Employees Intl Union and Legacy Emanuel Hospital and Health Center
DONALD E. OLSON, JR.
Local 49, AFL-CIO Ms.
Christine Hauck, Field Org.
For Legacy Emanuel Hospital Mr. Robert J. Lee, Esq.
OPINION OF THE ARBITRATOR
This proceeding was conducted in accordance with the provisions set forth
in Article 17 of the parties’ collective bargaining agreement.
A hearing was held before the undersigned on Thursday, April 22, 2004, in
the conference room of the Bullard, Smith, Jernstedt & Wilson law firm in
Portland, Oregon. The hearing commenced at 9:00 a.m. and concluded at 10:43
a.m. The hearing proceeded in an
orderly manner. There was a full
opportunity for the parties to make opening statements, to submit evidence, to
examine and cross-examine witnesses, and to argue the matter.
All witnesses testified under oath as administered by the arbitrator.
The advocates fully and fairly represented their respective parties.
There were no challenges to the substantive or procedural arbitrability
of the dispute. The parties
submitted the matter on the basis of evidence presented at the hearing and
through argument set forth in their respective post-hearing briefs.
The parties stipulated the issue(s) to be determined by this arbitrator.
In addition, the parties agreed the decision made by this arbitrator
would be final and binding on the parties, including the Grievant.
The Grievant acknowledged that this arbitrator decision would be final
and binding. Mr. Robert J. Lee, Attorney at Law, represented Legacy
Emanuel Hospital, hereinafter referred to as “the Employer”. Ms. Christine Hauck, Field Organizer, represented Service
Employees International Union, AFL-CIO, Local 49, hereinafter referred to as
“the Union”, and Mr. James Bennett, hereinafter referred to as “the
Grievant”. The parties introduced
one (1) Joint Exhibit, which was received and made a part the record.
The Employer introduced three (3) exhibits, all of which were received
and made a part of the record. The
Union introduced five (5) exhibits, all of which were received and made a part
the record. The Employer objected to the introduction of Union exhibit
number 4. The arbitrator noted the
Employer’s objection. Furthermore,
the arbitrator informed the parties that in all likelihood he would give Union
exhibit 4, little or no weight. The
parties requested an opportunity to file post-hearing briefs. The parties agreed to submit their respective briefs on May
21, 2004. The arbitrator received
both briefs on May 24, 2004, at which time the hearing record was closed.
The arbitrator promised to render his written opinion and award no later
than 14 calendar days after the hearing record was closed.
This opinion and award will serve as this arbitrator’s final and
binding decision regarding this dispute.
stipulated issue(s) are:
Grievant terminated for just cause?
PERTINENT PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT
ARTICLE 4 –
4.1 Except as specifically limited herein, the Hospital shall control and supervise all operations and direct employees, including selection and hire, make work assignments, determine job content and job duties, classify and reclassify, promote, control and regulate the use of all equipment and other property of the Hospital, maintain discipline and efficiency among the employees, discipline or discharge for just cause, demote, suspend, layoff, transfer or relieve them from duty, subject to this Agreement and grievance procedure. The Hospital shall be the judge of the qualifications of all employees.
ARTICLE 19 –
Discipline and Discharge
19.1 Discipline and Discharge. Except for probationary employees, no employee shall be discipline or discharged without just cause. It is the Employer’s intent to make use of progressive discipline in accordance with established practices and policy. However, the Employer maintains the right to determine and administer appropriate corrective action. Employees shall have the right to respond in writing to any written corrective action and documentation of employee counseling sessions in their file and have that response attached to the relevant material. Correctiveaction and documentation of employee counseling session shall be inactive after a period of one (1) year from the date of issuance. After three (3) years an employee may request to have previous corrective action removed from their Human Resources file. This is subject to review and approval by the manager and Human Resources. The decision will be based on the nature of the corrective action and whether any additional corrective actions have occurred.
Termination Notice. Hospital
agrees to give two (2) weeks notice prior
to any lay-off of employees. Employees agree to give two (2) weeks notice to Hospital
prior to any voluntary termination of employment.
Failure to give two (2) weeks
notice may bar the employee from re-employment at
the Hospital. Hospital will give
reasonable consideration to cases of hardship.
PERTINENT PROVISIONS OF EMPLOYER
It is the employee’s responsibility to notify his or her manager each day, if he or she is unable to work. Employees shall follow the procedures specific to the department for calling in to report absences. Employees who do not report to work for three consecutive scheduled days, and do not contact their manager or designee, are considered to have voluntarily terminated their employment.
The Employer is an acute care hospital located in Portland, Oregon.
The Union has been recognized by the Employer as the exclusive collective
bargaining agent for all employees within the scope of its bargaining unit.
The Grievant is a member of the Union and a bargaining unit employee. Sometime in June of 1999, the Grievant was hired as a
Hospitality Associate. At the time
the instant grievance arose the Grievant was working on a part-time five-hour
basis. His shift began at 3:00 p.m.
The Grievant’s last day of work was Sunday, May 25, 2003.
The Grievant was scheduled to work the following Tuesday, May 27, as well
as Wednesday, May 28, and Thursday, May 29, and Friday, May 30.
Sometime prior to the Grievant’s scheduled shift on Tuesday, May 27,
2003, he was arrested and incarcerated in jail following a domestic violence
incident with his wife, which resulted in her being hospitalized.
The Grievant remained in jail through Saturday, May 31.
While the Grievant was in jail, he missed his scheduled work shifts on
Tuesday, May 27th, Wednesday, May 28th, Thursday May 29th
and Friday, May 30, 2003.
The Employer maintains a general written policy pertaining to attendance
related issues, as well as other employee conduct.
The attendance policy requires that it is the employee’s responsibility
to notify his or her manager in a timely manner each day, if he or she is unable
to work. Moreover, that same policy
expressly states that if an employee fails to report to work for three
consecutive scheduled days, and does not contact their manager or designee, they
will be considered to have voluntarily terminated their employment.
After having missed three consecutive scheduled shifts without a call-in
for his absence the Grievant was terminated for violating the Employer’s
call-in rules. Subsequently,
the Union filed a timely grievance on behalf of the Grievant, claiming in part
that the Employer did not have just cause to terminate the Grievant.
In support of that claim the Union argued that it does not agree with the
Employer, that the attendance policy rule of personally calling a supervisor
when the Grievant was unable to work fits in this case.
In addition, the Union insists the Grievant followed the Employer’s
attendance policy to the best of his ability. Furthermore, the Union claims that
the level of discipline meted out to the Grievant was inappropriate, since the
Grievant had never received any discipline during his work career with the
Employer. Additionally, the Union
alleges the Employer failed to meet its burden of proof that the Grievant
violated the attendance policy.
On the other hand, the Employer contends it had just cause to terminate
the Grievant, since he missed three consecutive scheduled days and failed to
personally contact his supervisor in a timely manner on each of those days.
In conclusion, the Employer argues the grievance must be denied.
This arbitrator has carefully reviewed the entire evidentiary record,
pertinent testimony, and the parties’ post-hearing briefs, as well as cited
As a threshold matter, this arbitrator notes the parties’ collective
bargaining agreement requires the Employer to have “just cause” prior to
either disciplining or discharging an employee(s).
In addition, the Employer has expressed its intent to make use of
progressive discipline in accordance with established practices and policy.
However, at the same time the Employer has reserved the right to
determine and administer appropriate corrective action. (See Article 19 –
Discipline and Discharge).
The facts surrounding this dispute are basically undisputed.
Simply put, the Grievant missed at least three (3) scheduled days of
work, due to the fact he was incarcerated in a jail in the Portland, Oregon
environs, and was later notified he had been discharged.
It appears to this arbitrator that since the Grievant
did not notify his manager in a timely manner each day of the three (3)
consecutive work days he was absent, that he in fact “voluntarily”
terminated his own employment with the Employer. (Emphasis supplied).
The Employer’s policy expressly states that employees who do not report
to work for three consecutive scheduled days, and do not contact their manager
or designee, are considered to have voluntarily terminated their employment.(See
Employer policy number LHS.500.204). Clearly,
that policy puts the entire burden on the employee to notify his manager of any
absences from work. There is no
provision in that policy that allows for relatives, friends, unnamed parties, or
any other person to notify the Employer’s agents on an employees behalf when
such an employee is going to be absent from work on a scheduled day.
Any attempt by the Grievant’s wife or his public defender to make those
notification calls on the Grievant’s behalf regarding an absence does not
comply with the Employer’s call-in policy, and cannot be given any
consideration by this arbitrator as a mitigating factor regarding the
Grievant’s voluntary termination. Obviously, the penalty for being absent from work for three
consecutive scheduled days without proper notification to management is a
voluntary termination. It goes
without saying that if the Employer had desired a lesser degree of discipline,
or for progressive discipline to be applied, they would have written such in
their policy regarding call-ins for absences of three consecutive scheduled
days. This arbitrator notes that
the parties’ collective bargaining agreement specifically in Article 19.1
allows the Employer to maintain the right to determine and administer
appropriate corrective action as it applies to either discipline or discharge.
As to the Grievant’s claim that he attempted to make numerous collect
telephone calls from jail to his manager(s) without success, this arbitrator
finds that claim not to be plausible.
Management witness Ms. Nygaard testified without contradiction that
collect telephone calls placed directly to the departmental telephone number are
recorded on the department’s voicemail. Clearly,
if the Grievant had made the collect calls that he claims from jail, then one
must conclude they would have been recorded on the voicemail system.
Moreover, this arbitrator is of the opinion that if the Grievant actually
had placed the collect calls to his department as he claims then why did he not
stay on the line long enough until a supervisor or some other employee picked up
Obviously, the Grievant knew the importance of making the calls to report
his absence, but in this case failed to make
enough of an effort to wait until some one picked up the departmental
phone, or at least leave a message on the voicemail system.
As stated above, this arbitrator finds the Grievant’s claims to be
neither credible or plausible. This
conclusion is buttressed by the fact that the Grievant failed to make this claim
at any stage of the grievance process. Needless
to say, this arbitrator believes if such calls had indeed been made, either the
Union or the Grievant would have raised this claim during the processing of the
grievance prior to the actual arbitration hearing date.
To say the least, the incarceration of the Grievant was a result of his
own conduct, which in turn does not render the Employer’s clear rule on
call-ins unenforceable against him.
question, the Employer’s policy regarding employee’s who do not report to
work for three consecutive scheduled days, and fail to contact supervision,
calls for “voluntary termination of employment” and nothing else.
Finally, this arbitrator is of the opinion that the Employer has carried
its burden of proof to establish it had just cause to terminate the Grievant.
Furthermore, this arbitrator believes the Employer satisfied each of the
seven tests set forth in Arbitrator Daugherty’s analysis of what constitutes
just cause prior to terminating the Grievant.
Thus, based on the record and for the reasons set forth above, this
arbitrator concludes the Grievant was terminated for just cause under the labor
The grievance is denied in its entirety.
Dated this 1st day of June