1995 NAC 105 U.S. Department of Defense, Marine Corps Air Station and AFGE Local 1881

Title: U.S. Department of Defense, Marine Corps Air Station and AFGE Local 1881
Date: February 9, 1995
Arbitrator: Jack H. Calhoun
Citation: 1995 NAC 105

BEFORE THE ARBITRATOR

IN THE MATTER OF THE )

GRIEVANCE ARBITRATION )

Between )

)

AMERICAN FEDERATION OF GOVERNMENT )

EMPLOYEES, LOCAL 1881, ) OPINION

) AND

Union, ) AWARD

)

and )

)

U.S. DEPARTMENT OF DEFENSE, MARINE ) FMCS NO. 94-23429

CORPS AIR STATION, EL TORO, )

)

Employer. )

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Jack H. Calhoun

Arbitrator

Hearing Held

January 13, 1995

U.S. Marine Corps Air Station

El Toro (Santa Anna), California

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REPRESENTATION

FOR THE UNION: FOR THE EMPLOYER:

Eugene Hudson Timothy J. Evans, Deputy Counsel

Lawrence Barney, President Office of Counsel

AFGE Local 1881 U.S. Marine Corps Air Station El Toro

P.O Box 30 Box 95001

East Irvine, CA 92650 El Toro (Santa Ana), CA 92709-5001

BACKGROUND

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.

ISSUES

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?

RELEVANT PROVISIONS OF THE

MASTER LABOR AGREEMENT

The relevant provisions of the master labor agreement between the parties are as follows:

Article 12: Disciplinary and Adverse Actions

Section 1 The 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.

Section 2 In 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 CASE

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.

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 her care.

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.

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 wrist."

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 is placed.

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 drawn.

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.