2000 NAC 147 Hanford Environmental Health Foundation and United Food and Commercial Workers Union Local 141 United Staff Nurses Union

Title: Hanford Environmental Health Foundation and United Food and Commercial Workers Union Local 141 United Staff Nurses Union
Date: December 6, 2000
Arbitrator: David M. Gaba
Citation: 2000 NAC 147

In the Matter of an Arbitration

Between

UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 141 UNITED STAFF NURSES UNION

And

HANFORD ENVIRONMENTAL HEALTH FOUNDATION

(Carl Achenbach Grievances)

ARBITRATOR’S

DECISION AND AWARD

This arbitration arises pursuant to a collective bargaining agreement between the UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 141, UNITED STAFF NURSES UNION (hereinafter the UNION), on behalf of Carl Achenbach, and the HANFORD ENVIRONMENTAL HEALTH FOUNDATION (hereinafter the EMPLOYER), under which DAVID GABA was selected to serve as Arbitrator and under which his Award shall be final and binding among the parties.

A hearing was held before Arbitrator Gaba on October 11, and October 13, 2000, at Richland, Washington. The parties had the opportunity to examine and cross-examine witnesses, introduce exhibits, and fully argue all of the issues in dispute. No transcript of the proceedings was provided. Both parties filed post-hearing briefs on or about November 15, 2000.

Larry E. Halvorson, Esquire
Halvorson & Saunders, PLLC
701 Fifth Avenue Suite 7100
Seattle, WA 98104

The United Food and Commercial Workers Union Local 141, United Staff Nurses Union, and the Hanford Environmental Health Foundation are parties to a collective bargaining agreement dated October 1, 1998, through September 30, 2001.

With respect to the December 9, 2000, instance, was the Grievant, Carl Achenbach, disciplined by the Employer?

With respect to the decision-making leave disciplinary action imposed on Grievant Carl Achenbach on February 18, 2000, was there just cause for the disciplinary action?

The “Collective Bargaining Agreement by and between Hanford Environmental Health Foundation and United Staff Nurses Union, Local 141” (hereinafter the AGREEMENT) provides in ARTICLE 2 - MANAGEMENT RIGHTS, Section 2.1 - Retention of Managerial Prerogatives, that the Employer may “reprimand, suspend, discharge, or otherwise discipline employees for just cause”. Also addressed are prerogatives “to maintain the efficiency of operations; to determine the personnel, methods, means, and facilities by which operations are conducted” and “to introduce new or improved research, production, service, distribution, and maintenance methods, materials, and equipment”. This Section further provides that the Employer retains the rights “to issue, amend and revise policies, rules, regulations, and practices; and to take whatever action is either necessary or advisable to determine, manage and fulfill the mission of the Company and to direct the Company’s employees.”[1]

ARTICLE 6 - ARBITRATION, Section 6.3 - Arbitrator’s Jurisdiction, provides that “he shall have no authority to hear or decide issues of substantive arbitrability; to add to, detract from, alter, amend, or modify any provision of this Agreement.”[2]

ARTICLE 12 - GENERAL PROVISIONS, Section 12.4 - Personnel Policies, provides that:

All employees of the bargaining unit, in addition to being governed by this Agreement, shall also be subject to the personnel policies, operating policies and procedures established by the Company and any subsequent personnel policies, rules and regulations that may be promulgated in the future, so long as they do not conflict with this Agreement. In case of any conflict this Agreement shall be the controlling policy for the employees covered by this Agreement. Grievances involving the interpretation or application of the Company’s personnel policies or operating policies and procedures are not subject to arbitration pursuant to Article 6 of this Agreement, but shall be subject to review pursuant to the internal Company procedure for resolving employee concerns in the Operations Policies.[3]

Effective April 2, 1999, the Employer implemented Operations Policy 7.8: Discipline with Respect and Responsibility (hereinafter the DRR), which states as follows:

The following is a list of steps that management may follow in administering disciplinary action. Please note that these steps are guidelines only and may not always be followed. Disciplinary action may be initiated at any step in the process, at the company’s discretion, depending on the performance problem, the type of conduct, or the nature of offense involved. Discharge may also result without any prior warning being given where the company deems such action appropriate.[4]

Under the section entitled “Procedure,” the steps are listed as: Step 1 - Positive Contacts, Step 2 - Coaching, Step 3 - Oral Reminder, Step 4 - Written Reminder, and Step 5 - Decision-Making Leave. This section further states that “the steps are intended to be implemented in a progressive way; however, depending on the seriousness of the problem, discipline may begin at any step or the employee may even be terminated at a first offense.[5]

Under the section entitled “Witnesses,” the policy states that: “A union representative shall be present at any disciplinary transactions with bargaining unit employees at Steps 2, 3, 4 or 5, or for any termination transaction, whenever the employee has requested such representation.”[6]

The process of solving performance problems so that they are eliminated and relationships enhanced, begins with coaching. In situations for which coaching is appropriate, team leaders and coordinators are expected to

· prepare fully for the discussion by preparing a written summary of the essential information that will be needed in the meeting

· conduct the discussion as closely as possible to the discovery of the problem, but allowing sufficient time to investigate and prepare for the meeting

· recognize the employee for making the correction after an appropriate amount of time has passed without another instance of the problem.[7]

At this step, employees who have not corrected their problem performance are placed on a one-day paid leave. They are advised that problems arising after return from a decision-making leave that require disciplinary action, will result in termination. Employees are expected to use the day to make a decision about their job: 1) either to solve the immediate problem and commit to good performance in every aspect of their job, or 2) decide that working for HEHF is not for them and return with a decision to quit. A memo to the employee that documents the discussion is prepared after the employee returns with a decision and filed in the employee’s personnel file. Employees may request the removal of the disciplinary memorandum following the completion of the active disciplinary period.[8]

Under Appendix A, Levels of Seriousness, the DRR contains the following language:

Minor: problems that do not involve issues of honesty or trust, do not by themselves constitute a threat to the operation of HEHF, and pose no threat to the safety or well being of the employee or other employees. Examples: excessive tardiness, poor housekeeping, overstaying breaks, and other minor inefficiencies. If training and coaching are not sufficient to bring about a change, the discipline process would begin with the oral reminder and continue through the remaining steps.[9]

Operations Policy 15.0, Information Protection, Definition 3.6, reads as follows:

Restricted information, information which is sensitive and confidential in nature (proprietary or business sensitive), and requires access only by that part of the HEHF community with the specific need to do so. Restricted HEHF information includes, for example, medical records, financial data, contract information, personnel records and security files, whether the information is in electronic, paper, and micrographic or conversational form.

Carl Achenbach has worked as a Registered Nurse at Hanford Environmental Health Foundation for twenty years and had never been subjected to disciplinary action of any sort prior to the events documented herein.

On December 9, 1999, Mr. Achenbach’s supervisor, Kathy Piper, conducted a coaching session (as provided for in the DRR) with Mr. Achenbach and his coworker, Registered Nurse Mary Sams (see separate Arbitrator’s Decision and Award pertaining to Grievant Sams). The issue Ms. Piper raised at the coaching session with respect to Mr. Achenbach was that he was alleged by staff complaints to have failed to attend to patients in a timely manner on two separate occasions (November 12 and November 19). Mr. Achenbach objected to the charge, maintaining that he had behaved appropriately in both instances. Mr. Achenbach voiced his contention that the coaching session was a disciplinary action without just cause.

On December 17, 1999, Ms. Piper held a follow-up meeting with both Mr. Achenbach and Ms. Sams. At that meeting, Mr. Achenbach gave Ms. Piper a fact sheet listing his perceptions pertaining to both incidents. He also, on behalf of both himself and Ms. Sams, gave Ms. Piper a document he characterized as an Investigation Iinformation Request, wherein he listed documents he deemed relevant and asked that he be provided with copies of them.[10] Mr. Achenbach again maintained that he considered he was being subjected to unjustified disciplinary action, and indicated that he was considering filing a grievance to that effect.

On December 9, 1999, subsequent to the coaching session and follow-up meeting, Ms. Piper prepared a discussion worksheet summarizing her understanding of the issues and conclusions of both events.[11] On December 30, 1999, Mr. Achenbach filed a United Staff Nurses Union Grievance Form objecting to what he characterized as “disciplinary action pertaining to unfounded allegations, and to which he attached a copy of the earlier submitted Investigation Iinformation Request.”[12] On January 10, Ms. Piper wrote a memo to Mr. Achenbach denying his Grievance on the grounds that the coaching session the Grievance addressed was not a disciplinary action, and informing Mr. Achenbach that he would not be provided with any of the document copies he had requested.[13]

Mr. Achenbach and Ms. Sams (who had also filed a Grievance) then moved to Step 3 of the Grievance Procedure, Written Appeal to the Labor Contract Administrator, as provided for in Article 5, Section 5.2 (Grievance Procedure) of the Collective Bargaining Agreement.[14] On February 1, 2000, Mr. Achenbach sent an e-mail memo to Carol Bonadie, Human Resources Manager, reiterating his request for document copies, and indicating that he construed the Employer’s refusal to provide the requested information as a violation of the National Labor Relations Board rulings.[15] On February 8, 2000, Ms. Bonadie responded to both grievants with a memo further clarifying the reasons for the Employer’s contention that coaching is not discipline, scheduling a meeting for Mr. Achenbach and Ms. Sams to meet with the Grievance Review Committee to discuss their Grievance, and confirming Ms. Piper’s earlier communication that Mr. Achenbach would not be granted the record copies he had requested.[16]

On February 10, 2000, Mr. Achenbach went to the records office and asked to view one of the medical records that he had requested in his communication to Ms. Piper. The employee to whom he made his request told him that record was being retained in the office of John Munch, Health Information Manager. Mr. Achenbach proceeded to speak with Mr. Munch, who permitted him to view the record in his office (where all of the records pertaining to both Ms. Sams’ and Mr. Achenbach’s Grievances were being kept).

On February 11, Ms. Bonadie spoke to Mr. Achenbach regarding the February 10 incident, and then wrote a Memo to the File in which she documented that conversation.[17] As recorded in that Memo, during their conversation Ms. Bonadie informed Mr. Achenbach that her refusal (in her February 8 memo) of his request for record copies should have been interpreted by him to mean he was to have no access to those records. Mr. Achenbach in turn responded that he had interpreted the refusal to mean that he was not to be provided with copies, but had not understood it to mean that he was to have no access to the information. Ms. Bonadie’s Memo to the File indicates she then told Mr. Achenbach that any access to medical records must be approved through the Privacy Act process, and informed him that he was not to access any other records, which instruction he acknowledged.

On February 11, 2000, Ms. Piper wrote a memo to Mr. Achenbach in which she instructed him to provide her with a full, written explanation of his rationale for reviewing the chart, to be submitted by close of business on February 14, 2000.[18] On the morning of February 14, Ms. Piper requested that Mr. Achenbach meet with her to discuss the incident of February 10, indicating that senior management had instructed her to do so. At Mr. Achenbach’s request, Ms. Sams was requested to be a witness at this meeting as provided for in the DRR.[19] Ms. Piper documented her request for a meeting with Mr. Achenbach by means of a Memo to the File dated the same day.[20] Ms. Piper met with Jan Spencer, Information Security Officer, J. McKee, S. McInturff, and Mr. Munch prior to her meeting with Mr. Achenbach. Ms. Piper, accompanied by Ms. Spencer and Mr. Munch, then met with Mr. Achenbach and Ms. Sams. Mr. Achenbach was asked to provide an explanation for his behavior, and Ms. Piper, Mr. Munch and Ms. Spencer met afterward to determine their conclusions. Subsequent to that meeting, Ms. Piper prepared a memo to Mr. Achenbach to inform him that he was being suspended, with pay, while a formal investigation of the situation was completed.[21] The memo informed Mr. Achenbach that this was a suspension for purposes of investigation and not a disciplinary act. Ms. Piper met with Mr. Achenbach to present him with her memo, inform him of the suspension, and give him the opportunity to ask any relevant questions. Also present at that meeting were Ms. Sams and Ms. Spencer, and Ms. Piper wrote a Memo to the File to document that meeting.[22]

On February 22, 2000, Ms. Piper presented a memo to Mr. Achenbach informing him he had been placed on what she characterized as a decision-making leave, effective February 18, and informing him as follows:

I advised you that this was the final step of our discipline procedure and that you were to make a final decision: either to solve the problem of complying with all policies and procedures, ethical standards, and lawful orders of HEHF management and, in addition, to commit to fully acceptable conduct and performance in every area of your job, or to resign your position.[23]

Mr. Achenbach’s response, written on the bottom of the letter, was “I disagree with the charges above and the disciplinary action that was taken. My signature indicates my acknowledgment of receipt of this letter.” Ms. Piper then prepared an amended version of the letter, including a paragraph confirming that Mr. Achenbach did return to work on February 22, at which time he provided the requested agreements to the Employer. In the addition to the letter, Ms. Piper also acknowledged that Mr. Achenbach had objected to the charges and action.

The Grievance Review Committee met with Mr. Achenbach and Ms. Sams on February 11, 2000, and then met with Ms. Piper on February 24, 2000, regarding their Grievances with respect to the December 9, 1999, coaching session. The Committee responded to Mr. Achenbach in a memo dated February 28, 2000.[24] It was the determination of the Committee that the central issue was lack of communication between nurses and support staff, that no disciplinary action was taken, and that the failure to communicate could have compromised the patient’s health. The Committee concluded that Ms. Piper’s initiation of the coaching session had been an appropriate response to the two episodes of alleged patient neglect.

On March 6, 2000, Mr. Achenbach filed a United Staff Nurses Union Grievance Form with respect to his February 18, 2000, suspension, which he characterized as both discipline without just cause and disparate treatment. Attached to this Grievance was a copy of the Investigation Information Request he had provided to Ms. Piper on December 17, and an Investigation Information Request intended to address the current Grievance.[25]

The Union asserts that the Employer did in fact discipline Mr. Achenbach when Ms. Piper coached him on December 9, 1999. It contends that the language of the DRR clearly defines coaching as discipline. In its Brief, the Union states explicitly that it “does not argue that it is not within the purview of the Employer to utilize a non-disciplinary process akin to Coaching. In fact, the Union supports the resolution of problems between management and bargaining unit members through such common sense non-disciplinary procedures.”

Central to the Union’s argument is its contention that the coaching session is correctly interpreted to be a disciplinary action because the Employer has reserved the right to use the elements of the coaching session as the basis for further action against Mr. Achenbach. The Union specifically requests that, in the event that the Arbitrator concludes that the coaching session did not constitute discipline, the Arbitrator clearly enjoin the Employer from using the subject matter of the coaching session as the basis for any disciplinary action.

The Union maintains that the Employer did not have just cause to discipline Mr. Achenbach for any patient care or communication concerns. With respect to the allegations of patient neglect, the Union draws upon Employer evidence, and lack thereof, presented at the Arbitration Hearing, contending that unrefuted testimony at the Hearing established that Mr. Achenbach had not been negligent in either instance. The Union states that Ms. Piper’s testimony clearly established that “her communication concerns encompassed all nurses and all staff.”[26] The Union points out that Ms. Piper dealt with the communication issue for all other employees through a staff meeting rather than through coaching sessions, and contends that the use of the coaching session for Mr. Achenbach was, in fact, a disciplinary action despite Ms. Piper’s contention that it was not.

The Union requests that the Arbitrator conclude that the coaching session constituted improperly administered disciplinary action and asks that all evidence of that disciplinary action be removed from Mr. Achenbach’s field file and personnel file.

It is the contention of the Union that the Employer did not have just cause when it placed Mr. Achenbach on decision-making leave and gave him a final warning.[27] The Union maintains that the Employer not prove its contention that Mr. Achenbach was given a specific order or command he then violated. The Union further maintains that the Employer did not communicate clearly the intent of its directive, leading to a misinterpretation of that intent by Mr. Achenbach that was not knowing, willful, or deliberate. According to the Union, the language of both Ms. Piper’s and Ms. Bonadie’s responses to Mr. Achenbach’s request for document copies did not clearly state that he was not permitted to view the disputed medical records.[28] The Union points to the fact that Mr. Achenbach did not access the records by means of subterfuge, but rather arranged to view them through normal channels, indicating that he had no perception that his behavior was contrary to any legal guidelines. The Union also maintains that the fact that Mr. Achenbach was granted access to the record by Mr. Munch, a management employee, supported Mr. Achenbach’s perception that his action was appropriate.

The Union contends that the Employer’s Operations Policy 15.0, Information Protection, contains no language specifically prohibiting an employee from reviewing a medical record for other than patient care purposes.[29]

Finally, the Union insists that, even if the Employer should be found to have had just cause to discipline Mr. Achenbach, the chosen level of discipline was of undue severity when viewed in the light of Mr. Achenbach’s unblemished work history. The Union refers the Arbitrator to Elkouri and Elkouri with respect to the relevance of Grievant’s past record in determining level of discipline and asks that the Arbitrator reduce the level of discipline imposed in the event that he determines that some disciplinary action was warranted.[30]

It is the position of the Employer that the coaching session held December 9, 1999, was not a disciplinary action. The Employer states that:

The threshold issue is whether the coaching session constitutes disciplinary action within the meaning of Article 2.1. If not, the grievance does involve an interpretation or application of a specific provision of the Agreement as required by Section 5.1 to be arbitrable.[31]

The Employer maintains that the Union’s contention, that the coaching session constituted a disciplinary action because the language of the DRR implies it does, fails because of the provision in Article 2.1 of the Agreement that the Employer retains the exclusive right to issue, amend and revise policies. In the Employer’s interpretation, this encompasses:

…the right to unilaterally amend the DRR, which includes the right to cure its ambiguities or vagaries. It has done so by clarifying both orally and in writing that the coaching step of the DRR is not disciplinary action. Rather, disciplinary action is limited to Steps 3-5 of the DRR, i.e. an oral reminder, a written reminder, and decision making leave.[32]

The Employer makes reference to the Encarta Reference Dictionary to emphasize that disciplinary action must by definition focus on the enforcement of rules and the punishment of those who break them, and points out that Mr. Achenbach was neither charged with breaking any specific rule nor subjected to any punishment.

The Employer contends that Step 3 of the DRR is the first step that can be construed as overt discipline, and points to “a well-established precept of industrial relations law and practice that disciplinary action typically consists of oral and written warnings, suspensions and terminations, but not training or coaching preliminary to such actions.”[33]

The Employer again references Article 2.1 of the Agreement with respect to the Employer’s right to determine means and methods for operations and service, maintaining that that was precisely Ms. Piper’s intention when she conducted the coaching session with Mr. Achenbach.

With respect to the issue of the arbitrator’s jurisdiction, as addressed in Section 6.3 of the Agreement, the Employer concludes that the provisions of that Section, taken in concert with the Employer rights expressed in Article 2.1, give the Employer broad discretion with regard to the interpretation and implementation of what constitutes appropriate employee management, and do not allow an arbitrator to curtail Employer rights in this regard.

Finally, the Employer maintains that, even if the Arbitrator were to find that the coaching session constituted disciplinary action, the Employer could be said to have had just cause for such action. The Employer points to the fact that both incidents of alleged patient neglect were addressed in response to clerical employees’ complaints, and maintains that no lesser remedy than coaching was available under the DRR.

The Employer asks that the Arbitrator deny the Grievance and find that “the coaching was within management’s retained right to direct its employees and to manage its business.”[34]

The Employer maintains that the decision-making leave imposed on Mr. Achenbach on February 18, 2000, was for just cause. Central to the Employer’s argument is the fact that Mr. Achenbach acknowledged that he accessed the medical record without authorization from the patient and for a reason other than patient care or treatment, specifically, to aid him in his preparation for his upcoming meeting with the Grievance Review Committee. The Employer contends that Ms. Piper’s denial of his request for copies of this and other records, in her memo of January 10, and Ms. Bonadie’s reiteration of that denial in her memo of February 8, were sufficient to inform Mr. Achenbach that he was to have no access to the disputed records except for medical purposes.[35] The Employer further notes that Ms. Bonadie’s memo made specific reference to the Privacy Act. The Employer contends that Mr. Munch granted Mr. Achenbach access to the record, which was in Mr. Munch’s office because it was subject to the ongoing proceeding, under the impression that the Grievant was requesting legitimate access for medical purposes.

It is the Employer’s position that in accessing the records for the purpose of supporting his Grievance, Mr. Achenbach “was in contravention of the Privacy Act, applicable DOE regulations, HEHF’s contract with DOE, and HEHF’s policies implementing same.”[36] The Employer maintains that Mr. Achenbach could reasonably be expected to know that his behavior was in conflict with the Privacy Act and provides an exhibit to support its contention that Mr. Achenbach was well versed in privacy and confidentiality policies.[37] The Employer points out that Mr. Achenbach had a clear remedy available to him in that the Union could have filed an Unfair Labor Practice Charge with the NLRB to obtain the records, and further points out that Mr. Achenbach admitted knowledge of his right to request that the Union do so.

The Employer further maintains that the applicable policies and directives are reasonably related to the Employer’s business operation, that a reasonable investigation was conducted prior to disciplinary action being imposed, that policies and penalties were applied evenhandedly and without discrimination, and that the degree of discipline imposed was reasonably related to the seriousness of the offense and the record of the employee. The Employer references several arbitration decisions that addressed similar circumstances to support its contention that the Arbitrator should deny the grievance and find that the Employer had just cause to impose the decision-making leave.[38]

Article 2.1 of the Collective Bargaining Agreement provides that management retains exclusive judgment and discretion with respect to issuing, amending and revising policies, rules, regulations and practices. The DRR, the progressive disciplinary policy implemented by the Employer, is such a policy.

In this contract interpretation case, the Union bears the burden of establishing that the Employer violated the Agreement. Article 12.1 of the Agreement clearly provides that personnel policies formulated by the Employer shall govern all employees of the bargaining unit “so long as they do not conflict with” the Agreement. Given this language, it is clear from the Union’s Brief that it does not contest the authority of the DRR in this respect, inasmuch as that issue is not raised.

The applicable standards for contract interpretation are well established. Where the language in a collective bargaining agreement is clear and unambiguous, the arbitrator must give effect to the plain meaning of the language. This is so even when one party finds the result unexpected or harsh. Words are to be given their ordinary and popularly accepted meaning, unless other evidence indicates that the parties intended some specialized meaning. As stated by Elkouri and Elkouri:

Arbitrators have often ruled that in the absence of a showing of mutual understanding of the parties to the contrary the usual and ordinary definition of terms as defined by a reliable dictionary should govern. Use of dictionary definitions in arbital opinions provides a neutral interpretation of a word or phrase that carries the air of authority.[39]

Had the language of the DRR been incorporated into the Agreement between the Employer and the Union, it could be construed against the drafter (i.e., the Employer) according to the rules of contractual construction. Had that been the case, discipline could reasonably be stated to have occurred with respect to the coaching session held with Mr. Achenbach. However, since the DRR is separate and distinct from the Agreement, the determination of what is construed as discipline with regard to the outlined procedural steps is subject to interpretation in favor of the drafter, and I must accept the Employer’s contention that the coaching session was not intended as formal discipline. This is bolstered by the language of the DRR, which clearly states that the outlined steps are guidelines, with the implication that implementation is subject to managerial discretion. While I grant that the DRR does contain substantial ambiguity in its language, and that the best reading of its language supports the Union’s position, I must also conclude that that ambiguity works in favor of the Employer in this instance, and that the Employer’s intention and discretion must be given some weight in interpreting its own policy. Therefore, no discipline of Mr. Achenbach can be said to have occurred.

It must be mentioned at this point that, could the language of the DRR be construed to justify a decision that discipline had in fact occurred, I would have to conclude that there was not just cause for such discipline. Where there is no contractual definition, it is reasonably implied that the parties intended application of the generally accepted meaning that has evolved in labor-management jurisprudence: that the “just cause” standard is a broad and elastic concept, involving a balance of interests and notions of fundamental fairness. Described in very general terms, the applicable standard is one of reasonableness:

…whether a reasonable (person) taking into account all relevant circumstances would find sufficient justification in the conduct of the employee to warrant discharge (or discipline.)[40]

As traditionally applied in labor arbitrations, the just cause standard of review requires consideration of whether an accused employee is in fact guilty of misconduct. An employer’s good faith but mistaken belief that misconduct occurred will not suffice to sustain disciplinary action. It is by now axiomatic that the burden of proof on both issues resides with the employer. In this instance, it is clear that the Employer did not meet the burden of proof with respect to documenting employee misconduct, and it must be noted in fairness to the Employer that such documentation does not appear to have been its intention. This is, of course, a moot point, given that the Union cannot establish that the event in question was a disciplinary action.

With respect to the incidents that occurred on November 12, and November 19, 1999, I must emphasize at this point that Mr. Achenbach was a victim of circumstance and in no way can be considered to have behaved in any manner that warranted he be disciplined. It is clear to me that the November 12 incident was truly a matter of miscommunication between nursing and support staff, with no wrong doing on Mr. Achenbach’s part. The evidence regarding the November 19 incident was equally clear, and revealed that Mr. Achenbach saw that non-emergency patient in less than five minutes. I can only conclude that it is unfortunate that these two occurrences, both minor in their own right, happened in such a short period of time, and I suspect that, had that not been the case, Ms. Piper might well have chosen a less formal route whereby to address each instance.

In considering the question of whether Mr. Achenbach was justly disciplined when he was given a decision-making leave on February 18, 2000, I must consider whether the Employer has proven just cause by a preponderance of the evidence, utilizing the reasonable person standard to evaluate Mr. Achenbach’s behavior in this incident.[41] The summary of just cause and burden of proof provided in the Decision for the first Grievance is relevant here. The differing contentions of the Union and the Employer with respect to Achenbach’s understanding of his situation, pertaining to his access to the disputed medical records, must be evaluated in light of the applicable standard of reasonableness. Elkouri and Elkouri’s evaluation of knowledge of rules and warnings is pertinent to this situation:

It has been reported, on the basis of examining over 1000 discharge cases, that one of the two most commonly recognized principles in arbitration of such cases is that there must be reasonable rules or standards, consistently applied and enforced and widely disseminated. Concerning notice of rules, Arbitrator William M. Hepburn stated: “Just case requires that employees be informed of a rule, infraction of which may result in suspension or discharge, unless conduct is so clearly wrong that specific reference is not necessary.” In the latter regard it has been held, for instance, that employees need not be notified of rules against threatening others with loaded firearms, for “Common sense alone would dictate that a weapon such as a loaded firearm would not be permitted on the premises of any employer except in the possession of a duly authorized plant protection man.”

In regard to warnings, evidence as to whether warning of unsatisfactory conduct were given prior to discharge or discipline generally is relevant in determining whether the penalty was justified. Where an employee continues prohibited conduct after having been warned, the fact that he was warned stands against him. In one case the employee had been warned repeatedly about leaving his place of duty, so discharge was upheld even though progressive discipline had not been used; the arbitrator said that the warnings had apprised the employee of the seriousness of his misconduct and that there was no reason to believe that “one more chance” would improve his conduct. On the other hand, failure to give prior warnings may be one of the reasons for the refusal by an arbitrator to sustain disciplinary action (particularly discharge).[42]

The Union contends that a reasonable person, refused copies of the requested documents, would differentiate between the Employer’s refusal to allow him to have copies of those documents and its refusal to let him review them to refresh his memory as to their contents. It is true that Mr. Achenbach reviewed a record which was already familiar to him through his duties, and that his review was solely to prepare himself for an in-house discussion of alleged patient neglect on his part; he had no overt intention of compromising the confidentiality of the patient or violating the Employer confidentiality rules. The Employer maintains otherwise, insisting that Mr. Achenbach knew that he was prohibited from further access to the disputed records, but chose to access them in deliberate and willful violation of the Employer’s instructions. The Union has noted that Mr. Achenbach did not employ any subterfuge to gain access to the record that he reviewed, and considers that he was facilitated in that review by the Manager of Health Information. While the records in question were being kept in Mr. Munch’s office because they were subject to this ongoing proceeding, the question of whether Mr. Munch willingly facilitated Mr. Achenbach’s access to the record must include a consideration of the purpose of that access, and this latter point needs to be determined in light of Mr. Munch’s own interpretation. It is his contention that he did not realize Mr. Achenbach was accessing the record for other than medical treatment reasons until after the fact, when he realized that no notations had been made to the record, as would have been the case had it been consulted for treatment purposes.

As the Employer has noted, Mr. Achenbach had another avenue whereby he could pursue access to the records; namely, he could have requested that the Union file an Unfair Labor Practice Charge with the NLRB. Mr. Achenbach admitted on cross examination that he was aware of this option.

I have come to the conclusion, despite there being some degree of ambiguity in the Employer’s communications to Mr. Achenbach with regard to records access, and despite the lack of any overt intention on his part to violate the Employer’s rules, that a reasonable person would have erred on the side of caution with respect to interpreting Ms. Bonadie’s memo. While I concur that Mr. Achenbach proceeded in a manner consistent with his having misinterpreted the directive rather than willfully disobeying it, I do find that his error in judgment provided just cause for discipline. Mr. Achenbach was given two warnings about records access, both by Ms. Piper and Ms. Bonadie, and that emphasis alone should have caused him to understand the seriousness with which the Employer viewed this matter. He was aware of the stringent privacy requirements the Employer maintained (indeed, Ms. Bonadie in her February 8 memo made specific reference to the Privacy Act), and common sense alone should have led him in the direction of putting the strictest interpretation possible on the Employer’s memoranda.

Had Mr. Achenbach displayed any subterfuge in his efforts to view the records, discharge could have been upheld. The fact that Mr. Achenbach presented his request to view the records through normal channels, albeit without clearly stating his reason for requesting that access, does support the view that his behavior demonstrated poor judgment rather than evil intent. The reasonable person standard allows a distinction to be made between the degree of misconduct and the level of disciplinary action taken by the Employer, and it is only because Mr. Achenbach’s conduct did not include any fraudulent misrepresentation on his part that the decision-making leave, rather than discharge, can be deemed the appropriate penalty in this instance.

Let me reiterate at this point that I am basing my finding on the preponderance of evidence standard, which is of course a lesser standard of proof, because I am satisfied that Mr. Achenbach did not suffer any economic harm because of his suspension. Indeed, some might even argue that he received a benefit, inasmuch as he was granted time off without pay. If Mr. Achenbach had been given an unpaid suspension for his misconduct, I would reduce the penalty. In the instant case the Employer has formulated a novel approach to discipline that is progressive in nature, yet lacks many of the hallmarks of traditional disciplinary systems. Under a traditional disciplinary system, I would find that Mr. Achenbach could have been subject to either a verbal or written warning. Given that the grievant suffered no monetary harm, I see no reason to engage in a purely intellectual exercise to adjust the level of discipline.

While this was an extremely close case, I believe that Mr. Achenbach was so upset at the unfounded charges that had been leveled against himself and Ms. Sams, that he did not give a reasonable interpretation to Ms. Bonadie’s memo denying him access to patient records. It is unfortunate that Mr. Achenbach has compromised what had been an unblemished career with this event but, through an error in judgment he did give his employer “just cause” to administer discipline. There was a point at which, I believe, Mr. Achenbach let his emotions affect his judgment, and his behavior was not governed by the discretion and prudence that a reasonable person in his position could have been expected to display.

With respect to the first Grievance, the burden is on the Union to show by a preponderance of the evidence that the Employer violated the Collective Bargaining Agreement. While the Union provided substantial evidence that Carl Achenbach was disciplined, the level of evidence provided did not reach the level necessary to substantiate that there was a violation of the Collective Bargaining Agreement.

With respect to the second Grievance, the Employer proved by a preponderance of the evidence that there was just cause for the disciplinary action that was taken against the Grievant, Carl Achenbach.

All fees and expenses charged by the Arbitrator shall be shared equally by the Employer and the Union, as provided for in Article 6, Section 6.4 of the parties’ Collective Bargaining Agreement.

[1] Exhibit E-1.

[2] Ibid.

[3] Ibid.

[4] Exhibit E-2.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Exhibit E-19.

[11] Exhibit E-18.

[12] Exhibit E-20.

[13] Exhibit E-13.

[14] Exhibit E-1.

[15] Exhibit E-22.

[16] Exhibit E-5.

[17] Exhibit E-27.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Exhibit E-28.

[22] Exhibit E-29.

[23] Exhibit E-30.

[24] Exhibit E-24.

[25] Exhibit E-31.

[26] Ibid.

[27] Ibid at p. 10.

[28] Exhibits E-5, E-21.

[29] Exhibit E-34.

[30] Elkouri and Elkouri, How Arbitration Works 905 (4th Ed. 1985-89).

[31] Employer’s Post-Hearing Brief at p. 9.

[32] Ibid.

[33] Employer’s Post-Hearing Brief at p. 10.

[34] Employer’s Post-Hearing Brief at p. 12.

[35] Exhibits E-5 and E-21.

[36] Employer’s Post-Hearing Brief at p. 20.

[37] Exhibit E-35.

[38] Ibid at p. 24.

[39] Elkouri and Elkouri, How Arbitration Works, Pages 490-91 (5^th ed. 1997).

[40] RCA Communications, Inc. 29 LA 567, 571 (Harris, 1961). See also Riley Stoker Corp., 7 LA 764, 767 (Platt, 1947).

[41] The parties should note that, had Mr. Achenbach sustained any economic damage because of the disciplinary action, I would expect the Employer to prove by clear and convincing evidence, rather than merely by a preponderance of the evidence, that there had been just cause for that action.

[42] Elkouri and Elkouri, How Arbitration Works, Pages 682-83 (4^th ed. 1985).

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