BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LASATA CARE CENTER EMPLOYEES
(Z.A. Discharge Grievance)
Mr. Thomas Bauer and Mr. Benjamin
Barth, Labor Association of Wisconsin, Inc., 206 South
Arlington Street, Appleton, Wisconsin 54915, for the labor organization.
Mr. John R. Kuhnmuench, Jr., Human Resources Director,
Ozaukee County, Ozaukee County
Courthouse, 121 West Main Street, P.O. Box 994, Port Washington, Wisconsin
the municipal employer.
Lasata Care Center Employees Association ("the Association") and Ozaukee County
County") are parties to a collective bargaining agreement which provides for final and
arbitration of disputes arising thereunder. The Association made a request, in which the
concurred, for the Wisconsin Employment Relations Commission to designate a member of
to hear and decide a grievance over the interpretation and application of the terms of the
relating to discipline, specifically the discharge of Z.A. The Commission appointed Stuart D.
to serve as the impartial arbitrator. Hearing in the matter was held on April 3, 2003 in
Wisconsin, with a stenographic transcript being made available by April 16. The parties
arguments on May 20. With its brief, the County submitted two documents it identified as
Exhibits 7 and 8. On May 21, the Association wrote to object to the submission of
this new evidence.
On May 27, I
wrote to invite the County to respond to the Association's letter of May 21, which it
did by letter
received on June 4. On June 13, I ruled that there was no justification for the late
submission of the
evidence, and therefore returned the exhibits to the County and struck all references thereto
County's brief. On August 11, the County waived its right to file a reply brief, as did the
The parties stipulated to the following statement of the issue:
Did the Employer have just cause in terminating the grievant on
August 7, 2002? If not, what
is the appropriate remedy?
ARTICLE VI SENIORITY
. . .
Section 6.06 Loss of
Seniority: Seniority and the employment relationship shall be
broken and terminated if any employee:
A) resigns (unexcused
absence in excess of three  consecutive workdays shall be
construed as resignation. Inability of an employee to notify the Employer of such
absence because of physical inability or other just causes shall be taken into
consideration in determining whether the absence is unexcused);
. . .
C) fails, without being excused, to return to work after;
expiration of an unpaid leave of absence;
expiration of a period of eligibility for Worker's Compensation for
temporary-total or temporary-partial disability;
3. The expiration of five (5) calendar
days following the date a notice of recall
from layoff is received or dated undeliverable;
unless an extension is granted by
the County in writing. In the event a recalled
employee is unable to report to work in the above time period because of sickness or
injury, such employee's seniority and his or her employment relationship with the
County shall not be broken or terminated because of such failure to report to work;
. . .
ARTICLE VII DISCIPLINE AND
Section 7.01 Just
Cause Definition: No employee who has completed his or her initial
probationary period, as provided in Section 5.01, will be suspended, demoted, disciplined, or
discharged except for just cause. Any discipline of an employee shall be reduced to writing
copy shall be given to the employee, the local Association president and a copy shall be sent
Labor Association of Wisconsin.
LASATA CARE CENTER EMPLOYEE
& WORK RULES
Unpaid Leave of Absences will
be granted under the terms of the current association
contract or County Ordinance, whichever is applicable. The employee is responsible for
following through and seeing that the necessary paperwork is filed. Prior to any unpaid leave
being granted, all accumulated sick leave, vacation, holiday time and comp time must be
Whenever possible requests for
Leave of Absences (paid or unpaid) should be made at least
ten (10) days prior to the leave so that Lasata can arrange for necessary approval and find
someone to perform your work during your absence. Requests for leaves must be in writing,
stating the reason for the leave, the starting date and the date you plan to return to work.
information must be verified in writing by a physician for all medical and family leave
If you are on an approved leave, you must
contact your supervisor two weeks in advance of the
expiration of the leave. You must also contact your supervisor before the first date of your
bring a medical release from your physician, if your leave has been for health reasons.
contact your supervisor prior to the date specified on the leave request or failure to
return to work
on the day after the expiration of the leave will be considered a voluntary termination of
Request for an extension of a leave of absence must be submitted to your supervisor in
writing at least
ten (10) days prior to the expiration of the leave. (emphasis added)
HOURS OF WORK
The work at Lasata differs from most
employment in that we must provide service 24 hours a
day, 365 days a year. In order that our residents receive the highest level of care, it may be
for you to work on weekends, holidays, evenings, nights and occasional overtime. Your
to meet these requirements is a condition of employment.
Department Heads are responsible for
preparing a written schedule of employee working hours,
which will be posted 14 days prior to the effective date of the schedule. Each work schedule
arranged so that every shift is adequately covered, therefore, it is imperative that each
report on assigned days. Schedules are not to be removed from their posted position
authorized by the Supervisor. (emphasis added)
. . .
ABSENCES AND TARDINESS
Lasata places great emphasis on good
attendance. Frequent absences or tardiness places an extra
burden on your co-workers. Only when you are dependably on the job can Lasata carry out
schedules and meet the needs of our residents. Your individual contribution is important to
functioning of the organization.
Regular attendance is expected of every employee. It is your
responsibility to be on the job on
time each day, fully able and ready to work. Although there are justifiable reasons to take
work, employment assumes the availability for work and excessive absenteeism and/or
result in disciplinary action. Excessive,
habitual repetitions, or patterns of absences and/or
tardiness will also result in disciplinary action.
If you must be absent or late on any
weekday, you must notify your supervisor at least one hour
before your scheduled starting time. The number is (262) 377-5060. If you are absent due
accident or illness, management may request a release for your return to work signed by a
physician. For absences exceeding three (3) calendar days, employees must submit a
statement or hospital report providing information as to the nature of the illness or injury and
of hospitalization, if any.
Nursing employee's who are absent on a
weekend day/s will be scheduled to work on a weekend
day/s they would normally have off unless they provide a written physician's statement
Among its other general governmental functions, Ozaukee County maintains and
Lasata Care Center, a residential nursing facility located in Cedarburg, Wisconsin. At the
hearing, the facility had about 220 employees, 1/ almost all of them represented by a labor
organization, attending to approximately 196 residents.
1/ The record evidence
identifies only LAW Local 905, the non-professional unit which represents the grievant. The
record does not indicate
what, if any, representation the professional employees have.
The grievant, Z.A., was hired as a full-time casual certified
nurses aide (CNA) on August 28,
2000. Pursuant to a memorandum of understanding attached to the parties' collective
agreement, this position is covered by the agreement, but its incumbents do not receive such
benefits as sick leave or vacation. The parties have, however, established a practice under
casual CNA's receive in unpaid leave the same amount of time off as they would have
vacation time if they were in a regular benefited position.
As of May, 2002, 2/ A. was regularly scheduled to work 40 hours per week. On
May 13, she
submitted a request for a 6-week (240 hours) unpaid leave of absence from
2/ All dates hereafter are
2002 unless otherwise specified.
June 18 to July 31, which she wrote was for "traveling home to Nigeria."
Given her seniority at the
time, if A. had been a regular CNA, she would have been eligible for two weeks (80 hours)
On May 14, Lasata administrator Ralph Luedtke denied the request, writing "too long
a time and
during peak vacation time for all staff."
On May 15, A. submitted a request to reduce her hours from 40 hours per week to
hours, effective July 8. That request was approved, and resulted in A. being assigned to
Also on May 15, A. submitted a new leave request, seeking to be off from June 18 to
stating the purpose was "traveling to Nigeria to take kids home & family issues."
this request on May 20.
Carron Godersky, a member of the bargaining unit, is the LCC scheduler. She
on several occasions from late-May to mid-June, she had conversations which related to A.'s
schedule. Godersky said she wrote memoranda on each conversation, in a notebook which
disappeared from her desk. Godersky later recreated the notes, as follows:
On 5/22/02 at approximately 2:00 pm I had a conversation with
Barbara Kingdom. Barbara
asked about not being about not being able to work Z. A.'s scheduled weekends in July. I
to her that schedule changes weren't being granted any longer. She asked me what Z. was
to do, "she won't even be in the state." Barbara also stated "she said she would just call in
couldn't have off." I told Barbara that it wasn't adviseable to do such because if you call in
not sick, disciplinary action can be taken.
Between the weeks of 5/27/02 &
6/6/02 Z. came into my office asking about the weekends she
needed off in July. I told her there was nothing I could do about it. She then responded
just forget to put my name on the schedule?" I told here I would not jeopardize my job.
said, "Well, can I call in sick now for then?" I told here she couldn't and that she really
in sick for those days because that wasn't true and if she did it was grounds for termination.
asked what she should do "I'm not going to be in the country"? (sic) Then she remarked
shouldn't tell her to go to Stephanie or Rosie cuz she had already spoken to them and they
On approximately 6/14/02 I spoke with
Z.A. in regards to her weekends to working July.
Inquiring if she was coming back sooner to work. She said no. He asked me what she
should do and
I told her she should get back here when she was scheduled to work next. I asked her what
going to do and she
said, "I'm just going to call in sick." I told her that wasn't
advisable. She said, "Well there's
nothing else I can do, I'll just call in sick and have my doctor fax a note. They can't fire me
if I have
my doctor fax a note."
Kingdom denies the conversation which Godersky recounted ever occurred. An
steward at the time of hearing (but not during the period of the events under review),
testified that, as Godersky reported, she did in fact seek to assume some of A.'s weekends in
but that her offer was denied.
On June 3, Godersky posted a CNA schedule which reflected A. being assigned to
July 13-14. On June 7, British Airways issued A. a passenger receipt reflecting A.'s
purchase of a
round-trip plane ticket. The accompanying itinerary, also prepared June 7, indicates
Chicago on June 18 and return on July 31. The receipt does not indicate the date the
confirmed, nor necessarily the date it was paid for. A. testified she purchased the $4,339
cash, sometime in May, but she provided no documentary evidence in support of that
A. neither reported for work on July 13-14, nor called to inform the LCC that she
In early July, Godersky posted a schedule which provided for A. to work again the
of July 27-28, and alternate weekends thereafter. Although she was in Nigeria at the time
schedule was posted, A. could reasonably be expected to have known of its particulars,
consistent with her new 8-hour per week assignment.
At about 5:00 in the morning of July 27, A. telephoned to inform the on-duty
nurse that she
would not be at work either day that weekend. The reason for her absence was reported as
country, no return flight until 7/31."
A. returned to the Ozaukee county environs sometime after July 31. She did not
upon her return. A.'s first contact with LCC came when LCC contacted her shortly before
6 to discuss her failures to report on July 13-14 and 27-28.
Lasata Director of Nursing Stephanie Eron and assistant administrator Rosalie Kraus
A. on August 6; they did not affirmatively inform her of any availability of Association
and A. did not ask. In her contemporaneous notes of that discussion, Kraus wrote as
Stated that we were meeting to determine if there were any
circumstances that we were unaware
of that would warrant her flagrant manipulation and dishonesty in circumventing the denial of
extended LOA. She admitted that what she did was wrong & that she just need(ed) to
time with getting her kids living situation settled. She asked that we suspend her but not fire
We said we would discuss & review with HR & get back to her on 8/7/02.
As department head with supervisory authority over CNA's, Eron had the primary
investigative responsibility, such that neither Kraus nor Luetdke conducted independent
or significant analysis beyond that conducted by Eron. In her investigation, Eron never
looked at any
other personnel records to assess what, if any, was the pattern or practice of discipline for
When Luedtke returned from vacation on August 7, he met with Eron and Kraus,
hearing their presentations, suggested A.'s termination. Kraus and Eron met with A. later
as reflected in Kraus' contemporaneous notes:
We called Z. in stating we were going to be issuing disciplinary
action. She arrive(d) @ 2 pm
& I explained she had a right to association representation. She declined. We
termination notice indicating that her manipulation of her leave of absence was flagrant in its
dishonesty & could not be tolerated in the workplace.
In furtherance of Luetdke's suggestion, Eron thereupon issued to A. a notice of
of Employment, as follows:
LASATA TERMINATION OF EMPLOYMENT
Employee Z. A.
Last day employed August 7, 2002
Nature of termination: Discharged XX
Reason for termination:
Dishonesty and failure to return to work at
the expiration of a leave of absence.
Employee requested a leave of absence from June 18, 2002
through July 31, 2002 to travel
to Nigeria. The request was denied on May 14, 202 as being too long during peak vacation
all staff. On May 15, 2002 employee requested a reduction in hours from full-time to only
other weekend effective July 8, 2002 and also resubmitted her request for a leave of absence
June 18,, 2002 through July 5, 2002. This leave of absence was granted.
She was a no call/no show on July 13,
2002 and July 14, 2002 and then called on July 27,
2002 saying she would not be able to work on July 27, 2002 and July 28, 2002 because she
of the country and there was no return flight until July 31, 2002, which was the date ending
Z. admitted that her actions were
intentional at a meeting on August 6, 2002 with Stephanie
Eron, DON, and Rosalie Kraus, Assistant Administrator.
Z. A. /s/ 8-7-02
Employee Signature Date
Stephanie Eron /s/
On August 16, Association representative Benjamin Barth filed a grievance
termination as being without just cause and thus in violation of Article VII of the collective
agreement. The Association also claimed the employer had "exercised its management rights
unreasonable manner" by its action.
Luedtke, after meeting again with Eron, Kraus and Godersky and reviewing the
requests for leave, and the record of A.'s change in status, but not interviewing A. or
independent review, denied the grievance on August 30, writing as follows:
Z. A. was hired as a full-time Casual CNA on August 28, 2000.
As a Casual CNA she was not
eligible for sick time, vacation time or floating holidays. However, we have made it a
allow Casual CNA's the same amount of time off in unpaid leave, as they would have earned
vacation time if they were a regular CNA.
This means that after one year, August 28, 2001, Z. was eligible
for two weeks of unpaid leave
per year. In reviewing here record, I see she was given a one-week leave in January 2001, a
two-week leave for medical reasons in May, 2001, and a one-week leave in November,
In May, 2002, she requested a six-week
leave, this was denied because it was during out busy
vacation time when more senior employees are entitled to be off, and it was well beyond the
two-weeks maximum she could have been granted. The day after her request was denied,
her schedule from a full-time employee to a part-time every other weekend employee. She
submitted another request for leave, but this time only for four weeks. Even though this was
beyond the time we should have allowed, we did grant the leave because of the
which she was requesting.
Z. then made it known to co-workers and the nursing
administrative department that she had no
intention of coming back at the end of her four-week approved leave, but was taking the full
weeks. Z. asked about calling in sick, she asked about schedule change, she reduced her
only have weekends to try to miss less time at the end of her approve leave.
It is obvious that she was not going to abide
by the four-week leave time frame. In fact on
August 7, 2002, she admitted to Rosalie Krause and Stephanie Eron that her act of not
four weeks was intentional all along. Lasata Work Rules, page 3 state " failure to return to
on the day after expiration of leave will be considered termination of employment."
Z. admitted that she purposely (sic) refused
to return to work after the expiration of her leave.
Z.'s actions were blatant and willful, they showed total disregard for facility policies and
rights and were handled in a deceitful and untruthful manner.
Grievance denied, contract not violated.
POSITIONS OF THE PARTIES
In support of its position that the grievance should be sustained, the Association
avers as follows:
The grievant was terminated without just cause contrary to
Section 7.01 of the collective
bargaining agreement, in that prior to the discharge, the employer did not make a reasonable
to discover whether the employee did in fact violate a rule or order of management. As
by the employer's witness, Carron Godersky, employees are allowed two no-call/no shows
the risk of being terminated. As the employer has clearly advised employees of how it
interpret unexcused absences, the grievant reasonably believed, as she was told by the
representatives, that she had the availability of at least two no-call/no-shows before she
Further, the employer's investigation was
not conducted fairly and objectively, and the employer
did not apply its rules and impose penalties evenhandedly and without discrimination. There
evidence at hearing of three other employees having multiple no-call/no-shows without
discipline. Queenie Wesson failed to return to work following an extended leave of absence,
never disciplined. Michelle Lujan did not receive any discipline for her numerous
incidents prior to her voluntary termination. Nicole Welch did not receive any discipline for
numerous no-call/no-show incidents. The employer's agents did not talk to witnesses or
records of other employees prior to the decision to terminate the grievant. The employer's
Godersky lied about her conversations with Association witness Barbara Kingdom. If the
would have conducted a proper investigation, they would have discovered that other
been allowed a lax enforcement of the no-call/no-show rule. By failing to conduct a fair and
investigation, the employer did not have reasonable grounds to believe the statements and
of Godersky and other management personnel. If the employer's agents had investigated
incidents, they would have seen termination is by far not warranted. The employer's agents
employees they are allowed a certain number of no-call/no-shows without the risk of
The employer cannot now terminate the grievant after it has allowed other employees
leniency in their
no-call/no-show incidents. The employer must put all employees on notice it intends to
existing practice of lax enforcement of the rules.
Further, the degree of discipline is not reasonably related to the
seriousness of the proven offense
and the employee's record service to the employer. The employer never provided any
refute that the grievant was not a good worker with a clean work record. The employer has
treated other employees who have committed similar offenses with less discipline. The
discipline is not reasonable.
The employer also failed to allow the grievant to have an
association representative present at
the August 6 pre-termination meeting. The employer knew they were going to discipline the
at that meeting; to preserve the grievant's due process rights, the employe had an obligation
the grievant if she wanted Association representation at that time.
Accordingly, because the employer
terminated the grievant without just cause, the grievant
should be reinstated and made whole, with all records of the termination expunged. In the
if the arbitrator finds some degree of discipline to be warranted, the discipline should be
something other than termination.
In support of its position that the grievance should be denied, the County asserts and
The grievant was properly terminated with just cause due to her
dishonesty and her failure to
return to work after the expiration of an unpaid leave of absence. The grievant was well
she could not take off work without permission, but on July 13-14 and July 27-28 she failed
She did not provide any reason why she was unable to appear for work, other than telling a
supervisor on July 27 that she was still in Nigeria. The grievant was fully aware that she
was to work
July 13-14, yet she bought a plane ticket with the return date of July 31. Her unexcused
were in excess of three consecutive workdays and also constituted a failure to return to work
expiration of an unpaid leave of absence.
As a state-regulated nursing home, Lasata
Care Center is required to meet certain nursing
standards and have suitable staff to meet patient needs. The County's rules and work rules
reasonable and designed to assist in ensuring those standards are met.
The grievant knew when she bought her plane tickets on June 7
that she was not going to return
to work until after July 31. In fact, she made no effort to contact the nursing home on her
was instead contacted by the nursing home to see if there were any mitigating circumstances.
were none. The grievant caused her own termination and has no one to look to for blame
There was just cause to terminate the
This is an unhappy case. A single mother, confronting a conflict between her family
job, opts to attend to her two young children and ends up unemployed. My
responsibility is to
determine whether her termination was consistent with the contractual requirement that no
be imposed except for just cause.
As a casual certified nursing assistant with just under two years experience, Z.A. was
take two weeks unpaid leave; but to bring her children to Nigeria and establish their living
situation, she felt she needed three times that. This was a conflict with no easy resolution.
whatever other courses A. might have followed, the path she chose was not the right one.
Sec. 6.06 of the collective bargaining agreement sets forth several bases for
Paragraph (A) provides that "unexcused absence in excess of three consecutive workdays
construed as resignation." Paragraph (C)1. provides that "the employment relationship shall
broken and terminated" if an employee "fails, without being excused, to return to work after
expiration of an unpaid leave of absence."
Z. A. was on an unpaid leave of absence from June 18 to July 5, 2002. She was
to work the weekends of July 13-14 and July 27-28, but she failed to report. Accusing her of
"dishonesty and failure to return to work at the expiration of a leave of absence," the County
A. on August 7. In its brief, the County adds a third cause for her discharge, namely
absences in excess of three consecutive workdays.
The Association has aggressively challenged the County's action, contending that it is
contrary to the text of the agreement and the practice of the parties. It also criticizes the
its failure to evaluate A.'s behavior in the context of other similar incidents which it contends
result in discipline. In particular, the Association argues strenuously that A. could not be
"no call/no show" violations. Finally, the Association rebuts certain of the employer's
(namely Godersky's account of an encounter with Kingdom) as being untruthful.
I address the last first. The statements Godersky attributes to Kingdom, relatively
insignificant given the rest of the evidence, are the subject of intense disagreement as to their
predicate. Godersky swears the conversation took place as reported; Kingdom swears it
couldn't, given that Godersky alleged the conversation to have occurred in a place she didn't
on a day she didn't work. I explicitly put to the side that part of
Godersky's narrative that implies any inappropriate activities or attitude on the part of
leave unresolved the question of witness credibility on this particular point.
The County claims that A.'s "dishonesty" provides just cause for her termination.
did not, however, explain exactly what that charge meant, or what the grievant had done to
of it. While A. certainly acted deceitfully, she did not commit any overt acts of falsehood.
A. deceived the County into believing she would report for work on July 13-14 and
27-28, but she
did not submit a false time card for those days claiming that she had. As I believe the word
customarily used in the labor relations context, A. was not guilty of "dishonesty."
Accordingly, I find that the County did not have just cause to terminate the grievant
dishonesty, and strike that charge from the termination notice.
Nor, I find, did the County have just cause to terminate the grievant under
"unexcused absence in excess of three consecutive workdays."
First, I would be reluctant to allow the County to expand its argument beyond that
in its mind at the time it acted on August 7, 2002. The County did not cite 6.06(A) in A's
notice, and I would not be inclined to sustain a discharge on a basis that the employer did not
If there were such circumstances that I did allow the County to proceed on a 6.06(A)
I would still have serious doubts about the substantive nature of the employer's case. I
the County to establish through record evidence what an "unexcused absence" was, and how
incidences were handled. This, the County has not done. Nor has it addressed the question
whether A.'s early-morning call on July 27 changed her absence from a "no call/no show" to
Moreover, the Association asserts there have been several "no call/no show"
did not lead to discharge. The Association further asserted that these other instances (such as
department employee N.W.) were sufficiently similar to A.'s so as to require similar
the primary example of purported leniency in the treatment of "no call/no show" incidents
a dietary department employee raises certain questions; my experience is that certified
assistants and dietary department employees have differing scheduling pressures that
may have been
sufficient to differentiate N.W.'s situation from that of Z.A. But because the County failed
investigate whether there were in fact similar occurrences in determining the proper
discipline for A.,
the County failed to offer evidence at hearing to establish such a distinction.
Accordingly, because the County did not meet its burden of proving that the
conduct constituted "unexcused absence in excess of three consecutive workdays," I find
not just cause to terminate Z.A. for violation of 6.06(A) of the collective bargaining
However, the County did not rely exclusively on 6.06(A), but primarily cited
which provides that "the employment relationship shall be broken and terminated if any
fails, without being excused, to return to work after the expiration of an unpaid leave of
As LCC Administrator Luedtke noted in his grievance response to LAW representative
Lasata Work Rules also provide that "failure to return to work on the day after expiration of
will be considered termination of employment."
The County has significant responsibility to the residents of Lasata Care Center and
families to provide attentive, high-quality care. The CNA's are a vital component to the care
residents. Since a full component of CNA's is necessary for the proper delivery of care to
residents, the employer has a legitimate interest in requiring good attendance. And the easiest
to ensure good attendance is by setting clear standards of attendance and establishing the
non-compliance. That is precisely what Section 6.06(C)(1) provides a clear standard
and a clear
A. cannot claim she was not on notice about the importance the employer assigned to
attendance and the risk of discharge for following the course of action she undertook. The
employment sanctions for failing to return to work following expiration of an unpaid leave of
are explicit and unambiguous, stated clearly in both the collective bargaining agreement and
employee handbook. However important her other activity was, A. did exactly what the
bargaining agreement says can get you fired.
The Association also contends that employee Q.W. failed to report for work upon the
expiration of an unpaid leave, and, unlike A., was not disciplined. Certainly, disparate
employees who otherwise are similarly situated is a reason to sustain a grievance over
However, the record of W.'s experience is limited to hearsay and implication, and does not
sufficient information for me to accept the Association's contention of disparate treatment.
One ancillary matter remains unresolved -- the date A. paid for her ticket. A.
paid for the ticket in May, testifying she spent $4,339.50, in cash, on a non-refundable plane
prior to submitting and receiving approval for the extended leave of absence necessary to
accommodate her itinerary. However, she provided no documentation to verify her
its face, the "Passenger Receipt" (Er. Ex. 6) shows a date of issue of June 7, three weeks
length of leave was set.
Regardless of whether A. bought a non-refundable plane ticket before getting her
approved, or after knowing her leave had been denied, the inescapable fact is that A. knew
schedule could not accommodate her travel schedule yet she proceeded anyway.
A. knew she did not have sufficient approved leave to accommodate her itinerary, yet
never contacted either the airline or her travel agent prior to departure to see about
return. Instead, she left the country knowing that the employer was relying on her to work
weekends of July 13-14 and July 27-28, dates that she would be on another continent.
To determine that the collective bargaining agreement supports the County's decision
terminate A. is not to say that this is the outcome the contract required; it was certainly
County's authority to impose a lesser penalty. Indeed, were I the responsible official I might
have chosen a lengthy suspension rather than termination. However, the collective
agreement explicitly states that the employment relationship "shall be broken and terminated"
employee fails to return to work after the expiration of an unpaid leave. This is the standard
parties have mutually determined should govern the workplace. It would be inappropriate in
for me to substitute my standards for those which the parties have bargained.
For those so inclined, the facts of this case reasonably support a stern application of
disciplinary options. The grievant intentionally deceived her employer on a critical
on multiple occasions. She may have had the highest of motherly motives, and perhaps
subterfuge out of fear rather than malice. But given the vital role of certified nursing
in the provision of patient care, the County acted reasonably in casting a stern disposition
an employee committing such a flagrant act. Accordingly, on the basis of the record
collective bargaining agreement and the arguments of the parties, it is my
1. That because the County did not have just cause to terminate the grievant for
dishonesty, the grievance is sustained in part and that charge is stricken from the termination
2. That because the County did not have just cause to terminate the grievant for
unexcused absences in excess of three consecutive workdays, the grievance is sustained as to
alleged violation of 6.06(A) of the collective bargaining agreement.
3. That because the County did have just cause to terminate the grievant for
without being excused, to return to work after the expiration of an unpaid leave of absence,
grievance is denied as to the violation of 6.06(C)1.
Dated at Madison, Wisconsin, this 10th day of November, 2003.