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Title: Stanford Junior
United Stanford Workers
Date: May 30, 1990
Arbitrator: Luella E. Nelson
Citation: 1990 NAC 103
the matter of arbitration between:
STANFORD WORKERS, LOCAL 680, SEIU,
BOARD OF TRUSTEES OF THE LELAND
termination of Bettie Brown
E. NELSON - Arbitrator
This Arbitration arises pursuant to Agreement between UNITED STANFORD WORKERS,
LOCAL 680, SEIU, AFL-CIO, hereinafter referred to as the "Union,"
and THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY, hereinafter
referred to as "Stanford," under which ADOLPH M. KOVEN was selected to
serve as Arbitrator, and under which the Arbitrator's Award would be final and
binding upon the parties.
was held December 14, 1989, in Stanford, California.
The parties were afforded every opportunity for the examination and
cross-examination of witnesses, the introduction of relevant exhibits, and for
parties filed post-hearing briefs.
Thereafter, the parties were notified that the Arbitrator had died.
The parties agreed that the Arbitrator's associate would prepare a final
and binding award in this matter.
On behalf of the Union:
E. Eggleston, Esquire,
1330 Broadway, Suite 1700,
Oakland, California 94612.
On behalf of Stanford:
Wheeler, Attorney at Law,
Stanford University, Office of the General Counsel,
P. O. Box N,
Stanford, California 94305.
there was just cause for the February 16, 1989, termination?
IX: SEPARATION FROM THE JOB
Suspension and Separation
330 No worker, who has passed his/her trial period, may
be disciplined (including written warnings and reprimands), terminated (unless
concluding a fixed-term appointment), or suspended, except for just cause.
Such cause must be job related or must arise out of some act which
disrupts, interferes with, or damages the University or its operation in a way
not protected by this Agreement.
of Steward in Discipline
When supervision has determined that a worker is to be disciplined, the
steward shall be informed. ...
Cause Termination Primarily for Unsatisfactory Work Performance
Before a worker, who has passed the trial period, can be terminated
primarily for unsatisfactory performance under the just cause provision herein,
he/she must be interviewed by supervision.
During the interview the worker must be thoroughly informed, orally and
in writing, of those areas of job performance where he/she is considered
unsatisfactory. Supervision should
then seek to work out a plan with the worker, aimed at eliminating performance
problems, or, if this is not practicable, the worker should be told what sort of
improvement will be expected of him/her over the term of a reasonable
If the worker has not demonstrated his/her ability to satisfactorily
perform his/her job after such reasonable opportunity, he/she may be terminated
under the just cause provision herein.
The steward will be informed when supervision determines that a worker
may be placed on probation and shall be given the opportunity to be present
in the interview process described above unless the worker objects.
337 Except in cases involving gross misconduct, workers
separated for just cause shall receive two (2) weeks notice or two (2) weeks pay
in lieu of notice.
Grievant worked for Stanford for 14 years, and in 1989 was the only black Lab
Assistant in the Pathology Department of the Medical School, where she was
responsible for washing glassware and preparing media for three laboratories.
She was discharged in February 1989, based on both her prior attendance
record and her absence due to a jail term she was then serving.
Grievant's Attendance Record
During Grievant's final absence,
Grievant's supervisor, Administrative Assistant Roberta Bernstein, prepared a
summary of her attendance based on Bernstein's appointment book entries.
That summary shows that between April 1988 and February 3, 1989, Grievant
took sick leave or went to medical appointments for all or part of 26 days.
Apart from those days, she was late on eight occasions (three of which
she worked late); was early on four occasions (on two of which she did not
inform Bernstein when she left); left early on seven occasions; was gone during
part of the workday on two occasions; was absent for three days; and took unpaid
vacation for two days.
relied on a complicated series of public transportation routes to get to and
from work, Bernstein permitted her to vary her work schedule.
Bernstein testified that she made no attendance entries on days when
Grievant's work schedule varied simply because of transportation problems, but
did make entries on days when she reported to work at a time other than when
Bernstein expected her. Although
Stanford's records reflect whether each instance of absenteeism or tardiness
was excused or unexcused, the summary does not include that information in each
instance. The instances marked as
unauthorized on the summary are one occasion when she was gone during part of
the workday, one day when she came in early, five days when she left early, two
days when she was late, and one day when she both arrived late and left early.
On two other occasions, Bernstein noted that Grievant came in early and
did not tell Bernstein when she left.
Between July and
October 1987, Grievant's previous supervisor issued three memoranda to her
concerning attendance and unauthorized absences during the workday.
Two of those memos specifically warned her that further attendance
problems could result in termination. Between
mid-September 1988 and late January 1989, Bernstein issued four memos to her
notifying her of attendance problems. Two
of Bernstein's memos informed Grievant that she would not be paid for unauthorized
time off she had taken, but none of the memos discussed the possibility of other
discipline in the event of additional attendance problems.
memo was issued a week before Grievant's final absence.
Grievant came in late and left early without authorization on the day she
received that memo, was absent due to sick leave for two days in that week,
came in early and took sick leave for part of one day, and came in early and
failed to tell Bernstein when she left on two other days.
During that week, Bernstein attempted to schedule a meeting with Grievant
and the Union steward to discuss her attendance, but Grievant said she wanted
nothing to do with such a meeting and Bernstein did not pursue the matter.
Bernstein was "heading toward" more serious disciplinary
measures when Grievant's final absence occurred.
Incarceration and Discharge
arrested in early February 1989, pleaded guilty to a criminal offense, and was
jailed until March 8. Under the
rules of the jail, she was only permitted to make collect telephone calls.
She called her sister and roommates, but did not try to call Bernstein
because she did not know whether Bernstein would accept a collect call.
Instead, she initially asked a friend to notify Bernstein of her
whereabouts, and later also asked her sister to provide information to
Grievant left work
early on February 1, 1989, a Wednesday, and took sick leave for the remainder of
the week. When she did not return
to work the next week, Bernstein called her home.
The person who answered the phone claimed that Grievant was in jail and
would be back in two days. Bernstein
did not ask how to contact Grievant, leave a message asking Grievant to call
her, or tell the person who answered the phone that Grievant would be discharged
if she did not return to work. On
February 8, when Grievant still did not appear for work, Bernstein sent her a
telegram and a letter asking her to contact Bernstein and advising that she was
believed to have abandoned her job.
On February 10,
Grievant's sister, Katherine McCrewell, picked up Grievant's paycheck and left
her own phone number with Stanford. Bernstein called McCrewell and learned that Grievant expected
to return to work on February 13. On
February 13, McCrewell notified Bernstein that Grievant was still in jail and
might remain there for another 45 days, but would be calling McCrewell with more
information about the duration of her sentence. On February 14, McCrewell notified Bernstein that Grievant
would be in jail until March 23. Bernstein
did not ask how to get in touch with Grievant or leave instructions for Grievant
to call or report to work.
incarceration, Bernstein met with the faculty members whose labs Grievant served
and prepared a memorandum for their signature.
The memo complained about Grievant's "illness, unauthorized
absenteeism, and habitually `not being here' during her work schedule,"
and complained that "It is entirely unsatisfactory for us to have to
continue with a substitute, untrained, glassware washer at this time."
The memo went on to request that Grievant be terminated and a permanent
meeting with the faculty and the February 14 conversation with McCrewell,
Bernstein reviewed Grievant's performance and attendance, and prepared a summary
of her attendance record. On
February 16, Bernstein sent a letter to Grievant stating, in relevant part:
Your unexcused absence from work has created a
severe operational hardship upon the department.
In addition, your past work record indicates that you have had serious
attendance problems. We are unable
to authorize further absence from work, and we are terminating your employment
from the University effective February 3, 1989.
Following Grievant's discharge, Stanford hired the
on-call employee who had performed Grievant's duties during her absence as her
The Union introduced evidence regarding the treatment of one other employee
during an incarceration. In
February 1989, and again in August of that year, a mail room employee whose job
included issuing payroll checks was jailed, on each occasion for approximately a
week. He requested permission to
use sick leave for the February incarceration, and during the August
incarceration his girlfriend falsely informed Stanford that he was sick and
requested sick leave on his behalf. Stanford
brought in an outside contractor to replace him temporarily, denied him
permission to use sick leave, warned him that he would be disciplined if he
again sought sick leave, and suspended him for one day for the second
Just cause existed for this discharge.
Bernstein kept track of employees' attendance and made Grievant aware
that she was required to report to work consistently.
Grievant's record of repeated absenteeism alone would have warranted
completely disregarded her obligation to notify her supervisor of her
whereabouts after February 1. The
February 8 letter and telegram put her on notice that she was expected to
contact Bernstein and that the department considered that she had abandoned her
job. Nonetheless, it was only
because of Bernstein's diligence that Stanford acquired any information about
her status. By February 14,
Stanford still had conflicting reports of her status and expected date of
return, and she had taken no direct and conclusive personal action to clarify
her status. Significantly, the
friend who allegedly agreed to notify Stanford of Grievant's whereabouts was not
called to testify. Although
Grievant called her roommate and arranged to have her paycheck picked up, she
made no attempt to contact Bernstein.
discipline was not available here. Grievant's
failure to communicate with Stanford was tantamount to job abandonment and gave
just cause for termination. Stanford was not required to wait indefinitely to see whether
she would return to work. Her work
record provides no grounds for mitigation.
The Union presented no credible evidence that Grievant was the target of
POSITION OF UNION
Stanford has not applied progressive
discipline. Bernstein did not
notify Grievant of the consequences of further incidents, work out a plan to
eliminate her alleged "serious attendance problems," or tell her what
improvement was expected in order for her to keep her job.
Bernstein's earlier memos discussed the impact of Grievant's legitimate
illnesses, but contained no warning of the consequences of future absences. Stanford did not follow the contractual steps for termination
based on unsatisfactory work performance--i.e., establishment of a
probationary period, development of an improvement program, and notice and
consultation with the Union.
grounds for termination were fabricated post-termination.
The actual records of Grievant's attendance were not offered into
evidence or provided to her during her employment.
The summary did not indicate whether absences were approved or
disapproved, although those entries reflecting sick leave or personal leave
involve approved leave. Although
Bernstein permitted Grievant to have a flexible schedule because she used public
transportation, she retroactively labelled instances where Grievant had arrived
early or late as "unauthorized" on the summary.
requests for evidence of faculty complaints, Stanford produced the memo
Bernstein prepared only at the arbitration hearing. That memo falsely claimed that Grievant's replacement was
untrained and unsatisfactory. In
fact, her substitute was trained and experienced, and was hired to replace her
after her discharge. Therefore, her
absence created no operational hardship.
The reasons for
Grievant's incarceration are not relevant to the issue of just cause.
The only bases for Grievant's termination were her prior attendance
problems and the operational hardships created by her absence.
When compared with a fellow employee who falsely claimed to be sick while
actually in jail, Grievant's treatment reflects a departure from past practice
and a pattern of disparate treatment designed to accomplish her termination.
At most, she should have suffered a short suspension and probation to
permit a fair opportunity for her to correct the asserted attendance problem.
Grievant should be reinstated and made whole for losses resulting from
The discharge must stand or fall on the grounds
upon which Stanford actually relied in discharging Grievant.
Although Bernstein's February 8 letter and telegram raised the issue of
"job abandonment," that charge was not repeated in the discharge
letter, which instead relied on the charges of unexcused absence and continued
absenteeism, and therefore cannot form a basis for the discharge.
absenteeism is not a problem of work performance.
Therefore, the specific steps prescribed by the Agreement for
correction of work performance problems--i.e., an interview, plan for
improvement, and probation--do not apply here.
However, the Agreement explicitly requires just cause for any discipline.
The element of just cause that is of most concern here is the question of
notice of the consequences of Grievant's conduct.
employees know that they must report to work regularly.
The availability of a substitute does not wholly ameliorate the
inconvenience of an absence, and even an employee who is unavoidably absent
(e.g., for illness or, as here, incarceration) is subject to discipline or
discharge for excessive absenteeism. After
all, the consideration received by an employer for the wages and benefits paid
to its employees is the attendance of those employees at work.
Like most employers, Stanford tolerates some absenteeism, including that
caused by incarceration, and hence must give employees notice that their
attendance has placed their jobs in jeopardy before the ultimate penalty of
discharge is imposed.
Grievant received unequivocal notice that she risked termination if her
attendance record did not improve, and she avoided further written warnings for
nearly a year thereafter. However,
the corrective effect of the earlier warnings was dissipated when she received
no serious discipline after again exhibiting attendance problems under
Bernstein. Only a week before her
final absence, Grievant received a memo from Bernstein that merely declined to
pay her for unauthorized time off, without warning that her job was in jeopardy.
attendance during the subsequent week warranted some discipline.
Immediately after receiving a warning for leaving work early, she left
early without permission, came in early on three consecutive days without prior
approval, and did not notify Bernstein that she was leaving early on two of
those days. While Bernstein did not
discipline her on the spot for those incidents, Grievant's absence for most of
the remainder of the week provided very little time in which to impose
discipline. Grievant's subsequent
lengthy incarceration and discharge mooted the question of the appropriate level
of discipline for her conduct during the week following her last written
absence also warranted some discipline, especially in light of her attendance
record. The inconvenience of
Grievant's final absence was aggravated by the delay in contacting Bernstein and
the constantly shifting predictions of the date on which she would return to
work. Regardless of the reason for
her absence, Stanford was not required to suffer an indefinite disruption of its
operations by holding her job open. However,
particularly in view of Stanford's equivocal response to her earlier absenteeism
and the history of minimal discipline for absences due to incarceration, just
cause required that she receive notice that her absence in this instance would
not be excused and that she would have to return to work by a certain date or be
fired. One can only speculate as to
whether or not Grievant would have been able to secure a release from jail in
time to comply with any deadline for her return to work, but she was entitled to
receive notice of the consequences if she did not.
to call Bernstein herself following her incarceration is not an aggravating
factor. Her only mode of contact
outside the jail was a collect phone call, and she reasonably could have assumed
that such a call would not be accepted. When McCrewell learned that Grievant's friend had not
followed through on Grievant's request to notify Bernstein of her whereabouts,
she made a series of status reports to Bernstein.
Grievant's reports to Bernstein through McCrewell demonstrated Grievant's
sincerity in wanting to keep Stanford informed of her anticipated date of
return, and Bernstein did not advise Grievant or McCrewell that this mode of
contact was unsatisfactory.
In summary, had
her incarceration and discharge not forestalled it, discipline would have been
in order for Grievant's attendance during her final week of work.
Grievant repeated the very conduct for which she had just been warned on
the day she received her last warning, and therefore knew, or should have known,
that her attendance continued to be unsatisfactory.
She had every reason to believe at that point that she could receive more
serious discipline. She then missed
work for a lengthy period of time due to her incarceration. But for the lack of notice, discharge may well have been
appropriate even for this long-term employee.
In these circumstances, she must be reinstated, but without back pay.
There was not just cause for the February 16, 1989, termination.
However, severe discipline was warranted in light of her prior record.
Accordingly, she shall be reinstated, but without back pay.
Dated: May 30, 1990
ADOLPH M. KOVEN, Arbitrator
by LUELLA E. NELSON - Associate Arbitrator
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