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Ross Runkel

Title: Service Employees Intl Union and Legacy Emanuel Hospital and Health Center
Date: June 1, 2004
Arbitrator: Donald E. Olson, Jr.
Citation: 2004 NAC 129

ARBITRATION AWARD

OF

DONALD E. OLSON, JR.

Appearances:

For SEIU, Local 49, AFL-CIO   Ms. Christine Hauck, Field Org.

For Legacy Emanuel Hospital   Mr. Robert J. Lee, Esq.

                     OPINION OF THE ARBITRATOR

PROCEDURAL MATTERS

     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.

ISSUE(S)

The stipulated issue(s) are:

Was the Grievant terminated for just cause?
under the labor agreement?  If not, what is an
appropriate remedy?

PERTINENT PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT

ARTICLE 4 – Hospital Control

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.

19.2         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 POLICY (500.204)

          7. Attendance

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.

BACKGROUND

     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 27^th, Wednesday, May 28^th, Thursday May 29^th 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.

DISCUSSION

     This arbitrator has carefully reviewed the entire evidentiary record, pertinent testimony, and the parties’ post-hearing briefs, as well as cited arbitration decisions.

     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 the telephone.

     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.

Without 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 agreement.

AWARD

     The grievance is denied in its entirety.

Dated this 1^st day of June 2004.
Tacoma, Washington

________________________________
Donald E. Olson, Jr., Arbitrator  

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