2000 NAC 128 Community Hospital of Anaconda and Butte Teamsters Union Local No. 2

Title: Community Hospital of Anaconda and Butte Teamsters Union Local No. 2
Date: August, 2000
Arbitrator: Jack Calhoun
Citation: 2000 NAC 128

IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

BUTTE TEAMSTERS UNION, )

LOCAL NO. 2, )

) OPINION

and ) AND

) AWARD

COMMUNITY HOSPITAL OF )

ANACONDA. )

BEFORE

JACK H. CALHOUN

ARBITRATOR

HEARING HELD

June 5, 2000

Anaconda, Montana

______________________________________________________________________________

REPRESENTATION

FOR THE UNION: FOR THE EMPLOYER:

D. Patrick McKittrick Ronald A. Bender

McKittrick Law Firm Worden, Thane & Haines, P.C.

P O Box 1184 P O Box 4747

Great Falls, MT 59403-1184 Missoula, MT 59806

Butte Teamsters Union Local No. 2 (the Union) and Community Hospital of Anaconda (the Employer) are parties to a collective bargaining agreement that provides that no non-probationary employee may be discharged without cause. The Grievant, Miranda Moodry, was first discharged in October of 1999. She was reinstated under the terms of an agreement between the parties in December. She was discharged the second time, in February of 2000, for violating the terms of the December agreement. A grievance was filed and the matter went to arbitration. The parties agreed the matter was properly before the arbitrator.

The parties were unable to agree on the precise wording of the issue. I have determined it to be: Was the Grievant discharged in February of 2000 for just cause? If she was not, what is the proper remedy?

The following provisions of the parties’ collective bargaining agreement are relevant to the issue in dispute.

9. When an employee is assigned to duty in the Rest Home, the individual shall be required to perform such duties. Assignments shall be on a seniority basis, on a particular shift, with the junior employee assigned first.

10. Whenever low-census occurs, the employees regularly scheduled for work in the Hospital shall not be entitled to bump employees who are regularly scheduled in the Nursing Home. Whenever low-census occurs, an employee who has been issued an involuntary low-census day off shall be allowed to exercise his/her seniority to bump the least senior employee, if any, in the same classification, on the same shift, before being issued a low-census day off at the Nursing Home. This privilege may be exercised three (3) times and then the senior employee must take a low-census day. Senior employees may voluntary [sic] for low-census days off.

1. Except as herein provided, after the probationary period has been satisfied, the EMPLOYER shall not discharge an employee without just cause, but in respect to discharge or suspension, shall give at least one (1) warning notice of the complaint against such employee to the employee in writing. . . .

Two separate facilities comprise the Community Hospital of Anaconda, the hospital and the nursing home. The Grievant was a certified nursing assistant and worked shifts at both facilities. She began her employment with the Employer in June of 1996. On October 1, 1999, she was terminated. On December 15, 1999, she was reinstated.

The terms of the settlement that resulted in the Grievant’s reinstatement were set forth in a letter from the Human Resources Director to the Union Business Representative:

Mr. Allen has agreed to bring Miranda Moodry back to her position as a part-time person on afternoon shift with her seniority intact. He has also agreed to pay Miranda Moodry the sum of $1,400.00 for her lost time. Mr. Allen also agreed to put her back on the schedule as soon as possible.

Implicit in the above offer is the complete understanding that if Miranda Moodry misses work for any reason, more than three times in the next six months, her employment will be terminated, with absolutely no recourse. Our agreement in this matter is the only counseling Miranda Moodry will receive concerning her attendance.

On February 21, 2000, Chief Executive Officer Allen issued a letter of termination to the Grievant. He referenced the December 15 settlement agreement and went on to state the specific reasons for termination as:

On January 26, you did not report to work. You apparently relied on the incorrect information that another employee had given you concerning when you were scheduled to work, instead of coming to look at the schedule yourself.

On February 13, 2000, your shift was at the nursing home. You left at 9 PM without telling your supervisor that you were leaving.

On February 18, 2000, you did not come to work, and did not report your absence before the shift.

On February 19, 2000, you were told your shift would be at the nursing home, instead of the hospital, but you refused to work.

The Employer’s practice of setting and posting monthly work schedules for its employees was to post the same schedule at the nursing home and the hospital. Sometime after the Grievant was reinstated, that practice changed. The schedules of the two facilities were combined. The nursing home put its employees’ names on a schedule showing dates and work and then sent the schedule to the hospital where employee names are entered with an “H” notation to identify them as hospital shifts. The same schedule was then supposed to be posted at both facilities so employees could see their schedules or call in and ask if they were scheduled to work on certain days. Nothing in writing was issued by the Employer regarding the posting and checking of work schedules.

On January 5, 2000, the Grievant was called into a counseling session because she had refused to report to the nursing home on December 26, 1999, instead of the hospital, as scheduled, after having been given a low-census. She was informed that it was standard practice for the two facilities to cover for each other when required. She challenged that proposition and said she thought seniority controlled moving from the hospital to the nursing home after being given a low-census. She said if the policy was different from what she believed it was, she should be showed something in writing, there should be something in writing for reference. The shop steward, who was in attendance, said the matter should be addressed more specifically in the collective bargaining agreement because it was not clear. The Grievant received a verbal warning over the incident.

On or about January 22, 2000, the Grievant telephoned the nursing station and asked to speak to the supervisor to find out when her work schedule was, which was a common practice. The supervisor was not available at that time, so she talked to the secretary who told her she was not scheduled to work again until January 28. The Grievant relied on the information she received and did not report to work on January 26. On January 29, the Grievant reported to work one hour late. She was not reprimanded over the tardiness.

The Grievant was scheduled to work the 3:00 p.m. shift at the hospital on February 13, 2000. The day was “a mess” according to an Employer witness, and a certified nursing assistant was needed at the nursing home. At noon the Grievant receive a telephone call and was told not to show up because it was a low-census day at the hospital. About three hours later, she received another call asking her to come to work at the nursing home. The Grievant said she had a child care problem but would come in at 5:00 p.m. and work until 9:00 p.m. when she would have to leave to care for her child. Other certified nursing assistants had been working from 5:00 p.m. to 9:00 p.m. when they were filling in at the nursing home. The majority of the necessary work at the nursing home is done by 8:00 p.m. The nurse in charge did not insist that the Grievant work later than 9:00 p.m., and the nurse was not disciplined for allowing the Grievant to leave at 9:00 p.m. No other nursing assistants who left at 9:00 p.m. were disciplined.

When an employee is given a low-census day at the hospital and is directed immediately to report to the nursing home, the employee must do so. If, however, the employee is called later, the employee can be requested to work at the nursing home, but cannot be required to do so. Employees have certain rights based on seniority when they take an involuntary low-census day. The Grievant was not disciplined over the February 13 incident.

The Grievant was telephoned on February 18, 2000, by a nurse supervisor who told her she was supposed to work that day at the hospital at 3:00 p.m. The Grievant said she was not scheduled to work that day, but would do so since she did not have anything to do. The supervisor told her she did not have to, she had been replaced. When the Grievant later looked at a copy of the work schedule that she had previously obtained from the schedule posted in the nursing home, she believed the nurse supervisor had confused her name with the name of another employee. The work schedule the Grievant had copied earlier showed she was not scheduled to work February 18 or 19.

Sometime after January 26 and before January 31, 2000, the human resources director contacted the Grievant and told her it was her responsibility to check the work schedules. He tried to set up a counseling session with her, but the Grievant had problems and was unable to attend.

After her conversation with the human resources director, the Grievant went to the nursing home and got a copy of the posted work schedule. She did not go to the hospital and get a copy of that schedule because in the past the two schedules had been the same and because the nursing home schedule showed her hospital shifts as well as her nursing home shifts for the month of February. In the past, the nursing director at the nursing home had sent employees notes when their schedules were changed after the monthly scheduled had been posted.

The work schedule posted at the nursing home prior to January 31, 2000, showing employees’ schedules for the upcoming month showed that the Grievant was not scheduled to work on February 18 or 19 at either facility. She was, in fact, scheduled at the hospital those days, however, the nursing home schedule did not show that because the person responsible for the nursing home schedule failed to copy them on the nursing home schedules. Other employees who were scheduled to work at the hospital were listed on the nursing home schedule. The Grievant was not. There is nothing written that says employees must look at schedules at both facilities. Contrary to the chief executive’s letter of March 23, 2000, denying the grievance, the nursing home schedule in fact showed the Grievant was not scheduled to work on February 18, 2000.

On February 19, 2000, the Grievant talked to a supervisor and told her she was not scheduled to work that day.

The Employer contends the termination of the Grievant was proper within the meaning of the reinstatement agreement. She had more than ample opportunity to correct her attendance problems. Over a period of time, she had been warned and counseled numerous times on attendance policies, failing to show up for work, showing up late, and leaving early. The Grievant was well aware of the policies. She had been warned and verbally informed in the past. From July 1999 through September 1999, of the 48 days of work, the Grievant called in sick 13 days, and had 11 days of being late or leaving early.

Missing work has been held to cover tardiness, arriving late, leaving early, long breaks and absence from work for short periods of time. The reinstatement agreement clearly stated the Grievant could not miss work for any reason. Despite this, she continued to miss work and the hospital’s termination for the missed January 26 shift, the late arrival on January 29, the leaving early on February 13, and the missed shifts on February 18 and 19, constitute missed work under the agreement, and the law.

The Employer, and the Union as bargaining representative of the covered employees, can agree that employees will have no recourse to the grievance procedure under the collective bargaining agreement. The December 15, 1999, reinstatement agreement clearly states that the Grievant is without recourse in regard to a termination. The Union, through its business agent, and the Grievant herself agreed to the terms and conditions of the agreement and as a matter of law are excluded from the grievance procedure under the contract, including arbitration and there is no jurisdiction for the arbitrator to review the termination.

The Grievant was aware of the expectations and policies for showing up for scheduled shifts, tardiness, leaving early, being assigned to the nursing home and being responsible for personally reviewing the hospital schedules a long time before the January 26, 19, February 13, 18 and 19 missed shifts, tardiness and leaving early. In view of past specific warning and counseling, the other attendance problems, the Grievant missed work more than three times within six months of December 15, 1999, and pursuant to the reinstatement agreement, the termination was proper, non-grievable and should be upheld.

The Union contends that in order to be terminated, the Grievant had to miss work more than three times. None of the instances relied upon by the Employer serve as a basis for triggering the sanctions under the agreement.

There is a strong presumption of arbitability and unless a collective bargaining agreement with a broad arbitration clause expressly excludes a last-chance agreement from arbitration, it is arbitrable when the underlying dispute is arbitrable. In the absence of an express exclusion, a last-chance agreement is arbitrable when the underlying issue is arbitrable unless the Employer produces strong and forceful evidence to exclude from arbitration with underlying questions of whether the employee in fact violated the last-chance agreement. That it is not the case here.

The Employer cannot enlarge upon the allegations set forth in the termination letter. Before the penalty in the last-chance agreement can be imposed, the allegations relied upon by the Employer must be proved. Without proving the charges, the Employer is without cause to terminate the Grievant.

The Employer failed to put the Grievant on notice that there was a change in the notice of scheduling. The Grievant went to the nursing home and obtained the schedule for February. She cannot now be charged with termination when the Employer failed to inform her of changes in how the schedule was posted.

The phrase in the agreement “missed work” referred to missing scheduled shifts. There was no understanding that it included tardiness or leaving work early.

The phrase “with absolutely no recourse” meant that if the Employer proved that the Grievant missed scheduled work more than three times in six months, she could be terminated without having recourse to the progressive disciplinary process. There was no intention to waive the arbitability of the issue if a question arose concerning the application of understanding of what “misses work” meant.

The Employer offered into evidence certain information in the form of documents that were not presented to the Union during the processing of the grievance. They were first seen by the Union at the hearing. Such effort to prejudice the Union and Grievant should not be condoned. Sound collective bargaining requires disclosure at the earliest opportunity of all facts known to each party.

None of the allegations stated in the termination letter of February 25, were proved as reasons for discharge under the agreement. The first one, on January 26, was not the Grievant’s fault, she received incorrect information when she called in — a common practice. The second one, January 29, was true, but the Grievant did not miss a scheduled shift. The third, February 13, is specious. She was scheduled at the hospital, not the nursing home. If an employee is given a low-census day at the hospital and at that time is directed to go to the nursing home, she must, but that was not the case here. Several hours later she was called. The fourth and fifth, February 18 and 19, were days the Grievant was not scheduled to work.

The Employer had the burden to prove by clear and convincing evidence that it had just cause to discharge the Grievant. It failed to do so. The evidence strongly supports the conclusion that the Grievant was discharged without just cause. The Employer was bound by the allegations stated in the February 21, 2000, letter of termination. Those allegations could not be enlarged at a later time to support the Employer’s case. The Employer was responsible for proving what it charged. See Scott Paper Co., 99 LA 624 (Byars, 1992).

The Employer argues that the December 15, 1999, reinstatement agreement clearly states that the Grievant is without recourse and that the parties agreed to the terms and conditions set forth in the agreement. The Employer contends as a matter of law they are excluded from the grievance procedure under the contract, including arbitration. There is no jurisdiction for the arbitrator to review the discharge, the Employer maintains.

The law is to the contrary, as the Union argues. There is a strong presumption of arbitability. An employee’s right to arbitration is not waived by a last-chance agreement unless the arbitration clause in the collective bargaining agreement expressly excludes last-chance agreements. See Steelworkers Local 1165 v. Lukens Steel Co., 969 F.2d 1468; 140 LRRM 2757 (3CA 1992). A last-chance agreement is arbitrable when the underlying dispute is arbitrable, in the absence of strong and forceful evidence to exclude the underlying question from arbitration.

The reinstatement agreement at issue here was not explicitly designated by the parties as a last-chance agreement, however, it has all the elements of one. Last-chance agreements are commonly utilized where an employee has been or is about to be discharged. Such agreements typically provide that for a certain period of time the employee is subject to discharge under stricter conditions than apply to most other employees. See Hugo Bosca Co., 190 CA 537 (Frankiewicz 1997).

A last-chance agreement does not remove the employee from the protection of the collective bargaining agreement’s just cause provisions. It does not supplant a just cause provision, but merely defines what just cause will mean in the context of the subject employee for a stated period of time. See Ohio Dept. Of Highway Safety, 96 LA 71 (Dworkin 1990).

Last-chance agreements remove from the arbitrator’s consideration what has been called “the principle of proportionality”, that is the belief that the discipline imposed must be appropriate to the misconduct involved. Under the usual last-chance agreement, the arbitrator no longer may determine whether the offense in question warrants the penalty of discharge, or whether there are mitigating factors such as long tenure or good record. Under last-chance agreements, the arbitrator’s duty is limited to interpreting the last-chance agreement and to determining the facts. When the arbitrator determines that the employee did, in fact, engage in the misconduct covered by the last-chance agreement, he has no alternative but to uphold the discharge. When the arbitrator finds that the employee did not engage in the covered misconduct, he must completely abrogate the discharge and reinstate the employee with full back pay. See Hugo Bosca, supra.

The December 15, 1999, agreement between the parties resulted in the Grievant being reinstated with her seniority. It also imposed strict conditions on her. She was to be terminated if she missed work for any reason more than three times within the next six months. On February 21, 2000, the Employer’s chief executive officer decided she had violated the terms of the agreement and he listed five specific violations to justify her termination.

The substantive dispute in the instant case centers around the meaning of the phrase “misses work for any reason”, as that phrase is used in the last-chance agreement of December 15, 1999. It is a basic principle of contract interpretation that where words are plain and clear, conveying a distinct idea, there is no need to resort to technical rules of interpretation and the clear meaning will be applied. However, where, as here, language is ambiguous, and the parties’ intent cannot be determined by a reading of their words, it is necessary to engage in interpretation. See How Arbitration Works, Elkouri & Elkouri, BNA Fifth Ed., 1997 at 470.

It would be unreasonable to conclude that the parties contemplated the phrase “misses work for any reason” was to mean the Grievant could be discharged when she was not at fault for missing work. The absence of clear evidence that the parties intended that “missing work for any reason”, even when the Grievant was not responsible, be regarded as one of the offenses triggering discharge, the discharge cannot be allowed to stand. No such evidence exists on the record here. The Union and the Grievant understood the agreement had application only to times she missed scheduled shifts. They contend it did not refer to being late or leaving early.

On January 26, 2000, the Grievant did not report to work, but it was not her fault. She called in and received incorrect information from a secretary. The practice was not uncommon and had been accepted. There was no rule to the contrary.

On January 29, 2000, Grievant was late for work by an hour. Although unavoidable perhaps from the Grievant’s perspective, it was the Grievant’s responsibility to provide for her child’s care in a fashion that would permit her to be at work on time. Clearly, the Employer did nothing to cause the Grievant to be late.

On February 13, 2000, although scheduled to work at 3:00 p.m. at the hospital, she was told at noon that day not to come in due to a low-census. That reasonably lead her to believe she was free. What occurred subsequently was not the Grievant’s fault. She attempted to accommodate the Employer, but by the time she received the second call, she had other problems. She said she would work from 5:00 p.m. to 9:00 p.m. and she did so. This allegation, of leaving early at 9:00 p.m. without telling the supervisor is unfounded. No proof of that was made.

The last two allegations, February 18 and February 19, can be addressed together. Simply put, the Grievant was not scheduled to work. She failed to show up through no fault of her own. At the very least, there was confusion and ambiguity involved in the way the hospital and the nursing home handled making schedules and posting them. The Employer had no written polices for checking schedules or any explanation to employees of what their obligations were with respect to assessing the validity of a posted schedule. It seems, although it is not clear, that two different schedules were posted. The Grievant looked at one of the schedules, even copied it, and concluded that she was not scheduled to work on the days in question. That was a reasonable conclusion because the schedule she saw showed some employees with hospital notations beside their names.

It would be unreasonable to read the last-chance agreement to mean the Employer could, even inadvertently, cause the Grievant to miss work and then discharge her for doing so. There is no evidence to show the parties intended such harsh results. The February 18 and 19 incidents were without doubt the fault of the Employer’s scheduling and posting practices, which were inconsistent, at best, and were confusing.

The Employer’s discharge of the Grievant was not for just cause. The Grievant did not miss work more than three times as I have interpreted that phrase. Accordingly, I will enter an award.AWARD

The Employer is hereby ordered to reinstate the Grievant to her former position with all rights and benefits she had before she was terminated on February 21, 2000. The Grievant is to be paid back pay and benefits for the time she as off, minus interim earnings.

I will retain jurisdiction of this matter for sixty (60) days for the sole purpose of resolving any dispute regarding the implementation of the above award.

Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.