1999 NAC 121 Careers Systems Development Corporation and California Federation of Teachers, AFT Local 4986

Title: Careers Systems Development Corporation and California Federation of Teachers, AFT Local 4986
Date: November 2, 1999
Arbitrator: Allen Pool
Citation: 1999 NAC 121

This Arbitration arose pursuant to Agreement between the California Federation of Teachers, AFT, Local 4986, hereinafter referred to as the "Federation" and the Career Systems Development Corporation/Sacramento Job Corp Center, hereinafter referred to as the "Employer", under which C. ALLEN POOL was selected to serve as Arbitrator through procedures of the FEDERAL MEDIATION AND CONCILIATION SERVICE. The parties agreed that the matter was properly before the Arbitrator and that his decision would be final and binding upon the parties.

The Hearing was held in the Sacramento, California on October 5, 1999 at which time the parties were afforded the opportunity, of which they availed themselves, to examine and cross-examine witnesses and to introduce relevant evidence, exhibits, and arguments. The witnesses were duly sworn. The Federation made an oral closing argument at the Hearing and the Employer submitted a posthearing brief which was provided to the Arbitrator in a timely manner. A copy of the Employer's brief was provided to the Union.

The parties were unable to agree on the how to frame the issue. They each submitted separate statements and authorized the Arbitrator to frame the issue from the record.

“Does the Collective Bargaining Agreement prohibit the employer from continuing to enforce the terms of the ‘Absentee and Tardiness’ policy to bargaining unit employees.”

“Does the absenteeism policy of Career Systems violate Article 8, Sections 1 & 2, Article 10, Section 1 and Article 4 of the negotiated agreement?”

Did the Employer violate Article 8 Sections 1 & 2, Article 10 Section 1, and/or Article 4 of the Collective Bargaining Agreement when the Grievants were disciplined under the terms of the Employer’s “Absentee and Tardiness Policy”? If so, what shall be the remedy?

The Employer is a private corporation under contract with U.S. Department of Labor to administrator and to manage, along with others, the Sacramento Job Corps facilities and program. The primary responsibility is the academic program for which the Employer hires, supervises, and evaluates academic instructors. At the time of the hearing, the Center had approximately 420 trainees residing at the Center. The usual length of stay for trainees before meeting the graduation requirements is from 10 to 12 months.

Until recently, the academic instructors were unrepresented employees. That status changed when the Federation was certified in 1996 as the exclusive bargaining agent for the academic instructors, the bargaining unit members. Negotiations between the Federation and the Employer commenced shortly thereafter and continued into late August 1998 at which time the parties entered into their first Collective Bargaining Agreement. The parties ratified the Agreement and it became effective on August 22, 1998.

In March 1999, the Employer disciplined five of its academic instructors: Ramazan Dehqanzada, Joel Blaylock, Alice Pretty, Diane Spence, and Diane Medrano. They were each disciplined for exceeding the limit on the number of absences proscribed in the Employer's "Absentee and Tardiness Policy". The discipline given to each was a Step One Oral Warning as provided for in the Agreement’s progressive discipline provision. Claiming the Employer's action was a violation of the Agreement, a grievance was filed which proceeded to this Arbitration.

The Employer did not violate any provisions of the Agreement. The Grievants were disciplined under the terms of the Absenteeism and Tardiness Policy. This is an Employer-wide policy that was promulgated and put into practice long before the Agreement became effective on August 22, 1998. Nothing in the Agreement cancelled or modified the Absenteeism and Tardiness Policy. The terms of the policy are still in effect and the Employer has the right to discipline for absenteeism and tardiness as it had done before the effective date of the Agreement.

There also was no change or modification in the policy on sick and personal leave except that the numbers of hours that can be accumulated were increased. The Employer can still discipline pursuant to the policy. Absences in excess of the limit are chargeable incidents even though the Agreement entitles the employees to be paid for the absences.

The Management Rights Clause reserves to the Employer the right to continue to enforce its pre-Agreement practices that were not vacated or modified the Agreement. If a past practice was not addressed in the Agreement, the past practice prevails. Lastly, the Effect of the Agreement (Article IV) must be interpreted consistent with the Management Rights Clause (Article II). The Absenteeism and Tardiness Policy is reasonable and fair and the oral warnings were issued for just cause. The Grievance should be denied.

The Employer violated the Agreement when it gave oral warnings to the Grievants. The Employer’s application of the Absenteeism and Tardiness Policy was capricious and arbitrary. The Grievants followed all the required procedures in the Agreement. They each applied for the use of accumulated earned leave. Their applications for leave were approved by the Employer. They were even paid for the leave time taken. Yet, the Employer counted the approved leaves as chargeable incidents under the Policy and disciplined them. The Grievants were, in fact, disciplined for exercising their contractual rights.

The Employer’s application of its no-fault absenteeism and tardiness policy was arbitrary and capricious and conflicts with negotiated provisions of the Agreement. Where there are conflicts, the clear and unambiguous language of the Agreement prevails. The Agreement required that the Employer extend to the Grievants their due process and just cause rights. The

Grievants were treated unfairly; their contractual rights were violated. The Grievance should be sustained.

The focus of the dispute can be narrowed to the impact of the Collective Bargaining Agreement on the Company's Absenteeism & Tardiness Policy. The Company first promolgated the Policy in 1978. It was re-issued again in November 1988. It was a unilateral action by the Company and was applicable to all Company employees including the employees at the Sacramento Center. The Grievants in this instance were given a copy of the policy. They also signed a document, a copy of which was retained by the Company, showing they were made aware of the provisions of the Policy.

The Policy defined an Incident as "Any two occurrences of tardiness, single occurrence of absenteeism or two occurrences of leaving early". The Company treated these as chargeable incidents. This was true even though the leave had been approved and the employee was entitled to pay for the leave taken. The Policy went on to state that "Any lost time caused by an employee who leaves work ahead of schedule will be considered an incident of absenteeism" . That same provision further stated that "Any two occurrences of leaving early will constitute an incident of absenteeism" (Emphasis added)

Under the provisions of the Policy, an employee would be subject to disciplinary action if the employee incurred five (5) chargeable incidents in a six month period or total length of service, whichever was less. The discipline that could be imposed, under the Policy, was progressive in structure. It started with a verbal warning for five (5) incidents and progressed its way up to discharge for 10 incidents. However, the Policy provided some exceptions to the seemingly absolute ban on "Any" absences due to leaving work early. The Company's exceptions were: "Absenteeism due to a physician-verified work incurred illness or injury will not constitute an incident, nor will approved leaves of absence, jury duty, or funeral leave" (Emphasis added).

Prior to the effective date of the Agreement, the employees were considered to be "at-will employees" and the Company could promulgate rules and apply those rules unilaterally. Things changed, however, with the effective date of the Agreement. The terms and conditions of employment are now governed by the negotiated Agreement. In fact, the Agreement contains some clearly expressed rights accorded to the employees.

The Company, however, retains all rights, powers and authority not given or shared with the Union as is so clearly stated in the Management Rights Clause, Article II. The Agreement recognizes that the Company clearly has the sole right to manage its business and direct the working force. This includes the right to promulgate work rules. It also includes the sole right to discipline, suspend and discharge for cause subject to the negotiated grievance procedure.. (Emphasis added).

Before moving to the discussion of the impact of the Agreement on the Policy, a few words about "past practice"1. The Employer argued that the Policy is a "past practice" which was not vacated or modified in anyway by the Agreement. In the world of collective bargaining, past practice is a concept and issue that has been and is still intensely debated. Volumes have been written about the subject; yet, the criteria are still not written in stone. There is one criterion, however, that is essential to the establishment of a past practice in the context of collective bargaining. A past practice exists if it has extended over a sufficient period of time and has been mutually acknowledged and practiced by both the employer and the union (emphasis added). In the instant case, the Policy was promulgated and implemented years before the Union came on the scene. In other words, the Union was not part of the equation and by its actions since the effective date of the Agreement, the Union has not demonstrated any “mutual acknowledgement”. Therefore, the Policy cannot be considered a past practice.

However, from the analysis of the record, it is clear to the Arbitrator that the Union in this dispute is not challenging the Company's right to promulgate work rules. More to the point, the Union is not challenging the Company's Absenteeism & Tardiness Policy. The Union's concern is with how the Company applied the terms of the Policy in disciplining the five Grievants. The Union's contention is that certain elements of the Policy, not the whole Policy, are in conflict with the Agreement. Specifically, the Company's action was a violation of the just cause requirement as expressed in Article X, Discipline; Article II, Management Rights; and Article IV, Effect of the Agreement.

The Management Rights clause of the Agreement states that "The Employer retains the sole right to discipline, suspend and discharge employees for cause, subject to the grievance procedure provided….” (Emphasis added). Article X, Discipline, of the Agreement speaks again of just cause: "The purpose of this Article is to provide a remedial sequence of steps as a means of dealing with corrective action. 1. Just Cause: No unit member shall be subject to corrective action except for just cause". (Emphasis added) Moreover, Article IV, Effect of the Agreement makes it clear that “the specific provisions contained in this Agreement shall prevail over employer practices and procedures…..”. Specifically, the Absenteeism and Tardiness Policy must conform to the just cause provisions of the Agreement.

A few words about the just cause standard may be instructive.2 The just cause standard is not some free-floating notion without referents. The standard is one that is still much discussed and written about within the collective bargaining community. But, of all the elements that go to determine whether there was just cause to discipline, there is one that is considered the threshold requirement. That is, there must proof of some kind of misconduct or misbehavior by the employee. Specifically, if there was no misconduct or misbehavior there cannot be any cause for discipline.

Article X, Section 3, A states that, "An oral warning consists of an interview with the unit member to discuss 'problem' and its solution. The unit member is to be informed in clear and concise language of his/her error, ways to improve…." (Emphasis added). The definitions of "Written Warning" and Written Reprimand" use the same or similar language.

With respect to the grievants in this matter, what was their misconduct, their misbehavior, or the error for which they were disciplined with an oral warning? It is the conclusion of the Arbitrator that there was no misbehavior, misconduct, or error. The five employees, the grievants, were exercising their contractual rights much the same as if they would exercise their statutory rights if taking leave under the Family Medical Leave Act. The five grievants requested permission to take leave, the Employer granted them permission to take the leave and, in some instances, they were paid by the Employer for the leave time taken.3 The Employer erred. The Employer did not have just cause to discipline the Grievants with an Oral Warning for simply exercising their contractual rights. Therefore, the Grievance is sustained.

The Grievance is sustained. The Employer violated Article 8 Sections 1& 2, Article 10, Section 1 and Article 4 of the Collective Bargaining Agreement when the Grievants were disciplined under the terms of the Employer's "Absenteeism and Tardiness Policy".

All references to the disciplines, the Oral Warnings, shall be purged from the Grievants personnel files.

1 An informative discussion on “Past Practice” is provided on pages 630-641 of Elkouri & Elkouri. How Arbitration Works, Bureau of National Affairs, 5^th Edition, 1997

2 For more on “just cause” see pages 884-888 & 905-906 in Elkouri & Elkouri. How Arbitration Works, Bureau of National Affairs, 5^th Edition, 1997

3 An irony in this matter is that if funeral leave is requested and granted, the leave is not considered to be a chargeable incident. In contrast to this, some of the approved sick leaves taken by one of the Grievants for chemotherapy and surgery were considered to be chargeable incidents.