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Title: Sea Mar Community Health Center  and OPEIU, Local 8, AFL-CIO
Date: November 4, 2002
Arbitrator: Jean A. Savage 
Citation: 2002 NAC 123

 

In the Matter of Arbitration

between

Sea Mar Community Health Center 
Employer

          and 

OPEIU, Local 8, AFL-CIO
Union                                               

 

Grievance: Wereta Arbitration

FMCS No. 020404-08183-T

 

                                                                                            

 

BEFORE: Jean A. Savage, Arbitrator
APPEARANCES: For the Employer:
Michael Leong, Attorney
For the Union:
Clifford Freed 
Frank, Rosen, Freed, Roberts
PLACE OF HEARING: Seattle, WA
DATE OF HEARING: August 20, 2002
POST HEARING BRIEFS:  September 27, 2002
Date of Award: November 4, 2002
Sea Mar Community Health Center 
(Employer)

and

OPEIU, Local 8, AFL-CIO
(Union)

Wereta Arbitration
FMCS Case No. 020404-08183-T
Date of Award: November 4, 2002

                      ANALYSIS AND AWARD

I.      Introduction:

            The undersigned, Jean A. Savage, held a hearing on August 20, 2002, in the above-captioned matter under the provisions of a collective bargaining between the Employer and the Union (Joint Exhibit No. 1). The parties stipulated that this agreement, for the period of October 1, 1998 through October 1, 2001, was in effect at the time of the Grievant’s termination.  The hearing was held in a room at Sea Mar Community Health Center in Seattle, WA. Mr. Michael Leong, Attorney, represented the  Employer and Mr. Clifford Freed, attorney with Frank, Rosen, Freed, Roberts, represented the Union.

The hearing proceeded in an orderly manner. Both parties were afforded a full opportunity to present evidence, to examine and cross-examine witnesses, and to argue in support of their contentions. The advocates fully and fairly represented their respective parties. All witnesses testified under oath as administered by the arbitrator. The arbitrator recorded the proceedings on tape solely to support her personal notes. There were no challenges to the substantive or procedural arbitrability of the dispute. The parties agreed that the arbitrator has the authority to reduce the penalty. The arbitrator stated that she would retain jurisdiction in the matter following the issuance of an award to resolve issues arising out of the implementation of any remedy.

The parties submitted the matter on the evidence presented at the hearing and briefs. They agreed to postmark their briefs by September 13, 2002. Subsequently, the parties notified the arbitrator that they had agreed to extend the date for their briefs to September 27, 2002. The arbitrator received the parties’ briefs which were timely postmarked. The arbitrator officially closed the hearing on receipt of the briefs by electronic mail on September 27, 2002. In subsequent communications, the arbitrator informed the parties that she would postmark the award by October 31, 2002. Later, she requested an extension to November 4, 2002, due to illness, and the parties agreed.

II.   Issues:

In the absence of submissions by the parties, the arbitrator finds that the issues are:

Whether the Employer had just cause to terminate immediately Mulu Wereta (hereinafter the Grievant) without resort to progressive discipline as provided in Article 5, Sections 5.5 and 5.5(a) of the collective bargaining agreement. If not, what is an appropriate remedy?

III. Relevant Provisions of the Collective Bargaining Agreement:

ARTICLE 4

MANAGEMENT OF EMPLOYER

The OPEIU recognizes the right of the employer to operate and manage the Employer’s facilities including, but not limited to, the right to establish and require fair, uniform standards of performance, to maintain order and efficiency, to direct employees, to determine the materials and equipment to be used, to implement new or different operational methods and procedures, and to determine staffing levels; provided that, such rights shall not be exercised so as to contravene or nullify any specific provisions of this Agreement or the law. Management retains all of its inherent rights except as specifically restricted by this Agreement.

ARTICLE 5

EMPLOYMENT PRACTICES

Section 5.5 PROGRESSIVE DISCIPLINE The Employer shall use a uniform, progressive discipline system which shall include verbal counseling, written warnings, probation and/or suspensions up to and including termination. No employee shall be unjustly disciplined or discharged. Just cause for discipline or discharge shall include, but is not limited to, those grounds stated in the Employer’s Personnel Policies 100.16 and 100.17.  Upon termination, an employee, upon request, shall receive a written notice from the Employer stating the cause of termination.

Section5.5(a)  The Union and the Employer recognize that certain conduct by employees may warrant immediate suspension or termination without resort to progressive discipline. The principles of just cause and the grievance procedure shall apply at all levels of discipline for employees who have completed their probationary period.

Section 5.10  EMPLOYER POLICIES  To the extent that the Employer’s regularly adopted Personnel Policies are not in conflict with this Agreement, such Personnel Policies will be the working policies governing employees. Where a conflict exists, this Agreement shall prevail unless otherwise agreed to by the Union.…

ARTICLE 22

GRIEVANCE PROCEDURE

Section 22.4 ARBITRATION

Section 22.4(c) The arbitrator selected shall be authorized to rule and issue a decision and award, in writing, on any issue presented for arbitration, including the question of the arbitrability of such issue. The arbitrator’s award shall be final and binding upon both parties. The arbitrator’s award shall also include assessment of the arbitrator’s fee against the losing party. Where there is no clear prevailing and losing party, the arbitrator shall have discretion to assess the arbitrator’s fees to the parties as may be considered fair by the arbitrator. The arbitrator shall have authority to interpret the terms of the Agreement, but shall not have authority to function outside of the terms of this Agreement, to decide any issue not submitted or to interpret or apply the Agreement so as to change the intent of the parties. The arbitrator shall not give any decision which modifies, revises, detracts from or adds to any of the terms or provisions of this Agreement

IV.  Statement of Facts:

The Employer operates a nonprofit skilled nursing facility in Seattle, Washington. Among its employees are Nurses’ Aides who assist patients in raising up, do nail and hair care, assist patients with bathing, get patients up for meals, make certain patients have food and water, and put patients in bed and position them.

The Grievant left Ethiopia at age 17 and came to this country after two years in Sudan. She trained to be a nursing assistant in Texas and has worked full-time in that position since 1983. She became a certified Nurse’s Aide (NAC) in 1988. She began working for the Employer on August 20, 2000. About May 1, 2001, she became a full time employee and a shower aide giving showers and baths and caring for patients’ hair and nails. The Union represents the Grievant and she is covered by the parties’ collective bargaining agreement.

The Employer terminated the Grievant following an incident on Monday, December 3, 2001, concerning bathing a patient referred to as “the Judge.” The Judge weighed about 250 pounds and was not mobile and bathing him was difficult for the staff. Additionally, the Grievant was seven months pregnant at the time and having a difficult pregnancy. The Grievant’s doctor restricted the weight she could lift to 35 pounds and staff needed to assist the Grievant in lifting.[1] (Union Exhibit No. 1.) According to a bathing schedule, established by the Grievant, the Judge had a shower the previous Friday. (Union Exhibit No. 2.) Later on Friday, the Director learned that the Judge’s family wanted to take him Christmas shopping on Monday. The Director asked a part-time nurse’s aide, JS, to work on Monday and assist the Grievant in showering the Judge.

On Monday, Aide JS told the Director that the Grievant was unwilling to bathe the Judge that day. The Director confronted the Grievant who stated that the Judge’s scheduled day for showering was Friday, that he had had a shower, and that she had many other patients scheduled for showers on Monday. A loud conversation between the Grievant and the Director occurred, first in a hall and later in an office, but the Grievant did not bathe the Judge. The central issue in this dispute is whether the Director gave the Grievant a direct order to bathe the Judge and the Grievant refused to follow that order.

After the conversation with the Director, the Grievant called her home and learned that Providence Hospital was trying to reach her by telephone. About noon, the Grievant tried to telephone the hospital from the break room and discovered that she had the wrong number. After obtaining the correct number, the Grievant telephoned the hospital from the break room and learned that she was scheduled for a doctor’s appointment that day at 2:30 p.m. The Grievant’s testimony about the time that she was in the break room was vague, but she stated that on one occasion she was there for about 15 minutes.

The Grievant went to the Director’s office about one o’clock to ask permission to leave early, but she could not find the Director. The Grievant then spoke to both charge nurses about her need to leave for her doctor’s appointment. Knowing that she was pregnant, neither charge nurse objected to the Grievant leaving work early. The Grievant testified that she did not eat lunch because she had many showers to do before she left work. However, the Grievant testified that she punched out for lunch between 1:16 p.m. and 1:47 p.m. because she understood that employees had to do so or their checks could be delayed. The Grievant left work at 2:06 p.m. Her time clock record shows that she worked 6.25 hours that day.[2] (Joint Exhibit No.5.)

The Director testified that she saw the Grievant in the break room for about 20 minutes from 12:20 p.m. to 12:40 p.m. when the Director went to eat lunch. Because the Grievant had earlier stated that she was busy, the Director asked the Therapy Services Director, CA, who was in the break room, how long the Grievant was there. He testified that the Grievant was in the room when he came in at 12:10 p.m. and when the Director left at 12:40 p.m. He also saw the Grievant use the telephone. The Director checked the Grievant’s time card and saw that the Grievant punched out from 1:16 p.m. to 1:47 p.m. The Director concluded that the Grievant took two breaks and dishonestly reported her time.

The Employer terminated the Grievant without any further discussion with her about the events of December 3, 2001. The “Employee Reprimand and Termination” that the Grievant received on December 6, 2001, stated that

[The Grievant] has violated Sea-Mar Policy #100.16-Termination. Just Cause grounds for immediate termination includes, 3(a) gross discourtesy to patients, clients, guests and employees of the corporation; 3(f) willful inefficiency and non-performance of assigned duties (e.g. lack of cooperation; refusal to follow instructions, no call/no show;

3(h) dishonesty. All of these points are applicable as noted on the incidents above. [The Grievant] is terminated for just cause, effective immediately (December 6, 2001). [emphasis in original]

The Grievant disagreed with the notice and the Union grieved. The parties were unable to resolve their dispute and took the matter to arbitration under their collective bargaining agreement.

V.  Positions of the Parties:

A.     The Employer:

The Employer argues that the Grievant’s termination is justified under the just cause and progressive discipline policies. The Employer argues that the Grievant was willfully insubordinate when she refused to perform work as directed by her supervisor. According to the Employer, the Director explained the need for a specially scheduled bath for the Judge and specifically instructed the Grievant to assist Nurse’s Aide JS in bathing the Judge. Regardless of the reasons for the specially scheduled bath or the Grievant’s belief that one was not necessary, the Employer asserts that the Grievant did not have a right to refuse to follow instructions to give the resident another bath. In these circumstances, the Employer argues that it properly terminated the Grievant under the just cause provisions for immediate termination.

The Employer also argues that the Grievant willfully failed to perform her assigned duties when she took extended and unauthorized breaks from her work without clocking out. Specifically, the Employer argues that the Director and another employee observed the Grievant in the staff lunchroom taking her lunch break between noon and one o’clock. In addition, the Employer asserts that if the Grievant did not take a lunch break after one o’clock, she acted dishonestly by intentional improper use of the time clock. Further, the Employer asserts that if the Grievant did not take a break to telephone her home and the hospital, then she violated the Employer’s work policies that prohibit personal calls on work time. The Employer points out that management warned the Grievant against inappropriate use of the time clock and abuse of breaks in prior counseling and with a reprimand.

Finally, the Employer argues that the Grievant’s termination is justified under the just cause policy because the Grievant was grossly discourteous to a patient and to her supervisor. According to the Employer, the Grievant argued in front of a resident. The Employer also asserts that the Grievant shouted and argued angrily with the Director in a hall about bathing the Judge. Such conduct warrants termination, according to the Employer. The Employer contends that if the arbitrator substantiates any of the charges against the Grievant, her termination must be affirmed.

B.  The Union:

The Union asserts that the Employer has not met its burden of establishing that the Grievant was insubordinate, dishonest, or discourteous. Concerning the allegation that the Grievant was insubordinate, the Union asserts that the Employer has not shown that its instructions were clear and understood by the Grievant. According to the Union, the evidence shows that there is “a significant question as to whether a direct order” was given to the Grievant to bathe the Judge. (Union’s Brief at 18.) The Union also states that to the extent that there were instructions, the Grievant did not understand them to be an order. Further, the Union asserts that no one told the Grievant that the Judge had an appointment with his family for holiday shopping. In this regard, the Union notes that the Grievant was emotional during her conversation with the Director and that the Grievant’s command of English is limited. The Union also argues that the Employer did not tell the Grievant what penalties might be imposed on her for any alleged insubordination.

The Union also contends that the Grievant was not dishonest. In support, the Union asserts that there is no evidence that the Grievant had a meal or took a break other than the time she spent in the lunchroom trying to phone the hospital to confirm her appointment. That time, the Union argues, was relatively short. Even if the Grievant took 30 or 40 minutes to make that telephone call, the Union argues that that amount of time is still within the two 15-minute breaks and the half-hour lunch break that employees are allowed. Although the Grievant punched out for a lunch break between one and two o’clock, the Union asserts that there is no evidence that the Grievant actually took a break. Further, the Union claims that testimony established that it is common practice for employees to work through their lunch breaks and punch out for lunch because of  their concern that their paychecks would be delayed if they did not record a lunch break. The Union argues that if the Employer had conducted an investigation, these facts would have been disclosed. The Union also contends that the Grievant did not intend to defraud the Employer of work time.

The Union also argues that the Grievant was not grossly discourteous. The Union recognizes that the Director alleged that the Grievant raised her voice and said that the Director could not tell her how to do her job. However, the Union asserts that testimony showed that the Director also raised her voice in a situation that arose out of misunderstanding and confusion and that the circumstances do not warrant a termination for being discourteous. Finally, the Union argues that the arbitrator should not consider the prior discipline the Grievant received because the Director testified that she did not consider it in making her decision to terminate the Grievant.

The Union argues that no one in management gave the Grievant a direct order to bathe the Judge. Further, the Union asserts that no one told the Grievant that the Judge had an appointment with his family and needed a bath that day despite the fact that he had had a shower the previous Friday. The Union contends that a confusing situation developed concerning bathing the Judge on December 3 and that the “burden of loss of livelihood is a penalty disproportionate to anything that occurred … .”  (Union’s Brief at 31.) The Union also asserts that discharge, which is the workplace equivalent of capital punishment, exceeds the nature of any offense. The Union emphasizes that the Grievant received no complaints about her work, she was seven months pregnant, and her understanding of English is limited. Consequently, the Union argues, even if the arbitrator finds that the Grievant “has some culpability” for what occurred on December 3, she should impose a penalty far less severe than termination. (Union’s Brief at 30.)

The Union seeks full backpay and benefits, all seniority, and its attorney fees under RCW 49.48.030 and International Association of Firefighters, Local 46 v. City of Everett, 146 Wn.2d 29, 42 P.3d 1265 (2002).

VI.  Discussion and Analysis:  

Section 5.5 of the parties’ collective bargaining agreement requires that no employee be unjustly discharged. It requires that the Employer use a progressive discipline system. However, section 5.5a provides that “certain conduct” may warrant immediate termination subject to “the principles of just cause.” Sea-Mar policy #100.16, section 3, which is incorporated into the agreement under section 5.5, lists examples of such conduct. The Grievant’s termination notice cited three of the twelve grounds listed:  “3(a) gross discourtesy to patients, clients, guests and employees of the corporation, 3(f) willful inefficiency and non-performance of assigned duties (e.g. lack of cooperation; refusal to follow instructions, no call/no show); and 3(h) dishonesty. It is the Employer’s burden to establish that it had just cause to discharge the Grievant on at least one of these grounds. The central issue in this dispute is whether the Grievant failed to follow supervisory instructions, so the arbitrator will consider 3(f) first.

A.     Whether the Grievant was Willfully Inefficient and Failed to Perform Assigned Duties:

Generally, employees must follow orders given by a supervisor with appropriate authority or they will be found insubordinate. The “work now, grieve later” rule is firmly established in labor law; however, arbitrators often examine its application in particular circumstances. In Discipline and Discharge in Arbitration, six qualifications are set forth that arbitrators frequently consider when reviewing management actions involving insubordination:

First, an employee’s refusal to work or obey must be knowing, willful, and deliberate. …

Second, the order must be both explicit and clearly given, so that the employee understands both its meaning and its intent as a command.

Third, the order given must be both reasonable and work related. 

Fourth, the order must have been given by someone with appropriate authority, and the employee must have understood that person to possess that authority.

Fifth, the employee must be made aware of the consequences of failing to perform the work or follow the directive. …

Finally, if practical, the employee must be given or have time to correct his purportedly insubordinate behavior. …[3] 

These qualifications are useful as an outline in considering this case.

There is no dispute here that the order to bathe the Judge was reasonable and that it was work related. Further, the Director of Nursing is clearly someone with appropriate authority. The sixth qualification, whether management gave the employee time to correct her behavior, asks essentially the same question as this case. That is, whether management’s decision to terminate the Grievant immediately was for just cause. Consequently, the primary questions the arbitrator will consider are whether the Grievant’s failure to perform was knowing, willful and deliberate, whether the order was explicit and clearly given, and whether the Grievant understood its meaning and its intent as a command.

To answer these questions, it is necessary to review briefly the Director’s and the Grievant’s testimony. The Director testified that Nurse’s Aide JS asked her to come to the floor because the Grievant refused to help bathe the Judge. According to the Director, she spoke to the Grievant in the hall and told her that the Judge was going shopping and needed a shower. She testified that she explained that Aide JS had come in to assist in accomplishing this task. In response, the Director said that the Grievant told her that the Judge had a shower on Friday and did not need one. The Director testified that when she told the Grievant that the shower was a special request, the Grievant responded, “You don’t have to tell me how to do my job.” According to the Director, the Grievant was yelling, so the Director directed the Grievant to a nursing station. There, the Director repeated that the Judge needed a shower and testified that the Grievant answered, “I don’t have time. I showered him Friday. I have other showers to do.” Because the Grievant was loud, the Director testified that she led the Grievant to an office. In a written statement she prepared shortly afterward, the Director wrote “I then told her that my expectation was that the resident would be bathed/showed [sic] that day as per the arrangements which had been made and communicated to her earlier that morning.” (Union’s Exhibit No. 3.)

The Grievant’s recollection is that Aide JS asked for her help with the whirlpool saying that she was giving the Judge a bath. The Grievant testified that she told Aide JS that she would help, but later Aide JS said that Aide CS would help with the bath. According to the Grievant, when the Director came up to her in the hall, she asked, ‘How come you didn’t give a shower to the Judge?” The Grievant testified that she responded that she gave the Judge a shower on Friday. When the Director asked the question again, the Grievant said that the Director was angry. The Grievant answered again and added, “Don’t treat me like a three-year old child.” In the office, the Grievant recalled that the Director said that she did not do her job and that she was a liar.[4] The Grievant asserted that she became very upset and started to cry. She testified that what the Director was asking made no sense to her. The Grievant denied that anyone gave her an order to bathe the Judge.

An examination of witnesses’ testimony does little to reconcile these accounts. A LPN testified credibly that at the nurses’ station she heard the Director telling the Grievant that she expected her to give a patient a bath and the Grievant say she was busy. She also heard the Grievant say that she knows her job. This witness did not hear the Director give an explanation as to why it was necessary to bathe the Judge. In the arbitrator’s opinion, this testimony does not confirm that the Director provided an explanation or gave an explicit order.

For various reasons, testimony of other employees who were involved in the situation was not helpful. Such testimony was vague and general, possibly because the incident occurred nine months earlier. Part-time Aide JS, who is no longer an employee, testified by telephone. She recalled someone asked her to come in on Monday, possibly Charge Nurse AE, but she did not recall that there was a special request to shower the Judge. She testified that she and the Grievant planned to give the Judge a shower on Monday, December 3, because he needed regular baths. She also recalled that on Monday the Grievant said that she had no time. In summary, Aide JS’s testimony does not support a conclusion that the Director told the Grievant the reason that management asked her to bathe the Judge on December 3, 2001.

Two other aides testified as well, but for different reasons, their testimony did not clarify what happened. Aide CS, who is now the Shower Aide, testified that she heard the Grievant say that the Judge was not on the schedule for that day and she would not shower him. According to Aide CS, Charge Nurse AE asked her and Aide JS to give the Judge a shower. In cross-examination, counsel asked Aide CS about a written statement that she provided on December 14, 2001, in which she wrote that she and Aide JS asked the Grievant for help.[5] She testified that she did not know that she had to be “exactly accurate” in her statement. This comment cast doubt on her accuracy. In the arbitrator’s mind, she confirmed that doubt with her concluding statement, ”If she [the Grievant] gets her job back, will she be taking mine?” Similarly, another witness, Aide BW, could not recall when events happened. Although she testified that Aide JS asked the Grievant for help with the whirlpool, she could not recall when Aide JS made this request despite repeated and careful questioning. In these circumstances, the arbitrator finds it impossible to rely on her testimony. 

            The arbitrator is also unwilling to rely on testimony from Charge Nurse AE. This nurse testified that she explained the need to give the Judge a shower to the Grievant, but the Grievant refused. She also testified that she heard the Director say in the hallway that giving the Judge a shower was not optional, that it was a special request and part of her job. However, during her initial testimony, Charge Nurse AE appeared extremely ill at ease. Subsequent testimony revealed that this witness avoided speaking with the Union’s representatives, including Representative Farfan, before the hearing. Representative Farfan testified that Charge Nurse AE stated that she did not recall events on December 3, 2001, and she did not know why the Grievant was no longer an employee. This information casts additional doubt on the veracity of this witness and makes her version of events questionable. In summary, the arbitrator finds that no testimony corroborates the Director’s assertion that the Grievant received an explanation of the need for the Judge to have a bath on Monday, December 3, 2001, or that she gave the Grievant an explicit order to give him a bath.

The arbitrator, therefore, must rely on the accounts of the Director and the Grievant to reach a conclusion. First, there is no doubt that the Grievant refused to bathe the Judge on Monday, December 3, 2001, but it is not clear that she understood the situation. Although the Director testified that she told the Grievant why the Judge needed a shower, the evidence shows that the Director responded to the situation immediately after learning from Aide JS that the Grievant was unwilling to assist her. At that point, the Director realized that her plan to meet the patient’s need was not working. Therefore, it seems highly likely that she simply asked the Grievant why she had not bathed the Judge. This question seems even more likely because she understood that other employees had explained the situation to the Grievant. The Grievant, without knowing all of the facts, heard the Director question why she had not performed her work. Such a question appeared to be a challenge to the Grievant because she had bathed the Judge on Friday. The arbitrator concludes that there is insufficient evidence to establish that anyone told the Grievant that the Judge’s family was taking him shopping and that was the reason another shower had been requested.

Additionally, the arbitrator finds that the evidence does not support a conclusion that the Director gave the Grievant a direct order to bathe the Judge. The Director testified that she did so, but her testimony followed that of Union representative Farfan. Representative Farfan testified that after the Grievant’s termination, she asked the Director whether she had given the Grievant a direct order to bathe the Judge. Representative Farfan testified that the Director answered that a charge nurse had done so although she could not recall which one. On rebuttal, the Director testified that she gave the Grievant a direct order to do the shower. Partly because of its timing, the Director’s testimony does not persuade the arbitrator that the Director actually gave a direct order. Rather, the arbitrator concludes that it is equally likely that the Director’s instruction was not an explicit and clearly given order.

An additional and significant reason for doubt that the Grievant understood the Director to be giving a command is that the Grievant appears to have a limited grasp of the English language. During the hearing, she did not understand several questions. For example, she confused the question of whether she admitted having received verbal counseling with whether she had an interpreter at her unemployment hearing. In addition, the Grievant could not understand questions about changing the schedule for bathing patients. (Union Exhibit No. 2.) Further, when she read language in a written reprimand, it was apparent that she could not pronounce and did not understand the word “permanent.” The arbitrator appreciates that the Grievant passed an examination for certification as a nurse’s aide. Despite this fact, the Grievant demonstrated a lack of English language proficiency during the hearing. Furthermore, the arbitrator notes that she had an interpreter at her unemployment hearing. In these circumstances, the arbitrator finds that it is highly likely that the Grievant misunderstood what the Director said and that she did not understand that the Director was giving her a command.

            The fifth qualification concerning a finding of insubordination is also relevant in this dispute. That qualification is whether management informed the employee of the consequences of failing to perform the work or follow the directive. In this regard, there is no assertion that the Director or anyone else told the Grievant that her refusal to bathe the Judge would lead directly to her termination. This fact lends support to the arbitrator’s conclusion that the Grievant did not understand the gravity of the situation. Considering all the evidence before her, the arbitrator concludes that the Grievant’s refusal to bathe the Judge was not knowing, willful, and deliberate and that management did not give her an explicit and clear order that the Grievant understood as a command.

B.     Whether the Grievant Was Dishonest:

The Employer argues that the Grievant took extended and unauthorized breaks on December 3, 2001. In other words, the Employer is arguing that the Grievant was dishonest in reporting her time.[6] Considerations that assist the arbitrator in analyzing this charge are the Grievant’s intent and motivation, the effect of the falsification on the Employer, and the clarity and consistency of the employer’s policy.[7] 

Employees at the Sea-Mar nursing facility are allowed a half-hour lunch break and two 15-minute breaks. They are required to clock out for the lunch break, but not for the two shorter breaks. The Employer argues that because the Grievant was in the break room between noon and one o’clock for about a half-hour and later clocked out for a lunch break between 1:16 p.m. and 1:47 p.m., she was dishonest in reporting her time.

Testimony from the Therapy Services Director, CA, supports the Employer’s argument. The Therapy Director testified that although he did not know when the Grievant left the break room, he was certain that she was in the room when he came at 12:10 p.m. and when the Director left at 12:40 p.m. He also recalled that the Grievant used the telephone. The arbitrator finds that it is likely that the Therapy Director, who was a credible witness, would remember the Grievant’s actions because she had come to his office very upset after her conversation with the Director.[8] Therefore, he knew about the incident and would understandably be more aware of the Grievant’s presence in the break room. In addition, the Director asked him when the Grievant was in the break room.

The Grievant testified that she went to the break room twice to use the telephone to call Providence Hospital to check her appointment. She testified that on her first visit the Director of Nursing and the Therapy Director were present. Although the Grievant was not precise about the time she was in the break room, she did say that perhaps she was there about fifteen minutes on one trip. The arbitrator finds that management’s account of the time the Grievant spent in the break room between noon and one o’clock is more accurate than that of the Grievant. It is more likely that the Grievant’s recollection of the time she spent making the telephone calls is faulty considering the incident in the morning and her need to find out about her doctor’s appointment.

The Grievant testified that she knew that she was supposed to take a lunch break, but she did not do so because she had a certain number of showers to do before she left work early for her appointment. Working through lunch, the Grievant testified, was a common practice. Of the two employees who testified on this point, only one, Charge Nurse and steward, AS, said that he had worked through a lunch break in order to avoid staying late. The Grievant also testified that she punched out for lunch at 1:16 p.m. without taking a break because she understood from the Employer’s in-service training that employees had to record a lunch break. The Grievant testified that management told employees that the burden of paperwork on payroll employees was too great when they did not punch in and out for lunch. To resolve this problem, the Grievant understood that employees had to punch in and out for lunch and that if they failed to do so, their paychecks might be delayed. Other employees’ supported the Grievant’s testimony on this point although no one testified that such a paycheck delay actually occurred. Charge nurse and shop steward, AS, testified that he dealt with many instances in which employees’ checks were inaccurate and some times it took a long time for errors to be corrected.

The Grievant also testified that at a training session an administrator told employees to punch out regardless of whether they actually took lunch. This administrator testified that she emphasized to employees that they must punch out for lunch; however, she said that she did not tell employees to punch in and out regardless of whether they took a break. The arbitrator credits this administrator because it is very unlikely that a manager would tell employees to act contrary to law. An Acting Director of Nursing Services also held meetings about the importance of accurate use of the time clock. She testified that she told employees that if corrections were necessary, their checks might be delayed.

In summary, the importance of punching in and out for lunch was very clear to employees, including the Grievant. Accurate and timely pay is very important to employees. The arbitrator concludes that is likely that the Grievant heard the Employer emphasize punching in and out and the necessity to do so to avoid an untimely paycheck. In recording that she took a lunch break, it is likely the Grievant sought simply to comply with the requirement and avoid a late paycheck.

The arbitrator concludes that the Grievant was likely in the break room for approximately thirty minutes. This period, however, does not exceed the time employees are allowed for lunch. Further, there is also no evidence that the Grievant took an actual break from work at 1:16 p.m. Put differently, there is no evidence either that the Grievant intended to claim wages not due when she punched the time clock after one o’clock or that she deliberately falsified records. Accordingly, there is no basis on which to find that the Grievant acted dishonestly. At most, the Grievant failed to follow the Employer’s guidance on proper use of the time clock.

The Employer also asserts that the Grievant violated its policies against the conduct of personal business and making telephone calls during working hours. (See Employer Exhibits Nos. 6 and 8.) The Grievant admitted telephoning her husband to check on her children in the morning. Although it is not clear in the record, the Grievant apparently made the call on the Employer’s telephone. Whether she made the call on a break is unclear. The Grievant asserted that this call was a couple of minutes in length and there is no evidence to the contrary. There is also no evidence that her conduct was unusual. It is common in many workplaces for employees to make short personal telephone calls on an employer’s telephones to arrange rides, check on children, tell their families when they will be home, and similar matters. Accordingly, the arbitrator finds that there is insufficient evidence to support the Grievant’s discharge based on an allegation of dishonesty.

C.     Whether the Grievant Acted with Gross Discourtesy:

The Employer alleges that the Grievant was grossly discourteous in two instances. The first instance allegedly occurred when she argued in front of a patient that she was not going to give him a bath. In support, the Employer cites the testimony of Aide JS. The second instance, according to the Employer, was her conversation with the Director.

Concerning the first instance, the arbitrator finds that the record does not support that Aide JS testified that any argument about giving the Judge a bath occurred in front of a patient. The Director understood from Aide JS that such an argument took place. However, Aide JS testified that on Monday she went to find the Grievant to assist her according to an arrangement that she made with the Grievant on Friday. According to Aide JS, she found the Grievant giving a bath to a resident in the resident’s room. She testified that the Grievant said that she was busy and could not help. Accordingly, the arbitrator finds that this allegation is unsupported.

The arbitrator does find support for a conclusion that when the Grievant spoke to the Director her voice was loud. In fact, the Director testified credibly that she led the Grievant to a nurse’s station and then into an office because the Grievant was speaking loudly and angrily. The Grievant testified that the Director accused her of not having done her work, not knowing her job, and of lying about a chair for bathing heavy patients. The Grievant’s testimony in this regard is supported by the fact that she immediately went to the Therapy Services Director to confirm that she had, in fact, spoken to the Nursing Director about the chair prior to December 3, 2001. This information leads the arbitrator to conclude that the Grievant had a reason to raise her voice. Further, a LPN testified that the Director also spoke loudly at the nurse’s station. Such testimony confirms that both parties spoke heatedly. In conclusion, the arbitrator finds that although the Grievant’s responses and behavior were inappropriate, especially because she was speaking to her supervisor, the Grievant was not discourteous to such an extent that her behavior warranted termination.

D.     Prior Discipline:

The Employer argues that the Grievant’s termination is “justified under the progressive discipline policy because she [the Grievant] was fully forewarned by a prior counseling and a prior reprimand.” (Employer’s Brief at 2.) The progressive discipline system is explicitly set forth in the Employer’s Personnel Policy Number 100.17. (Employer’s Exhibit No. 2.) It requires that management communicate specifically and in a detailed manner about rules violations. Management asserts that the Grievant received two prior disciplinary actions. The Director testified that she reviewed one action, but she stated that she relied solely on the events of December 3 in making her decision to terminate the Grievant. In other words, the Employer did not rely on the prior discipline in making its termination decision. Rather, the Director concluded that what happened on December 3, standing alone, warranted termination. Accordingly, although there was extensive testimony about the disciplinary actions, there is no reason for the arbitrator to consider them.

E.      Conclusion:

Having carefully considered all evidence submitted by the parties concerning this matter, the arbitrator concludes that the evidence is insufficient to support the Employer’s argument that the termination is for just cause for willful insubordination, dishonesty, or gross discourtesy. For the reasons fully explained above, the arbitrator finds that the Grievant did not receive an explicit order although the Director believes that she gave such an order or that a charge nurse did so. Further, the arbitrator finds that the Grievant did not understand the Director’s meaning or intent when the Director spoke about bathing the Judge. Additionally, the record does not establish that the Grievant acted in a grossly discourteous manner. The arbitrator also concludes that while the Grievant’s use of the time clock was incorrect, it appears that she misunderstood what the Employer required her to do. Furthermore, it seems unlikely to the arbitrator that the Grievant acted with intent to obtain pay for time not worked.  Accordingly, the arbitrator finds that the Employer has not met its burden of establishing just cause to discharge the Grievant.

The arbitrator concludes, however, that there is just cause for the Employer to suspend the Grievant. The Grievant bears a substantial responsibility for the situation on December 3. Despite the Grievant’s difficulty with English, it should have been obvious that the Director was upset and that a problem existed that involved the Grievant. The Grievant herself testified that the Director was speaking angrily and took her from a nurse’s station to an office. At that point, the Grievant should have realized that she needed to ask what the Director wanted and follow that instruction, regardless of the baths on her schedule that day. Instead, the Grievant responded emotionally. In this regard, the arbitrator notes that the Grievant was seven months into a difficult pregnancy, was not fully aware of the situation, and apparently was confused by the Director’s statement. Nevertheless, the Director’s obvious dissatisfaction should have signaled that the Grievant needed to find out what her supervisor wanted and do it.

In the workplace, particularly in health care, it is critical that employees follow supervisory direction. In this case, bathing the Judge did not concern medical care directly, but many orders and instructions do involve such care and it is vital that employees respect the right of supervisors to issue orders. Employees may raise questions about those orders, but employees must follow supervisory directions, unless their personal health or safety is threatened. Of course, after following orders, employees have the option of filing grievances concerning orders with which they disagree.

In reaching the conclusion that suspension is appropriate, the arbitrator notes that Policy #100.17 provides that suspension is an option. Further, the parties agreed that nothing in their collective bargaining agreement precludes the arbitrator from imposing a lesser disciplinary action. As of the date of this award, the Grievant has served, effectively, a suspension that substantially exceeds the 60 days mentioned in Policy 100.17 for a second violation of a rule or policy.[9] Therefore, the arbitrator will direct the Employer to offer immediate reinstatement to a Nurse’s Aide position to the Grievant. Because of the Grievant’s responsibility in the situation on December 3, 2001, as discussed above, the arbitrator is not ordering that the Grievant be made whole. Rather, the Employer is to offer reinstatement to the Grievant with the seniority she had accrued as of her termination date, but without backpay and lost benefits.

VII.           Award:

The Employer is to offer the Grievant reinstatement to a position as a certified nurse’s aide, but not necessarily to the position of Shower Aide. The Grievant’s suspension is to become part of her disciplinary record. The arbitrator further directs that the Employer restore the seniority the Grievant accrued as of her termination date. The Employer is not required to pay the Grievant any backpay or lost benefits. Inasmuch as the arbitrator awards no backpay, it is not appropriate for the arbitrator to consider an attorney fee award. Based on the arbitrator’s findings and noting that there is no “clear and prevailing party,” the arbitrator concludes that it is fair that the parties divide the arbitrator’s fees evenly as permitted in Section 22.4 of the collective bargaining agreement. The arbitrator retains jurisdiction solely to resolve any dispute between the parties regarding the implementation of the remedy awarded.

It is so ordered and awarded.

 

Jean Savage, Arbitrator                                                                               Date

 

[1] There was testimony regarding whether the Employer adequately accommodated the Grievant’s lifting restrictions. The Union did not address this issue in its brief, so the arbitrator will not discuss it in this award.

[2] The Grievant had a flexible arrival time and did not consistently work an 8-hour day. (Joint Exhibit No. 5.).

[3] Discipline and Discharge in Arbitration 156-57 (N. Brand ed.1998).

[4] The issue of lying involved the purchase of a special chair to help in bathing heavy patients. While there was some testimony about equipment, neither party discussed it in the briefs and it will not be considered.

[5] Neither party offered this statement as evidence.

[6] The Employer also alleged that the Grievant failed to submit a leave request or advise management of her intent to leave work early. Although witnesses testified on this issue during the hearing, the Employer does not address the issue in its brief. Therefore, the arbitrator will not address it here.

[7] Discipline and Discharge in Arbitration 233-36 (N. Brand ed.1998).

[8] Apparently, the Grievant went to the Therapy Services Director to verify that, contrary to a remark the Director of Nursing made, she had told the Director before December 3 about a special chair used in bathing heavy patients.

[9] The arbitrator notes that the Union requested that the hearing be postponed for approximately one month.

 

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