BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 1667, AFSCME, AFL-CIO
Mr. Daniel R. Pfeifer, Staff Representative, Wisconsin Council
40, AFL-CIO, appearing on behalf of the Union.
Mr. Mark B. Hazelbaker, Attorney at Law, appearing on behalf
of the County.
The Union and County named above are parties to a 2000-2002 collective bargaining
agreement that provides for final and binding arbitration of certain disputes. The parties
the Wisconsin Employment Relations Commission to appoint the undersigned arbitrator to
decide the termination of David Aberg. The undersigned was appointed and held a hearing
January 10, 2002, in Viroqua, Wisconsin, at which time the parties were given the
present their evidence and arguments. The parties completed filing briefs by July 22, 2002.
The parties ask:
Did the Employer, Vernon County, have just cause to
David Aberg on March 14,
2001, on the ground of excessive absenteeism and tardiness? If not, what is the appropriate
The County operates a licensed nursing home called Vernon Manor. The Grievant,
Aberg, was employed at the Manor from February 10, 1987, to March 15, 2001, when he
discharged. The Grievant worked in both the nursing and activity departments during his
employment. He started as a nursing assistant on the night shift, then went to the day shift,
activity, then back as a nursing assistant. The collective bargaining agreement contains a just
standard for discipline and discharge, and the parties agree that the grievance over the
timely and no procedural issues exist.
Nancy Witthoft has been the Administrator of Vernon Manor for the last three and a
years. She testified that the facility had posted a notice stating that any employee calling in
having earned sick days will be considered to be on an unauthorized leave and subject to
action, unless he or she has been treated by a physician who states that the employee is
work. The notice was posted in the employee break room from April of 1998 to around the
beginning of 1999.
The collective bargaining agreement provides in Section 5.10 that:
Employees are expected to be at work on time. If an employee is
five or more minutes late, the employee
shall forfeit actual time tardy. Repeated tardiness may result in appropriate discipline.
The Grievant's disciplinary record, for the purposes of this Award, starts in the year
1999. On April
15, 1999, the Director of the Activity Department counseled the Grievant about three tardy
She made a note that the Grievant understood the policy. Late in 1999, the Grievant was
tardy four times,
absent twice when he had no sick leave earned, and took sick leave on four occasions when
it extended his
Full-time employees earn one day of sick leave per month and may accumulate up to
96 days of sick
leave. Witthoft stated that there were no disciplinary measures given for the Grievant's use
of earned sick
leave. All disciplinary measures in this Award deal with absenteeism when sick leave has
been exhausted and
there is no sick leave to cover an absence. Such absences subject employees to discipline.
The Grievant was given a performance appraisal on February 25, 2000, for the prior
year by Merna
Fremstad, the Director of Nursing. She noted that the Grievant's attendance needed
improvement, that he
had 30 hours of unauthorized absence since July of 1999 and 14 hours since January of 2000.
show that she considered this a verbal warning. The appraisal form also noted that the
Grievant needed major
improvement in attendance. In other areas, the Grievant met standards and Witthoft stated
that he was a
good nursing assistant. At the end of 1999, the Grievant was on light duty. He had been
While on light duty, the Grievant could work different hours and he was not charged
with tardiness during
that period of time. The Grievant testified that his back injury and other medical problems
for him and resulted in some absences. While on light duty, the Grievant brought doctors'
slips in for
absences and therapy.
The Grievant's attendance record continued to get worse in the year 2000. He was
tardy a total of
68 times. He was absent without earned sick leave on 16 occasions. On 9 occasions, he
took earned sick
leave that extended a weekend off or a vacation. The Grievant was disciplined again on
August 3, 2000,
when Fremstad gave him a written warning, noting that he had 32 hours of absent time since
he was given
a verbal warning on February 25, 2000.
On December 21, 2000, the Grievant was given a three-day in-house suspension with
issued the suspension. She noted that he had missed 115 hours, that his pattern of missed
days had not
decreased after two previous warnings, and that his tardiness was out of control.
During the first three months of 2001, the Grievant was tardy five times, absent three
times, and took
sick leave twice before his weekend off. On March 15, 2001, he was discharged. Fremstad
termination notice and made the following notes:
On 2-22-01, David received his annual evaluation & was
counseled on cont'd problems with his
absenteeism. He has received verbal, written & a 3 day in-house suspension previously
problems. Since receiving his evaluation, he has been absent 3 times. Once, to obtain
necessary to retain certification (prior auth. received from management.) A sick day was
taken on 3/2 & on
3/12 he called just to say he would not be in. The 3rd day was on a Mon.
following his weekend off. On 3/13
he had taken a vac. day, & 3/14 was his day off. It was made very clear to him during
evaluation that time
off with no time to cover would not be tolerated. Therefore, today on 3/15/01, we have
elected to terminate
Witthoft made the decision to discharge the Grievant based
on her discussion with his supervisor
and looking at his record. The notice of discharge called an employee violation
report was filled
out and signed by Fremstad on March 15, 2001. A Union representative, Fremstad, Witthoft
Grievant were in attendance at the termination hearing. Witthoft testified that the termination
on the form was checked off during this meeting, while the Grievant testified that the
already checked before hand. The Grievant asked for another chance but it was denied.
The Grievant's father died at the end of December of 2000. He took three days for
funeral, and five absent days also in December after the funeral leave. The Grievant did not
permission for the absent days following the funeral leave. Witthoft called him to see if he
planned on returning to work, and he said he needed to be home. Shortly after that,
asked for a family medical leave due to the death of his father, and he told Witthoft that he
off to take care of his mother. He told Witthoft that he had emotional problems, that he
he could do his job, and that his mother needed care at home.
The Grievant testified that before his father died, around December 7, 2000, his
quite ill and both parents were in the emergency room at a hospital. When his father was
to the hospital, he took his mother to his own home and cared for her. The Grievant's father
December 9, 2000. His mother was having trouble taking care of herself, and she stayed
for about six weeks. The Grievant's wife returned to work, and the Grievant cared for his
during that time.
Shortly after the funeral of his father, the Grievant gave a family medical leave form
doctor who failed to fill it out, although he was told by a secretary that it would be sent to
Witthoft received a form from the Grievant for family medical leave, but told him that he
had not read
the instructions. She told him that the leave could not be approved the way it was written.
mother's physician had filled out the portion of the form, he probably would have qualified
family medical leave. When the Grievant offered to take the form back to the doctor to have
filled out correctly, Witthoft told him that she would not accept it. While the contract in
allows for a leave of absence of personal reasons, the Grievant did not apply for such a
The Grievant did not recall why he was absent in the first part of 2001 before his
One of his absences was to attend court.
The Grievant did not file any grievances on the prior disciplinary steps. The first
he filed was over his termination. The Grievant did not attach any information to his
appraisal. Witthoft stated that she has consistently disciplined other employees who have
and absentee problems. The Grievant's tardiness and attendance problems affected other
THE PARTIES' POSITIONS
The County asserts that the employee cannot challenge disciplinary history where he
to file grievances for previous disciplinary measures. The Union appeared to challenge the
Employer's imposition of a written warning in the context of a performance evaluation and
imposition of a three-day "in-house" suspension. However, neither the Union nor the
a grievance contesting any of the first four disciplinary actions taken against the Grievant.
those actions are beyond contest in this proceeding.
Moreover, the Union's complaint about imposing a written reprimand in the context
performance evaluation exalts form over substance. The three-day suspension was imposed
maintain patient care. It would have been irrational to punish an employee with an
problem by requiring him not to show up. The contract does not contain any specific
proceedings, only that the Employer is required to act on the basis of just cause. The
that it alerted the employee to a serious performance issue and progressed to high
sanctions as the behavior continued. The Employer tried to accommodate an employee who
regard for the consequences of his attendance, patient care and the welfare of fellow
The Employer argues that the Grievant's failure to report to work despite having
sick leave amounts to a constructive resignation. Unless an employee has sick leave or some
approved leave, an employee is expected and required to be present for work every day.
Grievant exhausted all sick leave but continued to fail to report for work and continued to
work on time when he did show up. By failing to show up for work, the Grievant quit or
constructively resigned his position.
This is not even a close case, the Employer asserts. The Grievant was absent on
or Fridays and absent without paid leave dozens of times, despite efforts to accommodate
failed to reciprocate with any kind of responsibility. Attendance is an essential element of
performance, and it is critical in nursing homes. Given the fact that nursing homes have
staffed, everybody needs to be there every day. Woody Allen said that 90 percent of life is
showing up. The Grievant can't handle that 90 percent.
The Union objects to the "due process" given the Grievant. It argues that the notice
termination was already drafted and the County had made up its mind when the Grievant was
to the office to receive the termination notice. The Administrator did not discuss the matter
Grievant before the March 15, 2001 meeting, but she testified she could have decided not to
the termination notice during that meeting. However, Union President Judy Clark testified
Witthoft called her to be present at the meeting because the County was going to terminate
Grievant. The Grievant did not have appropriate due process because he was not given the
opportunity to give his side of the story prior to the County's decision to terminate him.
The Union also questions the factual basis of this case. Witthoft testified that
had accumulated sick leave to cover an illness were not subject to discipline, but Fremstad
the Grievant had been absent three times since receiving his evaluation on February 22,
2001. He was
sick on March 2nd, and should not have been subject to discipline. He was
absent on March 12th
so the Union only finds him absent on one occasion since his last evaluation.
While the Grievant has instances of absenteeism and tardiness, there were extenuating
circumstances. He suffered back injuries in 1997 and 1999 and was on Worker's
Both of his parents became ill in December of 2000 and went into the emergency room. The
Grievant's mother was released but his father was hospitalized and died in December. The
was on funeral leave December 11, 12, and 13, and then was absent on the 14, 16, 17, 18,
the days immediately following the funeral. The Grievant testified that he was taking care of
mother and he kept the Employer informed of the issues with his mother and father.
When the Grievant asked for a Family Medical Leave and submitted the form for it,
unfortunately listed the death of his father as the reason for the request rather than providing
his mother. Witthoft denied the leave and did nothing to help the Grievant secure FML.
have assisted him by telling him to resubmit the form with a check mark by the section for
health conditions affecting parents. Progressive discipline is supposed to be corrective in
not punitive. The termination of the Grievant punished him in part for the absences he
the care of his mother and the emotional distress he suffered at the loss of his father.
Finally, the Union believes that the County missed a step relative to a corrective
disciplinary procedure. The Grievant was given a three-day in-house suspension in
2000, which meant he worked without a loss of pay. The Union questions whether this is an
appropriate form of discipline. The Grievant did not receive any unpaid suspension between
his in-house suspension and termination, and that's the step that the County missed.
There is little doubt that the Grievant's attendance record in this case had become
And there is little doubt that the Grievant was given progressive discipline in order to have a
to correct his record. However, despite being counseled, verbally warned, warned in writing
suspended, the Grievant continued to be absent and tardy and use sick leave in conjunction
The record shows that in 1999, the Grievant was counseled after being tardy 3 times
continued to be tardy and absent. The year 2000 was terrible the Grievant was tardy
68 times and
absent without available sick leave 16 times. He also took sick leave that extended his
times. Despite a verbal and written warning, the record continued to show repeated tardiness
absences. Of the 16 absences in 2000, only 5 of them occurred after the death of the
father in December.
And this pattern continued into 2001, despite a suspension and warnings. By the time
Grievant was terminated in March of 2001, he had already accumulated three absences, five
days and took sick leave twice that extended a weekend.
The whole point of progressive discipline is to give an employee a chance to
himself, to correct his behavior, change his ways. The Grievant showed no signs whatsoever
correcting his tardiness and absenteeism or use of sick leave that extended weekends. He
to ignore counseling, warnings, and even a suspension. While the Union believes that the
missed a progressive disciplinary step by not giving the Grievant an unpaid suspension and
during an in-house working suspension, the Employer correctly points out that the Union
grieved prior disciplinary steps and they should not be reopened now.
The Union also objects to the way the termination notice was handled and believes
Employer made up its mind before hearing the Grievant's side of the story. The Employer
to the Grievant, even waited for him to give it some indication that things would change.
Employer could have discarded the termination notice had it heard anything that was of
Whether the termination notice was already checked when the Grievant was interviewed or
during or at the end of the interview is not all that relevant. The Grievant did nothing to
help his own
cause at any time in the disciplinary process. He had ample time to explain his lack of
as well as ample time to correct it.
It is, of course, unfortunate that during this period of time when the Grievant's
and tardiness record was going rapidly downhill, he also had significant family problems.
his record before his father's hospitalization and death and his mother's illness was the real
If the Grievant's record had been acceptable up to that point, certainly the Employer would
given the Grievant more leeway. But the Grievant has no explanation for all the absences
tardiness up to December of 2000. Even if the Grievant had properly applied for a Family
Medical Leave, he still had no answer to the terrible record he created before that time.
In conclusion, I find that the Employer had just cause to terminate the Grievant due
Grievant's excessive absenteeism and tardiness.
The grievance is denied.
Dated at Elkhorn, Wisconsin, this 2nd day of August, 2002.
Karen J. Mawhinney, Arbitrator