it.
After conferring with legal counsel, the Grievant cooperated fully with the criminal
investigation. As a part of his cooperation with the investigation, the Grievant submitted to a
of his apartment in early February of 2000. During that search, the investigators found and
numerous pieces of computer equipment belonging to M___, Inc.
On March 17, 2000, Fisher sent the Grievant a memorandum advising him, among
. . . Issuance of your contract for next year is being held pending
resolution of your situation. .
. . Your teaching responsibilities for the Spring 2000 semester will continue unless charges
In the event that charges are filed, the college will need to reexamine your status with its
it could result in suspension or termination. . . . In the event that you become aware of a
the investigation status, you will as previously agreed notify me immediately . . . so that I
contact with HR and the college president if necessary.
On August 15, 2000, the criminal complaint resulting from
investigation was issued. It
charged the Grievant with Class C felony theft of computer equipment owned by M___, Inc.
consent and with intent to deprive the owner permanently of possession of the property. It
the loss to M___, Inc. as a result of the Grievant's thefts at somewhere between $30,000 and
$45,000. The Grievant admitted at the arbitration hearing that the complaint was factually
and that he made approximately 20-25 improper orders for computer items at from M___,
vendor at various times during a one and one-half year period. (Tr. 193).
The Grievant ultimately pleaded no contest to the charges and was convicted on
18, 2000, of one count of felony theft. Sentencing was deferred until a pre-sentence
report was prepared and submitted to the Judge.
After learning from the Grievant and independent sources that the Grievant had been
convicted, Employer management variously conferred and ultimately decided to terminate the
Grievant's employment effective on January 4, 2001. The Grievant was so notified verbally
letter dated January 4, 2001, which letter, from Human Resource Director Sandy
This letter is to confirm our conversation of Thursday, January 4,
As discussed, the college is terminating your probationary
employment effective immediately due
to the recent felony conviction, which we have concluded bears a substantial relationship to
of activity involved with your employment with the College.
Should you have any questions, please
The grievance giving rise to this arbitration was initially filed
January 26, 2001, and it was
denied and appealed at various pre-arbitral steps without a settlement being reached.
Read together, the grievance and appeals basically assert that the termination
discipline without just cause in violation of Agreement Art. IV.P.2. and unlawful
on criminal conviction in violation of the Wisconsin Fair Employment Act, Secs. 111.31-37,
because the conduct for which he was convicted had nothing to do with his responsibilities or
as a faculty member of the Employer; and that the Grievant was accordingly entitled to
with full back pay and benefits.
The denials basically assert that the termination was within the Employer's Art.
"normal management rights as regards probationary employees;" that probationary
not subject to the just cause standard; that the Employer terminated the Grievant's
employment due to a felony conviction; and that the conviction bears a substantial
relationship to the
type of activity involved with the Grievant's employment with the Employer.
On March 1, 2001, the Judge imposed a sentence substantially more severe than that
the District Attorney's office had agreed to recommend. It involved five years in state prison
days in the county jail, both of which were suspended, subject to being reinvoked if Grievant
committed any violation of a three-year probation imposed by the Judge. The Grievant's
also required him to perform the unperformed portion of 200 hours of community service
that he had already paid full restitution to M___, Inc. The Grievant was also ordered to
personal counseling and to obtain budget and financial counseling.
The grievance was ultimately submitted for arbitration as noted above. At the
hearing, the Employer presented testimony by Ryczkowski, by Business and Marketing
Jan Campbell, and by Vice President for Administration Jay Foley. The Association
testimony by Fisher, by two of the Grievant's former students, by the Grievant's faculty
Instructor Larry Huber, and by the Grievant.
Additional background is provided in the summaries of the parties' positions and
POSITIONS OF THE PARTIES
When discharged, the Grievant was a probationary employee. Accordingly, the
language of Art. IV.P. establishes the applicable decisional standard for his discharge, rather
more general proper cause requirement contained in Art. II. Two prior grievance awards
the same parties and the same contract language support the Employer's contention that the
applicable to probationary employees is the arbitrary or capricious standard rather than just
While those cases involved non-renewals rather than discharges, the language of Art. IV.P.
Agreement as a whole draw no distinction between the decisional standards applicable to
types of Employer actions. It is also significant that no grievance was filed in the only
instance in which the Employer discharged a probationary period.
The Arbitrator is not authorized by the Agreement or the parties to interpret or apply
111.321-322, Stats. That is the role of the Equal Rights Division of the Wisconsin
Workforce Development. The Arbitrator's jurisdiction is limited to interpretation and
the Agreement. However, even if the Arbitrator finds it appropriate to apply the external
standards applicable under that statute, the evidence clearly establishes that the discharge was
under the statutory standards, citing various decisions of the Wisconsin Labor and Industry
Commission (LIRC) and courts reviewing LIRC decisions.
Regardless of the applicable standard, the termination did not violate the Agreement
law for the following reasons.
The Grievant's conviction creates an unreasonable risk that the Grievant will steal
time from the Employer. The Grievant was convicted for felony theft of computer
a former employer. The property stolen by the Grievant from his former employer is the
of property that is central to the work he performs as a networking specialist instructor.
while employed by the Employer, the Grievant retained at his apartment computer property
had stolen from his former employer. The Grievant's position as an instructor necessarily
him with keys and access to numerous computer labs and storage areas in which the
computer hardware and software are located. Those labs and storage areas, by their number
nature, have multiple points of access and they need to be left open for students and
come and go at will. By necessity, instructors' access to those areas is largely unsupervised.
Grievant's opportunity for theft at the Employer is therefore far greater than it was at M___,
even though the Employer has revoked Grievant's authority to purchase items on the
The Grievant was convicted for a pattern of crime over a substantial period of time
a single impulsive incident. The thefts were carefully considered and deliberate, not youthful
indiscretions or crimes of passion. The Grievant admitted at the arbitration
hearing that he has no idea why he stole from his former employer, so it appears he
simply for the sake of personal profit rather than to meet a temporary financial need. Thus,
Grievant has a fundamental character flaw that makes him a significant threat to steal again.
The Grievant's behavior since being caught provides no basis for concluding that he
trusted not to steal again. Notably, the Grievant did not turn himself in to the authorities,
and he did
not inform the Employer about his wrongdoing until he was confronted by the Sheriff's
He initially lied to the Sheriff's investigator in an attempt to avoid responsibility for his
Despite his agreement to keep the Employer informed of significant developments, the
the Employer only enough information about his crimes to temporarily preserve his
did not inform the Employer in February, 2000, that he had confessed during his first
the investigator to multiple thefts of computer equipment from his former employer totaling
thousands of dollars in value. As a result, the Employer only became aware that the
confessed late in the year 2000.
Thus, the record demonstrates that the Grievant has the character trait of dishonesty
is substantially related to the circumstances of his position with the Employer. The
Employer has a
justifiable expectation and concern that its faculty need to be above reproach in matters
honesty and integrity and act as role models to students and effective and trusted
businesses and others in the community. The fact that the Grievant was a technically
instructor does not alter the substantial relationship between the Grievant's conviction and his
with the Employer or the existence of non-arbitrary and non-capricious bases for the
termination of his employment.
For all of those reasons, the grievance should be denied in all respects.
The applicable standard in this case is just cause. Articles II.2. and IV.P.2. make
cause" and "just cause" standards generally applicable to all employees, and the Agreement
provides for a different standard for probationary employees. Therefore, the "normal
rights as regards probationary employees" referred to in Art. IV.P. can only refer to the
cause" standard set forth in Art. II.2. as regards all employees without any exception for
employees. To suggest otherwise requires the Arbitrator to go beyond the four corners of
Agreement which would be contrary to the limitations on the role of an arbitrator provided in
VII.C. Step 3.c.
The two grievance awards relied on by the Employer involved non-renewals rather
discharges of probationary employees, and the position taken by the Employer in the earlier
two cases was that a less restrictive standard than just cause applies to probationary employee
non-renewals but not to probationary employee discharges. The only discharge of a
non-probationary employee of record in this relationship was for failure to obtain a
within the period of time required at the time the employee was hired. The fact that no
filed does not establish what standard would have been applicable to that case had it been
Just cause requires that there be a sufficient nexus between off-duty conduct and the
Grievant's job. The Employer has failed to establish the existence of such a nexus. The
which the Grievant was convicted occurred before he was employed by the Employer. The
never stole anything while he was employed by the Employer and he never stole anything
Employer. Ryczkowski admitted that she was aware early in 2000 that the Grievant had
his former employer. Yet, despite that knowledge, the Employer waited many months before
terminated the Grievant. Clearly, then, the Employer was never really worried about the
stealing from the Employer or it would not have allowed him to teach for almost a year after
administration knew about his thefts from M___, Inc. It was only after he was criminally
that the Employer terminated the Grievant's employment. The Employer has not shown that
Grievant's conviction has placed the Employer in an unfavorable light with the public or that
the potential for a negative impact on the Employer's business. There is no evidence of any
significance that the Grievant's conviction has caused the Employer to be viewed in an
light. Administrators' testimony about the potential for a negative impact was mere
was countered by testimony from the Grievant's former students and a former faculty
supportive of the Grievant's continuing effectiveness and value to the Employer
Even if the arbitrary or capricious standard urged by the Employer were applied, the
termination violated the Agreement. That is because the offense for which the Grievant was
convicted was not substantially related to his employment by the Employer. The discharge,
constituted unlawful employment discrimination in violation of Secs. 111.321-322, Stats.
violation of state law violates the second last paragraph of Art. II as well as the arbitrary and
capricious standard indirectly established by Art. IV.P.
The applicable decisional standards under that statute call for a determination of
tendencies and inclinations that the Grievant exhibited in committing the crimes for which he
convicted are likely to reappear in the context of his employment by the Employer. The
be considered include opportunity for criminal behavior, the reaction to responsibility, or the
character traits of the person. The statute is to be liberally construed to effectuate the
purpose of providing employment to those convicted of crimes, without requiring employers
assume the risk of employing individuals whose conviction records demonstrate a propensity
commit similar crimes. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 824 (1987) and
Milwaukee Board of School Directors v. LIRC, 2000 WI App 166 (Ct. App., 6-12-01).
The Grievant's conviction was for purchasing equipment on M___, Inc.'s account and
selling it for personal profit. At M___ , Inc., the Grievant had total control over all aspects
computer systems including purchasing power, and he had the total faith of company
in his trustworthiness. In contrast, as an instructor for the Employer he is not involved in
in any way, and the Employer knows all of the details of what happened at M___, Inc.
The Grievant has accepted responsibility for his criminal conduct at M___, Inc. He
his criminal conduct during his first interview with Sgt. Phillips. He immediately informed
he was the subject of a criminal investigation. In his conversations with Fisher and his
colleagues, he never denied his guilt or sought to avoid responsibility for his criminal acts.
record shows that he has not sought to minimize or justify his criminal conduct and that he
engaged in significant soul-searching since his arrest. The Grievant's criminal conduct was
pattern or lifestyle that the Grievant engaged in. He has experienced the harsh reality of the
justice system as a first time offender, and the record gives no indication that he will be a
Regarding the Grievant's character, the Grievant has expressed remorse, undergone
counseling, apologized to affected victims, accepted responsibility for his wrongdoing and
significant price for the major mistake he made in stealing from M___, Inc. He took steps to
sure the Employer did not have reason to suspect him of similar conduct, including asking
make sure he did not have any computer purchasing authority for the Employer. He paid
most of his
restitution before he entered his guilty plea, and he began his community service before
sentenced, as well. He was sternly lectured by the Judge during his March 1, 2001
threatened with lengthy incarceration if he violated his probation in any way. Being on
subject to that threat, the Grievant is in no way a serious risk to the security of the property
Employer or its staff and students. At no time did the Grievant ever lie to, cheat or steal
Employer. He was a highly regarded instructor who had the respect and confidence of his
and his supervisors never had any complaints about either his teaching or his classroom
Association's witnesses included a sampling of students and faculty who support his return to
classroom despite their knowledge of his criminal record. No witness testified with any
that the Grievant would not have suffered any loss of effectiveness in the classroom if he had
permitted to teach subsequent to his conviction in December of 2000. The Employer's
spoke only in vague generalities about the intangible aspects that it was concerned about if
Grievant were allowed to continue to teach. Those vague generalities are insufficient to meet
requirements of Sec. 111.335.
As long as the risk to the Employer of the Grievant committing a similar crime is not
"unreasonable," the statute requires that the societal value of rehabilitation should prevail
societal fear of recidivism. The conclusion that the Grievant's conviction is not substantially
to his job is supported by the LIRC and Court of Appeals decisions involved in Milwaukee
of School Directors v. LIRC, above, in which it was held
that a conviction for injury by conduct regardless of life that seriously burned a
20-month old child
was not substantially related to a public school boiler attendant trainee job for which
rejected because of his conviction.
For all of those reasons, the Arbitrator should sustain the grievance and order the
reinstated with full back pay and benefits.
The resolution of the first of the ISSUES framed above requires a determination of
appropriate arbitral standard for review of probationary employee discharges.
As its title indicates, Art. IV.P. specifically addresses the subject of "Fair Dismissal
It defines the length and general nature of probationary period in paragraph 1. In the first
of paragraph 2, it provides that "[a] teacher shall not be dismissed, non-renewed, suspended
discharged except for just cause," but it goes on to state, "but this shall not abridge the
management rights as regards probationary employees."
The latter clause must mean that the parties mutually understand that "the normal
rights" reserved to the Employer "as regards probationary employees" are not subject to the
cause standard as regards some or all of the Employer actions listed in that sentence.
clause would be rendered meaningless. Furthermore, because "just cause" and the term
cause" as it appears in Art. II.2. are conventionally understood as equivalent standards, the
management rights as regards probationary employees" clause in IV.P.2. would also be
meaningless if it were interpreted to make the "proper cause" standard in Art. II.2 applicable
of the Employer actions listed in the first sentence of IV.P.2.
The two prior awards cited by the parties were unpublished awards issued by
Peter Davis and Stephen Schoenfeld on September 1, 1976, and November 3, 1980,
under the same contract language as is contained in the Agreement. In each of those cases,
arbitrator held that the just cause standard does not apply in cases of non-renewals of
employees. In the 1976 award, the arbitrator concluded that "the 'normal management right'
applicable to probationary employes is the Employer's ability to determine, for reasons which
constitute cause for the non-renewal of a non-probationary teacher, that it simply does not
risk maintaining the employment relationship with an individual probationary employe." In
award, the arbitrator concluded that "he may not reverse the decision of the District Board to
non-renew [a probationary employee] unless he finds that there is absolutely no legitimate
basis in fact
upon which the District could have based its decision."
However, those awards are not dispositive as to the instant case because the Grievant
dismissed during a school year rather than non-renewed in advance of the following school
Regarding that distinction, in the 1976 award, the arbitrator summarized the Employer's
The Employer contends that "decisions of the U.S. Supreme
Court" indicate that it need not have
cause for non-renewal, as opposed to discharge, of probationary employes. It asserts that it
contractually assumed that responsibility in light of the "management rights" disclaimer
[what is now Art. IV.P.2.]. It thus urges that the grievance be dismissed.
In his discussion, the arbitrator went on to state the following:
. . . the Arbitrator must conclude that the Employer need not
have cause to non-renew a
The Union has urged that such a
conclusion is inconsistent with the employer's admission that
it must have cause to discharge a probationary employe. It contends that if the
content of the "normal
management rights" clause is not applicable to discharge, then it should not apply to
However it must be noted that discharge, as opposed to nonrenewal, severs an existing
contractual relationship between the Employer and the employe and that this break is not
accompanied by a protective statutory mantel of notice and due process. Section 111.22,
Thus a collective bargaining agreement could reasonably distinguish between these two
provide greater protection to probationary employes subject to the harsher impact of
(Emphasis in original.)
The portions of the 1976 award quoted above are also not dispositive as to the issue
case concerning the applicability of the just cause standard to probationary employees under
Agreement for several reasons. First, because, unlike the instant case, the issue before the
in 1976 was a non-renewal rather than a discharge. Second, because the arbitrator observed
collective bargaining agreement could" distinguish between discharge and non-renewal, but
not decide that the parties agreement before him in fact did make that distinction. Third,
award does not identify the "decisions of the U.S. Supreme Court" referred to in the
summary of the
Employer position. Fourth, because the arbitrator's mode of reference to those decisions
that he was not provided with citations to the decisions to which the Employer's arguments
Fifth, because the arbitrator does not appear to have determined whether there are "decisions
U.S. Supreme Court" that indicate that the Employer must have cause to discharge a
employee. And finally, because there is no showing in the instant record that the
relied to its detriment on the position attributed to the Employer in the 1976 award regarding
existence of decisions of the U.S. Supreme Court that indicate that the employer must have
discharge a probationary employee.
The Association has not identified any U.S. Supreme Court decision or any other
arbitral authority that indicates that an employer normally must have cause to discharge a
probationary employee. On the contrary, the conventional meaning of a probationary period
the employee is subject to discharge without the protections of a cause or just cause standard.
regard, the comments of the arbitrators in the 1976 and 1980 awards concerning the concept
"probation" are, in the Arbitrator's opinion, persuasive as regards discharges of probationary
employees, as well as non-renewal of such employees. In the 1976 award, the arbitrator
The concept of "probation" in the context of an
employer-employe relationship denotes the
testing and evaluation of the employe by the Employer. The parties in the instant matter
embraced this common usage of the concept as evidenced by the contractual directive that
probationary teachers be given "guidance, assistance, and recommendations for
the probationary period. A second part of the general concept of probation which flows from
emphasis on evaluation is the premise that an employe's status is less secure during the
period or in essence until the period of evaluation ends. Given these two interrelated
"normal management right" applicable to probationary employes is the Employer's ability to
determine, for reasons which may not constitute "cause" for the non-renewal of a
teacher, that it simply does not want to risk maintaining the employment relationship with an
individual probationary employe. The undersigned can find no contractual basis for
the parties have not adopted this common manifestation of probationary status, especially in
the phrase "normal management rights as regards probationary employees." Indeed the
applied concept of probation would be gutted if an employe, though subject to evaluation,
immediately attained the same protected status of his colleagues who have successfully
the probationary period.
In the 1980 award, the arbitrator observed,
"Probation" and "probationary" have established meanings.
"Probation" is defined as an "art
of testing or probing; experimentation; any proceeding designed to ascertain truth, determine
character, qualification, etc; . . . trial or a period of trial." Webster's International
Dictionary, 2nd Ed.,
P. 1971. In the field of employment relations the same meaning is normally given to the
for example, Joy Mfg. Co., 6 LA 430. Probationary employes are on trial
and occupy a different status from employes who have completed
employes undergo a period of testing in order that the Employer may determine whether or
are suitable and fit for the position which they occupy as a probationary employe. Probation
than just a word. It connotes a "tryout" phase.
In fact, for a probationary employe to be
dropped is hardly a discharge in the ordinary sense and
ought not to be a stigma of that character of the probationer. He simply did not "take" as an
. . .
Pullman-Standard, 40 LA 757,
For those reasons, the Arbitrator concludes that the just cause
and proper cause standards for
discharge (i.e., dismissal) set forth in Arts. IV.P.2. and II.2. are not applicable to the
Grievant in this
case because he was terminated during his three-year probationary period. (The fact that no
grievance was filed on the one occasion when the Employer previously discharged a
employee has been given no weight in reaching that conclusion. There are many possible
no grievance was filed in that case besides speculation that the Association recognized that
would not be applicable in the case.)
Both parties take the position that, if the just cause standard does not apply to
employee discharges under the Agreement, then a less restrictive arbitrary and capricious
is applicable. Consistent with the parties' agreement in that regard and the conclusion above
cause does not apply to discharges of probationary employees, it is the arbitrary and
standard that will be applied in this case.
However, a remaining question concerning the applicable decisional standards in this
relates to the relevance of the Association's claim that the discharge violates external law,
Secs. 111.321-322 of the Wisconsin Statutes.
Article VII.C. Step 3.c., expressly prohibits the Arbitrator from "amending,
subtracting from, or adding to the provisions of this agreement." Accordingly, an
application of external law would not be an appropriate function of the Arbitrator unless it is
necessary to resolve the meaning and application of a provision of the Agreement.
In its arguments at hearing and in its post-hearing arguments, the Association
Art. IV.P. and the second last paragraph of Art. II as Agreement provisions that require
actions to conform with federal and state law. (Tr. 23-24 and Association reply brief at 9).
IV.P. makes no express reference to external law that would support such a conclusion. The
Arbitrator also finds no merit in the Association's contention that the second last paragraph
II incorporates federal and state laws as general limitations on the rights
otherwise reserved to the Employer by Art. II. That paragraph makes external law a
the extent to which specific and express terms of the Agreement limit the Employer's rights.
not make external law a limitation on the Employer's rights themselves.
The same conclusion cannot so easily be reached regarding another provision of Art.
however. Article II.2., enumerates Employer rights including the right to "dismiss . . .
It is at least arguable that the phrase "subject to the provisions of law" earlier in the same
is a limitation on the Employer's right to dismiss employees. However, neither of the parties
presented evidence or arguments concerning whether that phrase provides a proper basis
Agreement for an arbitrator to decide whether a dismissal by the Employer violates external
is therefore preferable for the Arbitrator not to definitively resolve that question in this case
it is necessary to do so in order to resolve the issues presented in this case.
It not necessary for the Arbitrator to decide that question because, for reasons the
below, the Arbitrator concludes that even if Art. II.2. empowers the Arbitrator to interpret
the external law relied upon by the Association in this case, the record does not support the
Association's claim that the Employer's termination of the Grievant violated external law.
More specifically, the Arbitrator concludes that the Grievant's criminal conviction
"substantially related" to his employment with the Employer within the meaning of
Sec. 111.335(1)(c), Stats.
Under the applicable criteria outlined in the cases cited by the Association, the
continued employment as a network specialist program instructor with the Employer presents
unreasonable risk that he will steal computer equipment or related equipment from the
As a network specialist program instructor, the Grievant has keys to and essentially
access to a wide variety of valuable computer and computer-related equipment of the
Grievant's conviction involved the theft of just such equipment from his former employer.
engaged in that conduct for personal gain on 20-25 occasions over a period of a year and
and he thereby manifested a propensity to steal computers and computer-related equipment
employer for personal use or personal gain. For those reasons, the Grievant's situation
others cited by the Employer in which LIRC has found criminal convictions substantially
employees' jobs so as render lawful the refusal to hire or the discharge of the employees on
of their criminal convictions. See, Santos v. Whitehead Specialties, Inc., ERD Case No.
8802471 (LIRC, 2-26-92) (felony burglary conviction held substantially related to truck
in which employee would be solely responsible for transporting valuable merchandise and
to distant locations); and Mullikin v. Wal-Mart Stores, ERD Case No. 8901365 (LIRC,
8-27-92) (welfare fraud conviction held substantially related to the circumstances of
employee's job duties
which gave him access to cash registers and included maintaining inventory, stocking
watching for shoplifters, and recording price markdowns on merchandise, in a setting in
constant supervisory observation of personnel was impossible).
The Association's assertion that Milwaukee Board of School Directors v. LIRC,
supports a different conclusion is unpersuasive. In that case, the Court of Appeals upheld
conclusion that a conviction for injury by conduct regardless of life was not substantially
his application for employment as a public school boiler attendant. The conviction arose
circumstances in which the complainant threw a pan of hot grease at his girlfriend during an
argument, resulting in severe burn injuries to the girlfriend's 20-month old daughter. LIRC
Court of Appeals reasoned that the job the complainant was applying for would only bring
sporadic contact with children and that this was not a sufficient circumstance to foster
conduct on the complainant's part. In contrast to the sporadic contact with children
the boiler attendant trainee job in that case, the Grievant's job with the Employer gives him
wide-ranging opportunities to commit theft of the same type of equipment that he was
stealing from his former employer.
For the foregoing reasons, the Arbitrator concludes that -- assuming without deciding
Art. II.2. empowers an arbitrator to determine whether an employer's dismissal violates
-- the Employer's termination of the Grievant's employment did not violate
Secs. 111.321-322, Stats.
For the same reasons, the Arbitrator concludes that the termination was not arbitrary
capricious, and that it did not violate the Agreement.
DECISION AND AWARD
For the foregoing reasons and based on the record as a whole, it is the decision and
the Arbitrator on the ISSUES noted above that:
1. The Employer did not violate the Agreement when it
terminated the employment of
probationary employee R___ E___ on January 4, 2001.
2. Accordingly, the subject grievance
is denied, such that no consideration of a remedy
is necessary or appropriate.
Dated at Shorewood, Wisconsin, this 27th day
of February, 2002.
Marshall L. Gratz, Arbitrator