Title: U.S. Department of Defense, Marine Corps Air
Station and AFGE Local 1881
BEFORE THE ARBITRATOR
IN THE MATTER
FEDERATION OF GOVERNMENT
OF DEFENSE, MARINE
FMCS NO. 94-23429
STATION, EL TORO,
Marine Corps Air Station
Toro (Santa Anna), California
FOR THE UNION:
FOR THE EMPLOYER:
Timothy J. Evans, Deputy Counsel
Office of Counsel
U.S. Marine Corps Air Station El Toro
East Irvine, CA
El Toro (Santa Ana), CA 92709-5001
The grievance in this matter was filed on June 29, 1994, by Laura
Lopez, the grievant, in response to a decision to suspend her for one day made
by the assistant chief of staff. The
grievant served as a child development program assistant in the child
development center located on El Toro Marine Corps Air Station.
She was disciplined for leaving a child unattended on April 29, 1994. She asserts the child was not left attended.
The parties were unable to resolve the matter at earlier steps in the
grievance procedures; subsequently it was taken to arbitration.
Based on my review of the positions of the parties and the evidence on
the record, I find that the following issues are presented for resolution:
(1) Did the employer violate Article 12 of the parties' master labor
agreement when it suspended the grievant for one day because of her conduct on
April 29, 1994? (2) If so, what is the appropriate remedy?
PROVISIONS OF THE
The relevant provisions of the master labor agreement between the
parties are as follows:
Article 12: Disciplinary
and Adverse Actions
employer and union recognize that the public interest requires maintenance of
efficient operations through high standards of employee performance and
conduct and impartial enforcement of laws, rules, and regulations; and that
discipline is a managerial tool intended to correct deficiencies in employee
behavior. Disciplinary and
adverse actions will be timely and taken against an employee only for just
cause as will promote the efficiency of the service.
keeping with the concept of progressive discipline, actions imposed shall be
the minimum, in the judgment of the disciplinary official, that can reasonably
be expected to correct and improve employee behavior and maintain discipline
and morale among other employees. All
circumstances being the same in an activity disciplinary or adverse action
case, the concept of like remedies for like offenses will be applied. This provision shall not prevent the employer from taking any
appropriate action but shall require a reasonable basis when there is
deviation from the concept of progressive discipline.
FACTS OF THE
The grievant is an eight-year employee who works as a child development
program assistant, or child care provider, in the child development center at
the Marine Corps Air Station, El Toro. The
center provides safe and developmentally appropriate care for children of
military and civilian personnel. Most
of the children are under age five. One
of the major duties of the position occupied by the grievant is to maintain an
accurate count of the children in her charge.
During the time pertinent to this matter, the grievant functioned as a
floater or substitute, a position that filled in for other child care providers
who had to be relieved for various reasons.
She was not assigned to her own room but rather substituted for child
care providers who had their own rooms, as the need arose.
The grievant dealt with dozens of different children during the course of
a day and did not know all of them.
On April 29, 1994 there was an air show at the base.
Management officials let some full-time child care providers go home and
had floaters take over their class rooms. The
grievant relieved the regular child care provider in room 10 at approximately
2:15 p.m. She counted the number of
children and was given a roster showing the names of the children she received
from the regular provider.
After the grievant took charge of the children in room 10, room 9 was
combined with it. Room 9 had been assigned to Natalie Lewis, who was also a
child development program assistant and had been working in the center only
three weeks. The grievant and Ms.
Lewis took their children outside to watch the air show.
They did not place identifying name labels on any of the children.
The primary child care providers from whom floaters or relief providers
receive children are supposed to label children when classes are combined if the
relief providers do not know the children.
Neither Ms. Lewis nor the grievant knew all the children in their charge. The primary provider from whom the grievant received her
children in room 10 did not labeled the children.
When the children from rooms 9 and 10 went outside, they were invited to
join another group of children who were supervised by Theresa Houseman, another
child care provider. She invited
them to sit on a parachute that had been spread out on the grass and watch the
air show with several other children.
After the air show, the grievant and Ms. Lewis counted their children and
took them back inside the class room building.
As soon as the children under Ms. Lewis and the grievant left, Ms.
Houseman noticed that Lindsey Hickok, one of the children from room 10 assigned
to the grievant was left behind. Ms.
Houseman immediately took Lindsey to the building's back door.
Inside, she found the grievant and Ms. Lewis and delivered Lindsey to the
grievant. At the time Ms. Houseman
discovered Lindsey, the grievant was no longer in sight. The grievant could not
see Lindsey for two or three minutes during the time she and Ms. Lewis were
taking the children through the front door and into the building.
The grievant testified that before she left the play area with her
children, she counted them three times and asked Ms. Lewis what happened to one
of the children. Ms. Lewis said she had been picked up by her parent.
The grievant asked if she was sure and Ms. Lewis answered affirmatively.
Ms. Lewis testified she did not remember telling the grievant a parent
had picked up the child.
During the day of April 29 there was a lot of confusion associated with
the air show. Many of the parents of children at the center came out to the
play area to pick up their children. Normally,
the regular care provider lets the substitute know how many children there are
in the room and, if the substitute does not know all the children, the regular
provider labels all of them with name tags and room number.
The standard operating procedure for the child development center, in
effect at the time in question, provided that visual supervision of all children
will be maintained at all times, no child will be left unattended at any time,
indoors or outdoors, asleep or awake. All
employees are required to read the safety section of the procedure.
They are also taught to keep a running count of their children at all
times. At the time employees begin
work for the child development center, they are given instructions regarding the
attendance of their charges. They
also receive a handbook containing information related to their duty of caring
for and attending to the children.
Since January 1992 there have been eight appropriated fund employees in
the child development center who were disciplined.
There were seven letters of reprimand and one one-day suspension.
There were seven incidents of children being unaccounted for.
Four resulted in letters of reprimand, one resulted in a one-day
suspension. The grievant occupies
an appropriated position.
Until December of 1993 there was a different procedure used by the center
to account for the number of children under its care.
When a parent brought a child in, he received a chit, a laminated piece
of paper. When the parent picked
the child up, he gave the chit to the care provider.
The system was unwieldy and was discontinued.
Employees were notified of its discontinuance by memorandum.
On May 24, 1994, the director of the child development center issued a
letter of proposed discipline to the grievant.
The letter outlined the charge against the grievant:
inattention to duty by leaving a child unattended.
It also noted that the offense was the second one brought against the
grievant. On April 13, 1994 she had
received a letter of reprimand for failing to turn in required training
material. The letter proposed that
the grievant be suspended for five days.
On August 4, 1994 the chief of staff issued a letter to the grievant in
which he reduced the five-day suspension to a one-day suspension.
He noted the mitigating factors argued by the grievant, but concluded
nonetheless that the child was unattended by the grievant and a one-day
suspension was appropriate.
The grievant did not challenge the April 13 letter of reprimand because
she did not think it was important. She
had understood that the training modules, which were the subject of the
reprimand, were to be turned in upon completion, not on a monthly basis.
Her supervisor, Nancy Evans, testified that the grievant knew about the
module training requirement, that she instructed the grievant about the need to
do the modules, and that the grievant had a room in which she could do them.
POSITION OF THE
The grievant was one of the most experienced employees at the child
development center--she had eight years of experience.
She had notice of what the job requirements are.
She should have known that she had to know who the children were under
The fact that the regular care provider whom the grievant relieved did
not put name labels on the children before she turned them over to the grievant
served as a mitigating factor. The
original five-day suspension was, therefore, reduced to a one-day suspension.
In accordance with the provisions of the master labor agreement,
progressive discipline principles were followed.
The grievant had already received a letter of reprimand; hence the
one-day suspension was altogether appropriate.
Since the grievant knew that keeping account of her children at all times
was of paramount importance, it would be an injustice to let her mistake go
unpunished. If it goes unpunished,
all employees will believe policies do not mean anything.
The one-day suspension was very lenient.
The April 13, 1994 letter of reprimand was issued to the grievant for
failing to turn in training modules from January until April 1994.
She was notified in January, February, and March that they were to be
turned in. She failed to turn them
in despite the reminders.
POSITION OF THE
The suspension of the grievant was not for just cause and the efficiency
of the service. The employer failed to show that the child was unattended by
a child care provider. The word
"unattended" means without attendance; lacking an audience,
spectators; not cared for or ministered to; not accompanied, as an attendant or
companion, alone; not taken in charge or watched over.
The grievant had custody of the child along with another provider.
Although the child was not with them for a period of a few minutes, the
child was in view of another provider and was directed back immediately.
The child was always in the view of a provider.
She was never unattended at any time.
There has been a pattern of harassment against the grievant because she
stands up to the managers about being treated fairly.
There has been an inconsistent application of the policies that has
caused confusion among the employees. Changed
policies have not been properly noticed.
On the day in question, the air show caused confusion.
Parents came early and picked up their children.
The grievant was not given progressive discipline because she was not
given a change to complete her training module.
The original penalty of a five-day suspension was too much.
The grievant has been discriminated against and should be made whole.
The one-day suspension should be rescinded.
She should receive a one-day back pay award and her personnel file should
be expunged of the adverse action taken against her.
Two witnesses testified that they believed the grievant gets nagged at by
managers more than other employees do because she speaks out for what she wants
and believes is right. One witness
testified that she knew of a case where two employees let a child get out on the
street. One of the employees
received a 15-day suspension and the other received a "slap on the
The master labor agreement prohibits action by the employer against an
employee unless such action was for just cause.
The question then is whether the one-day suspension of the grievant was
justified under the circumstances. I
have reviewed the evidence on the record and concluded that the discipline
imposed by the employer was for just cause.
It is apparent that the grievant had notice of the conduct expected of
her. She is a long-time employee
who was advised of the rules and procedures of the child development center.
She had received training in her job requirements.
No serious argument can be made that she was unaware of her
responsibilities as a child care provider.
The union argues that the employer failed to prove that the child was
unattended by a child care provider. That
argument, however, misses the point. Although
the child happened to have been noticed unattended by another child care
provider, the fact was the grievant was remiss in not accounting for her before
she took her class inside. The
child was the grievant's responsibility, not Ms. Houseman's.
It was critical that responsibility for the whereabouts of each child be
placed unequivocally upon a particular individual.
To hold otherwise would place accountability for the children upon
several child care providers rather than the one under whom a particular child
There would appear to be a sound reason for having a roster of the
children passed from one provider to another provider.
It informs the provider of the exact number, by name, of children she is
responsible for. While the evidence
shows there was also negligence on the part of the provider from whom the
grievant received her charges, that served to mitigate the penalty ultimately
imposed on the grievant.
Under the circumstances, the grievant failed to do what a reasonably
prudent child care provider would have done.
She was careless in not taking proper measures to insure she accounted
for all her assigned children before going into the building.
It is no defense to her carelessness that the child happened to have been
noticed almost immediately by Ms. Houseman.
The careless act had already been committed.
Fortunately, the consequences of that careless act were minor and were
reflected in the degree of discipline imposed.
The consequences could have been far worse under different circumstances.
It would of course be as the union contends if the grievant had
approached Ms. Houseman or any other child care provider and asked that she
attend one of the grievant's children for a while.
Under those circumstances, it would be reasonable to conclude that the
child was never unattended, that visual supervision was maintained at all times,
as the standard operating procedure requires.
It cannot be said, however, that the child in question was attended by
Ms. Houseman because she was not told by the grievant that one of the grievant's
children was going to be left behind; indeed, the grievant did not know the
child was being left behind. The
child was not attended to by Ms. Houseman because she was not aware of her
presence until the grievant had left the premises.
There was a short period of time when the child was unattended by anyone.
There is no evidence on the record to support the union's allegation that
the grievant has been harassed and discriminated against by the employer's
managers. While two witnesses testified they believed managers nagged
the grievant more than other employees were nagged, such beliefs do not rise to
the level of proof. Discrimination
is an affirmative defense and the union had the burden of proving its
allegation. It failed to do so.
As to the union's contention that there was an inconsistent application
of the employer's policies, the evidence on the record does not support such
contention. The evidence shows that, as to punishment, the employer has
imposed punishment equally since January of 1992.
With respect to the alleged incident where two child care providers were
remiss and allowed a child to wander into the street, suffice it to say facts
supporting the allegation were not disclosed.
One of the employees may have had an exemplary record, the other may have
had a record full of offenses. There
is simply a lack of evidence on which a conclusion of disparate treatment can be
The grievant was given progressive discipline in accordance with the
labor agreement. She received a letter of reprimand regarding her failure to
complete certain training modules in a timely fashion.
She received a one-day suspension for the behavior in question here.
Both disciplinary measures would seem to be the minimum that can be
reasonably expected to correct and improve her conduct and to maintain
discipline and morale among other employees.
The employer considered all the mitigating facts that were present during
the day of April 29, 1994. The
confusion of the air show, the fact the children did not have name tags on them
when the grievant took charge, the fact that the child was left unattended for
only a short period of time and was not injured were all considered by the
employer and served to cause higher officials to reduce the five-day suspension
to a one-day suspension.
The employer had just cause as will promote the efficiency of the service
to impose a one-day suspension on the grievant.
Accordingly, I will enter an award reflecting the conclusion that the
employer did not violate Article 12 of the parties' master labor agreement.
The grievance is denied.
Dated this 9th day of February 1995.
Jack H. Calhoun