IN THE MATTER OF THE NON-PRECEDENTIAL EXPEDITED
ARBITRATION PROCEEDINGS BETWEEN

SHELLI KARLS (PAAR), WISCONSIN STATE
EMPLOYEES UNION, AFSCME COUNCIL 24,
AFL-CIO,
vs.
WISCONSIN DEPARTMENT OF CORRECTIONS,
TAYCHEEDAH CORRECTIONAL INSTITUTION.

Arbitrator's Award Case No. 18820

=============================================================================

Arbitrator: Jay E. Grenig

Appearances:

For the Employer:
Bert St. Louis, Senior Labor Relations Specialist
Division of Collective Bargaining
Department of Employment Relations

For the Union:
Harvey Hoeft, Field Representative
Wisconsin State Employees Union
AFSCME Council 24


I. BACKGROUND
This matter was heard by Arbitrator Jay E. Grenig on July 9, 2003, at Kettle Moraine Correctional Institution, Wisconsin, pursuant to the Expedited Arbitration Procedure provided in Article IV, Section 12, of the parties' collective bargaining agreement.
The parties were given full opportunity to present all relevant evidence and arguments. The hearing was declared closed on July 9, 2003.

 

II. ISSUE
The issue before the Arbitrator is as follows:
Was there just cause for the suspension of the Grievant? If not, what is the appropriate remedy?

 

III. PERTINENT CONTRACT PROVISIONS

ARTICLE III
Management Rights
3/1/1 It is understood and agreed by the parties that management possesses the sole right to operate its agencies so as to carry out the statutory mandate and goals assigned to the agencies and that all management rights repose in management, however, such rights must be exercised consistently with the other provisions of this Agreement. Management rights include:
(1) To utilize personnel, methods, and means in the most appropriate and efficient manner possible as determined by management.
(2) To manage and direct the employes of the various agencies.
(3) To transfer, assign or retain employes in positions within the agency.
(4) To suspend, demote, discharge or take other appropriate disciplinary action against employes for just cause.
…
(6) To determine the mission of the agency and the methods and means necessary to fulfill that mission including the contracting out for or the transfer, alteration, curtailment or discontinuance of any goals or services. However, the provisions of this Article shall not be used for the purpose of undermining the Union or discriminating against any of its members.

ARTICLE IV
Grievance Procedure
***
Section 3: Arbitration Panel Procedures
***
4/3/2 ... The arbitrator shall not have jurisdiction or authority to add to, amend, modify, nullify, or ignore in any way the provisions of this Agreement and shall not make any award which in effect would grant the Union or the Employer any matters which were not obtained in the negotiation process.
***
Section 9: Discipline
4/9/1 The parties recognize the authority of the Employer to suspend, demote, discharge or take other appropriate corrective disciplinary action against employes for just cause. An employe who alleges that such action was not based on just cause may appeal a demotion, suspension or dis- charge taken by the Employer beginning with the Second Step of the grievance procedure.
***
Section 12: Special Arbitration Procedure
4/12/1 In the interest of achieving more efficient handling of routine grievances, including grievances concerning minor discipline, the parties agree to the following special arbitration procedures. These procedures are intended to replace the procedure in Subsection 4/3/1-7 for the resolution of non-precedential grievances as set forth below. If either of the parties believes that a particular case is precedential in nature and therefore not properly handled through these special procedures, that case will be processed through the full arbitration procedure in subsection 4/3/1-7. Cases decided by these methods of dispute resolution shall not be used as precedent in any other proceeding. Two arbitrators will be mutually agreed to by District Council 24, WSEU, and the State Division of Collective Bargaining for both of these procedures during the term of the contract.

A. Expedited Arbitration Procedure
(1) The cases presented to the arbitrator will consist of local institution or work site issues, short-term disciplinary actions (five day or less suspensions without pay), denials of benefits under 230.36, Stats., and other individual situations mutually agreed to.
(2) The arbitrator will normally hear at least four (4) cases at each session unless mutually agreed otherwise. The cases will be grouped by institution and/or geographic area and heard in that area.
(3) Case presentation will be limited to a preliminary introduction, a short reiteration of facts, and a brief oral argument. No briefs or transcripts shall be made. If witnesses are used to present facts, there will be no more than two (2) per side. If called to testify, the Grievant is considered as one of the two witnesses.
(4) The arbitrator will give a bench or other decision within five (5) calendar days. The arbitrator may deny, uphold, or modify the action of the Employer. All decisions will be final and binding.
(5) Where written decisions are issued, such decisions shall identify the process as non-precedential in the heading or title of the decision(s) for identification purposes.
(6) The cost of the arbitrator and the expenses of the hearing will be shared equally by the parties.
(7) Representatives of DER and AFSCME Council 24 shall meet and mutually agree on an arbitrator.

 

IV. FACTS
The Grievant is employed at Taycheedah Correctional Institution. She is also a Union steward. On or about March 28, 2002, a union member, an employee of a different correctional institution phoned the Grievant, gave her his e-mail password and asked her to check his e-mail. At the time, the union member had been suspended with pay from a different correctional institution and a disciplinary investigation was ongoing. The union member asked the Grievant to represent him as his Union steward.

The Grievant checked the union member's e-mail on March 29 and April 1. She was unable to print his e-mail on March 29 and printed it out on April 1. The Grievant checked the union member's e-mails while he was on the telephone and deleted those he asked her to and printed copies of other e-mails. The Grievant testified that the union member asked her to delete the e-mails because he got "a lot of e-mail" and he wanted her "to clean them out so he wouldn't have so many to deal with when he gets back." The Grievant later gave the e-mails she printed to management during an investigatory meeting regarding the union member.

On May 30, 2002, the Grievant was notified that she was being suspended for 15 days without pay. The letter of suspension, provided, in pertinent part, as follows:

This letter will serve as official notification that your are being suspended without pay for fifteen days. These days of suspension will be scheduled in 5 day intervals as follows: the weeks of June 10-14, 2002, June 24-28, 2002, and the week of July 8-12, 2002.

This action is being taken because your are in violation of Departmental Work Rule #2 and # 28, which state:

#2, "Failure to follow policy or procedure, including but not limited to the DOC Fraternization Policy and Arrest & Conviction Policy";

#28, "Unauthorized or improper use of state or private property, services or authorizations, including but not limited to vehicles, telephones, electronic communications, mail service, credit cards, computers, software, keys, passes, security codes and identification while in the course of one's employment; or to knowingly permit, encourage, or direct others to do so".

Specifically, on 04/01/02, you logged into two personal computer work Stations (DAL323WKSOll and DAI323WKS079) at TCI. DAl323 indicates the workstations are part of the Taycheedah Correctional Institution LAN. You used the logon name and password of another employee, … to retrieve, print and delete some of his email messages:

This was done while the union member was involved in another investigation; therefore, interfering with that investigation.

You retrieved, printed and deleted some of the union member's email messages. Your violation of these work rules was extremely serious. These work rule violations fall under Category "B" of the DOC Disciplinary Guidelines. You are aware of these work rules, and have acknowledged receiving a copy of the Department of Corrections Work Rules and DOC Disciplinary Guidelines.

Further work rule violations will result in additional disciplinary action up to and including possible dismissal. If you feel this discipline is not just, you are entitled to proceed under the contractual grievance procedure. [Emphasis in original.]
The Grievant filed a grievance on June 4, 2002, claiming that her suspension was without just cause. The Employer denied the grievance and the matter was submitted to arbitration in this proceeding.

At the arbitration hearing, the Warden at Taycheedah testified that the Grievant accessed the union member's e-mail in violation of the Employer's roles and that this interfered with the investigation of the charges against the Grievant. She testified that she considered the Grievant's excellent record in determining the appropriate disciplinary penalty.

The Warden said that the institution was conducting an investigation of the union member for a work rule violation at the time the Grievant accessed the union member's e-mail. The Warden was not sure if anyone was told not to access the union member's computer files.

The Grievant testified that she has employed by the Employer for over five years. She has been a Union steward for over two years. The Grievant stated that she gave the printed copies of the e-mails to the person investigating the union member. According to the Grievant the Union trained her in how to conduct an investigation. The training indicated that she should get everything that's relevant.

The Employer's Logon ID Request Access Authorization, signed by the Grievant, provides that "all passwords related to the legitimate access of data must be kept CONFIDENTIAL." (Emphasis in original.) The Authorization further prohibits an employee from "permitting another to use your passwords to gain access to data."

Executive Directive #50, dated January 2000, provides that it is unacceptable for an employee to "misrepresent[ ] someone else by using that person's e-mail ID to send messages via the internet without that person's express permission." That provision was deleted from Executive Directive #50 in January 2003. Executive Directive #50 also indicates that the Employer has the ability to access deleted messages. Executive Directive #51 provides that "[p]ersonal passwords shall not be shared with other staff and must never bee communicated to inmates."

 

V. POSITIONS OF THE PARTIES

A. THE EMPLOYER
The Employer argues that the Grievant's actions compromised the integrity of the investigation of the union member. Given the seriousness of the offense, the Employer contends that the disciplinary penalty of a 15-day suspension. The Employer asserts that it is not the Union's role to conduct a simultaneous investigation. The Employer asks that the grievance be denied.
B. THE UNION
It is the Union's position that it is a serious matter to discipline a Union steward for performing her duties. The Union points out that the work rules do not prohibit an employee's using a computer with permission. It stresses that the Grievant had the union member's express permission to access his e-mail. The Union asks that the suspension be expunged from the Grievant's work and that she be made whole.

 

VI. DISCUSSION
Under the contractual standard of just cause, each disciplinary action involves three basic issues: (1) whether the employee committed the offense charged, (2) whether the employee was accorded due process, and (3) whether the disciplinary penalty was reasonable. In interpreting a just cause provision, the arbitrator is required not only to determine whether the employee is guilty of wrongdoing, but also to safeguard the interests of the discharged employee by making reasonably sure that causes for discharge were just and equitable and such as would appeal to reasonable and fair-minded persons as warranting discipline. Riley-Stoker Corp., 7 LA 764,767 (Platt 1947).

An important element of just cause is the requirement that, before an employee can be justifiably disciplined for breach of an employer's rules or regulations, the employee must have knowledge of the rule or regulation which the employee is charged with violating. Bay Area Rapid Transit Dist., 80-2 ARB 8612, 5734 (1980). Only certain egregious conduct is so evidently a violation of commonly accepted notions of work conduct that it will be presumed that the employee is on notice that the conduct is unacceptable and that the employee can be penalized for violating such rules. In other words, it is a fundamental component of the just cause standard that an employee must be told what kind of conduct will lead to discipline.

A rule must clearly and unambiguously establish the scope of prohibited conduct. Arbitrators have found rules to be unreasonable where they provide no clear guidance as to what is expected of employees. Arbitrators have revoked or reduced penalties where employees were not clearly told what conduct was prohibited.

In this case, there is no work rule prohibiting an employee from accessing another employee's e-mail with that employee's consent. Both the Authorization and Executive Directive #51 provide that an passwords must be kept confidential and cannot be shared with other staff. Neither the Authorization nor Executive Directive #51 provides that an employee cannot use another employee's password to access e-mail with the other employee's permission. In fact, Executive Directive #50 in effect at the time of the event in question provided that it is unacceptable for one employee to misrepresent someone else by using that person's e-mail ID to send e-mail messages "without that person's express permission." This quoted language suggests that, despite language in Executive Director #51 prohibiting one employee from giving his or her password to another employee, there were circumstances in which an employee could give his or her password to another employee to access e-mail.

The Grievant neither disclosed her password to another employee in Violation of the Authorization or Executive Directive 51. In addition, Executive Directive 51 indicates that it is not improper for an employee to access another employee's e-mail with that employee's authorization.

Insofar as the claim that the Grievant interfered with the investigation of the union member, the evidence fails to show that the Grievant either knew or should have known that the investigators wanted to examine the union member's e-mail files. As a Union steward, the Grievant was merely obtaining information from the union member's file to help in his defense. While the Grievant deleted some "person" e-mails at the union member's request the evidence does not show that either the union member or the Grievant were ever directed not to access the union member's e-mails. In addition, the evidence does not demonstrate that the Grievant destroyed any material evidence when she accessed the union member's e-mail. Accordingly, it is concluded that the evidence does not establish that the Grievant knowingly interfered with the investigation.

 

VII. AWARD
Having considered all the relevant evidence and the arguments of the parties, it is concluded that there was not just cause for the suspension of the Grievant. Accordingly, the Employer is directed to expunge the 15-day suspension from the Grievant's records and to make her whole for any lost wages or benefits. In the event there is a dispute with respect to the remedy, the Arbitrator retains jurisdiction for a period of 90 days from the date of this award.

Executed at Delafield, Wisconsin, this seventeenth day of July, 2003.