BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GREEN BAY SCHOOL DISTRICT
GREEN BAY BOARD OF EDUCATION EMPLOYEES
LOCAL 3055C, AFSCME, AFL-CIO
Mr. Mark DeLorme, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 2010 Memorial Drive, Apt. 206, Green Bay, WI 54303, on
behalf of Local 3055C.
Melli, Walker, Pease & Ruhly, S.C., by Attorney Jack D.
Walker, Ten East Doty, Suite 900, P.O. Box 1664, Madison, WI 53701-1664,
on behalf of the District.
According to the terms of the 2002-04 labor agreement between Board of Education
Bay Area Public School District (District) and Green Board of Education Employees
Union, Local 3055C, AFSCME, AFL-CIO (Union) the parties requested that the Wisconsin
Employment Relations Commission designate a member of its staff to hear and resolve a
between them regarding the discharge of Cathy Wellens. The Commission designated
Gallagher to hear and resolve the dispute. Hearing was held at Green Bay, Wisconsin, on
2003. A stenographic transcript of the proceedings was made and received on June 11,
parties agreed to exchange their initial briefs through the Arbitrator postmarked July 14,
they reserved the right to file reply briefs ten working days after their receipt of initial
Arbitrator received the last document on August 12, 2003, whereupon the record was closed.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties were unable to stipulate to an issue or issues in this case. However, the
suggested the following issue:
Was Cathy Wellens terminated within an extended
period? If not, what is the
The Union suggested the following issues for determination in this case:
Did the District have just cause to terminate the Grievant? If
not, what is the appropriate
The parties stipulated that the Undersigned could frame the issues in this case based
relevant evidence and argument and considering their suggested issues. Therefore, on the
mentioned basis, I have found that the District's issues quoted above shall be determined in
The Employer, on its own behalf, hereby retains and reserves unto itself all
rights, authority, duties and responsibilities conferred upon and vested in it by the laws and
the constitutions of the State of Wisconsin and of the United States including the rights:
1. To the executive management and
administrative control of the school system and
its properties and facilities;
2. To hire all
employees and, subject to the provisions of law and this Agreement, to
determine their qualifications and the conditions for their continued employment, or
their dismissal or demotion, and to promote and transfer all such employees;
3. To determine hours
of duty and assignment of work;
4. To establish new jobs
and abolish or change existing jobs;
5. To manage the work
force and determine the number of employees required.
The exercise of management rights in the
above shall be done in accordance with the specific
terms of this Agreement and shall not be interpreted so as to deny the employee's right of
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,
use of judgment and discretion in connection therewith, shall be limited only by the specific
express terms of this Agreement and Wisconsin Statutes, Section 111.70, and then only to
such specific and express terms are in conformance with the constitution and laws of the
Wisconsin and the constitution and laws of the United States.
PROBATIONARY AND EMPLOYMENT
All newly-hired employees shall be on
probation for a period of ninety (90) days during the
workyear from the date of their employment. The probationary pay rate is ninety percent
the rate for the employee's classification for the first ninety (90) days.
Continued employment beyond the
probationary period is considered as satisfactory
completion of probation.
A permanent full-time
employee is one who is hired to fi11 a full-time position in the Table
A permanent part-time
employee is one who is hired to work a regular schedule of hours but
less than full time.
A temporary employee is one
who is hired for a period not to exceed ninety (90) calendar
days except in the case of long-term substitutes replacing regular employees who are on
leaves of absence (paid or unpaid) and who intend to return to work or any other specified
agreed to by the parties and who shall be separated on or before the end of said period.
should a temporary employee be continued in employment as a part-time or full-time
employee without a service break, the calendar days of employment shall be considered as a
the employee's probationary period.
SUSPENSION - DISCHARGE
Suspension: Suspension is
defined as the temporary removal without pay of an employee
from h/er designated position.
A. Suspension for
Cause: the Employer may for just cause suspend an employee. Any
employee who is suspended, except probationary and temporary employees, shall be
given a written notice of the reasons for the action and a copy of such notice shall be
made a part of the employee's personal history record and a copy shall be sent to the
Union. No suspension for cause shall exceed thirty (30) calendar days.
No employee who has completed probation shall be
or suspended except for just
cause. An employee may be discharged immediately for dishonesty, drunkenness, reckless
endangering others, drinking alcoholic beverages while on duty, use of controlled substances
unauthorized absence. An employee who is discharged or suspended, except probationary
temporary employees, shall be given a written notice of the reasons for the action and a copy
notice shall be made a part of the employee's personal history record and a copy sent to the
An employee who has been suspended or discharged may use the grievance procedure by
written notice to h/er steward and h/er immediate supervisor within ten (10) workdays after
discharge or suspension. Such appeal will go directly to the appropriate step of the grievance
Usual Disciplinary Procedure:
The progression of disciplinary action shall be oral reprimand,
written reprimand, suspension and discharge. The above sequence of disciplinary action
apply in cases which are cause for immediate suspension or discharge. The Union shall also
furnished a copy of any written notice of reprimand, suspension or discharge. All
be effective for one (1) year from the date of reprimand.
Cathy Wellens was hired as a Monitor at East High School on September 3, 2002.
began her employment with the District as a "temporary employee" pursuant to Article VI of
labor agreement. As such, the period of time that Wellens worked as a temporary employee
a service break in the first days of the 2002-03 school year were credited to her probationary
Because of this credit, Wellens' probationary period expired December 1, 2002.
In late November, 2002, Assistant Superintendent for Human Resources, John
became aware of problems at East High School involving Wellens. Issues involving
relationships between Wellens and other Union-represented Monitors as well as questions
East High School Principal Curt Julian's treatment of Wellens were among these issues.
Union President Sandy Siewert 1/ called Wilson sometime during November, 2002, and
Wellens had been unfairly dealt with by Associate Principal Julian and by other Monitors at
School. Siewert stated that she was concerned about Wellens' continued employment at East
School. Wilson responded to Siewert by suggesting that the District extend Wellens'
period by another 30 days. Wilson also talked about the issues Siewert had raised
Wellens in some depth. Siewert agreed to extend Wellens' probationary period during this
conversation. At this time (November, 2002), Wilson and local Union officials were
Wellens had worked as
a temporary employee prior to her actual hire date as a regular part-time Monitor for
the District and
that she had thereby earned additional days toward satisfaction of her contractual 90-day
1/ Siewert did not testify
During the week of December 1, 2002, Union President Siewert, Union
Kuiper and Cathy Wellens met with District Senior Personnel Analyst,
Edward DeRubis. Siewert and
Kuiper had questions about Wellens' employment at East High School and wanted to discuss
problems she was having with other Monitors. Kuiper and Siewert also discussed Associate
Curt Julian's refusal to allow Wellens to park in a handicapped parking spot (reserved for
next to the school, offering her only a handicapped parking spot across from the school.
stated that he would talk to Julian about the issues raised. 2/
2/ Neither DeRubis, the Union Representatives
nor Wellens realized at this time that Wellens' probationary
period had expired on December 1, 2002, due to her status as a temporary employee prior to
her hire as a regular
Wilson attended a portion of this meeting between Union Representatives, Wellens
DeRubis. At this time, Wilson stated that they discussed again Wellens' issues, including
with other Monitor employees at East High School, the fact that she was not being allowed
in a visitor handicap parking space at the High School and Wilson stated that the parties
discussed extending Wellens' probationary period by an additional 30 days and that all
agreed to extend her probation. Wilson stated there was discussion of putting the agreement
extend the probationary period in writing, but that the Union did not state that they needed
extension agreement in writing before they would agree. Indeed, Wilson stated that at this
he reminded Siewert that he and Siewert had already agreed to extend Wellens' probationary
by 30 days in their telephone conversation held sometime in November. Siewert confirmed
had so agreed.
DeRubis stated herein that the District and the Union agreed to extend Wellens'
period and that the Union never informed the District that her probationary period had
expired in December, 2002. DeRubis also stated that he did not recall whether Union
asked the District to put the extension of the probationary period into writing for them to
that Wellens never asked DeRubis for a written document.
Mr. Wilson stated herein that the District had no practice of putting probationary
into writing; that for paraprofessionals, clericals and teachers, extensions of probation have
historically been done verbally. In addition, Wilson stated that the termination of a
employee is usually verbal and in Wellens' case, she did not receive anything in writing on
13, 2002, when Associate Principal Julian terminated her employment.
Wellens stated herein that Associate Principal Julian spoke to her on November 15,
her an employment review. He stated at this time, that the District wanted to extend
probationary period but that he did not know if this could be done and that he would have to
to Wellens on this point.
On December 13, 2002, Julian terminated Wellens' employment stating only that her
employment was terminated. Wellens asked Julian what had happened with the probationary
extension and Julian stated that the extension had never gone through. 3/ On December 13,
Associate Principle Julian sent the following probationary employment report on Wellens to
I am recommending that Cathy Wellens
not be retained as a regular employee. My reason for
this recommendation is that Cathy is unable to maintain positive relationships with
co-workers. I sat
down with Cathy in early November to discuss my concerns. It is my belief that part of the
supervising people is to point out to them the areas of their performance that are
to help them improve. Specifically, I was unsatisfied with Cathy's interaction with students.
Fondow, principal at East, shared my concern based upon his observation of Cathy in the
I gave some suggestions to Cathy about how to interact with students in a less confrontational
(i e. ask rather than demand, be reasonable in your request, be proactive rather than reactive,
smile more often). I also expressed my concern about her obsession on the punishment
discipline referrals rather than focusing on changing behavior. Most importantly, I pointed
fact that she had complaints that she voiced to others without making any effort to work out
problem or to follow the proper chain of communication (command) to have the problem
I informed Cathy that if she had a complaint about how things were done, she needed to
come to me.
If she was not satisfied with my response, then she was certainly welcome to go to the next
As for personality conflicts, she needed to work through those things herself and not let it
job performance. I offered to mediate if necessary.
We discussed adding an extension of her
probationary period and she agreed that this was a
good idea. This would give her a chance to improve and in a sense, give her a second
the first week or two after this discussion, Cathy seemed happier and performed better.
she soon started exhibiting some of her negative behaviors again. At no time did Cathy
come to me
with a problem and yet there seemed to be a multitude of problems she was discussing with
On Thursday, December 5, 2002, I received a
call from the police officer who was on duty during the lunch
periods at East. He expressed a
grave concern that Cathy was "badmouthing" the other monitors to him. He told me that she
had something negative to say in the past but he felt that this most recent incident could not
overlooked because of the extent of the comments. He thought that I should know. This
no idea of the history of Ms. Wellens.
When I questioned Cathy about the
incident while talking about her future employment today
(December 13), she did not defend nor deny making the comments. She did, however, feel
recommendation not to hire her was due to her parking in the handicapped stall at East. I
that this WAS NOT the reason I was recommending termination but her inability to come to
this particular problem was certainly a symptom of her inability to maintain appropriate
relationships. For the record, Cathy Wellens was parking in the visitor lot along with our
hour monitors. I told the monitors that they needed to park in the staff lot. A few of the
continued parking in the visitor lot in front of the school, so I again instructed them to park
staff lot. Cathy said nothing but I already knew that she was using the handicapped spot as
for parking in front of the school. I therefore took the initiative and told Cathy that there
handicapped spaces nearby at Joannes and if that was not sufficient, she needed to request
arrange reserved parking next to the building in the staff lot right behind the school because
was not yet lined and marked. I emphasized that the spaces in front of the school had to be
for visitors but that we were willing to make accommodations for her--all she needed to do
Cathy acknowledged this understanding. I was already going beyond what is expected of an
employer in that I was willing to make the accommodations without Cathy having to actually
that there was a need for such an effort on my part. I asked her why she didn't ask me for
accommodations. Cathy explained that the union president had instructed her to continue to
the visitor lot and then to grieve the ticket that would be issued. I repeated my assertion that
parking issue was not the reason for severing the employment. It was the comments to a
employee group (the police officer) about her co-workers that made me feel that in the
interest of the
school, I could not recommend her continued employment.
3/ Julian did not testify
On January 2, 2003, Wellens filed the underlying grievance in this case in which
President Siewert stated on her behalf "grievant did not receive written notice of
termination. . . . was
terminated without just cause per Article VIII and violation of written terms of Article VIII."
Union sought reinstatement of the Grievant, a make-whole remedy and an order to follow the
On April 9, 2003, the parties had a grievance settlement meeting at the District.
the Union were Siewert, Kuiper and Wellens; present for the District were Wilson and
District suggested a settlement whereby it would pay Wellens' salary through the end of the
year but explained that East High School did not wish to reinstate her. The Union Officers
stated this was unacceptable; that Wellens wanted her job back. At some point during this
Kuiper stated that Wellens had actually been terminated four days after her probationary
expired. At this point, Wilson asserted that Siewert had agreed with him to extend Wellens'
probationary period prior to the end thereof. Union President Siewert agreed she had done
stated that the Union had never received anything in writing. Wilson stated herein that at no
Siewert ask or state that she wanted an extension of Wellens' probationary period in writing
4/ Kuiper confirmed that in the April 9, 2003
settlement meeting, Wilson reminded Siewert that she had agreed
to an extension of Wellens' probationary period and that Siewert had responded yes, but that
Siewert also stated
that the Union never received anything in writing.
Union Vice President Kuiper stated herein that in early December, when she, Union
Siewert, and Wellens met with District Representative DeRubis, DeRubis stated that he
if he could do something about "lessening" the number of days Wellens' probationary period
be extended. Kuiper stated that Wilson came into this meeting and asked if DeRubis had
anything in writing from the Union regarding the extension of Wellens' probationary period.
stated that she, Siewert and Wellens did not specifically request that the District send them a
document regarding Wellens' probationary period extension. Kuiper stated that at the end of
meeting in early December, she believed that everything was up in the air regarding an
Wellens' probation because DeRubis had said he would see what he could do about lessening
period of the extension and he never got back to the Union.
The District did not contest Wellens' unemployment compensation. Both Wilson and
DeRubis affirmed that they were unaware of any other employee who had been terminated
reasons that Wellens was terminated in this case. A list of dates submitted to Unemployment
Compensation indicated that Wellens was discharged on December 13, 2002, by Principal
an inability to maintain appropriate interpersonal relationships. The information given to
Warnings to employee regarding inappropriate interpersonal
relationships. Employee was also
informed her probation was to be extended, but was terminated prior to any extension for an
subsequent to her warning.
Finally, the information given to U.C. also indicated that Wellens had been informed
of the above in
the week of November 11, 2002, and also on December 6, 2002. Wilson stated that at the
above document was put together for Unemployment Compensation, the District was
Wellens' probationary period had actually expired on December 1, 2002.
POSITIONS OF THE PARTIES
The District argued that there was an agreement to extend the probationary period of
Grievant by 30 days, which was reached prior to the expiration of her 90-day contractual
probationary period. The District noted that this agreement was confirmed by all witnesses
testified herein and that it was also confirmed by the Union President Siewert in early
a meeting between the Union and the District. In addition, the Grievant, who testified
herein, did not
deny that she believed her probationary period had been extended in early December; in fact,
Grievant recounted a conversation with Principal Curt Julian on
December 13th, when he terminated
her wherein she asked what had happened to the extension of her probationary period.
As Union President Siewert did not testify herein and the Union gave no explanation
District representative Wilson's testimony remained uncontradicted regarding his agreement
Siewert in late November to extend Wellens' probationary period. The fact that the District
know that Wellens was no longer a probationary employee when the District terminated her
December 13th, does not detract from that fact that a deal was made
between Wilson and Siewert in
late November to extend Wellens' probationary period. The District noted that in this case,
Union's position is not that there was no agreement, but that the agreement ceased to exist
it was not put into writing in December, 2002. The District urged that a writing was
according to the agreement between Wilson and Siewert. The District argued that the oral
between Siewert and Wilson rose to the level of a collective bargaining agreement under the
citing, City of Prairie du Chien, Dec. No. 21619-A (Schiavoni, 7/84).
In the alternative, the District argued that Wellens' offenses constituted just cause for
discharge. In this regard, the District noted that Wellens was warned regarding her inability
appropriate interpersonal relationships at East High School and yet after she was warned by
Julian, she continued to engage in the same activities she had been warned to cease. The
noted that Wellens had an extremely short tenure at the District, that she offered no
excuse for her conduct and showed no remorse therefor. Furthermore, the District observed
Union failed to make a claim of disparate treatment in this case.
Based on the above, the District urged that there was an oral agreement between
Siewert in late November to extend Wellens' probationary period and that that agreement
enforced. The grievance should, therefore, be dismissed in its entirety.
The Union argued that Wellens was a permanent employee when she was discharged
her discharge was without just cause. The Union noted in this regard, that Wellens had
formal prior disciplinary actions, that there was no proof that she had in fact engaged in the
of which she was accused by Principal Julian and there were no other employees in the
of District witnesses who had been terminated for an inability to form positive relationships.
Furthermore, the Union noted that Principal Julian was not called to testify in this case. As
successfully served a 90-day probationary period, which ended on or about
December 1, 2002, she
became a permanent part-time employee pursuant to the contract, due to work she performed
The Union argued that the District has the burden to show that it had extended
probationary period and that she was not in fact a permanent employee on December 13,
the District discharged her. The Union relied upon Union Vice President Kuiper's
that the Arbitrator discount the testimony of District representatives Wilson and DeRubis.
point, the Union noted that Wilson and DeRubis' testimony was certainly less clear than that
Kuiper and failed to demonstrate that the District had gained an agreement to extend
probationary period or that it had implemented same. The Union noted that Wilson had
DeRubis to get the extension of the probationary period in writing and that this never
Indeed, DeRubis left everything open at the close of the December 6, 2002, meeting, leading
Union to believe that there was no meeting of the minds on an extension of Wellens'
Union noted that although there is no past practice to extend probationary periods in writing,
weeks after Wellens' discharge, the parties agreed in writing to extend a probationary period
another unit employee.
The Union observed that the parties cannot extend a probationary period if they are
of when it expires; that DeRubis left the terms of the extension of Wellens' probation up in
the air at
the end of the December 6, 2002, meeting and DeRubis stated herein that he believed
been terminated prior to the extension of her probationary period. Furthermore, on
Principal Julian told Wellens that her probationary period extension had never gone through.
The Union urged that the principle of equitable estoppel should be applied to this
the District failed to act to extend Wellens probationary period and Wellens relied on the
of that probationary period to her detriment. The Union also urged that a finding in this case
District would undermine labor relations. The Union noted that the preamble to the contract
that the contract exists "to maintain existing harmonious
relations; to promote the morale, well-being and security of said employees . . . to
ensure a proper
and ethical conduct of business and relations between the Employer and Union." The Union
that these goals were not supported by the District's decision to discharge Wellens without
after her probationary period had expired.
In addition, if a probationary period had been extended for Wellens, the goal of such
extension was not met in that Wellens never had the opportunity to improve her performance
become a permanent employee because she was discharged approximately one week after the
supposed extension of her probationary period at the December 6th meeting.
As all contracts have
an implied covenant of good faith and fair dealing, and the parties should not be allowed to
act in an
arbitrary, capricious or discriminatory fashion, the Union urged the Arbitrator to sustain the
and reinstate the Grievant with full backpay and benefits. On this point, the Union argued
District was using its assertion that it had extended the probationary period of Wellens in a
manner, citing Fortune v. National Cash, 115 LRRM 4658 (1977).
The District argued that the Grievant never denied the misconduct that the District
she engaged in and that the Union never put any evidence into the record regarding either the
Grievant's actions or to show that the Grievant was disparately treated. The District urged
proved just cause by means of documentation, District Exhibit 1 and Union Exhibit 1. As
failed to object to District Exhibit 1, the District did not call Principal Julian to support that
and the document stands uncontradicted. The District noted that Wilson and DeRubis
testified to the
fact that the misconduct that Wellens had engaged in was in fact cause for discharge in the
In addition, the District noted that Wellens had been counseled by Principal Julian regarding
misconduct so that there was a history of discipline prior to Wellens' termination.
District urged that it had proved just cause.
In regard to whether there was an agreement between the Union and the District to
Wellens' probationary period, the District urged that Wilson's testimony was clear, that there
an oral and complete agreement between Wilson and Union President Siewert to extend
probationary period by 30-days during their conversation at the end of November, 2002.
urged that Wilson was a straight-forward and believable witness and that Wellens'
period extension did not need to be "implemented." Rather, Wellens only needed to work
extension in order for the extension to be implemented. Furthermore, the District contended
Union never proved that it asked for the agreement to be in writing and that it needed to
agreement before it could become final. The fact that the District did not realize when
probationary period was over and when the extension began is not relevant to the inquires in
Regarding the Union's equitable estoppel argument, the District noted that there was
evidence submitted by the Union or the Grievant to show that either the Union or the
relied to their detriment on actions or inactions by the District. In addition, the District
Wellens had suffered no detriment because she did receive an extension of her probationary
as agreed. Finally, the District argued that the Union does not have clean hands in the case
it failed to honor an oral agreement between Siewert and Wilson and under equitable
Union should not be allowed to profit from its bad conduct. Indeed, the District urged that
principles of equitable estoppel should be applied against the Union and in favor of the
District as it
had relied to its detriment on the agreement between Wilson and Siewert. In all the
the District urged that the grievance be denied and dismissed either based on the agreement
Wellens' probationary period or based upon a finding that the District had just cause to
The Union argued that because District Representative DeRubis testified that the
extension for Wellens was never implemented, the Grievant must have become a regular
employee before she was termination and she should therefore have been protected by the
provision of the labor contract. The Union argued that the District's arguments concerning
alleged agreement reached between Wilson and Siewert mischaracterized testimony of record.
addition, the Union asserted that the District failed to prove that Wellens had ever received
discipline and it failed to prove that it had just cause to terminate Wellens. Therefore, the
urged that the District must bear the penalty for its mistake.
The Union noted that the District failed to call Principal Julian as a witness and that
Exhibit 1 is therefore hearsay, which should be useless in a termination case where the
the burden to prove just cause. The fact that the District made a mistake in calculating the
probationary period is not an error that Wellens should bear. Rather, the District should
penalty for its mistake. Finally, the Union urged that despite the District's arguments that if
were reinstated she should serve a new probationary period in its initial brief, the Union
this would be inappropriate under the labor agreement and general arbitration practice.
Union argued that Wellens should be reinstated with full backpay to her part-time Monitor
The initial question to be answered in this case is whether Wellens' contractual
period was extended by mutual agreement of the parties. In my view, the record evidence
a conclusion that the Union and the District agreed to extend Wellens' probationary period
days at the end of November, 2002. The fact that neither the Union
nor the District realized that Wellens' 90-day contractual probationary period would in
sooner than they assumed, due to Wellens' work as a temporary employee prior to her hire
regular part-time employee, does not detract from the agreement reached between Wilson and
Siewert in late November, 2002.
In this regard, I note that Wilson was the only witness who testified regarding the
reached between him and Siewert in their telephone conversation in November, 2002.
Wilson's testimony on this point stands uncontradicted and is fully credited. In addition,
testimony herein was clear that he and Siewert agreed that Wellens' probationary period
extended by 30 days and that at no time did Siewert request that the extension be put in
state that she needed to review a written document regarding the extension before her
same could be considered final or complete.
In addition, Union Vice President Kuiper's testimony does not undermine the prior
reached between Wilson and Siewert. In this regard, I note that Kuiper was not present
and Siewert agreed to extend Wellens' probationary period. The evidence regarding the
in early December, 2002, when Kuiper, Siewert and Wellens met with DeRubis, showed that
Union and the District had already agreed to extend Wellens' probationary period by 30 days
this meeting occurred, based on uncontradicted evidence that during the December, 2002,
Wilson popped into the meeting room and confirmed that he and Siewert had previously
extend Wellens' probationary period for 30 days.
The tenor of this meeting, therefore, assumed that an agreement to extend probation
already been reached. Kuiper corroborated Wilson's testimony that Siewert agreed that he
Siewert had reached an agreement to extend Wellens' probationary period in November,
Furthermore, DeRubis and Wilson stated herein without contradiction that no one from the
requested that Wellens' probationary extension be put in writing before the Union would
agree to it.
DeRubis also stated herein that Wellens never asked for a written document regarding the
Wellens confirmed that she believed the District had agreed to extend her probationary
she asserted this in her conversations with Julian on November 15, and December 13, 2002.
There is no provision of the labor agreement which requires probationary periods be
5/ Julian had not been present during any of
the discussions regarding the extension of Wellens probationary
period as demonstrated by his lack of correct information on the subject when he spoke to
Wellens in November
and December, 2002.
In addition, there was no past practice at the District of putting probationary period
agreements into writing. The fact that the Union and the District agreed in writing to extend
unit employee's probationary period after the instant case arose, is neither relevant to this
does it constitute evidence of past practice.
It is significant to the Arbitrator that it was not until April 9, 2003, after the instant
had been filed, when the parties were meeting in an effort to settle Wellens' grievance that,
to Kuiper, Siewert asserted that the Union had never received a written document concerning
extension of Wellens' probationary period. Even on April 9th,
Siewert did not make clear to those
present that it was her contention that no agreement to extend Wellens' probationary period
finalized because no written agreement was received by the Union thereon. On the contrary,
then agreed with Wilson that they had agreed in November, 2002, to extend Wellens'
The Union has urged that the principle of equitable estoppel should be applied in this
I disagree. As discussed above, I have found that the Union and the District entered into an
agreement to extend Wellens' probationary period by 30 days in November, 2002. At that
Wellens was still in her 90-day probationary period and would have suffered no detriment by
extension of the that probationary period. Thus, Wellens did not change her position to her
based her reliance on the District's extension of her probationary period at that time. In any
the agreement to extend Wellens' probationary period would not have given Wellens the right
application of a just cause standard were she discharged during the extension unless such an
agreement were specifically reached by both parties. No such agreement was contemplated
The Union has argued that the District has acted in bad faith or was arbitrary,
discriminatory in its treatment of Wellens. In regard to this point, the evidence in this case
show that the District acted arbitrarily, capriciously or discriminatorily. In addition, the
provided no evidence of disparate treatment of Wellens.
Based upon the above analysis, I make the following
Cathy Wellens was terminated within an extended probationary period. The
therefore denied and dismissed in its entirety. 6/
6/ As I have found that Wellens was
discharged during an extended probationary period, I need not address
the various arguments regarding just cause raised by the District and the Union in this case.
In addition, the
Fortune case cited by the Union concerned the discharge of an at-will salesman (who could
be terminated without
cause). I find this case inapposite.
Dated in Oshkosh, Wisconsin, this 28th day of August, 2003.
Sharon A. Gallagher, Arbitrator