BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
EXTENDICARE d/b/a THE WILLOWS OF SUN
SERVICE EMPLOYEES INTERNATIONAL UNION
(SEIU) LOCAL 150
For Extendicare d/b/a The Willows of Sun Prairie: Attorney
David W. Miller, Baker & Daniels,
Suite 2700, 300 Meridan Street, Indianapolis, IN 46204; C. William
Isaacson, Senior Labor Counsel
for Extendicare, 111 E. Michigan Ave., Milwaukee, WI 53201.
For SEIU Local 150: Attorney Marianne Goldstein Robbins,
Previant, Goldberg, Uelman, Gratz,
Miller and Brueggeman, S.C., 1555 North Rivercenter Drive, Suite 202,
P.O. Box 12993,
Milwaukee, WI 53212; Alex Rysavy, 8021 W. Tower Avenue,
Milwaukee, WI 53223.
Extendicare d/b/a The Willows of Sun Prairie (hereinafter referred to as Employer)
Service Employees International Union (SEIU) Local 150 (hereinafter referred to as Union)
parties to a collective bargaining agreement covering the period from January 1, 2000 to
31, 2002. The parties are currently negotiating terms and conditions to be included in a
collective bargaining agreement, but have mutually agreed to extend the aforesaid collective
bargaining agreement that would have otherwise terminated on December 31, 2002 for
period pending their negotiations for a successor agreement. Such indefinite extension covers
dates germane to this proceeding. The parties' agreement provides for binding arbitration of
grievances as therein defined that may arise between the parties. On February 28, 2003, the
filed a request with the Wisconsin Employment Relations Commission for a WERC
or member of its staff to serve as the sole arbitrator of a grievance that has arisen between
Commissioner A. Henry Hempe was appointed by said Commission to hear and decide
A hearing was conducted on May 6, 2003 in Madison, Wisconsin. No transcript of the
was prepared. Each party filed a brief postmarked May 23, 2003. Each was received by the
Arbitrator on May 27, 2003. By agreement of the parties, neither filed a reply brief.
STATEMENT OF THE ISSUE
The parties stipulated to the following statement of the issue:
Did the Employer discharge the grievant, Kay Coy, without just cause?
If so, what is the appropriate remedy?
FACTS OF THE CASE
The Employer is a corporation that operates eight skilled nursing homes, one of
which is a
55-bed facility located in Sun Prairie, Wisconsin, known as "The Willows." The Willows
The grievant, Kay Coyle, had been employed by the Employer at the Sun Prairie
facility in its
Food Service department as an A.M. cook 1/ for 7 ½ years until she was discharged in
Until October 2002, Ms. Coy had never been disciplined by the Employer. In 1999, Ms.
played an active role in the Union's campaign to organize certain service and maintenance
a role that included writing a column in the Union's newsletter under the nom de
plume of Norma
Kay and distributing authorization cards to facility employees. (The literary alias was
penetrated by the Employer.) After the Union won exclusive representation rights for the
bargaining unit, Ms. Coy became a member of the Union negotiating team, and continues to
as a Union negotiator while the parties currently bargain for a successor labor agreement.
1/ Ms. Coy's daily hours of employment
were 5:30 a.m. to 2:00 p.m.
Ms. Coy's only written employee performance evaluation is dated August 23, 2001
reflects, on balance, an above-average rating. Ms. Coy was not assessed at a level less than
accepted level of performance" in any category. 2/
2/ The evaluation was made by Ms. Coy's
supervisor, Virginia Schuh, then Food Service Manager. She rated
Ms. Coy in 10 separate categories. In the categories designated as Attendance,
and Job Knowledge/Employment Documents, Ms.
Coy was found to be "At Accepted Level of Performance."
In the categories designated as Punctuality, Safety Consciousness, Respect for Other's Rights
Quality of Work, and Quantity of Work, Ms. Coy was rated as being "Above Accepted
Level of Performance."
In the category designated as Grooming, Ms. Coy scored the maximum number of
points allowed. Comments in the evaluation included the
following observations: "(g)ood personal hygiene,
always neat;" "(r)esponds well to direction and supervision;" "(h)as very good work
performance knows her
job, needs no supervision;" "very good worker needs to ask for additional duty."
The evaluator further noted
that Ms. Coy's "(a)ttendance at all staff in-service [meetings] needs to be improved," and
listed her strengths
as "cooking, working with others except 1 staff member, good to resident[s], team
player." Finally, the
evaluator suggested that "(g)etting along with M.B." should be a goal and objective for the
next rating period.
However, the Employer describes a sequence of four incidents arising in the last
2002 and early 2003 in support of its discharge, asserting that they provide assistance in
grievant's motivation. The Employer also introduced evidence of two attendance deficiencies
occurred between the second and third instances, for which the grievant received
1st and 2nd warning
First Incident October 9, 2002
The first incident cited by the Employer occurred in early October, 2002. This was
month that Beth Pahmeier embarked on her duties as Food Service Manager on a full-time
The Willows of Sun Prairie. 3/ As Food Service Manager, Ms. Pahmeier was in charge of
the day-to-day food service operations at the Willows. Her responsibilities included
supervision of the grievant
and eight other Food Service Department employees.
3/ Ms. Pahmeier has a
4-year college degree in dietetics. Prior to becoming Food Service Manager she had
split her time as a dietician for both The Willows and another facility operated by
Extendicare. Her title was
Nutritional Services Manager.
On October 9, 2002, Ms. Coy came to work at 5:30 a.m. clad in work
a T-shirt decorated with an SEIU logo. Wearing a T-shirt that featured a union (or other
name logos), according to Ms. Coy, was not unusual for her or other employees. In late
however, Food Service Manager Pahmeier, in her supervisory capacity, directed Ms. Coy to
T-shirt inside out, replace it with another T-shirt, or go home and put on a different shirt,
In response to Ms. Coy's inquiry as to why she had to change her T-shirt,
advised her that the T-shirt was inappropriate. In response to Ms. Coy's protest that she had
the same T-shirt to work (as well as other T-shirts with other wording (e.g., Green Bay
other occasions without incident, Ms. Pahmeier merely advised Ms. Coy that the
T-shirt violated the
Ms. Coy refused to turn the T-shirt inside out or change into a different one at the
premises. She knew that other employees had worn T-shirts with wording other than brand
permitted by the dress code, and believed she was the only employee against whom the
restriction had ever been enforced. The grievant understood her supervisor's alternatives as
her to change her T-shirt, turn it inside out or leave the premises. Although Ms. Pahmeier
subsequently asked Ms. Coy to stay at work, she also insisted that Ms. Coy comply
with her directive
to change her-T-shirt or turn it inside out. Instead, Ms. Coy punched out, and left the
approximately 11:00 a.m. Her decision to leave the work premises had the practical
costing her 3 hours of pay.
Ms. Pahmeier acknowledged that her attention had been directed to Ms. Coy's SEIU
by a Pat Leech, apparently a regional management-level employee of the Extendicare
Ms. Pahmeier understood Ms. Leech's point to be that the T-shirt being worn by Ms. Coy
violation of work rules contained in the Employees' Handbook, thus constituting a violation
The incident was written up on a "Disciplinary Action Report" as a Class II
According to the Employee Handbook, a Class II offense is a middle-level violation, falling
a Class I offense (relatively minor) and a Class III offense (serious). As to disciplinary
taken, the report indicated that the report constituted "final notice." Although Ms. Coy had
lost 3-hours of pay by leaving the work site, the box on the Disciplinary Action Report
"suspension without pay" and the amount of time the employee was suspended was not
Ms. Coy claims she was unsure whether she was being written up for wearing a
a union (SEIU) logo or leaving the premises. The Disciplinary Action Report cites "being
duty station without authorization" as the work rule or policy that was violated. In the
entitled "Describe what happened," Ms. Pahmeier included a statement that Ms. Coy had
directed to change out of a T-shirt that violated the Dress Code.
Ms. Coy refused to sign a copy of the discipline because she believed she was the
employee to have ever been disciplined for a T-shirt logo violation. The Union filed a
Ms. Coy's behalf. The grievance reached the Step 2 level (facilitator administrator or
representative) that is provided in the parties' collective bargaining agreement. The then
administrator, William Steele, restored to Ms. Coy the 3-hours of pay she had lost by
work site on October 9. 4/ The written settlement of the grievance is silent as to whether the
discipline would remain in Ms. Coy's personnel file.
4/ The Union understood
the resolution of the grievance to include the additional remedy of the Employer
withdrawing the "first notice" discipline. The Employer maintains that it agreed only to
restore 3 hours of pay to
Ms. Coy. Resolution of this disagreement is not before me.
As it turned out, Ms. Pahmeier's understanding that the T-shirt being worn by Ms.
violated corporate policy set forth in the Employee Handbook was incorrect.
The only Dress Code
in effect at the time had been conceived by the former administrator of the facility, William
and promulgated by him in a 1-page memo to facility employees. It banned, inter
alia, ". . . T-shirts,
shirts, or sweatshirts with wording other than brand name." It was effective on 9/1/01 and
only to the Willows of Sun Prairie. On 11/7/01, Ms. Coy had acknowledged receiving a
copy of the
The Employer offered no evidence to refute the Union's claim that wearing T-shirts
than brand name logos was commonplace for employees at The Willows in Sun Prairie
or that Ms.
Coy was the only employee at The Willows of Sun Prairie to have been disciplined for a
violation of the Dress Code. Ms. Pahmeier indicated that she was unaware of any employee
than Ms. Coy that had ever been asked to change a T-shirt. Sometime following the T-shirt
involving Ms. Coy, the T-shirt restriction that she had purportedly violated was rescinded.
Second Incident November 6, 2002
On November 6, 2002, at a scheduled "in-service" session with food service
Service Supervisor Pahmeier distributed to the employees a list of what were described as ".
. . issues
that need to be worked on and resolved immediately." Some 15 issues were listed, each
by a "bullet-point." At the bottom of the page were two blank spaces, one designated for a
(acknowledging receipt of the sheet), the other for the date. Ms. Coy did not sign the sheet
received, leaving hers on the table in front of her when the meeting ended. After the
left the area, Supervisor Pahmeier noticed that the sheet Ms. Coy had in front of her was
Ms. Pahmeier picked up the unsigned sheet that had been in front of the grievant. At the top
wrote Kay Coy's name. Although she had neither a signature nor requested an explanation
Coy for the absence of a signature, at the bottom of the sheet Ms. Pahmeier wrote, "refused
At hearing, Ms. Coy indicated that she had not intentionally refused to sign the sheet,
unaware that her signature was required. She said she regarded the sheet as an aid to
discussion of the issues listed on it, and believed a copy of the sheet would be posted in the
Ms. Coy agreed that she had signed a paper acknowledging receipt of a copy of the
Handbook almost eight years before, but insisted that she was unaware she was required to
acknowledgment that she had read the "issues" paper presented at the November 6 in-service
It does not appear that Ms. Coy was ever disciplined for her alleged refusal to sign
Attendance Deficiencies 11/8/02 &
The Employee Handbook outlines what is described as an "Absentee Control
Under that program, an employee is subject to receive a "first notice" (first warning) for
absences within a twelve (12) month period, a "second notice" (second warning) for five (5)
within a twelve (12) month period, a "final notice" (final warning) for six (6)
absences within a
twelve (12) month period, a "discharge warning" for seven (7) absences within a twelve (12)
period, and actual discharge from employment for eight (8) absences within a twelve
period. Absence due to a medical condition not covered by the Family and Medical Leave
recorded as one (1) absence occurrence regardless of the number of consecutive days missed
same medical reason.
On 11/8/02, Ms. Pahmeier issued a "first notice" to Ms. Coy for a 4th absence
month period. Ms. Pahmeier's descriptions of the absences indicated that Ms. Coy had
called in sick
to work on 6/7, 8/30, 10/17, and 11/8.
On 12/20/02 Ms. Pahmeier issued a "second notice" to Ms. Coy, for an absence
12/19/02. The absenteeism notice indicated that there had been 5 occurrences in the last 12
not covered by the Family and Medical Leave Act.
Ms. Coy had refused to sign an acknowledgment that she had received a copy of the
notice" because she thought she was being treated differently than other employees.
Ms. Coy did sign
an acknowledgment that she had received a copy of the "second notice."
"Absenteeism" is not regarded as a disciplinary offense, and is handled under a
procedure than occurrences subject to discipline.
Third Incident January 6, 2003
Early in the new year, a simple inquiry by a worker at The Willows of Sun Prairie
as a House Keeper precipitated a third incident between Food Service Manager Pahmeier and
Grievant Coy. On January 6, 2003, at about 11:45 a.m., a House Keeping employee,
approached Ms. Coy in the facility's kitchen and asked her at what time the food cart would
wheeled out on the floor for meal services to residents. Ms. Coy indicated the food cart
out on the floor between 12:00 noon and 12:30 p.m. Food Service Manager Pahmeier
exchange and corrected Ms. Coy's estimate. According to Ms. Pahmeier, the food cart
would be off
the floor by 12:15 p.m.
The time on which Ms. Pahmeier was insisting was part of an "Activity Guide" (food
schedule) that Ms. Pahmeier had initiated in late December.
Ms. Coy protested to her manager that the 12:15 time was unrealistic because it was
possible to serve the residents in the dining room in only 15 minutes. Ms. Coy said she had
to show her manager the impossibility of serving lunch in the dining room in only 15
minutes, but that
Ms. Pahmeier raised her voice to talk over Ms. Coy's objections and refused to listen to Ms.
Ms. Pahmeier indicated the two women were approximately 10 feet apart. She
Coy as stating that the schedule would not work. Ms. Pahmeier acknowledged that she had
her voice and "raised" her finger at Ms. Coy, but said she did so to get Ms. Coy's attention.
Pahmeier admitted to being "slightly agitated" at the time of the incident.
Ms. Pahmeier then complained to then-Acting Administrator John Hackett, who had
temporarily succeeded to the administrative duties formerly exercised by William Steele at
Willows of Sun Prairie. In a written memo, Ms. Pahmeier alleged that Ms. Coy had ". . .
voice to me, saying this time of serving wasn't going to work." Ms. Pahmeier's memo
Coy of having ". . . a disrespectful tone . . ." that did not allow Ms. Pahmeier the
chance to explain
or reply to Ms. Coy's comments. Ms. Pahmeier acknowledged in her memo that she " . . .
raise her voice above hers [Coy's] and tell her that she was being very negative about this
needed to stop."
Mr. Hackett personally investigated Ms. Pahmeier's complaint. His investigation
an interview with three witnesses to the encounter.
House Keeper Guy Coleman and two food service employees had overheard the
Coy-Pahmeier exchange. In a statement taken by Mr. Hackett on January 7, Mr. Coleman
the incident as a disagreement between two grownups, who were talking it out.
asserted he saw no disrespect.
In her January 7 statement to Mr. Hackett, Judy Waalkens, a 5-year Food Service
veteran described the grievant as uncooperative. She said Ms. Coy argued with Ms.
seemed unwilling to help the situation. Both women, according to the Waalkens statement,
At hearing, however, Ms. Waalkens augmented her brief statement to Mr. Hackett.
quoted the grievant as telling Ms. Pahmeier that the new schedule doesn't work. She said
grievant was trying to explain her objections to the schedule, but that Ms. Pahmeier wouldn't
Ms. Waalkens also asserted that she had told Mr. Hackett that Ms. Pahmeier had been
yelling at Ms.
Dietary PM Cook Lynne Fiske was the third employee that witnessed the
exchange. Lynne Fiske is the sister of the grievant. Her statement to Mr. Hackett was
January 6. In the statement Ms. Fiske said she heard her sister say, "this isn't realistic,"
adding, "all of a sudden Ms. Pahmeier blew up." Ms. Fiske went on to say that Ms.
her finger at the grievant, saying, "You're just being negative, I don't want to hear it any
With that, according to the statement, Ms. Pahmeier " . . . stormed down the hall into her
Ms. Fiske's testimony at hearing was consistent with her statement to Mr. Hackett.
Following the conclusion of his investigation, Mr. Hackett concluded there was no
discipline against Ms. Coy as a result of her verbal exchange with Ms. Pahmeier on January
4th Incident January 7,
The final incident in the sequence cited by the Employer took place on January 7,
2003 -- the
day following the Pahmeier-Coy kitchen encounter.
A round of collective bargaining with the Employer's team for a successor labor
been scheduled for January 7. The grievant is a member of the Union's negotiating team.
At about 7:30 a.m., prior to the start of the negotiating session, the grievant
kitchen at The Willows. She wanted to reach Martha Bast, employed at The Willows as a
service aide. Ms. Coy explained that Ms. Bast's brother operated a car repair shop and she
Coy) wanted to know when his shop opened. She hoped to obtain a specific repair shop
recommendation from him as to a particular problem she was having with the brake lights on
(The car had been in the brother's shop two days earlier).
Ms. Bast answered the phone. She was making toast at the time. Ms. Coy began
opening amenities of "how's it going?" According to Ms. Coy, Ms. Bast seemed flustered,
before Ms. Coy had a chance to ask for the information she wanted, Ms. Bast began to
there was no way she could complete her kitchen tasks in the time allotted under Ms.
schedule. Ms. Coy said she tried to calm down Ms. Bast, offering verbal bromides of "take
"relax," "take your time."
Ms. Bast agreed that Ms. Coy opened by asking, "How's it going?" Ms. Bast also
acknowledged responding, "There's no way I can do this" [in the time allotted under
new food service schedule.] However, Ms. Bast interpreted Ms. Coy's next comments as
subversive to Ms. Pahmeier's new schedule.
According to Ms. Bast, Ms. Coy next advised her to "slow down" so that
new food service schedule wouldn't work. At hearing, Ms. Bast volunteered the
information that Ms. Coy had referred to Ms. Pahmeier as "a bitch" on several previous
though apparently not during this phone call. That information had not been included in a
statement prepared by Ms. Bast on January 7.
The telephone conversation lasted less than a minute. When it ended, Ms. Bast
Ms. Pahmeier approached her as if to ask what the telephone conversation was about, but
Bast waved her off. However, Ms. Bast subsequently reported her "slow down so that
schedule doesn't work" interpretation of the conversation to Virginia Schuh, the Assistant
Service Manager. Ms. Schuh relayed Ms. Bast's version to Ms. Pahmeier, who, in
turn, sent a memo
on the matter to Administrator John Hackett
On cross-examination, Ms. Bast admitted that she did not get along well with Ms.
admitted that she has referred to Ms. Coy as "a bitch" on several occasions in the past, and
Ms. Pahmeier to schedule her and Ms. Coy in the kitchen at different times. Martha Bast is
food service employee at The Willows of Sun Prairie with the initials M.B. Presumably, she
employee to whom Virginia Schuh referred in Ms. Coy's employee evaluation (see footnote
According to Ms. Bast, "don't go too fast" to her means the same as "slow down."
her written statement of January 7 contained only the "don't go too fast" comment, at
Bast said Ms. Coy told her both to take her time and to slow down. Ms.
Bast agreed that performing
the kitchen responsibilities "too fast" is a problem.
The Cook/Food Service Aide's written report of January 7 contained three sentences:
On 1/7/03 I received a phone call at 7:25 AM from Kay Coy.
She told me not to go too fast in
the dining room and to take my time. She also told me that she was going to grieve about
happened on Mon[day], 1/6.
After providing her written statement, Ms. Bast was
by John Hackett. According
to Hackett's notes of the interview, Ms. Bast stated: "She wants to make certain that the plan
not work. 'Beth [Ms. Pahmeier] thinks she can do this, but I know we cannot.' At Mr.
request two days later, Ms. Bast signed his notes as representing what she had said to him on
The grievant wrote her version of the telephone conversation on 1/17/03:
I called Martha to find out what time her brother's shop opens.
She said hello, I said "How's it
going. She said "There's no way I can do this in 15 minutes. I said "Don't worry about it,
time and do it the way you always do. She said "I gotta go." I said "Goodbye."
At hearing, the grievant denied having called Ms. Pahmeier
bitch." She further denied that
she was attempting to cause a "slowdown." In fact, she asserted that she had done her best
with the new schedule. The grievant further noted without contradiction that under the "old"
schedule she completed her tasks in less than the time allocated to them.
On January 20, 2003, Ms. Coy was discharged from her employment at The Willows
several alleged violations:
Encouraging another employee to engage in a
Class III 12. Serious
violation of resident rights.
Class III 10.
Class II 11. Interfering with
or purposeful distraction of another employee in performance of
The Disciplinary Action Report was written by John Hackett. Mr. Hackett wrote that
investigation concluded that ". . . on 1/7/03 Kay Coy phoned another employee and advised
not work too fast in the dining room so that the new job guide would not be successful."
After Ms. Coy was fired from her employment, Ms. Bast became a full-time AM
to that time she was a full-time employee, but had been required to split her time as both a
a Food Service Aide. Food Service Aide Judy Waalkens has worked with both
Ms. Coy and Ms.
Bast for several years. According to Ms. Waalkens, although Ms. Bast was paid a cook's
when she functioned as a Food Service Aide, she far preferred her duties as a cook to those
In January, 2003, Assistant Food Service Manager Virginia Schuh left the employ of
Extendicare and did not appear as a witness in this matter. In February, 2003, Ms.
employment as the Food Service Manager at The Willows of Sun Prairie also ended.
Pahmeier is still employed by Extendicare at a facility located in southeastern Wisconsin.
for her transfer was attributed to her travel convenience.
Finally, the new food service schedule Ms. Pahmeier had initiated at the Willows and
the grievant (and Martha Bast) had objected has been rescinded and the former schedule is
ARTICLE 3 GRIEVANCE AND ARBITRATION
Section 3.1. The Employer agrees to meet
with duly accredited officers and committees of the
Union upon grievances pertaining to meaning or application of the Agreement, in
the procedure provided below. A
grievance, subject to the following
procedure, shall include any and all disciplinary actions taken
by the Employer, and all questions and disputes involving contract interpretation and any and
questions and disputes involving conditions of employment.
. . .
Step 2 If there is a failure to resolve at Step 1, the grievance
must be presented within seven (7)
working days from the failure to resolve in Step 1 to the Administrator, or his/her
investigation. If the aggrieved employee has requested the Union to be involved,
provide for a meeting of representatives of the Union and the Employer for negotiation
within seven (7) working days of his/her written request to do so. The Employer shall
written disposition within seven (7) working days of the meeting. If there is failure to
resolve at this
Step, either party may file an appeal to arbitration within ten (10) working days. Failure of
employee to go to Step 2 within seven (7) working days of the response of Step 1 of the
bars further action by the Union or the employee.
Step 3 If the grievance is not settled in Step
2, the Union will notify the Employer's Corporate
Legal Department, in writing, of its intention to submit any grievance to arbitration. The
will be selected by and from the staff of the Wisconsin Employment Relations Commission.
decision of the arbitrator will be final and binding on both parties to this Agreement.
Section 3.2--The cost of the Arbitration shall be shared equally by
the Employer and the Union.
Section 3.3--The decision of the arbitrator
shall be final and binding on both parties. The
arbitrator has no authority to add to, subtract from, modify, or ignore any provision of this
. . .
ARTICLE IV SECURITY
Section 4.1 The Union agrees for
itself and its members that there shall be no picketing, strikes,
sympathetic strikes, sit-downs slowdowns, or work stoppages for any reason whatsoever, and
Employer agrees that there shall be no lockout during the life of this Agreement, it being the
desire of both parties to provide for uninterrupted, continuous service.
ARTICLE 5 SENIORITY
. . .
Section 5.3 Seniority and all other accrued rights shall cease upon:
a. Discharge for just cause
. . .
ARTICLE 10 SUSPENSION, DISCHARGE,
Section 10.1 The Employer may
discipline an employee for just cause, but in respect to
discharge shall give a warning of the complaint against such employee in writing, and a copy
same to the Union, except that no warning notice needs to be given to an employee if the
the discharge is for such reason as:
b. drinking, possession of
illegal drugs or being under the influence of illegal drugs or alcohol
while on company property
c. recklessness that could result
in an accident to a patient
d. abuse of a patient, verbal or
e. sleeping on the job
f. leaving patients unattended
g. disclosing privileged
h. the second time an employee
does not report unavailability for work at least one (1) hour
before starting time. However, no such action shall be taken if the employee can show to
reasonable satisfaction of the Employer that she was physically prevented from coming to the
nursing home due to illness or other emergency.
The Union will be notified in writing within
three (3) working days after an employee is
Section 10.2 Should the Union wish to contest a
discharge, suspension, or termination, written
notice thereof shall be given to the Employer within fifteen days (15) calendar days, in which
the issue thereafter shall be submitted to, and determined, under the grievance procedure
in Article III, Section 3.1, commencing Step 2 of this Agreement. Failure to give this notice
Union and the employee from further action.
PROVISIONS OF THE EMPLOYEE HANDBOOK
CITED BY THE
EMPLOYER OR FOR ILLUSTRATIVE PURPOSES
Groups of Offenses and Associated Penalties
Class I Offenses: Examples of these
offenses include, but are not limited to: (other offenses may
also merit these penalties)
1. Failure to comply with employer uniform
or name tag policy.
2. Disruptive or unruly behavior or unreasonable noise on facility
3. Creating or contributing to unsanitary conditions.
4. Improper or wasteful use of equipment and/or supplies.
5. Minor infraction of facility safety rules.
6. Minor disrespect to any superior.
7. Not attending a mandatory inservice.
8. Punching some else's time card or having someone punch your
for time worked.
9. Working unauthorized overtime.
10. Minor medication error.
Penalties for Class I Offenses:
First Offense: First Notice
Second Offense: Second Notice
Third Offense: Final Notice
Fourth Offense: Discharge Warning
Fifth Offense: Discharge
Class II Offenses:
Examples of these offenses included, but are not limited to: (other offenses
may also merit these penalties)
. . .
7. Being away from duty station without authorization.
. . .
Penalties for Class II Offenses
First Offense: Final Notice
Second Offense: Discharge warning
Third Offense: Discharge from employment
Class III Offenses:
An employee will be subject to discharge for a Class III offense. Other
offenses may also merit discharge. Class III examples include, but are not limited to:
. . .
11. Insubordination; refusal to follow a direct order.
. . .
12. Serious violation of resident/patient's rights.
. . .
Absentee Control Program (pp. 33-4)
I. Tardiness/ Early Leave * * *
An absence is defined as missing more than 50% of the
scheduled shift. The following
corrective measures will apply:
a. Upon three absences
within a twelve (12) month period, the employee will receive a
b. Upon five (5)
absences within a twelve (12) month period, the employee will receive
a second notice.
c. Upon six (6)
absences within a twelve (12) month period, the employee will receive
a final notice.
d. Upon seven (7)
absences within a twelve (12) month period, the employee will receive
a discharge warning.
e. Upon eight (8)
absences in twelve (12) months, the employee will be discharged
III. No Call/No Show * * *
IV. Recording Procedure * * *
V. Absence for Medical
Any absence for a medical condition not
covered by FMLA will be recorded as one (1)
absence occurrence regardless of the number of consecutive days missed for the same
VI. Policy Exceptions * * *
VII. Record Correction
Procedure * * *
POSITIONS OF THE PARTIES
The Employer focuses on Ms. Coy's January 7, 2002 telephone conversation with
Bast, and urges that the grievant not only directed Ms. Bast to "go slow," but added
"I do not want
the plan (Timed Activity Plan) to work." The Employer interprets Ms. Coy's
statements as " . . .
clearly, and unequivocally, inciting a slowdown in breach of the collective bargaining
(hereinafter CBA) and contrary to reasonable work rules." The Employer additionally finds
Coy's conduct as "insubordinate," describing it as ". . . an effort to interfere with a
performance of her duties.
The Employer argues that few actions are more harmful than an employee's attempt
instigate a slowdown or insubordination and that discharge from employment is the
penalty for such conduct.
The Employer finds Mr. Hackett's conclusions as to what transpired in the Coy/Bast
telephone conversation as both reasonable and entitled to deference. The Employer notes
Ms. Coy acknowledged that she had advised Ms. Bast to "take your time . . . do the work
you always have." This, according to the Employer, was directly contrary to the instructions
Bast had received from Ms. Pahmeier, and supports Mr. Hackett's conclusion that Ms. Coy
attempting to instigate a work slowdown
The Employer further contends that in the brief three months Ms. Pahmeier had
served as the
facility's Food Service Manager, Ms. Coy had repeatedly challenged Ms. Pahmeier's
support of this contention, the Employer points to Ms. Coy's walking off the job, her refusal
a memorandum evidencing attendance at an in-service training session, her refusal to sign a
disciplinary action report, and her engagement in a "heated argument" about Ms. Pahmeier's
Timed Activity Plan.
The Employer argues that the CBA grants the Employer the right to manage its
including the right to make reasonable work rules and the right to discharge employees for
The Employer asserts that the Employee Handbook it promulgated to employees contains
work rules that the Union has never grieved. Those work rules include prohibitions against
insubordination, refusing to follow a direct order, violating residents' rights, and interfering
another employee's work performance.
The Employer notes that an employer's right to establish work rules and maintain
is a fundamental management prerogative. Citing arbitral authority, the Employer defines a
reasonable work rule as one that is known to the employees, addresses a
objective, does not violate the contract, and does not impose a standard that is impermissibly
or harsh. Regal Plastic Co., 86 LA 788, 791 (Woolf, 1985);
Alcolac Chem. Corp. 55 LA 306, 312
According to the Employer, Ms. Coy received the work rules contained in the
no less than two occasions, and signed an acknowledgment of receipt each time. The
argues that since a slowdown is specifically prohibited by the CBA, it rises to the level of a
policy and cannot be assailed.
The Employer asserts that rules banning insubordination, interfering with a
or a slowdown are fundamental and cannot be challenged on the grounds of reasonableness.
Employer cites Dietrich Industries Inc. 113 LA 905, 907-08
(Feldman, 1999) as authority for the
proposition that an employee's statement he was out to "fuck" the company and his attempts
the company's production of finished product was instigating a slowdown and warranted
Other arbitral cases offered by the Employer include Walgreen Co., 100 LA
468 470-1, (Shieber,
1992) [telling co-workers to slowdown is instigating a slowdown and warrants termination],
Hoover Group, Inc. 97 LA 1006, 1007-08, (Madden, 1999)
[telling employee that "you better slow
down" or "you better slow down, your work product does not look too good" is urging an
to restrict output and is an impermissible slowdown warranting discharge].
The Employer asserts that arbitral cases recognize that corrective discipline is ill
instances in which employees have engaged in a slowdown, citing Collis, 50
LA 1157 (Doyle, 1968).
It is also ill suited, according to this Employer, for instances in which the employees have
intentionally tried to defeat an employer's new methods of operation. Discharge is
Moreover, says the Employer, it is not necessary the employee's efforts at a
been successful, citing Dietrich Industries Inc. (supra at 908),
Hoover (supra at 1009), and Walgreen
Co. (supra at 469-70).
The Employer offers two reasons for discounting as meritless the Union's contention
since slowdown or insubordination are not listed as infractions for which summary discharge
appropriate a prior written warning is required: 1) slowdowns are specifically prohibited by
and thus not a matter of just cause, but a contract violation; 2) the list of offenses in Article
X of the
CBA for which termination is appropriate is not all-inclusive indeed, other forms of
misconduct (e.g., carrying a loaded firearm, sexual misconduct, assaulting a supervisor) are
in Article X, but are, nonetheless, easily recognized as warranting immediate discharge.
The Employer acknowledges the right of employees to challenge management action,
the action is discipline or changes in procedure. But, the Employer insists, the employee's
of protest must be through the exclusive grievance/arbitration procedure set forth in a
The Employer argues that Ms. Coy's challenges were outside this procedure. On
9, 2002, the Employer asserts that Ms. Coy walked off the job instead of reversing or
item of clothing to which Ms. Pahmeier objected. The Employer contends that Ms. Coy's
to sign her letter of discipline of October 20, 2002 (for the alleged October 9 offense)
was also an
inappropriate protest. The Employer believes Ms. Coy was further demonstrating defiance
November 6, 2002, this time in response to changes in dietary department procedures, when
failed to sign a Memorandum of a department meeting in which the changes were outlined.
Employer also cites the unrefuted assertion by Ms. Bast that Ms. Coy's statement the Timed
Plan "sucked" as further evidence of Ms. Coy's unacceptable way of dealing with
directives. Moreover, says the Employer, on January 6 Ms. Coy initiated a conversation
Pahmeier and "bitterly protested" the Timed Activity Plan, thus again demonstrating a
confrontation as a means of protesting management actions.
The Employer concedes that no one of these incidents, by itself, would warrant
But, says the Employer, they all provide valuable background against which Ms. Coy's
be assessed and a reasonable conclusion drawn as to whether Ms. Coy would encourage a
to engage in a slowdown as a means of protesting a management action.
The Employer finds pretextual Ms. Coy's reason for calling Ms. Bast on the morning
January 7 (finding out what time Ms. Bast's brother opened his auto repair shop). The
finds culpability in Ms. Coy's acknowledgment that she told Ms. Bast to "take your time and
the way you have always done," arguing that Ms. Coy's advice was contrary to Ms.
directive to change procedures.
The Employer attacks Ms. Coy's version of her telephone conversation with Ms.
Bast as not
credible. The Employer alleges that Ms. Coy " . . .'will adjust the truth' when it suits her
In support of this accusation, the Employer first notes Ms. Coy's initial denial that she had
an Employee Handbook that she quickly changed when she apparently saw counsel for the
reach in his file for exhibits to test that denial.
In support of its efforts to undermine Ms. Coy's reliability as a witness the Employer
five more examples: 1) the testimony of Ms. Pahmeier as to the October 9 T-shirt incident
subsequent discipline imposed conflict with Ms. Coy's explanation that she believed she had
directed to leave; 2) Ms. Coy's explanation that she did not understand she was required to
department meeting memorandum of November 6; 3) the timing of Ms. Coy's telephone call
Bast the morning of January 7 was deliberately designed to pull Ms. Bast from her duties; 4)
Coy's "lame" excuse for making the call to Ms. Bast was that she wanted to find out when
brother would open his car repair shop that morning, but that question was never asked; 5)
admission that she resorts to "self-help."
Conversely, the Employer urges that Ms. Bast's version of the events to which she
is entirely credible. The Employer does not accept that Ms. Bast disliked Ms. Coy so much
would lie about her in an effort to cause her discharge. Further, according to the Employer,
Bast's demeanor does not suggest a person mentally adroit enough to formulate a devious
plan to lie
about the contents of Ms. Coy's phone call when questioned about it by Ms. Schuh.
Finally, the Employer points to the direct interest in the outcome of this proceeding
Ms. Coy as providing a possible motive to testify falsely. Ms. Bast, according to the
nothing to gain by lying.
The Employer denies the Union accusation that it (the Employer) was influenced in
termination decision by any of Ms. Coy's union activity, and points to a dearth of evidence
record that indicates any management hostility to Ms. Coy's union activities or the Union.
Employer finds Ms. Coy's complaint to OSHA concerning gas leaks in a stove and a
refrigeration system a "non-event," even though it apparently resulted in an OSHA
OSHA inspection of the facility caused no unusual events to occur, says the Employer,
inspections of heavily regulated businesses, such as nursing homes, are routine.
Finally, the Employer argues that the Arbitrator should not substitute his judgment
of the Employer concerning the level of discipline. In support, the Employer offers an
quote from Van Chevrolet, Inc., 80 LA 1298, 1301 (Madden, 1983):
" . . . If an arbitrator could substitute his judgment and
discretion for the judgment and
discretion honestly exercised by management. the functions of management would have been
abdicated, and unions would take every case to arbitration. The result would be as
employees as to management . . ." [Quoting Stockham Pipe
Fittings Co., 1 LA 160 (McCoy).
The Employer asks that the discharge of Kay Coy be upheld
and the grievance be denied.
The Union observes that historically the Employer bears the burden of proving just
discharge arbitration. Citing arbitral precedent, the Union describes the discharge of an
the "capital industrial penalty," that must be supported by "a clear or substantial
The Union contends that the Employer has failed to meet this burden.
The Union lists an arbitral definitions of "slowdown" as "a deliberate effort to reduce
in order to obtain concessions, citing Manville Corp., 89 LA 880 (Ross,
1987). The Union finds
Black's Law Dictionary (5th Ed. at 1245) in accord, as well
as Pantry Pride Enterprises, 79 LA 883
(Carson, 1982). The Union denies that the grievant encouraged a slowdown.
The Union argues that that Ms. Coy opened her January 7 telephone conversation
Bast with a polite inquiry of how things were going. The Union notes agreement between
and Ms. Coy that Bast responded by saying there was no way she could do the serving in 15
Thus, argues the Union, the grievant was not the person that brought up the topic of the new
The Union urges that Ms. Coy's next comment to Ms. Bast was intended merely to
down Ms. Bast. According to the Union, Ms. Bast's own initial recitation of Ms. Coy's
said) "not to go too fast," and "to take my time] is in general agreement with Ms. Coy's
her words [don't worry about it, take your time, do it as you always do it]. These words,
Union, give no evidence that Ms. Coy was instigating a slowdown.
The Union views Ms. Coy's words as encouragement to Ms. Bast, i.e., don't worry,
adequate time to do your job.. The Union argues that inasmuch as many facility residents
fragile health and require special diets, care must be taken to insure each receives the
The Union disagrees that Ms. Coy's words reflect insubordination just because they
to contradict instructions from Ms. Pahmeier. To the contrary, the Union posits, just as an
is not insubordinate when she refuses to perform a job in a manner that will endanger her
employees engaged in patient care are not insubordinate when they act on a reasonable belief
do otherwise would endanger patients. In support, the Union cites Southern Cal.
Hospital, 106 LA 1033 (Bickner, 1996). Thus, according to the Union, neither Ms.
nor Ms. Bast's initial version, demonstrate any intent on Coy's part to pressure management.
The Union acknowledges Ms. Bast's subsequent statement to John Hackett that
her original version of Ms. Coy's telephone statements. But, says the Union, the subsequent
statement that added an improper motive [" . . . to make sure that the plan does not work"]
unreliable, citing Federal Aviation Administration, 112 LA 129, 132-33
(Sergent, 1999). The
Union notes that while Ms. Bast's initial statement closely parallels that of Ms. Coy; the
to it was sought by Interim Facility Administrator Hackett in an interview with Ms. Bast and
only in his handwriting. The Union also cites Niagra Mohawk Power Co.,
116 LA 1709 (Babiskin,
2002) for the proposition that the existence of prior consistent or inconsistent statements is an
important consideration in determining witness credibility.
The Union further questions Ms. Bast's credibility by noting the hostility that has
between Ms. Bast and Ms. Coy since at least late August, 2001, as well as the fact that Ms.
benefited by Ms. Coy's discharge since that enabled Ms. Bast to work full-time at her
as cook. The Union notes that the arbitrator may discredit Ms. Bast's testimony because of
bias or personal animus, citing Huga Bosca Company, 109 LA 533
(Frankiewitz, 1997) and Dayton
Public Library, 117 LA 71, 86 (Bell, 2002). The Union also cites Bernard
Engineering Co., 86 LA
523 (Briscoe, 1985) for the proposition that the testimony of an interested witness be
The Union describes Ms. Bast as having adopted a defensive posture on the witness
with her arms folded in front of her, and urges the arbitrator to take Ms. Bast's demeanor
consideration. The Union also notes the testimony of Dietary Aide Judy Waalkens
Ms. Bast had previously misrepresented an issue involving Ms. Waalkens.
In summary, the Union urges the arbitrator to disregard the
portion of Ms. Bast's testimony
not encompassed by her original statement based on 1) inconsistency with her prior
hostility towards Ms. Coy, 3) demeanor, and 4) past instance of misrepresenting an issue.
The Union additionally argues that Ms. Coy was treated in a disparate manner
because of her
leadership role in the Union. The Union notes that the Employer is attempting to rely, in
part, on a
disciplinary report arising from a misapplication of its dress code. The Union contends that
Coy's comments on January 7 were insubordinate [don't worry, take your time], Ms. Bast's
self-admitted statement ["there's no way I can do this within 15 minutes"] was also
the Union notes, Bast received no discipline for her comment, but Coy was fired.
The Union further urges that Ms. Coy received no written warning prior to her
that this violates the prior written warning requirement contained in Article X of the CBA in
discharge was for none of the enumerated reasons listed therein. Although the Union
"insubordination" is listed as a Class III offense in the Employee Handbook, it argues that it
is a well-settled arbitral principle that a contract controls over a unilaterally promulgated
The Union insists that Ms. Coy was not insubordinate in that she never refused to
direct order, citing Auto Warehousing Co., 114 LA 699 (Brodsky, 2000)
and Heckett Division of
Harsco Corp., 94 LA 647 (Crane, 1990).
The Union finds ridiculous the Employer's claim that a 15-minute delay in food
seriously violate a patient's rights. Any violation of patients' rights took place when
reduced the breakfast serving time for facility residents, according to the Union. Ms. Coy's
that employees take enough time to plate patients' meals properly demonstrates concern for,
abuse of, patients' rights, the Union adds.
Finally, the Union argues Ms. Coy was placed in double jeopardy. Ms. Coy was
on January 7, 2002, after the exchange with Ms. Pahmeier on January 6 and the telephone
conversation with Ms. Bast on January 7. Following the Employer's investigation that took
on January 7, Ms. Coy was reinstated on January 8 and returned to work on January 9. She
suspended a second time on January 10 and ultimately discharged.
The Union finds unconvincing the Employer's explanation that its first investigation
January 7 focused only on the Coy/Pahmeier exchange on January 6, and the second
January 10 was in reaction to the Coy/Bass telephone conversation on January 7. The
that the Employer took witness statements concerning both incidents on January 7, and was
aware of each when it reinstated Ms. Coy on January 8.
The Union requests that the arbitrator sustain the grievance of Kay Coy, and further
reinstatement to her position of Dietary Cook with full seniority and benefits, that her
record be expunged, that she be made whole for all losses resulting from her termination,
and that the
arbitrator retain jurisdiction for any disputes as to implementation of said award.
On January 20, 2003, the grievant was discharged by her employer for 4 asserted
1. Encouraging another employee to engage in a work slowdown;
2. Class III 12. Serious violation of resident rights;
3. Class III 10. Insubordination.
4. Class II 11. Interfering with or purposeful distraction of
another employee in performance
The task of the arbitrator is to determine whether the Employer had just cause to
the grievant, Kay Coy.
Clearly, a fundamental precept of generally
accepted employment law is that an employee
owes to the employer a duty of reasonable, good faith efforts to execute assigned
unless carrying out an assignment threatens the safety of the employee or others. A
employee slowdown violates that duty. "A slowdown of production purposefully taken by
employee is an intolerable act, a gross imposition by that employee. It cannot be tolerated
and is the
subject, properly so, of severe discipline." Dietrich Industries Inc., 905,
908 (Feldman, 1999).
Discharge, of course, is a severe discipline. At least one arbitrator described it as
industrial penalty." Metropolitan Atlanta Rapid Transit Authority, 80 LA
829, 835 (Singer, 1983).
Thus, in discharge cases arbitrators have consistently ruled that the burden of proof lies with
employer. Elkouri, How Arbitration Works, 5th Ed.
(1997), p. 411.
"To establish a charge of attempting to impede work -- inducing a concerted
requires compelling proof." Walgreen, 100 LA 468, 471 (Shieber, 1992)
Piezoelectric Division, and Teamsters, Local 416, 84 LA 1315, 1319 (R.I. Abrams,
1985). To be
sure, establishment of the charge in support of a discharge is still a civil, not a criminal,
proof beyond a reasonable doubt is not required. But neither is it so casual a matter that a
preponderance of the evidence would suffice to sustain the discharge.
Consistent with the foregoing, and the practice of some at the Wisconsin Employment
Relations Commission, the quantum of proof that is required in this matter to sustain the
is the middle burden, i.e., "a clear and convincing preponderance of the evidence. See
Employees Union, WERC, MA-10838 (Emery, 2000); Bay Area Medical
Center, WERC, A- 5723
Encouraging an Employee to Engage in a Work
Although the Employer sought to justify its discharge of Mr. Coy with four listed
is clear that the Employer's interpretation of Ms. Coy's telephone call to Martha Bast on
is the critical element of the justification. The Employer chose to interpret Ms. Coy's words
Bast as an attempt to induce Ms. Bast to engage in a slowdown. To a greater or lesser
other three causes cited by the Employer in support of the discharge are spin-offs or
The Employer provided evidence of a sequence of three separate incidents arising in
quarter of 2002 and January 2003. None were listed as "reasons" or "causes" for the
fact, in its Brief the Employer concedes that none of these incidents by themselves would
discipline. Instead, the Employer urges their consideration as valuable background against
Coy's motives may be assessed.
Perhaps. But if the incidents are to be used for that purpose, in fairness they may
used as a basis of assessing and apportioning responsibility for the occurrence of those
among the parties involved.
SEIU T-shirt Incident
It is unclear whether Ms. Pahmeier would have noticed the T-shirt with the SEIU
being worn by Ms. Coy had her attention not been directed to it by a corporate regional
was visiting the facility that particular day. The regional manager apparently and
erroneously advised Ms. Pahmeier that wearing the T-shirt violated the corporate dress
Pahmeier relayed the same misinformation to Ms. Coy, along with a directive to change out
T-shirt, turn the offending T-shirt inside-out, or go home.
At hearing, Ms, Coy was adamant that she understood her alternatives were to
shirt or leave the facility. In her testimony Ms. Pahmeier stated that she offered Ms. Coy the
alternatives of either turning the offending T-shirt inside out or changing into something else
Ms. Pahmeier also testified she didn't really want Ms. Coy to go home and urged her not to.
Ms. Coy's response was that she had to.
Ms. Coy's unrefuted testimony indicated that she had worn the SEIU T-shirt to work
occasions prior to October 9 and had never been told the T-shirt (or any other T-shirt with a
violated a dress code. She said she asked Ms. Pahmeier why she had to change the shirt and
the shirt was "inappropriate." In response to Ms. Coy's next comment that she'd worn the
to work in the past, Ms. Pahmeier said the T-shirt violated the dress code.
Ms. Coy opted to leave and punched out some three hours before her shift would
normally ended. She was written up for "being away from duty without authorization." Her
to sign an acknowledgment that she received the reprimand and "final notice" is described by
Employer as an example of self-help and defiance. Ms. Coy filed a grievance. As it turned
wearing the SEIU T-shirt was not against corporate policy. Ms. Coy had the three hours of
lost by punching out restored to her and the matter was deemed settled.
Understandable as Ms. Coy's resentment may have been, her refusal to sign an
acknowledgment that she had received a copy of the attendance "final notice" for leaving the
before her shift ended on October 9 was arguably imprudent. But, in my view it pales into
insignificance when compared to 1) the egregiously erroneous misinformation on the
code policy supplied to Ms. Pahmeier by a regional manager that should have known better,
the unfortunate (albeit undoubtedly innocent) compounding of that error by Ms. Pahmeier in
exchange with Ms. Coy.
Given Ms. Pahmeier's acknowledgment in her testimony that the options she offered
included changing into something else at home, I have no trouble in crediting
Ms. Coy's version that
she understood that her alternatives included leaving the facility to go home.
Ms. Coy's confusion
may have resulted from the stress she was experiencing; perhaps Ms. Pahmeier was less than
in offering the alternatives. Indeed, until she read the "final notice," Ms. Coy was unsure
had been written up for violating the corporate dress code or leaving the premises.
appears that responsible management at The Willows recognized the unfair position in which
had been placed by restoring her pay.
I note the disagreement between the parties as to the exact terms of that settlement.
sides acknowledge that Ms. Coy was made whole for the wages she lost by punching out
before her shift was scheduled to end. The Union insists that the settlement also included
the incident from Ms. Coy's Personnel or Employment Record. The Employer is equally
that this element was not included.
It may be helpful to the parties' future relationship if the parties were able to resolve
disagreement between them. It is beyond my jurisdiction to do so. As a practical matter it
probably of no consequence to the grievant should a formal, final resolution not occur. In
restoring to Ms. Coy her loss of pay, the Employer has assumed at least some responsibility
incident's unfortunate occurrence.
November 6 Incident Failure to Sign Acknowledgment of
Attendance at In-Service.
The facts of this incident have been set forth earlier in some detail.
Although Ms. Coy was never disciplined or questioned about her failure to sign the
evidencing her attendance at the November 6 in-service, the Employer now contends her
a deliberate refusal and cites it as further evidence of Ms. Coy's defiance of Ms. Pahmeier's.
I do not agree. If management believed Ms. Coy was somehow objecting to Ms.
list of issues, it was incumbent on management to air the issue with Ms. Coy at the time.
Pahmeier's note stating that Ms. Coy refused to sign appears, at best, to
represent Ms. Pahmeier's
interpretation, untested and unverified by any conversation with Ms. Coy. Given the lack of
follow-through by management on this matter, I discount an interpretation of the matter that
work to Ms. Coy's detriment.
January 6 Argument between Ms. Pahmeier and Ms. Coy.
It is instructive to note that Ms. Coy did not initiate this
incident. It rather began with an
innocuous question from another employee, who asked Ms. Coy what time the food cart
wheeled out on the floor for meal services to residents. Ms. Coy responded the food cart
out on the floor between 12 noon and 12:30 PM. Ms. Pahmeier overheard the exchange and
corrected Ms. Coy. Ms. Pahmeier told the inquiring employee the food cart would be off
This incident is also recounted in some detail, above.
None of the three witness to the incident accuse Ms. Coy of disrespect or
One witness describes it as a "disagreement" between two grown-ups." A second witness
women were angry and that Ms. Pahmeier wouldn't listen to Ms. Coy's objections. A third
grievant's sister) attested to Ms. Pahmeier's anger, finger shaking, and refusal to listen. Ms.
herself, acknowledged that she had been slightly agitated, had raised her voice, and had
finger at Ms. Coy.
Although Ms. Pahmeier reported the incident in writing for then Acting
Hackett and accused Ms. Coy of having had a disrespectful tone, Mr. Hackett concluded
no basis for discipline.
I do not agree with the Employer's current conclusion that this incident demonstrates
Coy's willingness to use confrontation as a method to protest management actions rather than
grievance procedure. Even discounting the account of the argument given by the grievant's
neither of the other two accounts demonstrate disrespect on the part of Ms. Coy towards Ms.
Pahmeier. Both appear to be credible.
In particular, the testimony of Food Service Aide Judy Waalkens concerning the
discussion appears to have been uncontrived, balanced and has the ring of truth. Ms.
account did not spare either Ms. Coy or Ms. Pahmeier from criticism. Both women were
as angry. Ms. Coy was described as uncooperative. Ms. Pahmeier was described as
listen and yelling. Clearly, it was not either woman's finest hour. To place all of the blame
incident on Ms. Coy's shoulders as the Employer now attempts, is not only unfair, but
Hackett's conclusion that no discipline should be imposed.
Ms. Coy's Telephone Call to Martha Bast on January 7.
The telephone call from Kay Coy to Martha Bast on January 7 constitutes the
the Employer's charge against the grievant that she encouraged another employee to
engage in a
work slowdown. The facts of this incident are fully set forth above. On this state
of the record I am
unable to sustain the discharge.
The parties agree on virtually all of the salient facts, with one exception the
Martha Bast! The Employer accepts the testimony of Martha Bast without apparent
attacks the credibility of the grievant. The Union defends the credibility of the grievant, but
the credibility of Martha Bast.
Under all of the circumstances, I credit the Union's interpretation. Notwithstanding
in the outcome of this matter, I find the testimony of Kay Coy to be credible. Conversely, I
find the testimony of Martha Bast to have the ring of reality.
In making findings of credibility, I found helpful the factors announced by Arbitrator
Niagra Mohawk Power Corp., 116 LA 1709, 1714 (2002). Arbitrator
The factors I have used to make my credibility findings
but are not limited to the
following: 1) the demeanor of the witnesses and the manner in which testimony was given,
extent of the witnesses' capacity to perceive, recollect or communicate
matters testified to, 3) the
extent of the witnesses' opportunity to perceive matters testified to, 4) his
character for honesty and
veracity, 5) the existence or non-existence of bias, interest or other motive, 6) prior
statements, 7) prior inconsistent statements, and 8) his admission of untruthfulness or
A witness can give incorrect or inaccurate
testimony without lying or perjuring himself.
An employee or witness can in good faith
give answers or provide information that is "dead-wrong" without being guilty of misconduct
or falsifying statements or documents.
People can sincerely believe something
happened, even if it did not. People "misremember"
all the time. This does not automatically make them liars. The human mind is a fallible
The demeanor of Martha Bast as she testified was not impressive. She appeared
defensive. Her veracity was questioned by Food Service Aide Judy Waalkens. While the
Ms. Waalkens to perceive, recollect, or communicate some matters may have been limited,
capacity to perceive, recollect, or communicate the basis for her doubts concerning Ms.
credibility seemed more than adequate.
The long-standing animosity that existed between Ms. Coy and Ms. Bast was also
well-documented, not only by direct testimony, but by a 2001 job evaluation of Ms. Coy in
which Ms. Coy
was urged to try to improve relations with Ms. Bast. Given this history, a basis for bias on
of Ms. Bast is revealed.
Contrary to the Employer's view that Ms. Bast had no stake in the outcome of the
hearing, it is clear that she did. Until Ms. Coy was discharged, Ms. Bast was required to
hours between acting as a Cook and acting as a Food Service Aide, despite her strong
be a full-time cook. Once Ms. Coy was discharged, Ms. Bast received the opportunity she
and has been slotted into the kitchen's operation as a full-time Cook.
Moreover, Ms. Bast was clearly agitated, highly stressed, even distraught when
reached her by phone. Under this circumstance, Ms. Bast's recollection of the conversation
understandably blurred. The recollection she reported to Mr. Hackett and repeated at
be nothing more than her assumption that Ms. Coy wanted the food service
schedule to fail an
assumption that could have been additionally nourished by animus or self-interest, or both.
Moreover, given the history of antagonism between Ms. Bast and Ms. Coy, it also
highly unlikely that Ms. Coy would select Ms. Bast as a confidential operative to
Service operations. By both women's account, it was Martha Bast, not Kay Coy, who
Ms. Pahmeier's new food-service schedule at the beginning the January 7 phone
Coy's explanation that her advice to an obviously distraught Ms. Bast to "take it easy,"
your time" was intended to calm Ms. Bast appears far more plausible than the belief that Ms.
suddenly accepted Ms. Bast as her confidante.
Finally, there is inconsistency between the written statement Ms. Bast prepared
the telephone exchange and the verbal statements she later made to Ms. Schuh and Mr.
While neither version includes Ms. Bast's highly stressed criticism of the new food service
it was only her verbal statements that Mr. Hackett attempted to memorialize in writing that
Ms. Coy. Indeed, it was not until Ms. Bast testified at hearing that she related her initial
Ms. Coy's phone call. This, of course, was what had precipitated Ms. Coy's reassurances to
Bast. In my opinion, these inconsistencies, when coupled with expressed doubts by one
to Ms. Bast's reporting credibility, Ms. Bast's distraught emotional state at the time of Ms.
phone call to her, the antagonism between the two women, and Ms. Bast's obvious interest
outcome of the proceeding make the Bast slowdown accusation against Ms. Coy dubious
In contrast, I found Ms. Coy's testimony as straightforward as her personality.
Ms. Coy, for
good or aught, is neither devious nor subtle. The colloquialism, "What you see is what you
seems applicable to her. Moreover, it seems unlikely to me that this employee, whose last
evaluation in 2001 from her supervisor was well-above average, who had no history of
to the questionable incident on October 9, 2002, and who was consistently able to perform
kitchen duties in less time than that prescribed under the "old" food-service schedule, would
motivated to sabotage kitchen operations due to poor personal chemistry between her and
The Employer finds Ms. Coy's reason for calling Ms. Bast on the morning of
7 to be
"a lame excuse," noting that Ms. Coy never did ask Ms. Bast the question that Ms. Coy
prompted her call [what time does your brother's shop open?]. But when Ms. Coy
reached Ms. Bast
that morning what she found was an emotionally agitated, highly
stressed, distraught kitchen employee, who doubted her capability to function
successfully under the
new time constraints. Under the circumstances, it is understandable that Ms. Coy's question
into an inferior priority to the immediate need of reassuring and encouraging Ms. Bast to
to do her work.
The Employer points to Ms. Coy's initial denial that she had received a copy of
work rules and claims she changed the denial only after seeing counsel for the Employer
his brief case for an exhibit. That is one interpretation. Another is that Ms. Coy first
copy of the work rules when she was hired May 15, 1995. She received a revised
copy at on
February 3, 1999. In each case she signed and dated an acknowledgment of receipt. I find
invidious nor unusual that Ms. Coy's initially had no memory of either event one
that took place
7 ½-years previous to the date of hearing, the other, more than 4-years previous.
Class III 12. Serious Violation of Resident
No evidence was adduced at hearing that Ms. Coy's conduct at work has ever
rights of any of the residents at The Willows. If any resident's morning meal on January 7
delayed by the one-minute telephone conversation between Ms. Bast and Ms. Coy, the event
de minimis as not to warrant further discussion.
Class III 10. Insubordination.
This charge founders on the same shoals, as did the "slowdown" accusation. Suffice
reiterate that I do not perceive that Ms. Coy intended her advice to Ms. Bast on the morning
January 7 to contradict Ms. Pahmeier's new food service schedule. In my view, Ms. Coy's
she had encountered an emergency situation and offered words of encouragement and
to Ms. Bast. Ms. Coy's intent was to calm Ms. Bast so that food service operations on
behalf of the
residents could continue, unimpeded by Ms. Bast's agitated emotional state.
Moreover, as the Union points out, "insubordination" has been identified as a
a direct order." Auto Warehousing Co., 114 LA 699, 702 Brodsky, 2000).
I find no direct order
from a management representative of the Employer to Ms. Coy that she disobeyed.
Interfering with or Purposeful Distraction of Another Employee in
Performance of Work.
Presumably, Ms. Coy's phone call to Ms. Bast to ask about a matter not connected
operations at The Willows is the basis for this accusation. Had Ms. Coy been able to ask
question, it does not appear that the entire conversation would have taken more than 30
This is simply too de minimis to support a discharge.
Indeed, as events unfolded, when she reached Ms. Bast Ms. Coy recognized a higher
had developed than learning what time Ms. Bast's brother opened his car repair shop. As a
responsible employee, Ms. Coy dealt with that higher priority and attempted to encourage the
distraught Ms. Bast to do her best to continue her food service efforts on behalf of the
Under these circumstances, Ms. Coy did not interfere with or purposefully distract
employee in the performance of her work.
In summary, I find the Employer has not sustained its burden of proof in this matter.
Specifically, I find that the Employer's discharge of Kay Coy lacked just cause.
I note that the Union has raised several ancillary arguments, including the charge that
was treated disparately, that her discharge violated the "Prior Warning" requirement in the
collective bargaining agreement, and that Ms. Coy's discharge violated the concept of
However, based on my determination that the Employer lacked just cause to
Coy, it is unnecessary to deal with theses additional Union arguments and I decline to do so.
Based on the foregoing findings and discussion and the entire record herein, the
The Employer lacked just cause to discharge the Grievant, Kay Coy. The Employer
directed to reinstate Kay Coy to the position of Dietary Cook that she held when she was
and to make Ms. Coy whole with respect to any losses she incurred (including wages,
seniority) as a consequence of her discharge, less any monies she received or could have
because of her discharge.
The Employer is further directed to expunge any record of this discharge from
Personnel or Employment Record.
I shall retain jurisdiction over this matter for a period of 60 days hereafter in the
parties have any questions concerning the implementation of this award.
Dated at Madison, Wisconsin this 22nd day of August, 2003.