BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LABOR ASSOCIATION OF WISCONSIN,
FOR AND ON BEHALF OF ITS AFFILIATE LOCAL
RUSK COUNTY PROFESSIONAL EMPLOYEES
RUSK COUNTY, WISCONSIN
Mr. Thomas A. Bauer, Labor Consultant, Labor
Association of Wisconsin, Inc., 206 South
Arlington Street, Appleton, Wisconsin 54915, appearing on behalf of the Labor Association
Wisconsin, Inc., which is referred to below as the Association.
Ms. Mindy K. Dale, Weld,
Riley Prenn & Ricci, S.C., Attorneys at Law, 3624 Oakwood Hills
Parkway, P.O. Box 1030, Eau Claire, Wisconsin 54702-1030, appearing on behalf of Rusk
Wisconsin, which is referred to below as the County.
The County and the Association are parties to a collective bargaining agreement
in effect at all times relevant to this proceeding and which provides for the final and binding
arbitration of certain disputes. The parties jointly requested that the Wisconsin Employment
Relations Commission appoint Richard B. McLaughlin, a member of its staff, to serve as
to resolve an arbitration filed on behalf of Todd Ludvik, who is referred to below as the
Hearing on the matter was conducted on April 16, 2003, in Ladysmith, Wisconsin. No
prepared of the hearing, and the parties filed briefs and a waiver of a reply brief by July 7,
The parties stipulated the following issues for decision:
Did the County have just cause to suspend the Grievant
for two days without pay?
If not, what is the appropriate remedy?
ARTICLE VI - DISCIPLINARY
Section 6.01: The parties
recognize the authority of the Employer to initiate disciplinary
action against employees, provided such disciplinary action is for just cause.
Section 6.02: The
recognizes the principle of progressive discipline when
applicable to the nature of the misconduct giving rise to the disciplinary action.
The grievance, filed on November 15, 2002 (references to dates are to 2002, unless
noted), asserts that "The Disciplinary Action taken on November 15, 2002 was issued
cause" in violation of Article VI. The disciplinary action is set forth in a memo dated
from Gary Rivers, the Director of the County's Department of Health & Human
to the Grievant. The memo reads thus:
This document is intended as notice of unsatisfactory work
performance and subsequent
Your work performance has been determined to be unsatisfactory
for the following reasons:
Failure to ensure safety of a
o On 11/12/02 you received a call from the
Sheriff's Department investigating
a child sexual assault. Contrary to Department Policy and procedure you did
not have a direct contact with the child and the child's guardian(s) for the
purpose of ensuring safety of the child.
The unsatisfactory work performance identified above constitute a
serious and significant work
performance deficiency. Due to the seriousness of the deficiency related to the safety of a
following disciplinary action is being taken: a 2 day unpaid suspension effective 11/19/02.
scheduled date to return to work is 11/20/2. Upon your return to work the following
action is required:
Follow all Department policies and
procedures to ensure the safety of a child.
Should you fail to meet 100% compliance with the required
corrective action as it applies to
following Department Policies and procedures regarding ensuring the safety of a child, you
suspended without pay pending a termination hearing by the Personnel Committee.
Also upon your return from unpaid suspension, you will be
required to review all case
assignments (intakes and ongoing cases) with your supervisor, to ensure all Department
procedures are being followed.
The Grievant signed this memo on November 15, adding the notation "I completely
disagree with this
entire action." Rivers denied the grievance in a memo to the Grievant dated December 16.
memo also noted Rivers' conclusion that "the alleged relationship issues between you and
supervisor" had no bearing on the validity of the discipline.
The discipline concerns the events of November 12 and 13. The Grievant called in
both days, but was on-call for the evening hours of November 12 and the early morning
November 13. During the evening hours of November 12, the parents of a thirteen year old
phoned the Sheriff's Department to report that they had learned the girl had sexual
an eighteen year old man on or about October 22. Because the man continued to try to
girl, the parents decided to bring the matter to the attention of the Sheriff's Department,
girl into the Sheriff's Department so that she could be interviewed. The Sheriff's
assigned Deputy Sheriff Travis M. Mayer to conduct the investigatory interview regarding a
Mayer summarized the events of the evening in a memo that reads thus:
On November 13 (sic), 2002 whiled working for the Rusk County
Sheriff's Department I was
assigned to investigate a sexual assault of a child 13 YOA.
I had dispatch page the on call DHHS
worker. I was contacted by (the Grievant). I told him that
I had a sexual assault of a child case and that the parents were bringing the child in for an
I told him that the victim was X . . . 13 YOA and the offender was Y . . . 18 YOA. I told
Corporal Zielke had investigate a case after the father had called about Y . . . not leaving his
alone. I told him that Y. . . had agreed not have contact with X . . . . I then told him
mother had talked with X . . . and X . . . had admitted that on or near Oct 22, 2002 she had
Y . . . I told him that this happened at Josie Creek Campground in a vehicle.
(The Grievant) then told me that he was not
going to come in because the parents were keeping
the child safe. He said that I needed to reaffirm this with X . . . and the parents that there
was to be
no contact. He said that he would then start his process from my report in the morning.
This was the end of our conversation.
Mayer completed a video-taped interview with the parents and
daughter early in the morning of
November 13. The Grievant did not participate in the interview. The Grievant documented
spent in responding to the pager in the "Comp" section of his time sheet for November 12.
The RCHSS maintains a collaborative agreement with the Sheriff's Department.
speaking, the agreement calls on the two agencies to cooperate during an investigation, with
sheriff assuming responsibility to determine facts relevant to the prosecution of a criminal
and a social worker to determine the care needs of a child and the child's family. More
the social worker's assessment, under the collaborative agreement, is to include an initial
determination "whether the child is likely to be in need of protective services within the
established in Chapter 48 Wisconsin statutes". The RCHSS maintains internal policies that
social workers to implement a protective plan where circumstances demand it. The policies
a protective plan as "an immediate, short term, sufficient strategy that provides a child
adult supervision and care, compensates for immediate physical or situational threats and
accommodates the family situation to allow for the completion of the initial assessment."
RCHSS maintains forms to guide the creation of a protective plan, including obtaining the
of parents or caregivers, the social worker and their supervisor.
The background to this point is undisputed. The balance of the background is best set
as an overview of witness testimony.
Mayer first learned of the alleged assault at roughly 10:00 p.m. on November 12.
independent recall of the events of that evening beyond the memo set forth above, which he
the week after the incident, in response to a request from the Chief Deputy, Gary Hahn.
the first time in his experience that a social worker did not respond to an interview involving
sexual assault of a child. After conducting the interview, he submitted a general report to
supplied the report to RCHSS to comply with the collaborative agreement, which requires
with RCHSS within twenty-four hours of an allegation of sexual contact involving a minor.
the Grievant had reported to the interview, Mayer saw himself as the primary investigator
the sexual assault.
Hendricks is the Supervisor for the Child and Family Services Unit (CFS) of the
succeeded Ted East in that position, and had been, in November, the Grievant's immediate
for roughly one and one-half months. Under the office calendar by which social workers
learn of on-call assignments, the Grievant was scheduled to be on call for November 12.
Other social workers
covered for the Grievant's absence during the day on November 12, but his on-call status
separate problem. Hendricks testified that late in the work day on November 12 she
phone conversation between the Grievant and his (then) fiancé, Debra, who is
referred to below as
Ludvik. She understood the gist of the conversation to be that Ludvik should bring the pager
to him. Hendricks told her that if the Grievant was too sick that Ludvik should advise her so
could make other arrangements. Ludvik declined the offer, and returned the pager to the
at the start of the workday on November 13. Hendricks did not speak to the Grievant on
12 or 13.
Early in the workday on November 13, a foster parent phoned Hendricks to advise
she had phoned RCHSS at roughly 4:00 p.m. on November 12, but did not get a return call
p.m. When Hendricks inquired about the timeliness of a response to the pager, the
which page she was referring to. This led to Hendricks' discovery, at roughly 8:30 a.m. on
November 13, of the Grievant's response to the page initiated by Mayer. Hahn gave
report to Hendricks, and asked her if she realized the Grievant had chosen not to report to
interview. Hendricks then brought the matter to Rivers' attention, and asked Hahn to have
prepare a more detailed description of his conversation with the Grievant.
Hendricks stated that she was familiar with the subject of the assault complaint, and
had a history of improper conduct toward minors. She felt the matter posed safety and
for the family that had sought assistance. Beyond this, she felt that the Grievant had violated
policies regarding the collaborative interview process and the creation of a protective plan.
not think she had the authority to discipline the Grievant, but documented her concerns and
them to Rivers.
Hendricks did not speak directly to the Grievant until November 15. After a CFS
staffing, she asked the Grievant to report for a meeting with her and Rivers at 1:00 p.m.
Grievant appeared at the meeting with the Association's President, Deb Klund. Rivers
meeting. He had prepared a memorandum outlining all of their concerns with the Grievant,
included the imposition of a three day suspension. Rivers modified the memo as the
responded to their concerns. She played no role in these modifications or in the imposition
She testified that she did not call the Grievant to determine
sick he was. She arranged
to cover his absence during the workday on November 12, and would have taken the pager
if she had known the Grievant was too sick to respond to it. She assigned the creation of a
plan to another social worker on November 13. She saw no need to
contact the Grievant once alternative arrangements to address the assault had been put
in place. She
felt that Mayer did a good job to determine the parents' ability and willingness to protect
daughter, but did not feel that this should have been left to Mayer.
She acknowledged that she and the Grievant had "some big problems" in a non-work
relationship in the summer of 2001 that prompted East to write a staff-wide memo on
inter-personal working relationships.
Rivers stated that Hendricks reported her concerns with the Grievant's response to the
assault on November 13. They reviewed her concerns and the reports she had obtained and
possible policy infractions. Rivers did some background research then waited for the
return to work. He did not view it as necessary or worthwhile to contact the Grievant before
well enough to return to work.
Rivers and the Grievant worked together on November 14 to unload a truck
donations to the tornado relief effort. Rivers did not mention the events of November 12 or
November 15, Rivers summoned the Grievant to a meeting, and informed him that it could
discipline. The Grievant appeared at the meeting with Klund, and Rivers appeared with
Rivers stated he probably prepared a memo stating all of his concerns with the Grievant, but
the Grievant to explain his response to the pager on November 12. The Grievant responded
was very sick with the flu on November 12 and 13, and asked Mayer to double check on the
safety during the course of the interview. Rivers detailed his concern that this assessment
had to be
made by an RCHSS employee, and detailed the questions he thought the Grievant should
addressed in the interview. He did not feel the Grievant meaningfully responded to his
regarding the need for a social worker's presence at the interview. He did feel that the
illness was a mitigating factor, but only in the sense that if the Grievant had not been ill,
have imposed more stringent discipline. He did alter his memorandum during the course of
meeting, but could not recall how with any specificity. He felt the two day suspension rested
events of November 12 and 13 standing alone.
Rivers concluded that the Grievant's illness could not obscure that he had accepted
sought payment for having it, and was responsible for responding to it or for alerting
his inability to do so. His failure to either appear at an interview concerning the sexual
assault of a
child or inform RCHSS that he was to ill to do so constituted negligence that warranted the
suspension. He stated he could "hardly imagine another employee issue" more significant.
the level of the suspension, he stated that "We can tolerate one mistake like this, but we
Ludvik is now the Grievant's wife, and was his fiancé in November. She has
worked in CFS
since April of 1998. The Grievant was very ill on November 12, and called in sick to the
Manager and to Hendricks after Ludvik informed him he needed to call twice to be sure that
message had been received. Late in the afternoon of November 12, Sheila Poradish, a Social
came into Ludvik's office and offered to take the pager that evening. Later in the afternoon,
Hendricks asked Ludvik what she would do with the pager, and noted that if she did not take
to the Grievant then Hendricks would have to take it. Ludvik responded "whatever", and
Hendricks told her she needed to take it home to the Grievant. In a subsequent conversation,
Poradish again volunteered to take the pager, but they agreed that Hendricks seemed to want
pager to be taken to the Grievant. Ludvik denied that the Grievant told her to bring the
She appeared in Rivers' office on November 14 or 15 to advise him that Poradish had
offered to take
the pager for the evening of November 12. She stated that Rivers seemed uninterested in the
She added that she feared her testimony might have an adverse impact on her job.
The Grievant has worked for the RCHSS for roughly eight years, employed as a
Court Intake/Child Protective Services Worker in November, and currently as a Long Term
Case Manager. While he served as a Juvenile Court Intake/Child Protective Services
Hendricks was his immediate supervisor.
On November 12, he left a voice mail with the Office Manager and with Hendricks
was ill and could not report for work. His normal hours of work were 8:00 a.m. through
and he was scheduled to be on call from 4:30 p.m. until 8:00 a.m. on November 13. He
noted he had
a bad case of the flu and spent the two days confined to his bedroom and bathroom. Ludvik
home early in the evening of November 12, and the Grievant was surprised to hear the
phoned the dispatcher, who informed he that he had had two calls. The Grievant responded
and neither person complained about the timeliness of his response.
At roughly 11:00 p.m., the Grievant awoke to the pager. The dispatcher informed
him of a
potential sexual assault involving a child. He called the dispatcher, who connected him to
Mayer advised him the victim was a thirteen year old girl and the alleged assailant was an
year old man. The Grievant recognized the name of the alleged assailant, since he had
as a delinquent who was being supervised for improper sexual conduct. The Grievant
the alleged assailant was the subject of an ongoing investigation involving another deputy.
Mayer if the other deputy was involved, and Mayer responded that the parents were bringing
in to be interviewed. Mayer asked whether the Grievant wanted to take part in the
Grievant responded that he was really sick, and asked if Mayer would do him a favor and
talk to the
parents. The Grievant specified that he wanted Mayer to
ask the parents if they would protect the child. Mayer said he would. The Grievant
and said that if there were problems, Mayer should call back, adding that he would do the
on November 13.
The Grievant intended to do the follow-up on November 13, thinking that he would
enough and could prepare a protective plan within twenty-four hours of the report of the
However, he did not feel well enough to report to work until November 14. On November
spoke to two fellow social workers to determine if there was any need for him to follow-up
alleged assault. Neither had any information on the matter, and there was no documentation
Grievant's mailbox concerning it. Later on that day he assisted Rivers in unloading a truck
donations for tornado relief. They did not discuss the events of November 12, and Rivers
him as they worked.
The following morning after a staffing, the Grievant turned over his time records to
Hendricks, who questioned him about November 12. The Grievant consulted Klund and
informed him that he did not think the Grievant committed a disciplinable offense.
Klund accompanied him to the meeting with Rivers and Hendricks. Rivers
with a document containing three distinguishable allegations, and imposing a two day
Rivers asked the Grievant to sign the document, but the Grievant refused. He perceived the
document to be a final copy, not a draft. He noted one of the allegations concerned his
a page earlier in the month and the other concerned his response to the initial pages on
He did not see Mayer's written memo until the arbitration hearing, and thought the
lacked detail. Specifically, he noted the memo failed to note the Grievant asked him for a
directed Mayer to question the parents concerning the child's safety. Beyond this, he noted
has handled child safety issues in the past over the phone. In such cases he would write a
plan the following day. He has not been disciplined for this.
After receiving the discipline, the Grievant brought to Rivers' attention two staff
that he deemed relevant to his grievance. One involved Brenda Taylor, who, while on-call,
a call from a teacher who was concerned about an incident of abuse to a child. Taylor
child's home and discovered that law enforcement officers were present. Taylor documented
incident on the RCHSS computer system, but took no action to prepare a protective plan.
second involved Jeremy Jacobs, who received an intake call concerning sexual contact
twelve or thirteen year old girl and her older brother. The following day Jacobs raised the
a staffing, and was informed to prepare a protective plan immediately. He was not,
He noted that he has had difficulty dealing with Hendricks in the past, and has filed a
complaint against her for making inappropriate comments regarding their relationship on and
work. Their difficulty dealing with each other prompted East to write a staff-wide memo on
working relationships. The Grievant stated the relationship had reached the point that
he did not
contact Hendricks except "for work and work only."
On rebuttal, Hendricks testified that the incident regarding
Taylor involved physical abuse,
not sexual abuse. The violence involved the mother of a child and a live-in relative of the
who attacked the mother. Law enforcement handled the incident, the in-law was jailed for
weekend and thus the child's safety posed no issue.
On rebuttal, Rivers stated that he investigated the Taylor incident after the Grievant
it to his attention. The altercation involved two adults. The child happened to get between
during the altercation, and there was no indication either adult intended to hurt the child.
could not recall Ludvik telling him that Poradish would take the pager. He did not feel this
the decision to discipline, since how the pager got to the Grievant was less significant than
did with it. He added that he discussed the incident with East, who assured him that the
should have known he had a duty to report for the interview.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The County's Brief
After a review of the evidence, the County argues that it had just cause to "suspend
for failing to follow department policy and procedure to ensure the safety of a child who had
the victim of a sexual assault." The County contends that arbitral precedent does not warrant
mechanical application of the Daugherty framework." Essentially, the just cause standard
that the County demonstrate employee misconduct and a reasonable employer response.
The evidence establishes that the Grievant faced a clear and known imperative under
governing County policy to be present at the investigation of the sexual assault. The
to respond appropriately. He understood the need to participate in the collaborative effort to
investigate the charge and the need to prepare a protective plan. By asking Mayer to cover
in the investigation, the Grievant failed to meet his duty as a professional to assure "that the
of a child comes first and foremost."
Nor can the Grievant's defense of his actions be credited. His self interest in
himself must be acknowledged. Beyond this, none of the excuses he offered for his conduct
persuasive. Rivers took the Grievant's illness into account, but the "illness did not excuse
his failure to ensure the safety of a child." His claim to have called in, or his
assumption that no one
else could have covered for him cannot obscure that the responsibility to respond to the
his alone. Having accepted the pager, he was obligated to report to the Sheriff's Department
find someone who could. He "chose not to do either."
Whether or not another employee volunteered to take the pager, it was his
meaningfully respond to it. Ignoring this, Hendricks' account of how the pager got to the
is credible. An examination of the Grievant's finance's testimony will not explain his
conduct. In any
event, the fact that the Grievant accepted the responsibility of the pager is the ultimate source
County's disciplinary interest.
Nor can the Grievant's assertion that he thought the sexual assault was part on an
case defend his inaction. There was no on-going investigation of the sexual assault, but even
had been, the Grievant remained obligated to "assist Deputy Mayer with the interview, meet
parents to complete a protective plan and ensure the safety of the child." Similarly, his
Mayer cover for him cannot remove this obligation even though Mayer did a competent
The record will not establish that the County treated the Grievant in less than an
fashion. The "prohibition against disparate treatment requires like treatment
circumstances" and the Association bears the burden of proving this point. A
review of the evidence
will not support the assertion that the County has, under like circumstances, treated other
more favorably than the Grievant. Nor will the evidence support the assertion that East
the Grievant's conduct. Rivers determined that there was no disparate treatment and no
approval of the Grievant's conduct.
With this as background, there is no support in the evidence or arbitral precedent for
a two day suspension inappropriate. Section 6.02 "recognizes the principle of progressive
but "the seriousness of the offense" makes "a two day suspension . . . appropriate." That
struck two performance issues from the memo he had prepared prior to interviewing the
establishes no more than Rivers' willingness to listen. Hendricks played no role in the
of the disciplinary memo. Nothing in the evidence concerning Hendricks' and the Grievant's
difficulties in relating to each other can undermine the reasonableness of Rivers' conclusions.
record demands "that the Arbitrator dismiss the grievance in its entirety."
The Association's Brief
After a review of the evidence, the Association contends that the County violated
Section 6.01 by disciplining the Grievant without just cause. The evidence establishes
Grievant called in sick on November 12 and 13, that Hendricks was aware of his illness and
Hendricks failed to take any action to verify the severity of the illness before issuing him the
Even assuming the Grievant failed to exercise good judgment, that errant conduct "was
due to a physical problem . . . he was too ill to respond to the deputy's
request to come to the
Arbitral precedent establishes that this factor should be considered a mitigating factor
assessing the Grievant's conduct. More specifically, the evidence establishes that Hendricks
another employee's request to take the pager and thus that Hendricks' conduct contributed to
Grievant's situation. Beyond this, the evidence demonstrates that the County's assertion that
Grievant willfully violated established procedures "is patently false." Rather, the record
the Grievant "went out of his way" to confirm with Mayer that the child was safe and not in
immediate care. Thus, the Grievant acted reasonably, given that he knew "that he was too
respond to the Sheriff's Department."
The same cannot be said for Hendricks. She failed to assess the Grievant's illness
to release him from on-call duties. The labor agreement permits an employee to take sick
this presumes a release from duties. Thus, the discipline "infringes upon the Grievant's right
the sick leave benefits of the CBA." Beyond this, the Grievant's testimony establishes at
other incidents in which departmental employees failed to respond to the abuse of a child
immediate development of a protective plan. The County failed to demonstrate why it did
discipline these employees after it had chosen to discipline the Grievant.
Even if the evidence indicated a basis to discipline, the County's suspension "was too
extreme" and violates Sections 6.01 and 6.02. At most, the evidence shows excusable
neglect on the
Grievant's part rather than willful misconduct. This demands the assertion of progressive
which calls for "a letter of reprimand for the November 12, 2002 incident." The Association
concludes the evidence demands that "the Arbitrator find that the Employer suspended the
. . . without just cause." As the appropriate remedy, the Association requests that "the
1. Order the Employer to make the Grievant whole
for all lost wages and benefits denied the
Grievant for the period of November 19 and 20, 2002.
2. Order that any and all
reference to the suspension shall be expunged from the Grievant's
3. That should the Arbitrator
find that the Employer had just cause to discipline the Grievant in
the instant case, the Association respectfully asks the Arbitrator to find that the degree of
discipline imposed by the Employer was not reasonably related to the Grievant's conduct,
that the discipline be modified to a letter of reprimand."
The stipulated issue concerns whether the County had just cause to suspend the
two days for his conduct on November 12 and 13. In my view, when the parties do not
standards defining just cause, two elements define it. First, the employer must establish
the Grievant in which it has a disciplinary interest. Second, the employer must establish that
discipline imposed reasonably reflects its interest. This does not state a definitive analysis to
imposed on contracting parties. It states an outline of the elements to be addressed, relying
parties' arguments to flesh out the outline.
The Association does not seriously question, and the record will not support a serious
question regarding the existence of a disciplinary interest in the Grievant's failure to respond
to the call concerning the sexual abuse of a minor. A professional employee in human
services is paid
for the exercise of informed discretion. It is not necessary to belabor discussion of the
maintained by the County to note the significance of the prompt preparation of a protective
a case of sexual abuse of a child. That Rivers thought it best that the Grievant view the
care needs were to be assessed is reasonable. There is no dispute that a collaborative
process reduces the number of interviews a child victim must encounter. That the policies
exercise of case-by-case discretion in determining when and how to prepare a protective plan
accentuates the significance of the discretion exercised by the Grievant on the evening of
12, and on the morning of November 13. The Grievant's decision not to participate in the
is insupportable and the existence of a County disciplinary interest established. The County
established a disciplinary interest in the Grievant's decision not to prepare a protective plan
November 13 or to advise anyone that he was too ill to do so.
The Association asserts a series of mitigating factors to undercut, if not eliminate,
disciplinary interest. The first is that the Grievant was too ill to respond to the call. The
adds a closely related point that the Grievant responded within the limits of his physical
respond. The points have some persuasive force. However, each obscures that the Grievant
not to advise anyone of his inability to respond. A call to RCHSS supervision at any point
evening of November 12 could have opened up the possibility of finding a substitute.
pragmatically from the Grievant's perspective, it would have shifted the responsibility to
else. To the extent the Grievant's request that Mayer do him a favor is seen as an exercise
discretion, it is flawed. It treats the RCHSS interest in the interview as inconsequential, or
indistinguishable from the Sheriff's interest in the criminal ramifications of the incident. In
the points cannot obscure the Grievant's fundamentally flawed determination to act
rather than advise management of the degree of his illness.
The Association makes a series of more forceful arguments regarding Hendricks'
She covered for his sick leave on November 12, but took no effective action to relieve him
duties on the evening of November 12 and the morning of November 13.
As a contractual matter, the most significant assertion is that Hendricks effectively
denied him the use
of contractual sick leave. Two factors undercut this assertion. The first is that there is no
that the Grievant was not afforded sick leave for November 12 and 13. To the extent the
on-call duties is the focus of the point, it ignores that the Grievant claimed compensation for
responding to the calls. Nor does this point turn on witness credibility. Even if Hendricks'
of how the pager reached the Grievant is credited over Ludvik's, Hendricks' unwillingness to
the Grievant remains insupportable. However, crediting Ludvik's account does no credit to
Grievant. He assumed that no one was available to cover for him. This assumption needed
than a phone call to RCHSS management to be tested. He was not too ill to converse over
phone, as his response to three pages demonstrates. However the pager reached his hands,
discharge of his responsibility for it remains inadequate.
This cannot obscure that Hendricks' unwillingness to contact the Grievant affords no
to the County. The evidence indicates each party to a dysfunctional relationship valued the
dysfunction of the relationship over their work responsibilities. This has a bearing on the
element of the just cause analysis, but has no bearing on the existence of a disciplinary
interest in the
Grievant's conduct of November 12 and 13.
In sum, the County has established a disciplinary interest in the Grievant's failure, on
November 12 and 13, to report to an interview regarding an allegation of sexual abuse of a
There is no factor to undercut the existence of this interest. The Grievant's illness cannot
failure to disclose to RCHSS management that he could not physically respond to the
can it justify his failure to prepare a protective plan or to advise RCHSS management of his
inability to do so on November 13.
The analysis thus turns to the second element of the cause analysis. Section 6.02
directly on this point. The most persuasive line of argument advanced by the Association is
Grievant's conduct warrants a lower level of discipline. Rivers' view is that the suspension
related to the severity of the misconduct, and reflects that the County will view one instance
warning, but cannot tolerate a second. The language of Section 6.02 will accommodate
of argument, for the principle of progressive discipline is made "applicable to the nature of
misconduct giving rise to the disciplinary action."
Determining the more persuasive line of argument thus becomes a factual issue, and
evidence supports the County's view over the Association's. The misconduct giving rise to
discipline is fundamental, involving the exercise of a professional's discretion in a situation
sexual abuse of a minor. The misconduct is not restricted to a single act. The Grievant
chosen throughout the evening of November 12 to advise RCHSS management that he was
to respond to the pager. He did not, including the point at which he declined to participate
interview. To complicate this flawed exercise of judgment, he informed Mayer that he
the protective plan process, based on Mayer's report, when he reported for work on
Ignoring the impact that may have had on getting Mayer
to "do me a favor," the Grievant later called in sick, taking no effective action to
assure the protective
plan process was set in motion. That Mayer's report would generate a departmental response
obscure the Grievant's failure to assume personal responsibility. Nor do other actions
sense of responsibility for his actions. His time sheets indicate his opinion that the response
appropriate. His signature on the reprimand memo indicates that Rivers' memo had no
impact on his
view of the events of November 12 and 13.
The Association urges that there are mitigating factors, but the arguments are
logically than factually. The Grievant's citation to Rivers of the Taylor and Jacobs incidents
something less than disparate treatment. The facts of each matter are less than clear.
however, affords a substantial basis to question the reasonableness of Rivers' decision. The
incident did not involve sexual abuse, and the evidence indicates that the assaulting party was
The Jacobs' incident is unclear. Even if the facts are taken as the Association asserts, the
demanded that Jacobs create a protective plan the day following the incident. This affords at
evidence to undercut the County's interest in the actions of November 12. However, it
defense for the Grievant's failure to take some meaningful action to report the incident on
13. Beyond this, the incidents underscore the need to assess the exercise of judgment on a
case-by-case basis. The Grievant's assertion of disparate treatment seeks to insert a general
rule where none
will fit. In addition, the Grievant's willingness to question the conduct of fellow employees
more zeal to protect himself than solid evidence to question RCHSS management decisions.
The most persuasive arguments for a lesser level of discipline concern the conduct of
management. Hendricks' unwillingness to contact the Grievant directly created, for no
reason, circumstances in which the Grievant was forced to exercise discretion while ill.
There is no
reason to believe Hendricks could not have found another employee to take the pager. The
Association's arguments on this point are forceful. However, it is ultimately the Grievant's
of discretion that is at issue, and the evidence underlying that discretion is, as noted above,
troublesome in its own right. If the Grievant's conduct indicated a meaningful assumption of
responsibility for his conduct there would be reason to believe a lower level of discipline
the necessary signal. However, there is no evidence that the Grievant acknowledges any
responsibility for the incident. This supports Rivers' conclusion that a higher level of
Rivers' preparation of a disciplinary memo in advance of the imposition of discipline
troubling. The evidence is not, however, sufficiently clear to conclude that he failed to
Grievant a meaningful opportunity to tell his side of the story.
In sum, the County has established that the suspension reasonably reflects its
interest in the Grievant's conduct. Thus, it has met both elements of just cause, and has
with the requirements of Section 6.01 and 6.02.
The County did have just cause to suspend the Grievant for two days without pay.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 2nd day of
Richard B. McLaughlin, Arbitrator