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Title: The Queen's Medical Center and Hawaii Teamsters and Allied Workers, Local 996
Date: 1999
Arbitrator: 
Michael Nauyokas
Citation: 1999 NAC 135

 

 

In the Matter of the Arbitration between

HAWAII TEAMSTERS AND ALLIED WORKERS, LOCAL 996

                                                Union,

and


THE QUEEN’S MEDICAL CENTER

                                                Employer.

Grievance of Michael Johnson
                                                                                               

          

 

MICHAEL F. NAUYOKAS
Attorney At Law & Arbitrator
Specializing in Employment and Labor Law
Grosvenor Center, Makai Tower
733 Bishop Street, Suite 2300
Honolulu, Hawaii 96813
Telephone: (808) 538-0553
Facsimile: (808) 531-3860

                                               

ARBITRATION DECISION AND AWARD

INTRODUCTION     

            This Matter came on for arbitration on November 23, 1998, and further proceedings were held on December 3, 1998 and January 30, 1999.  The HAWAII TEAMSTERS AND ALLIED WORKERS, LOCAL 996 (hereinafter “Teamsters”) and the Grievant Michael Johnson were represented by Sean Kim, Esq. and THE QUEEN’S MEDICAL CENTER (hereinafter “Queen’s”) was represented by Barry W. Marr, Esq.

            The parties stipulated to substantive and procedural arbitrability.  Both parties submitted post-arbitration briefs.  Both parties were fully and fairly represented by zealous and competent counsel. The arbitration was held in accordance with Section 28.2 of The Collective Bargaining Agreement between the Queen’s Medical Center and Hawaii Teamsters and Allied Workers, Local 996 effective July 1, 1997 through

June 30, 2000.

            By the agreement of the parties the issues to be determined by the arbitrator are:

1)         Whether the termination of Michael Johnson violated the collective bargaining agreement; and,

2)         If the termination of Michael Johnson violated the collective bargaining agreement, what is the remedy?

 BACKGROUND

            Grievant, Michael Johnson, worked as a Psychiatric Assistant at the Queen’s Family Treatment Center.  Mr. Johnson was hired by Queen’s in April of 1997.  At the time of his hire he “signed off” on an acknowledgment of both his job description and the Queen’s house rules.  The Family Treatment Center is a psychiatric treatment facility which treats adolescents with severe emotional disturbances.  The Treatment Center is a specialty clinic at the Queen’s Medical Center that went into operation in March of 1998.  The therapeutic milieu of the Center requires that its employees avoid confrontational interpersonal activities, where such activities could trigger reactions by the patients.   Many of the patients have organic and substance-induced psychiatric conditions which could be exacerbated by exposure to the stimuli of a confrontational atmosphere.  It is also apparent from the record that patient outbursts in the area are not unusual, and that periodically workers in the unit are injured by patients with various behavioral disorders.

            The Queen’s time-off policy set out by the House Rules recognizes three different categories of absences from work: the A-day, the S-day, and the V-day.  The A-day is a day taken by the employee without pay, generally as the result of staffing in

excess of patient requirements.  The V-day is a paid vacation day.  The S-day is a paid sick day.  There is apparently no dispute that Mr. Johnson understood the distinction between these three types of time off.

            There apparently was a prior controversy regarding Mr. Johnson’s requests for time off days stemming from the denial of a request made in October of 1997 to attend his godson’s funeral.  Apparently the management at Queen’s denied Mr. Johnson’s request for an “A” day off because his unit was not overstaffed.  Precisely why a sick or vacation day was not requested or granted for this particular activity is not clear from the record; however, it is clear that Mr. Johnson explained to competent authority his need for the time off on this occasion.  The record is clear that he was repeatedly paged on the day of his godson’s funeral and instructed to report to his shift, which he did in an agitated emotional state.  Testimony at the hearing indicated that Mr. Johnson was “counseled” by Queen’s management with respect to the appropriate utilization of the various categories of time off.  There is no indication that Mr. Johnson was subjected to discipline on this occasion or on any other occasion prior to the incident which gave rise to the actions being considered here.

            On April 11, 1998, Mr. Johnson called the unit secretary at the Medical Center and requested that he be excused from work and that the time off be charged as an “A,” “V,” or “S” day.  This request was denied because a senior employee had already scheduled a “V” or vacation day to be taken on the same shift.   Approximately six

hours later Mr. Johnson called in and advised that he would be unable to report to work his scheduled shift, which began at 11:00 P.M. that night, due to illness.  When his manager, Kathy Bellis, learned of this, she paged Mr. Johnson in the late evening and when he contacted her she advised Mr. Johnson that she would require certification of his illness because she found it unusual that he had requested an “A” day, and then had called in sick when that request was denied.  The testimony indicated that the instruction was for Mr. Johnson to bring his physician’s certification directly to Ms. Bellis prior to returning to work.

            There is some controversy regarding where the call from Mr. Johnson to Ms. Bellis originated, as it was from a pay phone.  According to Ms. Bellis, the caller identification feature of her phone and subsequent research indicated that the telephone was in the Kakaako area in downtown Honolulu; according to Mr. Johnson, he called from a pay phone near his residence in Pearl City.  No dispositive evidence one way or the other was introduced at the hearing. 

            Ms. Bellis testified that her understanding of the verification of illness process at the health center involved two separate issues, the first being whether an employee was well enough to work and the second to verify that the employee was not able to work due to illness and therefore entitled to sick leave.  Ms. Bellis also expressed her belief that under the established procedures she could request that the verification be delivered directly to her without first being submitted to either the Employee Health Department or the Emergency Room.  Under Queen’s written procedures, Mr. Johnson was required to deliver the verification of illness either to the Employee Health Department or the Emergency Room to receive a back-to-work slip prior to bringing both documents to the requesting supervisor.

            On April 13, 1998,  Mr. Johnson’s next scheduled work date, Mr. Johnson attempted to deliver the requested certification to Ms. Bellis at the Medical Center early in the day.  Ms. Bellis was unavailable, and according to both Ms. Bellis’ and Mr. Johnson’s testimony at the hearing, Ms. Bellis’ secretary refused to accept the certification indicating that due to its personal nature it must be delivered directly to

Ms. Bellis.  The secretary involved was not called as a witness, and there is no apparent controversy as to this rendition of the facts.   The entire procedure requested and followed does not appear to follow the written Queen’s procedure.  Employer’s exhibit No. 8 sets forth the procedure for instances where medical certification of absences is required.[1]

            Ms. Bellis, having learned from a staff nurse, that Mr. Johnson wished to see her, remained at the Medical Center until approximately 7:00 P.M. after having attempted to page Mr. Johnson, without receiving a response.  According to Mr. Johnson, he did not receive the page.  Prior to leaving the Medical Center, Ms. Bellis spoke to the administrative coordinator responsible for Mr. Johnson’s shift, Renee Schutter, and requested that she obtain the certification directly from Mr. Johnson prior to his return to work on his scheduled shift at 11:00 P.M.

            When Mr. Johnson returned to work, he was immediately approached by Ms. Schutter, who advised him that she was the supervisor on duty, and that she should be given the note.  During this conversation Ms. Schutter requested that Mr. Johnson accompany her to the adjacent day room so that they could discuss the matter privately and Mr. Johnson declined, citing his desire to have this conversation witnessed by other employees.  At the time Mr. Johnson indicated that he had discussed the situation with his union representative, and he believed that he was being treated in a manner that was contrary to the established Queen's sick leave verification policy.  During the course of this exchange, Mr. Johnson apparently displayed the note to Ms. Schutter; however, he declined to deliver the note directly to Ms. Schutter stating that he had been told to deliver the note to his supervisor.  There is no dispute that at the time Ms. Schutter, who is normally the nurse manager of another unit, was serving a rotating shift as the acting administrative coordinator for the medical center.  There is a factual dispute as to whether or not Mr. Johnson was fully aware of this at the time.

            The testimony and other evidence reflect that Ms. Schutter made an effort to have Mr. Johnson understand that she was the person representing Queen's management during his shift.  There is some dispute in the testimony regarding the volume at which the discussions between Mr. Johnson and Ms. Schutter took place.  The evidence indicates that the discussion took place within the nurse's station, and that at some points voices may have been raised.  There is no credible testimony that at any point the level of the volume of the discussion caused any of the patients, most of whom were apparently asleep, to either awaken or alter their behavior in any manner. 

            The testimony established that Ms. Schutter requested the certification of illness at least twice and, when Mr. Johnson declined to deliver it to her, she advised him that he was suspended pending investigation and that he would be required to leave the Medical Center's premises.  Ms. Schutter then called hospital security.  At this point Mr. Johnson delivered the certification to the charge nurse who was on duty.  He then went to his locker in the employee lounge area, where apparently Ms. Schutter followed him, again telling him that he must leave the Medical Center immediately.  Shortly after leaving the area of his locker, Mr. Johnson returned to the family treatment center to speak with the charge nurse, pick up his belongings, and to page Ms. Bellis.

            At this point, Ms. Schutter stood in front of the door to the acute-care unit and attempted to block Mr. Johnson from reentering the area.  At this time Ms. Schutter again advised Mr. Johnson that he should leave the area immediately, and that his conduct was insubordinate.  Mr. Johnson at no point physically touched Ms. Schutter or threatened her in any way.  He reentered the acute-care unit, indicating his belief that his behavior did not constitute insubordination.  Upon his re-entry to the unit, Mr. Johnson spoke to Ms. Bellis, who had responded to the page, on the telephone and advised her of the situation.  Shortly thereafter, Ms. Bellis also spoke to Ms. Schutter on the telephone. There is no dispute that this was the first time that Mr. Johnson was advised by Ms. Bellis that Ms. Schutter had control of the verification process in her absence.  Mr. Johnson then left the Medical Center voluntarily, albeit with the security escort arranged by Ms. Schutter.

            Following this incident, Ms. Bellis, the nurse manager who had originally requested the certification of sick leave, conducted an investigation of the incident, speaking to the administrative coordinator, other managers who had worked with Mr. Johnson, and the other employees who were present at the time.  She received and considered a written statement from Mr. Johnson and also conducted an interview with him before recommending that Mr. Johnson's employment at Queen's be terminated on the basis of his conduct on April 13, 1998.

            A notice of disciplinary action which was dated April 28, 1998 informed Mr. Johnson that he was “Suspended pending discharge in 7-days” for violations of House Rules number 6, 8, 9, and 18[2], citing as the underlying cause:

“Michael Johnson refused to present a doctor’s certificate to the administrative coordinator.  He was suspended and asked to leave the unit.  He refused.  He acted in a manner that was destructive of the therapeutic milieu as well as threatening and insubordinate.”

(Jt. Ex.3)

            There appears to be no dispute that under the collective bargaining agreement part 25.2 (a) employees in the bargaining unit were subject to disciplinary discharge by the employer for just cause.

EMPLOYER’S POSITION

            Queen’s takes the position, and Queen’s Counsel very ably argues, that Mr. Johnson was terminated for just cause as defined in the collective bargaining agreement for the violation of the four house rules cited; that Mr. Johnson’s behavior was extreme insubordination; that his behavior constituted a physical threat to the other employees; and, that his behavior interfered with the therapeutic atmosphere of the Medical Center.  Further, Queen’s argues that Mr. Johnson had reasonable notice that the violation of these House Rules could result in his termination, and that therefore the termination was for just cause. 

UNION’S POSITION

            The Teamsters argue that there is insufficient evidence of an actual violation of the house rules cited in Mr. Johnson’s discharge to satisfy the standard required for just cause under the collective bargaining agreement.  The Teamsters also argue that at no time during the incident was Mr. Johnson advised that Ms. Schutter was the cognizant supervisor for the entire Medical Center; that the incident actually occurred after Ms. Schutter’s shift was over so that factually she was not the cognizant supervisor at the time; and, that Ms. Schutter failed to advise him that his refusal to comply with the various instructions given to him by her at the time of the incident could result in his termination. The Teamsters also argue that Mr. Johnson was attempting to follow the procedure that he was aware of and was given instructions by his supervisor that were contrary to the established procedures for certification of illness.

ESTABLISHING JUST AND PROPER CAUSE

            In this matter, pursuant to the collective bargaining agreement and the body of decisions governing the interpretation of just cause, the employer must show by a preponderance of the evidence that just and proper cause existed for Mr. Johnson’s termination by Queen’s.  In order to satisfy this standard, the employer must meet the following tests required to show just cause for termination:

            1.         The employee was forewarned of the consequences of his or her actions.

            2.         The employer’s rules are reasonably related to business efficiency and the performance the Employer might expect from an employee.

            3.         An effort was made before discharge to determine whether the employee was guilty as charged.

            4.         The investigation was conducted fairly and objectively.

            5.          Substantial evidence of the employee’s guilt was obtained.

            6.          The rule was applied fairly and without discrimination.

            7.         The degree of discipline was reasonably related to the seriousness of the employee’s offense and the employee’s past record.

Enterprise Wire Co., 46 Lab. Arb. (BNA) 359, 362-65 (1966) (C. Daugherty, Arb.).

Issue No. 1   Was Mr. Johnson forewarned of the consequences of his actions?

            The Teamsters note that at no time in the exchange during which Mr. Johnson was advised of his suspension pending investigation was he advised that he would be or could be terminated for failing to comply with Miss Bellis’ request to review the certification of illness.  The Teamsters also note that a suspension pending investigation was the only proper avenue under the applicable procedures if Mr. Johnson was unable to present the required certification of illness, which he did.  House Rules 6, 8 and 9 specifically warn of immediate termination for their violation.  However, House Rule 18 does not provide any such warning of immediate termination.

            Queen’s points out that the house rules state that “employees are subject to either disciplinary action or discharge if they engage in certain types of prohibited acts.”  The question that must be answered then is whether or not Mr. Johnson actually violated the house rules cited in his termination and thereby knowingly committed prohibited conduct that could or would be just cause for the termination of his employment.  In reviewing this matter the Arbitrator must consider each rule in turn and determine whether or not Mr. Johnson actually violated that rule based upon the testimony, exhibits, and arguments presented.  The Analysis of whether or not substantial evidence was presented showing that Mr. Johnson violated a House Rule for which termination was a proper penalty will be dealt with in the Arbitrator’s Analysis of the Fifth Test for a Just Cause Termination.

Issue No. 2   Were the employer’s rules reasonably related to business efficiency and the performance the Employer might expect from an employee?

            The Arbitrator finds that these rules were per se reasonable rules and were related to business efficiency and the performance that the Employer might expect from an employee.

Issue No. 3   Was an effort made before discharge to determine whether the employee was guilty as charged?                                                 

            The evidence indicates that an effort was made to determine whether Mr. Johnson was guilty of the violation of the House Rules.  The record reflects that Ms. Bellis interviewed the various witnesses, reduced the interviews to written statements, and allowed them to review the statements prior to signing them.  She also reviewed a written submission made by Mr. Johnson and interviewed him regarding the incident prior to making her decision to terminate him.

Issue No. 4   Was the investigation conducted fairly and objectively?

            As a general rule, in an investigation related to discipline or termination, it is extremely desirable that the investigator be a detached upper-level manager, who conducts a rigorous, objective examination of the decision maker similar to one that would be conducted by an impartial third party.  Counsel for Queen’s has ably argued that Ms. Bellis has the necessary qualifications to have served impartially in that role. The Arbitrator is concerned regarding the role of Ms. Bellis as not only the individual who initiated the request for the sick leave certification, but also the individual who instructed Rene Schutter to either obtain the certification of illness, or alternatively instructed that should Mr. Johnson not be able to provide a certification of illness to advise  Mr. Johnson that he was suspended pending an investigation.  The requirement for certification was based upon Ms. Bellis’ belief that Mr. Johnson was abusing his sick leave privileges, and that if he could not certify his sick leave use he should be subjected to discipline.

            The Arbitrator is also concerned regarding Ms. Bellis’ role as alternately a witness at this arbitration, the decision maker who initiated the requests, and as a supervisor who was in direct communication with both Mr. Johnson and Ms. Schutter both prior to and contemporaneously with the time of the incident.  Having played these roles as well as that of the investigator who conducted interviews, prepared statements for the various employee witnesses, and utilized those statements to terminate

Mr. Johnson’s employment at Queen’s probably strains the requirements of “industrial due-process.”  Further, Ms. Bellis' testimony that she considered as a "data point" an unrecorded complaint and conversation that she had with another non-witness employee regarding Mr. Johnson, when making the decision to terminate Mr. Johnson's employment, is evidence of bias.  Ms. Bellis freely admitted that Mr. Johnson was never advised that there had ever been a complaint, and further that there was no disciplinary action contemplated or taken as a result of that conversation.  It is likewise clear that Mr. Johnson never had any opportunity to respond to this particular "data point.” 

            Ideally the role of investigator should have been be filled by an individual with no personal investment in the outcome that could bias the investigation.  However based upon Ms. Bellis’ limited role as a witness with respect to the actual event giving rise to this Arbitration, the Arbitrator finds that this minimum involvement did not keep the employer's investigation from being fair and objective. 

Issue No. 5   Was Substantial Evidence of  Mr. Johnson’s Guilt Obtained?

            Violation of four house rules was cited as the basis of Queen’s just cause for the termination of Mr. Johnson's employment.  Each rule cited in the termination shall be discussed in turn:

            House rule No. 6 indicates that an employee may be terminated for:  Unlawful, immoral, indecent, or improper conduct on the Medical Center premises or during work hours; or when such conduct off the Medical Center premises or during non-working hours affects the employee's relationship to his job, his co-workers, his supervisors, or the Medical Center's services, property, reputation, or goodwill in the community.”

            In reviewing the conduct of Mr. Johnson within the totality of the circumstances surrounding the incident which gave rise to his termination, the arbitrator finds that his conduct was neither unlawful, immoral, nor indecent as those words are commonly interpreted.  The remaining question is whether Mr. Johnson’s conduct was improper given the circumstances and context in which it arose.

            First in analyzing the situation, the Arbitrator must put aside the various questions regarding whether Mr. Johnson was actually sick or not at the time of his absence, as abuse of his sick leave was not cited as a rationale for his termination.   Here, a certification of illness was requested by Kathy Bellis.  Mr. Johnson attempted to deliver the certification directly to Ms. Bellis as she requested, prior to his shift, also as requested.  His tender of the requested certification to Ms. Bellis’ secretary seemingly fulfilled the reasonable request of Ms. Bellis for certification of his illness. 

            The subsequent confusion regarding the appropriate procedure to use in certifying the illness appears obvious on the face of the written procedure and the testimony of Ms. Bellis.  Ms. Bellis’ testimony indicated her belief that the procedure did not require that Mr. Johnson provide the certification to anyone but the requesting supervisor or that supervisor’s appointed contact person. 

            A reading of the Employer’s directive on the certification of illness clearly indicates that any employee having direct patient contact must first present his physician’s certification to either Employee Health or the Emergency Room to receive a separate form which gives the employee clearance to go back to work.  This procedure specifically includes the situation wherein a supervisor suspects that the employee may be abusing his or her sick leave.  The secretary who declined to accept the certification which had been requested by her supervisor and then advised Mr. Johnson that as it was personal in nature it should be delivered directly to Ms. Bellis may likewise have been confused by this variation from the established procedure.

            At no point was Mr. Johnson advised by anyone that he was required to deliver the certification to the administrative coordinator for the hospital prior to starting his shift.  In the arbitrator’s opinion, Mr. Johnson followed the instructions that he was given, and any confusion with respect to what those instructions were was clearly engendered by a failure of the cognizant supervisor to clearly determine and communicate to Mr. Johnson what the actual procedure was or should be.  Under the circumstances, poor communication of instructions and failure to follow the established certification procedure by Queen’s management substantially relieves Mr. Johnson of the burden of showing the propriety of his conduct under the circumstances.  The Arbitrator finds any violation of the propriety portion of this rule under the circumstances, de minimis.

            House rule No. 8 prohibits: “Fighting, threatening or attempting bodily injury to another employee, patient, visitor or physician.” 

            Were there sufficient facts to support a finding that Mr. Johnson had violated this rule, immediate termination would have been proper.  In reviewing the circumstances of this matter, the arbitrator finds that Mr. Johnson did not violate this house rule.  The objectively verifiable evidence adduced at the hearing does not indicate that Mr. Johnson ever indulged in any overt physical or verbal conduct that threatened any individual present at the scene.  There seems to be a fairly wide dispute over just how spirited the conversation did become; however, a verbal exchange related to the proper point of delivery for verification illness does not seem to satisfy the standard set out in this rule.

            House rule No. 9 prohibits “Negligence, carelessness, or mischief having a detrimental effect on the health, safety or property of patients, visitors, employees, physicians or the Medical Center.”  In analyzing this rule in the current factual circumstances, the arbitrator finds that as to the health and property issues, Mr. Johnson’s conduct had no detrimental effect.  With respect to the question of safety, the answer is considerably less clear.  Arguably, under the theory propounded by Queen’s relative to the therapeutic atmosphere and the violation of this atmosphere by Mr. Johnson’s demeanor and the volume of his voice, there may be some possibility that the conduct may in some manner have adversely affected the safety of both the patients and the staff members on duty.  However, there is no substantial evidence that any safety risk actually existed as a result of any action of Mr. Johnson’s. 

            The Teamsters note that at no point did any of the patients actually appear to have taken any note whatsoever of the exchange between Mr. Johnson and Ms. Schutter in the nurses’ station.  Given the variations in the testimony of the various witnesses regarding the volume of the discussion, this is a significant fact that resolves the question for the purposes of the analysis of the safety issue.  Putting the subjective speculation on what could have happened aside, the objective evidence of what actually happened falls short of the standard of substantial evidence sufficient to find just cause.

            House rule No. 18 prohibits: “Insubordination, refusal or failure to obey instructions or to perform work as required or assigned, willful slowdown, restriction or interference with others in the performance of their jobs.”  It must be noted at this point that a violation of this Rule is not an offense which subjects the violator to immediate discharge under the employer’s House Rules.

            A review of this rule, in the context of the facts presented by this particular case, is rather complicated, as it combines a number of elements which may or may not be present in the factual circumstances here.

            First, did Mr. Johnson fail to obey instructions or to perform work as required or assigned?  There does not appear to be any doubt that Mr. Johnson was requested by Ms. Bellis to provide the illness certification to her.  Mr. Johnson attempted to deliver the certification to Ms. Bellis.  He was then advised that the certification should be delivered directly to Ms. Bellis because it was personal.  The record is equally clear that at no point was Mr. Johnson instructed to deliver the sick leave verification to the administrative coordinator for Queen’s prior to returning to work.  These facts are extremely relevant when considering the reasonableness of Mr. Johnson’s response under the circumstances.

            The remaining possible violations of this rule are:  First, was Mr. Johnson insubordinate; second, did he interfere with another employee’s job performance; and, third, did he fail to follow a properly given work instruction?

            Analytically, Mr. Johnson was instructed not to return to work until he had delivered the requested verification to Ms. Bellis.  Under the written procedure for verification, the delivery of the verification to either Employee Health or the Emergency Room and clearance for work was a condition precedent to Mr. Johnson’s return to work.  Because of the variance from the established procedure for the certification of sick leave and from the instructions given prior to Mr. Johnson’s return to work, the entire interchange with Ms. Schutter took place when Mr. Johnson was still in an off- work status and apparently after Ms. Schutter’s shift had already ended.  When Mr. Johnson delivered the certification to his nursing supervisor he had already been suspended pending investigation because he had failed to comply with Ms. Schutter’s intervening instructions to deliver the certification to her. 

            The arbitrator observes two important facts at this point:  first, prior to his report to the workplace, Mr. Johnson at no time was instructed to deliver the certification to Ms. Schutter by any supervisory person other than Ms. Schutter, and secondly, because he was suspended for failing to comply with Ms. Schutter’s instruction to produce the verification to her, he was technically never at work prior to his suspension.  Regardless of how the situation is characterized, Mr. Johnson, while at work, did not refuse to follow an instruction that had been given to him by his immediate supervisor, and he was never advised that he should deliver the verification directly to the administrative coordinator on duty before he actually returned.  In fact, he had been advised by Ms. Bellis’ secretary that it had to be delivered to Ms. Bellis directly because it was personal.

            Insubordination in the workplace is a serious offense because it violates management’s traditional right and authority to direct the workforce.  A seven-factored test has been used to find a classical case of insubordination.  The fact pattern should include:

1)         The Grievant was given orders,

2)         The Grievant refused to obey the orders,

3)         The orders came from the Grievant’s supervisors who were known to him,

4)         The orders were reasonably related to his job and within the language of the contract,

5)         The orders were clear, direct, and understood by the Grievant,

6)         The Grievant was forewarned of the possible and probable consequences of his continued actions by specific reference to the contractual guidelines, and

7)         The Grievant was neither insulated nor protected from possible disciplinary action by his role as representative of the employees.

Kay-Brunner Steel Products (78 LA 363) [EMPHASIS ADDED]

            The instructions given to Mr. Johnson by Ms. Bellis’ secretary were in direct conflict with the instructions given to Ms. Schutter by Ms. Bellis.  At the hearing Ms. Bellis testified that it was her understanding that she could require that Mr. Johnson give the verification to her directly before going to work and not have him first report to either Employee Health or the Emergency Room.  The procedure as explained by Ms. Bellis at the hearing does not track the clear language of the procedure generated by Queen’s.   Section IV  B. of the procedure clearly states:

All employees who handle food or who are in positions of direct patient contact are required to report to either the Employee Health Department or the Emergency Room (if the Employee Health Department is not open) prior to the scheduled shift for work clearance . . .”

The procedure cited above clearly requires that an employee who has patient contact as did Mr. Johnson, is required to present certification of illness to either the Employee Health or to the Emergency Room to receive certification that he or she may return to work.  The back-to-work form and the certification are then given to the supervisor.  There is no exception in the language of the written procedure which varies this procedure when an employee is suspected of abusing sick leave benefits. 

            The return-to-work form is a requirement based upon considerations of patient health that exist independently of the considerations regarding abuse of sick leave.  The policy behind this requirement is imposed upon Queen’s by the State of Hawaii Department of Health.  Given the apparent confusion in the procedure and how

Mr. Johnson was to harmonize the conflict between the written procedures, e.g., the order of Ms. Bellis to deliver the Physician’s certification of illness directly to her, followed by a refusal by her secretary to accept the requested certification, and the subsequent request by the Administrative Coordinator to submit the certification directly to her, a charge of insubordination is very difficult to sustain on that issue.

            The Arbitrator finds that the conflict between the established procedures and the orders given to Mr. Johnson made it difficult for Mr. Johnson to know what the correct procedure was.  By surrendering the certification to his nurse manager, Mr. Johnson substantially performed the orders that were given to him relative to the verification of his absence.  Mr. Johnson at no time used objectionable language, nor was he abusive.

            He was obviously confused and concerned, and possibly frustrated because of the contradictory instructions that he had received; first, from Ms. Bellis and her secretary; second, from his union representative; and third, from Ms. Schutter.  The Arbitrator finds that Mr. Johnson substantially complied with the instructions of his supervisor as he understood them within the framework of the written procedure.  The instructions given did not reflect the Employer’s written policy regarding certification of illness.  This lack of clarity in what Mr. Johnson’s actual requirements were, considering the evidence in this matter, does not support a finding of insubordination.

            Having found that the instruction to produce the certification of illness was flawed under the existing procedures, the next issue with respect to insubordination is whether or not Mr. Johnson's refusal to immediately leave the premises, when instructed to do so by Ms. Schutter, was insubordination.  After a review the testimony, and the statements of the witnesses, the arbitrator finds that regardless of his personal perception of his actions at the time, Mr. Johnson wilfully refused to follow a clearly given instruction to leave the premises immediately, and that further he then reentered the treatment center when clearly instructed not to do so by Ms. Schutter.  The arbitrator finds this to be insubordination.  Regardless of the reasonableness of the employer’s rationale for his suspension, Mr. Johnson should have left the center immediately when instructed to do so, and should not have returned to the treatment center when instructed by the employer's representative not to do so.  His failure to obey this instruction, even though given in the context where he had already been suspended due to the employer's confusion regarding the appropriate procedures,  is nonetheless insubordination.  The workplace maxim of "comply now and grieve later" accurately states the arbitrator's view of this situation.  The arbitrator therefore finds that Mr. Johnson's suspension on the charge of insubordination can be sustained.   See Joint Exhibit 2.

Issue No.  6    Was the rule applied fairly and without discrimination?

            As the parties have stipulated that there was no allegation that there was any form of disparate treatment with respect to this arbitration proceeding, the Arbitrator finds that with respect to the termination there was no discriminatory intent and that the rules were applied fairly and without discrimination.  It must be noted for purposes of this decision, however, that this decision is strictly limited to those issues presented in the construction of the Collective Bargaining Agreement and does not reach any issue more suitably determined in other venues.

Issue No. 7   Was the degree of discipline reasonably related to the seriousness of the employee’s offense and to Mr. Johnson’s past record?

            To establish a stable and collegial atmosphere, it is necessary for both employee and employer to have clear operating procedures.  In the current instance, the failure by the employer to have both clearly communicated and then followed a standardized policy with respect to the certification of sick leave for Mr. Johnson's return to work substantially relieves Mr. Johnson of responsibility for behavior that clearly would have been insubordination under any other circumstances. 

            The Arbitrator generally will not substitute his judgment for the judgment of the employer in determining the appropriate discipline given a particular set of facts.  In this case, had the violation of the house rules that provided for immediate termination cited in Mr. Johnson's termination been shown by substantial evidence, termination would have been a proper level of discipline considering the factors applicable under this tier of the analysis.  However, the Arbitrator determines that termination under the circumstances cannot be sustained under the commonly accepted concepts of progressive discipline or the House Rules, particularly in light of the underlying confusion by the employer which gave rise to the underlying incident.  House Rule number 18 which contains the prohibition on insubordination is not flagged with an asterisk as one of the House Rules the violation of which “may result in immediate discharge”.

            The remaining question in the analysis is whether the insubordination was nonetheless sufficiently serious to support a termination.  As it is ably argued by the counsel for the Teamsters, at no point did Ms. Schutter advise Mr. Johnson that his employment would be terminated if he reentered the treatment center.  Likewise,

Mr. Johnson does have the mitigating factors of his need to recover his personal property from the workplace and his desire to clarify the procedure for which he'd been suspended.  In this particular instance, the arbitrator finds that the employer's own inconsistent application of its procedures "set-up" Mr. Johnson for discipline.  By giving him a series of inconsistent instructions that resulted in his initial suspension, Queen’s effectively invited a situation where insubordination is mitigated by provocation.

            The exhibits and testimony establish that Mr. Johnson, although granted only a short term employee, had no prior disciplinary history.  His supervisors and other witnesses confirmed that he was a good employee with good skills and that he served on two of the employer’s committees.

            Given the prior work history, the other mitigating circumstances, the fact that the only House Rule that was violated by Mr. Johnson was the Prohibition against insubordination, and further that under the Employer’s House Rules, the insubordination here was not an offense that should have been penalized by discharge.  The Arbitrator finds that the employer has not satisfied this tier of the Just Cause.  The degree of discipline was not reasonably related to the seriousness of the Employee’s offense and his past record.

DECISION AND AWARD

            The Arbitrator finds that the termination of Mr. Johnson by Queen’s does not meet the standard for a just cause termination under the applicable collective bargaining agreement.  The Arbitrator instructs that he be reinstated at the earliest possible time, but without any award of back pay for the time between his termination by Queen’s and his re-employment.  The period Mr. Johnson was off work is a disciplinary suspension.  The Arbitrator shall retain jurisdiction over this award until such time as the parties have shown substantial compliance with its terms and shall be available to clarify the specific parameters of any issue related to the award.

            DATED:         Honolulu, Hawaii, _______________________, 1999
                                                                        _____________________________
                                                                        MICHAEL F. NAUYOKAS
                                                                       
Arbitrator
                                                                        733 Bishop Street, Suite 2300
                                                                        Honolulu, Hawaii 96813


STATE OF HAWAII                                      )
                                                                        )           SS
CITY AND COUNTY OF HONOLULU        )

            On this _______ day of _______________, 1999, before me personally appeared Michael F. Nauyokas, to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and will.

_______________________________
Lorena A. Y. Leigh
Notary Public, State of Hawaii
My commission expires:____________                         



[1] The applicable procedure states in pertinent part:

A.            A supervisor may require an employee to provide medical certification by a licensed physician  "see paragraph 16.6 of both the HNA and Teamster agreements.”  

                                1.            An employee who is suspected of abusing sick leave benefits will be required to provide medical certification of disability for the period in question.
                                2.            The employee must be notified of the medical certification requirement prior to returning to work and in a manner which provides the employee a reasonable opportunity to obtain such certification.

B.            Upon the submission of satisfactory medical certification by the employee to the employee's supervisor, the PTO, sick pay or TDI benefits will be processed if employee is otherwise eligible.

C.            When an employee is required to return to work through either the employee health department or the emergency room (see section IV  B.), the employee will present the medical certification from the           employee's private physician at that time to the Employee Health Office (or the Emergency Room if the Employee Health Office is not open).  The Employee Health Department or the Emergency Room will clear employee to return to work and have employee give the medical certification along with the employee sick leave report form to the employee's supervisor.  If the employee is not cleared, he/she will not be allowed to return to work.

D.            The supervisor who requires medical certification will verify that such certification was provided before authorizing payment of PTO, sick pay, or TDI benefits.

E.            The medical certification is required; if satisfactory medical certification is not provided, PTO sick pay or TDI benefits will not be paid.

F.             An employee who does not comply with the medical certification requirements is subject to disciplinary action up to and including discharge.

Section IV.  B.  Provides in pertinent part:

B.            All employees who handle food or who are in positions of direct patient contact are required to report to either the Employee Health Department or the Emergency Room (if the Employee Health Department is not open) prior to the scheduled shift for work clearance as follows:

                                1.            Clearance, as required under the Hawaii State Department of Health regulation #11-93-14, for these employees, is certified by the Employee Health Department or by the Emergency Room and is indicated on the employee sick leave report (return to work) form #1 . 3012.
                                2.             The employee presents the employee sick leave report form to the supervisor, who requires such certification of clearance before permitting the employee to work.
                                3.             If an employer reports back to work after notice without the required clearance, the employee will be directed to obtain clearance prior to being permitted to work.
                                4.             The employee must report to either the Employee Health Department or the Emergency Room for clearance, whether or not the employee presents a statement from his or her personal physician.  (Enough time must be planned by the employee to allow for processing in either department, prior to the scheduled time to report to work.)
                               
5.             The period of elapsed time between reporting to the Employee Health Department or the Emergency Room for clearance and the start of the employee's work shift is regarded as time worked.

[Exhibit 8 Emphasis Added]

[2]              The text of the relevant rules cited as a cause for Mr. Johnson’s termination follows:               

6.            Unlawful, immoral, indecent, or improper conduct on the Medical Center premises or during work hours; or when such conduct off the Medical Center premises or during non-working hours affects the employee's relationship to his job, his co-workers, his supervisors or the Medical Center's services, property, reputation, or goodwill in the community.

"""

                *8             *Fighting, threatening or attempting bodily injury to another employee, patient,  visitor or physician.

"""

                *9             *Negligence, carelessness, or mischief having a detrimental effect on the health,  safety or property of patients, visitors, employees, physicians or the Medical Center.

"""

18.          Insubordination, refusal or failure to obey instructions or to perform work as required or assigned, willful slowdown, restriction or interference with others in the performance of their jobs.

                *Violations of these House Rules may result in immediate discharge.            (Jt.  Ex. 2.)

  

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