BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WASHINGTON-CALDWELL SCHOOL DISTRICT
and
OPEIU LOCAL NO. 9, AFL-CIO-CLC
Case 6
No. 68844
MA-14361
(Borgwardt Discharge)
Appearances:
Brian J. Waterman, Buelow Vetter, Buikema Olson & Vliet, LLC, Attorneys at Law,
20855 Watertown Road, Suite 200, Waukesha, Wisconsin 53186, appearing on behalf of the
Washington-Caldwell School District.
Patricia A. Lauten, Jeffrey S. Hynes & Assoc., 2300 N. Mayfair Road, Suite 390,
Wauwatosa, Wisconsin 53226, appearing on behalf of OPEIU Local No. 9, ALF-CIO-CLC.
ARBITRATION AWARD
OPEIU Local No. 9, AFL-CIO-CLC (“Union”) and the Washington-Caldwell School
District (“District”) are parties to a collective bargaining agreement (“Agreement”) which
provides for final and binding arbitration of grievances arising there under. The union made a
request, in which the employer concurred, for the Wisconsin Employment Relations
Commission to provide a panel of five staff members from which the parties could select an
impartial arbitrator to hear and decide a grievance concerning the discharge of Ryan
Borgwardt. The parties selected the undersigned to so serve. Hearing in the matter was held in
Brookfield, Wisconsin, on December 4, 2009, at which time the parties were afforded full
opportunity to present such testimony, exhibits, and arguments as were relevant. A
stenographic transcript of the proceeding was made. The parties submitted written arguments,
with the record being closed on February 2, 2010.
ISSUE
The parties stipulated to the following statement of the issue to be heard:
7601
Page 2
MA-14361
Did the Washington-Caldwell School District have just cause for terminating
Ryan Borgwardt? If not, what is the appropriate remedy:
RELEVANT CONTRACTUAL PROVISIONS
ARTICLE III – MANAGEMENT RIGHTS
Section 1.
Management retains all rights of possession, care[,]
control and management that it has by law, and retains the right to exercise
these functions under the term of the Collective Bargaining Agreement. These
rights include, but are not limited by enumeration to, the following rights:
. . .
D. To suspend, discharge and take other disciplinary action against
employees;
. . .
ARTICLE XI – PROGRESSIVE DISCIPLINE
Section 1. The purpose of discipline is to encourage employees to take
corrective action and to make improvement in their work performance and work
habits. It is recognized that the employer has the right to accelerate the
discipline level in accordance with the severity of the incident. The employer
agrees that when disciplinary action is taken against an employee, discipline
shall be corrective and progressive following, to the extent practicable, the steps
listed below:
Step 1.
Verbal warning with written documentation;
Step 2. Written warning;
Step 3.
Suspension without pay;
Step 4. Discharge.
Section 2.
Any employee who is involved in a disciplinary action has the
right to have a Union representative of their choice present. Any such action
shall be subject to the grievance procedure.
Section 3.
In the event the employee engages in no further misconduct or
rule violations following the issuance of any disciplinary warning, said
disciplinary warning shall be removed from the employee’s personnel file after
one (1) year.
Page 3
MA-14361
ARTICLE XII – DISCHARGE
Section 1.
(A) No employee having seniority shall be discharged without
just cause. Except in cases of disciplinary or performance-based discharges,
discharged employee shall be given at least two (2) weeks notice in advance or,
in the alternative, two (2) weeks pay in lieu of such notice. Notice of discharge
shall be in writing to the employee, with a copy submitted to the Union. A
discharged employee must challenge her/his cause of discharge within five (5)
working days after receipt of notice of discharge, with a copy submitted to the
Union. Failure on the part of the employee to do so will deem the discharge
action final and binding.
. . .
BACKGROUND
Ryan Borgwardt began to work for the District as a part-time evening custodian on
July 2, 2008. This grievance concerns the termination of his employment for activities
occurring on March 10, 2009.
On that date, the District had a book fair in the library, along with a basketball game in
the gymnasium and a bowling activity in a hallway. Between 6:00 and 7:00 p.m., there were
between thirty and seventy people in the school building attending the book fair. After the book
fair, at approximately 7:30 p.m., a District teacher came to the library and asked Media
Specialist Kelly Vogt if she had a key to unlock that teacher’s room. Vogt accompanied the
teacher to her room and attempted to unlock it, but Vogt’s key did not work. Noticing
Borgwardt’s cleaning cart in the hallway and believing he might have a key to the classroom
but not wanting to have to track him down, Vogt stood in the hallway and called out to
Borgwardt for assistance, stating, “hey, Ryan, we need you”. At hearing, Vogt testified she
believed she yelled loud enough for Borgwardt to have heard her through the closed doors and
cinderblock walls of the room it turns out he was in. Borgwardt testified that he did not hear
her. There is no way to verify either contention. In any case, after a few minutes, Borgwardt
emerged from the side door of one of reading classrooms near where Vogt and the teacher
were standing. Both doors of the reading room classroom had been closed. Vogt did not ask
Borgwardt what he had been doing, and Borgwardt did not volunteer that information. At
Vogt’s request, Borgwardt used his key to open the teacher’s classroom.
The next morning, Vogt became suspicious about what Borgwardt had been doing when
she called for him, so she asked the teacher who uses the reading classroom if she could check
her computers. Vogt accessed both a laptop and a desktop computer in the classroom. By
looking at the properties of the programs on the computers, Vogt could tell that someone had
used one of the computers to access a pre-packaged solitaire game at around seven o’clock the
previous evening. Vogt was unable to determine who had accessed the game or for how long.
Vogt then went to see District Superintendent/Principal Mark Pienkos to relate this
Page 4
MA-14361
information. Vogt gave Pienkos screen shots she had taken which showed the date, time, and
activity for which the computer had been accessed.
1
Upon Borgwardt’s arrival at work in the afternoon of March 11, Pienkos called him
into his office to ask if he had played games on a school computer the night before. Borgwardt
answered in the affirmative. Pienkos mentioned to Borgwardt his concern that Borgwardt had
failed to respond to Vogt’s call for assistance in connection with this activity. Pienkos did not
ask Borgwardt if he was on his break when he accessed the computer, and Borgwardt did not
indicate to Pienkos that he had been on break. This conversation lasted for only about one
minute. At no point during the conversation did Pienkos inform Borgwardt that he could face
any kind of discipline for having accessed the computer, although Borgwardt understood from
Pienkos’ tone that he might get in trouble for having done so. Pienkos informed Borgwardt at
the end of the conversation that a follow-up meeting would occur on the next day.
On the afternoon of March 12, again shortly after Borgwardt arrived for work, Pienkos
convened another meeting with Borgwardt. Pienkos also had asked union steward Mandy
Fiehweg to attend the meeting, and she did so. Again, Pienkos asked Borgwardt if he had been
on a computer on the evening of March 10
th
, and Borgwardt said he was. Pienkos told
Borgwardt that he had committed a serious infraction, and he fired Borgwardt on the spot.
At the hearing in this matter, Pienkos indicated during his direct examination that, at
the March 12 meeting, he gave Borgwardt a letter stating that he would be terminated. On
cross-examination, however, Pienkos testified that he did not provide such a letter at the
March 12 meeting. He stated that he knows he wrote a document, for his own purposes, but
recalls that he did not provide anything in writing at the meeting. He also testified that he did
not mail any document to Borgwardt, subsequent to the meeting, which discussed his
discharge. Further, no such document was offered as evidence at hearing.
Around the time when Borgwardt began working for the District, his mother, an
accountant for the District, gave him a brief job description. The District’s lead custodian,
Fred Vergenz, gave Borgwardt an orientation and tour of his area of responsibility. This
orientation lasted only about an hour or two. No District employee ever informed Borgwardt
about any District policy regarding the use of school computers, either how to use them or
what constituted abuse of them. The District has no written policy applying to District
employees regarding computer usage. The District does issue computer passwords to its
employees. Borgwardt never was given such a password, and he never requested one. He
never was told that he was prohibited from accessing District computers. Borgwardt was aware
that District computers are password protected. Borgwardt did not access the internet or any
personal or classroom-related material through the school computer on March 10, 2009.
1
Pienkos did not provide Borgwardt or the Union with a copy of the screen shots, and they were not introduced as
evidence at hearing.
Page 5
MA-14361
Prior to the incident of March 10, 2009, Borgwardt had, on multiple occasions, used
school computers to play solitaire on his breaks. He was able to do so by finding a computer
from which the previous user had not logged off. The District has not issued directives or
posted notices reminding teachers to log off when they finish using their password-protected
computers, and teachers fail to log off a regular basis. Furthermore, the District never has
disciplined any teacher for failing to log out.
Pienkos stated at hearing that, in making the decision to terminate Borgwardt’s
employment, he took into consideration not only the incident of March 10, but also
Borgwardt’s prior record of misconduct and his short period of employment. On February 16,
2009, Borgwardt had failed to report to work or inform the District that he would not be in.
When he reported for work on the next day, he informed Pienkos that he had lost his cell
phone and was unable to call in. On the February 19, Pienkos issued to Borgwardt the
following memo:
Re: Failure to Report to Work/Communicate Reason
Union Contract: Article XI – Progressive Discipline
Step 1. Verbal warning with written documentation
As mentioned at yesterday evening’s meeting with you, Ryan, I am documenting
the reason for our conversation.
On Monday, February 16, 2009, you failed to report to work and did not call
anyone to let Fred Vergenz or I know that your work would not be completed.
Also, we did not her from you until Tuesday evening, causing us to not only
worry about you well-being, but also left wondering how your area would get
cleaned again that night.
I appreciated your apology for failing to report, as well as notifying Fred or me.
We discussed the importance of responsibility, communication, and working as
a team, especially with your evening co-worker, Jennifer Joyce.
Finally, we discussed the importance of being a self-starter since you and
Jennifer do not have direct supervision in the evening. At the present time, you
have some flexibility due to your full-time day work allowing you to come to
school at different starting times. It is essential that you keep a schedule of five
hours each night.
Let’s work together as a team, Ryan. When we do so, our organization will be
an even stronger one.
Page 6
MA-14361
Between February 19, 2009, and Borgwardt’s date of discharge, he had no further incidents in
which he failed to report for work.
Pienkos testified at hearing that, also apparently around in the early spring of 2009, he
“had gotten reports that maybe, you know, Ryan wasn’t fulfilling his work duties, those five
hours”. Thus, Pienkos made the decision to take Borgwardt off of his somewhat flexible work
schedule and place him on a fixed schedule, from 5 p.m. to 10 p.m. There is no evidence that
Pienkos verified those “reports” or ever conveyed them to the Grievant.
Following his discharge, Borgwardt applied for various other jobs before being hired at
an area hotel on July 23, 2009. Because he already was working twenty to thirty hours per
week as a painter, Borgwardt did not apply for unemployment compensation benefits.
POSITIONS OF THE PARTIES
In support of the grievance, the Union cites the so-called “Seven Tests” as enunciated
by Arbitrator Carroll Daugherty, using them to assert that the District failed to establish just
cause. Noting that the District has no formal policy regarding computer use and never
informed Borgwardt that he could face termination for using a school computer, the Union
asserts that the District did not adequately warn Borgwardt of the consequences of his conduct.
Noting that the District, in addition to having no written policy on computer use, also never
disciplined any teacher for failing to log off, the Union asserts the District failed to establish
that its rule was reasonably related to the safe and efficient operations of the enterprise. The
perfunctory nature of the investigation, the Union states, was inadequate to satisfy Borgwardt’s
due process, or to provide substantial evidence of his guilt. The District’s failure to discipline
teachers who did not log off their computers – and thus risked the system’s security – shows,
the Union states, that the District did not apply its rules and penalties in an evenhanded and
non-discriminatory manner. Finally, the penalty of immediate discharge was not reasonably
related to the seriousness of the offense, namely playing solitaire for a few minutes while on
break. Progressive discipline, as mandated by the Agreement, had worked in getting
Borgwardt to improve his work habits, and a written warning in this instance would have
accomplished the same result. As remedy for his lost wages and benefits, the Union asserts that
the District should pay Borgwardt $4,995. This amount accounts for the vacation, sick, and
personal leave hours Borgwardt had accrued at the time of his discharge, as well as
Borgwardt’s lost earnings from the date of his discharge until he found alternative employment
on July 23, 2009.
In opposition to the grievance, the District first states that it is untimely, because the
Grievant failed to follow the contractual requirement to challenge the discharge within five
days after receipt of notice of his discharge. Because the Union failed to offer any evidence
demonstrating that the Grievant challenged his discharge in a timely fashion, it must be
considered final and binding. But even if timely, the District states, the grievance should still
be denied because the District had just cause to discharge Borgwardt in light of his
unauthorized use of District computers, his past record of misconduct, and his short period of
Page 7
MA-14361
employment with the District. The District argues for a two-pronged just cause analysis, which
requires an employer to establish, first, the existence of conduct by a grievant in which the
employer has a disciplinary interest and, second, that the discipline imposed is consistent with
its interest. That the District has no written policy is not significant, the District states, because
when conduct is clearly wrong, employees need not be notified of rules; the very nature of a
password-protected system indicates that if you don’t have a password, you are not authorized
to use the system. Borgwardt knew a password was needed, and he knew he didn’t have one; it
is absurd and ridiculous, the District states, for Borgwardt to claim he was not aware that he
was engaging in serious misconduct when he chose to play computer games on a District
computer behind closed doors. The District contends that there were other indications that
Borgwardt knew his actions were prohibited: namely, he closed the doors of the room he was
in on the night of March 10 and did not attempt to defend his conduct at his discharge meeting
of March 12. Discharge is particularly appropriate, the District contends, given the Grievant’s
failure to respond to another staff member who needed assistance on the night of March 10, his
multiple instances of misconduct, and his brief tenure with the District.
In response, the Union denies Borgwardt was a “disciplinary problem” as asserted by
the District, noting that the verbal warning from the no-call/no-show incident does not allege
misconduct, and that progressive discipline accomplished its goal and Borgwardt improved his
performance. The Union also rejects the District’s description of the events of March 10,
denying that Borgwardt was unavailable to assist Vogt, and that he did not respond in a timely
manner. The Union also challenges Vogt’s testimony that she called out to Borgwardt loudly
enough for him to have heard her, noting that her testimony is uncorroborated, and that
Borgwardt denied having heard her. The Union also challenges the District’s assertion that
Borgwardt played solitaire on the laptop computer, which was the only computer in the reading
room to have shown activity on March 10. The Union further notes that the District did not
save a screen shot of the allegedly illicit activity, which would have shown which computer
was in use and at precisely what time. The Union rejects the District’s claim that the grievance
is untimely, noting that in the nine months it took to proceed from the initial filing to the
arbitration hearing, the District never raised that issue; by accepting the grievance and
arbitrating the case on the merits, the Union asserts, the District effectively waived the time
limits. The Union reiterates its argument that the District failed to establish conduct in which it
had a disciplinary interest, given the District’s failure to have and communicate a policy
against use of school computers without an assigned password. Contrary to the District’s
assertion, the Union contends, using a password-protected computer that had been left logged
on to play solitaire while on break is not so clearly wrong that an employee would reasonably
know, in the absence of a stated policy, that it would subject him to immediate termination.
In its response, the District reiterates that the grievance is untimely, and should be
dismissed on procedural grounds. The District also dismisses as distracting various Union
arguments, contending that the fundamental issue is that Borgwardt used a District computer
without a password, which, in light of his short tenure with the District and his disciplinary
history, gave the District just cause to terminate him. The District contends that it does not
matter whether the Grievant was on break, as he was not permitted to use District computers at
Page 8
MA-14361
any time. It also contends, for the same reason, that the material Borgwardt accessed on the
computer is not relevant. Further, in light of Borgwardt’s admission to the activity for which
he was discharged and the fact that he did not question or defend against his discharge, the
District asserts that there was very little to investigate and the length of its investigation is
therefore not relevant. The District disagrees with the Union theory that Pienkos fired
Borgwardt to placate Vogt, noting there is nothing in the record about Vogt wanting Borgwardt
fired. The District also challenges the Union characterization of Vogt’s testimony as
misleading, contending that it was instead Borgwardt who gave the misleading and inconsistent
testimony. The District also challenges the Union’s emphasis on the fact that District teachers
who are provided passwords sometimes fail to log off their computers, contending that blaming
the teachers who do not log off their computers for misconduct like Borgwardt’s is like
blaming a homeowner who didn’t lock the door for getting burglarized. The District concludes
that, regardless of the absence of a written policy, Borgwardt knew passwords were required to
access District computers; he clearly understood the wrongfulness of his conduct; and, in light
of his prior misconduct and his short period of employment, his termination was indeed with
just cause.
DISCUSSION
The first issue to be addressed is the District’s contention that the grievance is untimely.
I find that it is not untimely and is, therefore, properly before me. As the Union correctly
notes, the District never raised any objection on this point until after the hearing. It accepted
the grievance without objection; processed it through the grievance procedures without
objection; scheduled the arbitration hearing without objection; and conducted the hearing, still
without objection. On those facts alone, I would be inclined to reject such an objection. As
Arbitrator Harold Curry stated in CLEO, INC., 121 LA 1707, 1716 (Curry, 2005), “it is well
settled in arbitral law that for a party to seek dismissal of a grievance at an arbitration hearing
for lack of timeliness, the issue must be raised or objected to prior to the arbitration hearing.”
In T
RIANGLE CONSTRUCTION, 119 LA 559, 567-568 (Sergent, 2004), the union clearly filed its
grievance well after the time limit specified in the collective bargaining agreement; however,
Arbitrator Stanley Sergent held the grievance timely and arbitrable because the employer did
not raise this objection until hearing, explaining that an employer “waives the procedural
defense of untimely filing and processing of grievance if it does not invoke that defense and
preserve it prior to arbitration. Otherwise, if such a defense is raised now … the Union will
have been unfairly and substantially disadvantaged.” Here, of course, the District waited until
after the arbitration hearing to raise an objection to timeliness, raising the matter for the first
time in its post-hearing brief.
2
But in this case, there is an even greater reason to deny the District’s timeliness
objection – namely that under the terms of the Agreement the grievance does not appear to
have been untimely. The Agreement provides as follows:
2
Accord, see also SEATTLE SCHOOL DISTRICT, 119 LA 1145 (Elinski, 2004) and SAN LUIS OBISPO CMTY. COLL.,
120 LA 1545 (Gentile, 2005).
Page 9
MA-14361
ARTICLE XII – DISCHARGE
Section 1. (A) No employee having seniority shall be discharged without
just cause. Except in cases of disciplinary or performance-based discharges,
discharged employee shall be given at least two (2) weeks notice in advance, or,
in the alternative, two (2) weeks pay in lieu of such notice. Notice of discharge
shall be in writing to the employee, with a copy submitted to the Union. A
discharged employee must challenge her/his cause of discharge within five (5)
days after receipt of notice of discharge, with a copy submitted to the Union.
Failure on the part of the employee to do so will deem the discharge action final
and binding. (emphasis added).
Notwithstanding the clear mandate of this provision, the District did not provide written
notice of the discharge, either to Borgwardt or to the Union. Although Pienkos testified on
direct examination that he gave to Borgwardt and Fiehweg, at the meeting of March 12, “the
reasons why, but also the letter that stated that he would be terminated,” he testified on cross-
examination that he had not done so:
Q Okay. Did you give Mr. Borgwardt any written notice of his
termination?
A On the 12
th
?
Q A written document saying, you know, you’re being terminated effective
today for –
A I believe that that was – I have a document that was written.
Q I’m sorry. You did or you did not?
A I know I – let me put it this way. I know I wrote a document. Whether
Ryan received a document or not, I know I wrote one for myself, for my
own purposes. I would say, no, then. That’s my recollection.
Q So to the best of your recollection, you did not present anything to Mr.
Borgwardt in writing at that meeting?
A Again, I’m going to say I don’t recall doing that, no.
Q After that meeting, did you mail Mr. Borgwardt anything in writing that
discussed why he was terminated?
A I did not.
Page 10
MA-14361
By never giving the required written notice, the District never started the clock running on the
contractually-established five days’ deadline to determine timeliness. Based on this reason as
well, I find that that the grievance was not filed in an untimely manner and is properly before
me.
The District’s failure to provide written notice seems clearly to have violated the
Agreement between the parties. However, the Union did not raise this point as an independent
basis for sustaining the grievance and overturning the discharge. Although it is my
understanding that this element of the Agreement remains relevant and in force, I am reluctant
to base an award on this argument, given that it was not advanced at hearing or in the briefs.
Accordingly, I will evaluate the grievance on its merits.
Turning to those merits, I again find the District’s arguments lacking. Whether one
accepts all of the so-called “seven tests” as enunciated by Arbitrator Daugherty, the core
concepts of “just cause” are universally understood: the employee must have known certain
behavior was prohibited, as well as the potential penalty for engaging therein; the employee
must have engaged in the prohibited behavior, and the penalty must be commensurate with the
offense, taking into consideration the totality of the employee’s work history. Moreover, the
Agreement applicable in this case explicitly establishes progressive discipline, with the District
agreeing “that when disciplinary action is taken against an employee, discipline shall be
corrective and progressive,” following, to the extent practicable, the progression set forth
therein from verbal warning with written documentation, written warning, suspension without
pay, and finally discharge.
At hearing, Pienkos testified that he fired Borgwardt because of the “misuse of the
technology, the computer without permission, and then also failure of Ryan to not respond to
another staff member’s call for assistance,” adding that “the thing that happened on February
16
th
was playing on my mind, in addition to the fact that, you know, I had to again specifically
state, five hours worth of work, you have to start at five and end at ten, because I’ve got to
have, you know, there for those five hours.” That is, Pienkos summarily fired Borgwardt for
four reasons: playing solitaire on a District computer on March 10, 2009; his failure to
respond to Vogt on that evening; his no-show/no-call on February 16, 2009; and his general
work habits.
No detailed discussion is necessary to establish that the last three reasons did not
provide just cause for Borgwardt’s termination. Borgwardt testified he did not hear Vogt call
for assistance; there is no evidence in the record that he did; and when he emerged from the
room a mere few minutes after the call, Borgwardt immediately provided the assistance Vogt
needed. Borgwardt already had been disciplined for his no-call/no-show incident of February,
and had not repeated that behavior. And Pienkos gave only vague and indefinite comments
about Borgwardt’s work habits and related “reports”; though Pienkos testified that he changed
Borgwardt’s schedule, he never warned Borgwardt about discipline, much less discharge, if he
didn’t improve.
Page 11
MA-14361
The District’s primary reason for firing Borgwardt was his use of one of the computers
in the reading room to play solitaire on the night of March 10. To show that it had just cause to
fire Borgwardt for that offense, the District must establish that Borgwardt knew that engaging
in that activity could lead to his discharge, and that discharge was an appropriate discipline
given his tenure and work record.
Certainly there are offenses, such as workplace violence or theft, which all employees
should know subjects them to immediate termination. Some misuse of an employer’s computer
system could also be serious enough to justify such a response; had Borgwardt accessed a
teacher’s personal or classroom files or viewed child pornography, the District’s action may
have been more appropriate. But Borgwardt did not do any of those things, and there is no
allegation that he did. All he did was play a pre-packaged card game for a few minutes.
As noted, the District had no policy on who was allowed to use its computers and for
what purpose. It apparently provided no written or oral directive to District employees warning
them of the potential discipline for improper or unauthorized use of a computer. As Pienkos
testified at hearing:
Q Okay. Did you see in that personnel file any sign-off sheet by Mr.
Borgwardt on any computer policy or any policy that would have told
him about this authorization to use the computer?
A No.
Q Okay. And prior to his termination, and now I’m talking about while
you’re employed as the superintendent, was there anything given to Mr.
Borgwardt to sign about the computer policy or use of the computer?
A No, there was not.
Q Okay. And currently, as we sit here today, there is still no written
policy?
A That’s correct.
And as Vogt later testified:
Q Do you have a written policy or a guidance sheet that they need to get
when you train them on the computers?
A Something that I give them?
Q Right, so they would know what the policies are and what –
Page 12
MA-14361
A No.
Q Okay. So there isn’t anything that governs your access or what you can
access in writing that –
A For staff members, no.
Given the relatively benign nature of the activity and the absence of a District policy, there
simply was no way for Borgwardt to know that playing a pre-loaded game of solitaire on a
District computer could lead to his immediate termination.
The District is correct that Borgwardt knew he needed a password to use a computer,
and that he knew he didn’t have one. A reasonable person would likely have concluded from
those two facts that he was not authorized to use a computer. Such knowledge, however, does
not cause Borgwardt’s actions to rise to the level of an immediately dischargeable offense.
Further, it is significant that Borgwardt apparently was able, repeatedly, to access District
computers without the benefit of a password. Because other District employees regularly failed
to log-off their computers, Borgwardt could regularly reactivate computers by simply moving a
mouse or pressing a key. The District suggests that putting any weight on this evidence is
tantamount to concluding that a homeowner who forgets to lock his door deserves to be
burglarized. This argument misses the point, which is not to hold another District employee
responsible for Borgwardt’s actions. The evidence is significant, rather, because it
demonstrates that the District and its employees, despite having a password system, took a
rather casual attitude toward guarding access to the District’s computers. This reality not only
facilitated Borgwardt’s ability to access the computers repeatedly, but also mitigated the
seriousness of his actions when he did.
In determining whether a particular level of discipline is just, it is appropriate to
consider an employee’s work history with the employer. As noted, Borgwardt had been
employed by the District for only about ten months at the time of his discharge. While short,
his tenure was, by no means, one characterized by “multiple acts of misconduct”, as alleged
here by the District. There is one documented instance in the record of Borgwardt failing to
report for work, and failing to alert the District that he would be absent. According to Pienkos,
Borgwardt was apologetic and did not have any further such incidents following the
progressive discipline of a verbal warning with written record.
Pienkos also testified that he had “gotten reports that maybe, you know, Ryan wasn’t
fulfilling his work duties, those five hours,” so he placed him on a set work schedule. Such a
vague and unsupported allegation, which apparently was not conveyed to the Grievant, is not
disciplinary in nature and does not make the Grievant “a disciplinary problem”, as alleged by
the District. Indeed, such a characterization, in light of the immediate termination and as a
repeated reference to a non-disciplinary incident, almost makes it appear the District was
attempting to bolster its justification for having fired the Grievant.
Page 13
MA-14361
Borgwardt was terminated without just cause. The parties stipulated that Borgwardt was
earning $10.30 per hour at the time of his discharge. The Union asserted and the District did
not dispute that this hourly rate equated to a weekly salary of $257.50. Thus, Borgwardt’s lost
wages, between the date of his discharge and the date on which he found alternative
employment, amount to $4635.00. Further, the parties stipulated that Borgwardt is owed ten
hours of vacation, twenty hours of sick time, and five hours of personal time by the District.
The Union asserted and the District did not dispute that these unpaid leave hours entitle
Borgwardt to an additional payment of $360.50. Thus, Borgwardt’s total wage loss resulting
from his discharge was $4,995.50. Because Borgwardt has found new employment, the Union
is not seeking reinstatement.
On the basis of the Agreement, the record evidence, and the arguments of the parties, it
is my
AWARD
That the grievance is sustained. As remedy for terminating the Grievant without just
cause, the District shall make the Grievant whole by paying him $4,995.50. The District may
do so in three equal payments, the last to be made no later than October 26, 2010.
Dated at Madison, Wisconsin, this 26
th
day of July, 2010.
Danielle L. Carne /s/
Danielle L. Carne, Arbitrator
DLC/gjc
7601
