Health and Science University and American Federation of State, County and
Municipal Employees, Local 328
Arbitration arises pursuant to Agreement between American Federation of State,
County, and Municipal Employees, Local 328 (“Union”), and Oregon Health
Sciences University (“University”), under which LUELLA E. NELSON was
selected to serve as Arbitrator and under which her Award shall be final and
binding upon the parties.
was held on August 31 and September 1, 1998, in Portland, Oregon.
The parties had the opportunity to examine and cross-examine witnesses,
introduce relevant exhibits, and argue the issues in dispute.
Both parties filed post-hearing briefs on or about October 13, 1998.
behalf of the Union:
Allison Hassler, Esquire, Legal Counsel, Oregon AFSCME Council 75, 1174
Gateway Loop, Suite 112, Springfield, OR
On behalf of the University:
Victor J. Kisch, Esquire, and Karin L. Guenther, Esquire, Tonkon Torp LLP, 1600 Pioneer Tower, 888 SW 5th Avenue, Portland, OR 97204‑2099
Was the dismissal for just cause; if not, what shall be the remedy?
RELEVANT SECTIONS OF AGREEMENT
The parties agree that the Agency has the right to operate and manage
the institution including, but not limited to, the right to maintain order and
efficiency, to direct employees ... to discipline, demote or discharge
employees for just cause; ... provided that such rights shall not be exercised
so as to violate any of the specific provisions of this Agreement.
The principles of progressive discipline shall be used except when the
nature of the problem requires more serious discipline or immediate action.
Progressive discipline includes the following steps: verbal warning;
written warning; suspension without pay, salary reduction, demotion; and
An employee may be disciplined, denied a salary increase, suspended,
reduced in pay, demoted or dismissed only for just cause which shall include
misconduct, inefficiency, incompetence, insubordination, indolence,
malfeasance, or other unfitness to render effective service.
The “Just Cause” standard is attached hereto and incorporated by
reference under Appendix E.
Expenses of Arbitration. The
arbitrator fee and expenses shall be paid by the losing party. If, in the opinion of the arbitrator, neither party can be
considered the losing party, then such expenses shall be apportioned as in the
arbitrator’s judgment is equitable. ...
The following questions will assist the parties in determining whether
or not the “just cause” standard has been properly applied in instances
involving the discipline or discharge of an employee as specified in Article
10 - Discharges and Discipline.
Did the employer give to the employee forewarning or foreknowledge of
the possible or probable disciplinary consequences of the employee’s
Note 1: The forewarning or foreknowledge may properly have been given orally by management or in writing through the medium of typed or printed sheets or books of rules and of penalties for violation thereof.
2: There must have been actual oral or
written communication of the rules and penalties to the employee.
3: A finding of lack of such
communication does not in all cases require a “no” answer to question
#1. This is because certain
offenses such as insubordination, coming to work intoxicated, drinking
intoxicating beverages on the job, or theft of the property of the University
or of fellow employees are so serious that any employee in working society may
properly be expected to know already that such conduct is offensive and
Note 4: Absent a contractual prohibition or restriction, the employer has the right unilaterally to promulgate reasonable rules and give reasonable orders, and those need not have been negotiated with the Union.
Were the employer’s rules or managerial order reasonably related to:
the orderly, efficient, and safe operation of the employer’s
the performance that the employer might properly expect of the
If any employee believes that the rule or order is unreasonable, the
employee must nevertheless obey it (in which case the employee may file a
grievance) unless the employee sincerely feels that to obey the rule or
order would seriously and immediately jeopardize his/her safety and or
integrity. Given a firm finding
to the latter effect, the employee may properly be said to have had
justification for the disobedience.
Did the employer, before administering discipline to an employee, make
an effort to discover whether the employee did in fact violate or disobey a
rule or order of management?
1: This is the employee’s “day in
court” principle. An employee
has the right to know with reasonable precision the offense which is being
charged and to defend his/her behavior.
2: The employer’s investigation must
normally be made before its disciplinary decision is made.
If the employer fails to do so, its failure may not normally be excused
on the grounds that the [employee] will get a day in court through the
grievance procedure after the exaction of discipline.
By that time there has usually been too much hardening of positions.
In a very real sense the employer is obligated to conduct itself like a
3: There may, of course, be circumstances
under which management must react immediately to the employee’s
behavior. In such cases the
normally proper action is to suspend the employee pending investigation with
the understanding that (a) the final disciplinary decision will be made after
the investigation and (b) if the employee is found innocent after the
investigation, the employee will be restored to the former job with full pay
for time lost.
4: The employer’s investigation should
include an inquiry into possible justification for the employee’s alleged
4. Was the employer’s investigation conducted fairly and objectively?
1: At the investigation the supervisor
may be both “prosecutor” and “judge” but may not also be a witness
against the employee.
Note 2: It is essential for some higher detached management official to assume and conscientiously perform the judicial role, giving the commonly accepted meaning to that term in his/her attitude and conduct.
3: In some disputes between an employee
and a management person, there are not witnesses to an incident other than the
two immediate participants. In
such cases it is particularly important that the management “judge”
question the management participant rigorously and thoroughly, just as an
actual third party would.
At the investigation did the “judge” obtain substantial evidence or
proof that the employee was guilty as charged?
1: It is not required that evidence be
conclusive or “beyond all reasonable doubt.”
But the evidence must be truly substantial and not flimsy.
2: The management “judge” should
actively search out witnesses and evidence, not just possibly [sic] take what
participants or “volunteer” witnesses tell him/her.
3: When the testimony of opposing
witnesses at the arbitration hearing is irreconcilably in conflict, an
arbitrator seldom has any means for resolving the contradictions.
The task is then to determine whether the management “judge”
originally had reasonable grounds for believing the evidence presented by the
Has the employer applied its rules, orders, and penalties evenhandedly
and without discrimination to all employees?
1: A “no” answer to this question
requires a finding of discrimination and warrants negation or modification of
the discipline imposed.
2: If the employer has been lax in
enforcing it [sic] rules and orders and decides henceforth to apply them
rigorously, the employer may avoid a finding of discrimination (unequal
treatment, not necessarily unlawful discrimination) by telling all employees
beforehand of its intent to enforce hereafter all rules as written.
Was the degree of discipline administered by the employer in a
particular case reasonably related to (a) the seriousness of the employer’s
[sic] proven offense and (b) the record of the employee in service with
1: A trivial proven offense does not
merit harsh discipline unless the employee has properly been found guilty of
the same or other offenses a number of times in the past.
(There is no rule as to what number of previous offenses constitutes a
“good, a fair, or a bad” record. Reasonable
judgment thereon must be used.)
2: An employee’s record of previous
offenses may never be used to discover whether the employee was guilty of the
immediate or latest one. The only
proper use of his record is to help determine the severity of discipline once
the employee has properly been found guilty of the immediate offense.
3: Given the same proven offense for two
or more employees, their respective records provide the only proper basis for
“discriminating” among them in the administration of discipline for the
offense. Thus, if employee A’s
record is significantly better than those of Employees B, C, and D, the
employer may properly give A lighter punishment than it gives the others for
the same offense, and this does not constitute improper discrimination.
4: Suppose that the record of the
arbitration sharing [sic] establishes firm “yes” answers to all the first
six questions. Suppose further
than [sic] the proven offense of the accused employee was a serious one, such
as drunkenness on the job, but the employees’s [sic] record has been
previously unblemished over a long, continuous period of employment with the
employer. Should the employer be
held arbitrary and unreasonable if it decided to discharge such an employee?
The answer depends, of course, on all the circumstances.
But, as one of the country’s oldest arbitration agencies, the
National Railroad Adjustment Board, has pointed out repeatedly in
innumerable decisions on discharge cases, leniency is the prerogative of the
employer rather than of the arbitrator, and the latter is not supposed to
substitute judgment in this area for that of the employer unless there is
compelling evidence that the employer abused its discretion.
This is the rule, even though an arbitrator, if he/she had been the
original “trial judge,” might have imposed a lesser penalty.
Actually the arbitrator may be said in an important sense to act as an
appellate tribunal whose function is to discover whether the decision of the
trial tribunal (the employer) was within the bounds of reasonableness set
forth above. In general, the
penalty of dismissal for a really serious first offense does not in itself
warrant a finding of employer unreasonableness.
Grievant was employed as a housekeeper from 1991 until her discharge on June 26, 1997. Her discharge was based on the following charges:
As a result of the pre-disciplinary hearing and subsequent investigation, you have been found to be either unable or unwilling to communicate in an acceptable manner suitable for the workplace. Additionally, your actions have been found to have jeopardized the safe and efficient operation of the department as well as the delivery of appropriate patient care. Your actions have been found to constitute:
Failure to follow departmental expectations relative to manner and
means by which you communicate to co-workers.
Specifically you have been rude, condescending, non-participative, and
indolent in your communications with your peers.
2. Failure to follow Department Director’s directive to leave the workplace immediately and to discontinue unwarranted shouting within a sensitive patient care area. Specifically you were both indolent in your communications with your superior’s [sic] and insubordinate in your failing to adhere to your superior’s clear and demanding orders to both leave the unit and to cease any further disruption of the workplace.
first enumerated charge arises out of alleged interactions with fellow
housekeepers. The second charge
relates to an incident on June 4, 1997, when Grievant was placed on
administrative leave. Most of the
alleged incidents are disputed in whole or in part.
GRIEVANT’S WORK HISTORY
transferred into the Cardio-Thoracic and Surgical Intensive Care Unit
(“ICU”) in May 1993. By all accounts, she was the most technically proficient
housekeeper in the ICU. Her only
two evaluations, both prepared in 1992 when she worked in another unit, had
noted she got along well with co-workers and supervisors. In the ICU, she was supervised by a succession of Clinic
Managers--Audrey Nickodemus, Valli Brunken, and eventually Sandra Dealy.
No ICU Clinic Manager or other supervisor prepared annual appraisals
for her between 1993 and her discharge. She
had no history of any discipline.
the fall of 1993, while Brunken was Grievant’s supervisor, she and the
Department Director met with Grievant and float pool employee Tim Kilgore over
an incident between the two. After
Kilgore locked the housekeeping closet after getting supplies, Grievant became
frustrated at not being able to get into the closet, and said something about
“you f-----g float pool people.”
In the meeting, Grievant and Kilgore confirmed the event had occurred
as described. Brunken admonished
Grievant that the use of profanity at work was inappropriate, and that it was
unacceptable to make float pool staff feel unwelcome.
Grievant apologized to Kilgore.
This incident was not documented and is not referenced in the
THE ALLEGED 1997 EVENTS PRIOR TO JUNE 4
THE EMPLOYEE MEETING
March 1997, Pat Southard, the Associate Hospital Director for Patient Care
Services, held an employee meeting. The
agenda for that meeting included issues relating to interactions with Kilgore,
who was responsible for inspecting units and reporting areas needing further
assistance as part of the CQI (Continuing Quality Improvement) process.
According to Brunken, Southard reported to her Grievant had been confrontive
and disruptive during the meeting, and had to be asked twice to sit down and
was not called as a witness. Kilgore
testified Grievant came in late. He
testified she seemed to want to discuss comments she had heard from others
regarding him, but that Southard quickly stopped her.
Southard told Grievant that was not the purpose of the meeting and
offered to meet with her later to go over the complaints.
His recollection was that Grievant attempted to continue talking, and
that Southard had to tell her two or three times to stop.
testified Southard brought up complaints from Kilgore that housekeepers were
being rude and disrespectful toward him and demanded that they treat him with
respect. Grievant commented that
respect went both ways, and sought to bring up two incidents in which she
believed Kilgore had been disrespectful of employees.
Southard stopped her and asked her to discuss this subject later in
private. Grievant testified the room went silent at that point, and
that she said nothing further herself.
Jacqueline Fuller testified she understood the meeting was for housekeepers
to voice concerns. She was concerned that Kilgore was telling housekeepers to do
things contrary to their training. However,
as soon as Grievant began raising concerns about Kilgore, Southard
stopped her. Fuller concluded housekeepers would not be allowed to voice
their concerns, and did not raise her own concerns.
She testified Grievant had to be told only once to be quiet.
Housekeeper Maudell Minniweather testified that, after Southard told
Grievant it was not an appropriate time to raise questions, Grievant said
RESPONSE TO THE MEETING
testified she spoke briefly with Grievant about Southard’s report of the
meeting. Her recollection was
that Grievant claimed Southard recited Kilgore’s reports of problems with
several housekeepers. Grievant said she had scripted out what she wanted to say but
that they would not listen to her. She
indicated she did not feel her concerns had been heard.
According to Brunken, Grievant was defensive and angry after they
talked. Brunken did not document
this event or issue any discipline as a result of it.
Grievant testified Brunken spoke to her several times about the meeting. In one discussion, Brunken asked if she had a problem with Kilgore doing the inspections. Grievant responded she had no problem except that she wanted to know why the position was not posted so more qualified or experienced people could have bid. She recalled that Brunken quoted Southard as saying something to the effect that Grievant was “poisoning the well” (referring, apparently, to the CQI well).
May 16, Brunken learned of a complaint from a float pool employee named Kris.
Kris reported to a manager that Grievant was rude toward her, to the
point that Kris approached other staff on the unit to see if she had done
anything wrong. Brunken discussed
the situation with the charge nurse on duty, who reported Kris had come to
her to ask about Grievant’s comments.
May 23, Brunken notified Kris’ supervisor that she was developing a “work
plan” for Grievant, and asked for specific information about the interaction
between Grievant and Kris. On May 27, the supervisor responded Kris’ perception was
that Grievant’s tone of voice was putting her down.
She also reported Kris said that, when she again worked with Grievant
the next day, everything was different, and she trusted there would be no
testified Brunken talked to her by phone on May 21 about Kris’ complaint.
Her recollection was that Brunken told her Kris had left the previous
Friday feeling bad about something she had said, but did not say what comment
she was accused of making. She
recalled Brunken mentioning something about a work plan, without explaining
what that entailed, and expressing a desire to set up a meeting with Grievant
and her Union representative. Grievant
agreed to meet if she could see her accusers face to face.
Her recollection was that Brunken responded, “You may not know this,
but Americans don’t like confrontations.”
Grievant responded she was an American, born and raised here.
She testified Brunken made other comments regarding her cultural
background and upbringing, and suggested those influenced the way she communicated
and behaved toward others. After
this conversation, Grievant called the University’s Affirmative Action
officer to ask whether she should fill out a complaint.
She also called her Union representative to find out what a work plan
was, but learned he knew nothing of the proposed work plan.
testified he changed his CQI schedule to avoid contact with Grievant.
He made this change after Grievant told him she did not need him
“coming around here telling us what needs to be done.”
In response, he suggested she discuss the situation with the managers.
On another occasion, he felt a wad of paper go past his shoulder; when
he turned, he saw Grievant, who commented, “Oh, I missed.”
The unit secretary also told him Grievant was mimicking his actions.
He testified the schedule change was less than optimal because part of
his function was to check the units’ condition at different times of the
testified she called Grievant on May 28, after learning of Kilgore’s
schedule change, to set up a meeting to develop a non-disciplinary work plan
addressing her behavior and communication.
She testified Grievant was upset and defensive, and wanted to know
who had complained. Brunken declined to go into all the details before the meeting,
but did mention the concerns reported by Kris and said others in housekeeping
had also raised concerns. Grievant
asked to have her union representative present at the meeting.
Eventually, the meeting was set for June 6; however, that meeting did
not occur because of the events of June 4.
testified Grievant commented several times during the May 28 phone call that
she could not help it, this was just the way she was, and “This is just the
way we are.” Brunken attempted
to clarify what Grievant meant by the last comment.
She asked who “we” referred to, suggesting Grievant, her family, or
the fact that she was Hispanic. At
that point, Grievant became angry and accused her of discrimination.
Brunken told her they would discuss the matter further in the meeting
for the work plan.
May 29, Brunken met with Kilgore. He
reported he felt continually confronted by Grievant ever since he began
working in the unit in 1993. He
reported nasty glances and rude comments, and that she was mean-spirited,
discourteous, and confrontive. He
confirmed he had changed his schedule to avoid her, and reported his other
recent concerns with her.
EVENTS OF JUNE 4
testified she believed she would be going to a different unit because of
downsizing. She became concerned
that Brunken’s earlier comments about her cultural background and
communications would taint her entry into a new unit.
She therefore had sought references from three co-workers; one of those
co-workers solicited a fourth reference on her behalf from Nurse Carolyn
June 4, Brunken and Dealy received information that employees had been asked
on work time to write references for Grievant.
After consulting with the Labor Relations office, Brunken decided to
order Grievant not to solicit references on paid time.
If Grievant would not agree to refrain, Brunken had decided she would
place her on paid administrative leave until the scheduled June 6 meeting.
and Dealy met with Grievant in Dealy’s office at approximately 3:50 p.m.
Brunken testified she told Grievant she had learned she was
soliciting references on work time, that this was interrupting the flow of
work and generating complaints, and that employees did not want to be
involved. Brunken recalls telling
Grievant she was escalating the situation more than necessary, and that
the matter was non-disciplinary. She
testified she admonished Grievant not to solicit references on work time.
to Brunken, Grievant responded “I have the right to say whatever I want.”
Brunken told her she did not have that right during work time and
needed to refrain from this conduct. Grievant
commented she had the right to do whatever she wanted and said she could not
agree to refrain. Brunken told
her if she could not agree, then she could not stay and disrupt work, so she
would be placed on paid administrative leave until the June 6 meeting. Brunken testified she did not explain what administrative
leave was or say how long the leave would last, but that she did say they
would try to resolve the issues in the meeting set for June 6. She instructed Grievant to collect her things from the
housekeeping closet and leave the unit. Grievant
became very upset, pushed a chair, and stormed out of the office.
to Dealy, Grievant said, “I’ll do anything I want on my work time.”
Brunken responded she was asking her to stop soliciting references on
work time, that it was inappropriate and disruptive.
Grievant retorted she was going to do or say whatever she wanted.
Brunken responded that if she felt that way, she would be placed on
paid administrative leave. Dealy recalled this comment was all that Brunken told
Grievant about administrative leave, and that Grievant then got up angrily and
testified Brunken did not refer to work time, but simply told her not to
solicit references from co-workers, and that she responded “Well, okay.”
Brunken then began discussing other complaints she had received. Grievant asked to defer any further discussion until the June
6 meeting, when her Union representative could be there.
She testified Brunken became angry, told her she was on administrative
leave, and ordered her out. She sat for a moment, stunned and numb, then left.
She testified she did not know what administrative leave was, nor did
Brunken explain the term. She
estimated the meeting lasted approximately a minute.
Grievant denied saying she had a right to say anything she wanted.
testified she went from Dealy’s office to a nearby telephone to call her
Union representative, but could not reach him.
His voice mail logged in her message at 3:51.
She went to the housekeeping closet, found the door locked, and went to
her cart to get her key. A
co-worker appeared and asked what she was doing.
The two walked to a nearby room, where Grievant described what had
happened. She testified her
co-worker did not know what administrative leave was, but suggested perhaps
Grievant could return in a few days. After
this conversation, Grievant stopped to get a paper towel to wipe her nose.
She then walked back toward her cart, which was near the nurse’s
was at the nurse’s station. Grievant
stopped to tell her what had happened.
In her unemployment hearing, she testified she asked Lynnes if she
was finished writing the reference letter; in this proceeding, she testified
that later in the incident Lynnes mentioned she was writing her letter and
that Grievant responded she should write quickly.
Gabriel Martinez, Grievant’s brother, arrived after his shift in the
University’s Environmental Services department;
shortly thereafter, a Respiratory Therapist named Cathy Grove also came by.
Grievant described what had occurred in the meeting.
Martinez reminded her to clock out, and she did so by phone at 3:59.
Lynnes and Grove started to ask questions, but Martinez encouraged her
to leave. Grievant went to the
housekeeping closet to get her coat and purse.
She testified that, after locking the closet, she noticed she had left
her vacuum cleaner out. She
unlocked the closet, stored the vacuum cleaner, re-locked the door, then
returned to the nurse’s station.
testified Grievant’s eyes were red from crying when he arrived.
She told him she was on administrative leave, but could not tell him
why. She said she had tried to
call the Union and had not yet clocked out.
He told her to clock out, and she did so.
Other nearby employees began asking her questions.
After a couple of minutes, she went to her closet to gather her
belongings. While she was gone,
Brunken and Dealy arrived at the nurse’s station.
A dispute exists regarding the events there.
and Dealy testified they remained in the office for a few minutes to discuss
replacing Grievant during her administrative leave.
They then went to the nurse’s station.
As they stood at the nurse’s station, Grievant came up behind them. Grievant approached Brunken and yelled, “I want to know
why you placed me on administrative leave; I have a right to know.”
Brunken responded quietly that they had discussed that in Dealy’s
office, and invited Grievant to return to the office if she wanted to discuss
it further. Grievant repeated her
comment, still in a loud tone. Brunken
told Grievant she needed to step out of the nurse’s station and back into
the office, and that she should not yell in the nurse’s station.
Grievant again repeated her comment loudly.
Dealy recalled that this exchange repeated four or five times.
Heather Turner testified she was at the nurses station when this exchange
began. She testified Grievant
loudly asked why she was placed on administrative leave, said she deserved an
explanation, said it was not fair, and wanted an explanation.
Grievant sounded very angry. Turner’s
recollection was that Brunken quietly invited Grievant back into Dealy’s
office to discuss the matter, and that Grievant repeated her comments, again
testified she started to take Grievant by the elbow to usher her back to the
office and calm her. Grievant drew back, put her finger in Brunken’s face, and
loudly said not to touch her. Brunken
put her hands up and stepped back. Brunken
and Dealy testified Brunken assured Grievant she would not touch her again.
Turner recalled this interaction as well.
Turner testified she left after this, but continued to hear Grievant
loudly say she wanted to know why and deserved to know why.
She could no longer hear Brunken’s responses.
She went to a utility room from which she could no longer hear the
testified she noticed that nearby employees had stopped work to watch, and she
motioned to them to resume work. Brunken
and Dealy testified Grievant asked again why she had been placed on administrative
leave and said she had a right to know. Brunken
responded she needed to leave, she was on paid administrative leave and was
being insubordinate, and if she did not leave Brunken would have to call security.
Grievant repeated she had a right to know why she was on administrative
leave. Brunken responded she did
not want to have to call security, but would have to if Grievant continued to
initially testified she called security in response to another repetition of
Grievant’s comments, and Grievant again repeated her comments while
Brunken was on the phone with security. Dealy
testified Brunken reached for the phone, hesitated to give Grievant a chance
to leave, then picked up the phone when Grievant persisted.
Both agree that Martinez told Grievant several times that it was time
for them to leave, then took her arm and escorted her out.
Brunken initially testified that occurred while she was on the phone
with security, whereas Dealy recalled that it was as Brunken picked up the
phone. Brunken, Dealy, and Turner did not hear Martinez make any
other comments that day. Brunken
and Dealy testified that, as she was leaving, Grievant stopped at the door,
turned, shook her finger, and said, “Just you wait.”
cross examination, Brunken initially testified she called security and was
trying to explain why she needed assistance when Grievant said “just you
wait” and left. After being
shown the transcript of the call to security, she testified she was placed on
hold when she called, and that Grievant left and made the comment “just you
wait” while she was still on hold.
security transcript begins at 4:05 p.m. with Brunken reporting “I have a
hospital employee who has just left section II that needs to be escorted off
campus” and that the employee was “at the C-wing elevators.”
After confirming the location, the dispatcher paused to dispatch an
officer; that dispatch was logged into the system at 4:07.
testified Brunken and Dealy were at the nurse’s station as she approached
after gathering her belongings; a Social Worker, Gloria Tuma, had also
arrived. Each of the people she
talked to after the meeting had asked why she was on administrative leave, but
she had no answer. She therefore approached Brunken and asked why she had been
put on administrative leave. She
testified she could not hear all of Brunken’s response, but that it began
with the comment that Brunken had not told her in the office; she surmised
that Brunken concluded by saying she was not going to tell her now.
Grievant responded she had a right to know.
She testified she did not repeat either comment during the remainder of
testified Brunken responded by coming toward her with her arm out, and made
contact with her in a manner she did not consider calming; in her unemployment
hearing, she described it as a push. She
lost her balance, stepped back, shook her finger at Brunken, and said not to
touch her; her brother also protested verbally.
As Grievant turned to leave, Lynnes handed her the letter she had been
writing; Grievant thanked her. Although
Martinez told her as they walked away that she should call the police, she
simply sought to leave the area. Brunken
walked after them and told Grievant, “I’m going to get you for insubordination.”
Grievant asked why and reminded her she was on administrative leave and
had clocked out. Brunken
responded, “For still being on the premises.”
Grievant reminded her that it took time to walk out.
As she left with her brother, he commented the clock on the wall read
4:03. She went with him to the
University’s Affirmative Action office, where she filed a discrimination
to Martinez, when Grievant returned to the nurse’s station, she asked
Brunken why she was put on administrative leave.
He recalled she was distraught and on the verge of crying, but her
voice was not loud. Martinez was
unable to hear Brunken’s response because she had her back to him.
Brunken put her arm around Grievant and pushed her.
Martinez yelled, “Hey, you can’t do that.”
Grievant said she had a right to know and told Brunken not to touch
her. Martinez said to call the
police. Instead, Grievant turned
to leave. Lynnes started to hand
Martinez her letter of recommendation, then gave it to Grievant.
to Martinez, as he walked out with Grievant, Brunken yelled after Grievant
that she was going to “get you for insubordination.”
Grievant asked why, pointed out she had already clocked out, and
reminded Brunken that it took time to leave.
His recollection was that both Brunken and Grievant raised their voices
in this exchange. As they left,
he continued to encourage Grievant to call the police.
Because he wanted to report the exact time to the police, he noted the
clock on the wall read 4:03.
and Martinez both recalled that Turner was not at the nurse’s station at any
point during this incident. They
did recall that Lynnes, Grove, and Tuma were present; none of these personnel
were called as witnesses. Neither
saw Brunken pick up the phone to call security.
contacted David Blair, the University’s Director of Labor Relations, and
recommended Grievant’s dismissal. Blair
placed Grievant on paid administrative leave and scheduled a pre-disciplinary
hearing. He spoke with Brunken, Dealy, and Martinez; he also spoke
with potential witnesses, including Turner, Lynnes, Tuma, and Grove, as well
as other nursing personnel in the unit, either in person or by phone.
His recollection was that none of the potential witnesses, other than
Martinez, supported Grievant’s version of events.
Grievant and Martinez both testified on her behalf at the hearing.
Brunken and other potential witnesses did not attend.
Based on his investigation, Blair discredited Grievant’s account of
testified she thought Grievant could be used to translate for Spanish-speaking
patients and families if she were properly trained. She
suggested Grievant get training as a unit secretary and become familiar with
medical terminology. She arranged
for Grievant to work with a unit secretary on her days off, for additional
pay. However, because of Grievant’s unfamiliarity with medical
terminology, she discontinued that arrangement and suggested Grievant seek
training in medical terminology before pursuing the unit secretary position.
Grievant did not follow through on that suggestion.
POSITION OF THE UNIVERSITY
gross insubordination constituted a dischargeable offense.
Tirades similar to hers against a manager have been found
insubordinate. Shouting at length
and shaking her finger in her supervisor’s face in front of other employees
is unacceptable in any environment, much less in the extremely controlled environment
of a critical care unit. She
defied Brunken’s instructions in at least three matters: to stop soliciting
references on work time; to lower the tone of her voice; and to leave the
unit. The fact that this occurred
in the presence of other employees aggravates the severity of the offense.
At least five employees witnessed her defiance of Brunken.
By engaging in such conduct, she virtually discharged herself. Her direct challenge to the supervisor’s authority
was also warranted given Grievant’s history of disrespectful communication
with her co-workers. She was aggressive toward float pool housekeepers for years.
She inappropriately mounted a verbal attack on Kilgore both privately
and in a meeting. She
demonstrated blatant insubordination to Brunken by saying she could do
whatever she wanted on work time, by immediately leaving the room and
soliciting a reference, and by yelling repeatedly at Brunken.
Even if she had no troubled history, her public display of
insubordination would be sufficient to merit her termination.
testimony of the University’s witnesses was consistent and more credible
than that of Grievant and Martinez. Dealy
and Brunken were laid off, were not compensated for their time, and had no
stake in the outcome. Turner was a Union member with no stake in the outcome.
Grievant was unable to deny the basic events constituting gross
insubordination. She admitted
she staged a loud confrontation in the ICU by repeatedly demanding an
explanation of why she was put on administrative leave and declaring she had
a right to know. She sought to
deny the severity of her actions and outright denied other parts.
Union presented only Grievant and her brother, despite the fact that Grievant
identified at least three other witnesses.
The Union’s failure to call these witnesses gives rise to a
presumption that their testimony would undercut Grievant’s version of the
credibility was undermined by her demeanor.
She was confrontational and unresponsive to many questions.
She contradicted her earlier unemployment compensation hearing
testimony. She split definitional
hairs regarding whether her request that Lynnes quickly write her reference
letter was “soliciting a personal reference.”
Her testimony was supported only by her brother.
conduct is not excusable on grounds she disagreed with Brunken’s decision to
put her on paid administrative leave. She
was obligated to obey first and grieve later, even if Brunken’s order was
improper. Her decision to force a
confrontation with Brunken was especially egregious where Brunken had already
scheduled a meeting for just two days later at which the Union representative
would be present. Grievant’s claim that she was confused about the nature of
administrative leave is inconsistent with what she repeatedly shouted.
She did not ask Brunken what administrative leave was; she only asked
why Brunken had put her on administrative leave.
She was not asking for clarification; she was publicly defying
Brunken’s supervisory judgment. Whatever the reason for her misconduct, she could not engage
in a prolonged verbal attack on Brunken and ignore the available grievance
had clear notice of the consequences of her insubordination.
She solicited a personal reference minutes after Brunken instructed
her to stop soliciting personal references.
She ignored Brunken’s repeated instructions to lower her voice and
leave the ICU. Brunken informed
Grievant her behavior was insubordination and could lead to termination, but
Grievant did not stop shouting at Brunken.
grievance should be denied in its entirety.
POSITION OF THE UNION
termination did not meet the contractual standard of just cause.
The University did not prove either of the two charges in the
only direct witness to an incident of rudeness, Kilgore, described an incident
four years before Grievant’s discharge.
The only later incident involving Kilgore was when she allegedly threw
a piece of paper at him in jest. His
testimony regarding events at the housekeeping meeting is directly
contradicted by Grievant and two other witnesses who were at the meeting.
This event demonstrates no more than a personality clash between
Kilgore and Grievant. Under
either version of the events at the meeting, Grievant was participative in her
communications and willing to voice her opinion and make suggestions. There was no direct testimony regarding the only other
allegation of rudeness, the alleged interactions with Kris.
An isolated, unpleasant incident between two employees does not
No significant difference exists in the accounts of the June 4 meeting. By all accounts, Grievant was put on administrative leave and asked to leave; administrative leave was not explained to her, nor was she told if or when she would come back to work. Her account of her movements after leaving the office was consistent with a responsible employee who wished to secure all hospital belongings before leaving. She clocked out at 3:59 and left at 4:03. This was not insubordinate behavior. The termination letter did not charge Grievant with insubordination for asking Lynnes to write a reference letter after being told not to do so. In any event, her comment to Lynnes that “you better write fast” was not insubordination. Lynnes was already writing the letter.
matter how loudly, or how many times, Grievant asked why she was on
administrative leave, she was not asking the question to be insubordinate.
She was trying to understand what was happening to her.
She was not trying to confront Brunken.
Brunken’s claim that she felt physically threatened is unbelievable.
Brunken grabbed Grievant’s arm and tried to move her; she would not
have done so if she felt threatened. The
security records show she called after Grievant left.
She is clearly exaggerating the situation.
University did not use progressive discipline.
The only incident in which Brunken clearly recalls talking to
Grievant about her communications with co-workers occurred four years ago, and
she has no records of this conversation.
The conversation was not intended to be disciplinary.
No discipline resulted from Kris’ complaint.
Grievant had no reason to believe her behavior could lead to
discipline. The work plan was to
University did not do a performance appraisal for Grievant for five years.
If, as claimed, her communication style was an ongoing problem for
years, performance appraisals would have been the appropriate means by which
to notify her.
University contributed to and aggravated Grievant’s behavior.
By all accounts, Brunken unexpectedly told Grievant she was on
administrative leave and she must leave.
By all accounts, she did not explain or describe administrative leave.
Grievant left Dealy’s office without understanding what administrative
leave was and why she had been put on it.
Had Brunken adequately explained her actions, rather than summarily
dismissing Grievant from the office, Grievant would not have approached her
later to ask why she was put on administrative leave. Grievant would not have been in an agitated emotional state.
unwelcome physical contact agitated Grievant further, and was offensive enough
that her brother objected. Grievant’s
reaction was not insubordination or inappropriate communication.
Brunken exercised poor judgment in trying to physically move
Grievant. This contributed to the
discipline was too severe. The
University did not honestly believe Grievant’s communication style was
grounds for discipline. It
intended to put her on a non-disciplinary work plan.
If it had believed it necessary and justifiable, it could have
disciplined her more severely.
if Grievant asked why she was put on administrative leave as loudly and
as many times as alleged by the University, termination is too harsh a
penalty. Grievant has a spotless
disciplinary record. The
University contributed to the volatility of the situation.
Grievant should be reinstated and made whole.
The University bears the burden of
establishing, by clear and convincing evidence, that it had just cause for the
discharge. It must show both that
Grievant engaged in the misconduct alleged in the termination notice and
that discharge was within the range of reasonable responses to that
misconduct. The University’s decision must stand or fall on the grounds
on which it acted. Factors upon
which the University did not rely at the time of the discharge cannot provide
just cause for this discharge.
must be corrective rather than punitive.
An arbitrator has no authority to second-guess the level of discipline
merely because the arbitrator would have imposed different discipline. So long
as the discipline is within the range of discipline proportionate to the
proven offense and the employee's work record, that discipline must stand.
However, if the discipline falls outside that range, or if the offense
proven is less serious than the offense charged, then adjustment of the
discipline is appropriate. If no
offense is proven, no discipline is warranted.
testimony in this case presents a large degree of factual conflict, requiring
a credibility resolution. Demeanor
is a relatively unreliable basis for assessing credibility.
The Arbitrator is unfamiliar with the witnesses' usual demeanor.
The hearing process itself puts witnesses in an unnatural situation
that affects demeanor for reasons unrelated to veracity.
Therefore, credibility is best tested by evaluating the internal
consistency and logical probability of the testimony, as well as the
consistency with known facts and the recollections of unbiased witnesses.
In assessing credibility, the Arbitrator is mindful that sudden
exciting events may be difficult to recall with precision even at the time,
much less months after those events.
allegations in the termination letter were not proven at this hearing.
The termination letter asserts that Grievant was counseled regarding
her communication style during the past year by Nickodemus.
No evidence of such counseling was adduced.
The letter also asserts that, before approaching Brunken on June 4,
while gathering her belongings in the hallway, Grievant was “slamming doors
and making a scene.” No
evidence exists of such conduct. Accordingly,
these allegations do not support this termination.
Arguments of University counsel regarding a pattern of poor communications were not supported by the evidence in this case. In any event, this argument goes beyond the charges in the termination letter.
THE CHARGES REGARDING COMMUNICATIONS WITH CO-WORKERS
hearsay is entitled to no weight in determining whether just cause exists.
Absent cross examination, one cannot gauge the opportunity to observe,
perceive, recall, and describe events accurately. One cannot resolve inconsistencies or determine whether any
portion of the hearsay account arises from speculation, mistake, or bias.
Thus, except where supported by more probative evidence, Brunken’s
testimony regarding information she gleaned from others is not a basis for
factual findings regarding Grievant’s comments or other interactions with
dispute exists that Grievant made inappropriate remarks to Kilgore some four
years before her discharge. However,
after being admonished about those remarks, she apologized to Kilgore.
No probative evidence exists of other frictions with Kilgore or other
employees until very shortly before her discharge.
no evidence exists that Southard was unavailable, only Kilgore gave first-hand
testimony in support of the University’s version of events at the housekeeping
meeting. By his account, Grievant
did not get into the substance of her remarks.
His testimony did not describe the tone or content of her remarks.
It therefore is insufficient to prove she was condescending,
non-participative, or indolent. It was arguably rude for her to complain about a co-worker
while that co-worker was present. However,
other housekeepers also understood the meeting was an opportunity to air
housekeeping concerns. Southard
discussed Kilgore’s complaints regarding other housekeepers’ conduct
toward him. Grievant’s voicing
of corresponding concerns about Kilgore was consistent with this
understanding. Kilgore’s claim
that Grievant had to be stopped two or three times was disputed by independent
testimony that she (as well as the other housekeepers) made no comments
after Southard told her to be quiet.
summary, the proven communications with peers do not fit the charge of
“rude, condescending, non-participative, and indolent.”
The University recognized the minor nature of the incidents by its
decision not to document or impose discipline for them.
The idea of a work plan was raised two months after the housekeeping
meeting, apparently in response to the renewed friction with Kilgore, and even
then the plan was to be non-disciplinary.
Grievant received no other notice that her communications with
co-workers would lead to severe discipline or that her relationships with
others were deemed to have changed since the complimentary remarks in her
to her communications with managerial co-workers such as Brunken, Grievant
disputes the charge that, when confronted about her communication style, she
claimed it was “just how I am,” and instead aserts that it was Brunken who
raised Grievant’s cultural heritage. The
University did not present records from its Affirmative Action office to rebut
Grievant’s claim that these remarks led her to consult that office.
In any event, it is unnecessary to resolve the testimonial conflict
regarding how the subject of Grievant’s cultural heritage arose.
Brunken’s response to the conversation was to pursue a
non-disciplinary work plan, not to begin the disciplinary process. This suggests that, at the time, Brunken did not consider
Grievant’s remarks to be a disciplinary matter. Were it otherwise, one would expect she would have documented
notice to Grievant of a need to change her communication style or face the
JUNE 4 MEETING AND ITS AFTERMATH
resolving the credibility disputes here, it would be inappropriate to draw an
adverse inference against the Union from the fact that Lynnes, Grove, and Tuma
were not called as witnesses to the events at the nurses’ station on June 4.
All three were employed by the University at the time; Blair noted them
as potential witnesses in his investigation.
No evidence exists that they have since left the University. They therefore were equally available to the University,
which bears the burden of proof.
Arbitrator is intrigued by the University’s characterization of Grievant’s
comments on June 4 as “indolent.” That
term appears in the Agreement. Its
usual meaning is “idle” or “lazy.”
No evidence exists that the parties agreed on a unique or specialized
meaning for that term. Nothing in the evidence regarding her remarks suggests either
idleness or laziness, and that aspect of the charge has not been established.
more serious aspect of the second charge is the alleged insubordination.
Insubordination is commonly defined as a refusal to obey a bona fide,
valid, clear and unambiguous work order, where compliance would not endanger
the employee's health or safety, despite notice of the consequences of
refusal. Insubordination prompts
severe discipline because it is, in effect, a one-person strike.
distinction exists between what might be called "simple
insubordination" and gross insubordination.
Gross insubordination goes beyond a mere refusal to obey orders.
It incorporates such concepts as defiance, uncooperativeness, or
insolence. Gross insubordination
may make summary discharge available as a penalty.
However, in that case, the insubordination must be clear-cut and must
unequivocally suggest that no alternative was left to the employer other than
to terminate the wrongdoer on the spot.
uncooperativeness, or insolence, by themselves, do not constitute
insubordination, gross or otherwise. It
is only when they augment a refusal to obey a work order that they become
aggravating factors in a charge of insubordination.
When they occur without a refusal to work, they constitute the separate,
but lesser, offense of disrespectful conduct.
The Employer's right to demand respectful conduct from employees toward
supervisors arises out of the inherent right to manage the operation and
maintain order in the workplace. A
breach of that expectation does not call for discharge for the first offense,
and usually not even for the second or third offense.
It does call for a milder penalty aimed at correction.
this Arbitrator’s experience, some employees do not fully realize the limits
on their workplace rights or the range of possible managerial responses to
their conduct. This is one reason
they must receive notice of all but the obvious consequences of their
Such notice gives the opportunity to change the undesirable behavior
and make those consequences unnecessary.
any proffered version of the facts, Grievant’s conduct during the meeting in
Dealy’s office was not insubordinate. By
all accounts, she received a clear and direct order not to solicit references,
and that order was sufficiently related to her work obligations to require
compliance. However, no evidence
exists that she disobeyed this order during the meeting; indeed, no
opportunity existed to comply or disobey at that time.
She also did not receive notice of the consequences of a refusal to
comply. Instead, after she twice
voiced her belief that she had a right to say what she wanted, but without any
discussion of the consequences of her insistence on this point, she was placed
on administrative leave. Thus,
the response described by Brunken and Dealy would amount to defiance, but not
Arbitrator finds Dealy’s account of the events in the meeting to be the most
likely version. No reason appears
why a request to defer further discussion until the June 6 meeting would so
enrage Brunken that she would summarily put Grievant on administrative leave
and order her out of the office. In contrast, it was logical to place Grievant on paid
administrative leave if she would not agree to stop activity that was
disruptive in the workplace. The
Arbitrator is therefore convinced that Grievant’s response to Brunken’s
order was not as compliant as she asserts, and that this prompted her
the Arbitrator is not convinced that Brunken explained the leave would only
last until June 6, assured Grievant that things would be resolved at that
meeting, or instructed her to leave immediately.
Dealy, who was not personally involved in the exchange, recalled no
such further comments. Her recollection in this regard is consistent with her
description of Grievant’s abrupt departure and the very brief time between
the start of the meeting and Grievant’s post-meeting voice mail message to
the Union. At the nurse’s
station, Brunken did not refer to any prior reassurances or any prior
instruction to leave immediately. Grievant’s
presence for up to 14 minutes after the meeting therefore did not breach her
mistaken belief that she had the right to solicit references at work
undoubtedly made it difficult for her to understand why she was being placed
on administrative leave. The Arbitrator therefore concludes that Grievant did not
initiate her later questioning of Brunken as a challenge to her authority,
but rather because of genuine confusion about the reason for the
administrative leave. The fact
that she contributed to her own confusion by leaving the meeting abruptly does
not eliminate the confusion.
the encounter at the nurses’ station, no evidence exists that Brunken ever
warned Grievant of possible discharge for any of the conduct with which she
is charged. On the contrary, the
University’s witnesses consistently recall that Brunken initially invited
Grievant to return to the office to discuss the matter further.
This invitation did not give clear notice that discharge was in the
offing if she did not leave immediately.
By the University’s account, Brunken ultimately threatened to
call security, but still did not warn Grievant of possible discharge for her
conduct at the nurse’s station. As
noted above, she also did not warn Grievant of possible discharge for
Arbitrator cannot fully credit either party’s version of the events at the
nurse’s station. Examining
the University’s version first, it would have been difficult for the
encounter at the nurses’ station to have been as prolonged as alleged.
Independent evidence establishes that Grievant clocked out at 3:59, and
had already left the unit and gone to the elevator by 4:05, only six minutes
later. Included in those six
minutes were a walk to and from the housekeeping closet, as well as a walk
out of the unit. There simply was
not time left in the interim for some five or six repetitions of her question,
intervening responses by Brunken, the physical contact and its consequences,
and the alleged parting comment. On
the other hand, if the encounter had been as quiet and brief as Grievant
suggests, then no credible reason appears why Brunken would have called
security after her departure to ask that she be escorted off campus.
Martinez’ testimony that he initially heard Grievant’s question,
but not Brunken’s answer, also suggests Grievant was, at a minimum, speaking
more loudly than Brunken.
testimonial conflicts in this case do not suggest an attempt by either
party’s witnesses to distort the truth.
Such differences often arise from the differing perspectives from which
witnesses view events, particularly sudden and exciting events such as this.
For example, no dispute exists that Grievant was upset. It is therefore understandable that she would be less
sensitive to the volume at which she was speaking than Brunken and Dealy, who
were responsible for maintaining order and decorum in the unit.
Not all of the percipient witnesses were called, reducing the
information available to resolve these conflicts.
summary, the credible evidence does not establish that Grievant was
insubordinate at any point in the unfortunate chain of events of June 4.
She was defiant during the meeting in Dealy’s office, and loud and
disruptive in questioning Brunken at the nurse’s station.
She exercised questionable judgment in engaging Brunken in a loud
discourse at the nurses’ station rather than working through the Union and
in engaging Lynnes in any form of discussion regarding a reference letter.
Because of the sensitive patient care area in which it occurred and its
heated nature, the encounter with Brunken warranted serious discipline.
Grievant was sufficiently experienced to know such loud and disruptive
conduct would be unacceptable in this area, and the Arbitrator is convinced
that Brunken asked her to lower her voice, to no avail.
the University’s handling of both encounters mitigates the seriousness of
Grievant’s conduct. Brunken anticipated that administrative leave might be the
outcome of the meeting in Dealy’s office, and Grievant previously had
requested Union representation when Brunken sought to meet regarding her
interactions with co-workers. Brunken
nevertheless did not take steps to have a Union representative present.
Brunken did not tell Grievant the consequences of continuing to solicit
references; she simply imposed those consequences when Grievant stated her
erroneous belief that she was entitled to continue to solicit.
This omission could have been a minor point if the only consequence had
been a paid administrative leave until the scheduled meeting two days hence.
However, it was compounded by the communications gap regarding
Grievant’s status while on administrative leave.
This omission set the stage for Grievant’s later inappropriate
conduct at the nurse’s station. Brunken
also exercised questionable judgment in initiating physical contact at the
nurse’s station. This had the
foreseeable effect of escalating the confrontation.
Other mitigating factors include Grievant’s lack of prior discipline
and her excellent work habits.
this record, therefore, just cause did not exist for discharge.
However, because of the locale of Grievant’s loud and disruptive
conduct, serious discipline was warranted.
No evidence exists of the level of discipline that has been imposed by
the University in other cases involving loud and disruptive conduct in a patient
care unit. Given Grievant’s
otherwise unsullied disciplinary record, it is concluded that a brief, unpaid
suspension would have been warranted. A
one-week suspension would have been at the severe end of the range of reasonable
discipline. Grievant is therefore
entitled to be reinstated and made whole to the extent that her net losses
from her discharge have exceeded that period.
the Arbitrator issues the following:
The dismissal was not for just cause.
However, just cause existed for lesser discipline in the form of a
one-week unpaid suspension from work.
As a remedy, the discharge shall be reduced to a one-week suspension.
Grievant shall be reinstated to her former position and made whole for
any loss of earnings and other benefits occasioned by her discharge from and
after the date of her discharge to the date she is offered reinstatement.
Backpay shall be reduced by any interim earnings.
The Arbitrator retains jurisdiction over the remedy portion of this Award
and over any dispute which may arise thereunder.
4. Neither party has fully prevailed in this matter. However, the Union substantially prevailed. Accordingly, pursuant to Section 11.4 of the Agreement, the Arbitrator allocates 2/3 of her fees and expenses to the University, and 1/3 to the Union.
LUELLA E. NELSON - Arbitrator
Both Brunken and Dealy have since been laid off.
Kilgore testified the full comment was “You f-----g float pool
people make me sick.”
Martinez worked for the University at the time; he has since
resigned. He testified he was
being subjected to disparate treatment regarding attendance, and he accepted
an offer to increase his hours and receive a higher rate of pay at another
The usual recognized exceptions to the need for notice of the
possible consequence of discharge include theft of the employer’s property
and workplace violence.
The Arbitrator does not mean to imply that Brunken was obligated to
delay the meeting until a Union representative could be present.
The fact that the meeting involving a subject related to that for
which Grievant previously had made a specific request for such
representation contributed to the volatility of the situation.
The lack of a representative also deprived Grievant of advice
regarding her obligation to comply with the order to discontinue soliciting
This unwelcome contact casts a different light on Grievant’s
physical gesture of shaking her finger at Brunken from the examples cited by
the University in other cases, in which a similar gesture was unprovoked.