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Title: Kapi' Olani Medical Center for Women and Children and United Public Workers
Date: 2004
Arbitrator: 
Michael Nauyokas
Citation: 2004 NAC 155

 

BEFORE ARBITRATOR MICHAEL F. NAUYOKAS

STATE OF HAWAII

In the Matter of the Arbitration Between 

UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO,

                                    Union,

            and

KAPI’OLANI MEDICAL CENTER FOR WOMEN AND CHILDREN

                                    Employer.

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  Grievances

 Re:  Anita Ababon, Sabrina Kekona and Corine Harada

 Grievance Nos. CU-03-01, -02, and -03

                       

  Arbitration Hearings:  
  September 22, 2003
  September 23, 2003
  October 6, 2003

                                                                              

INTRODUCTION

            This matter came to arbitration on September 22, 2003 and was continued on September 23, and October 6, 2003, pursuant to the Collective Bargaining Agreement (CBA).  The parties stipulated to both substantive and procedural arbitrability.  The parties stipulated to the admission of certain evidence and the Arbitrator made a full disclosure of his relationships with the attorneys and firms and there was no objection.  All parties were fully and fairly represented.  The Union, United Public Workers, (“UPW”), acting on behalf of the Grievants, Anita Ababon (CU-03-1) (“Grievant Ababon”), Corine Harada (CU-03-2) (“Grievant Harada”) and Sabrina Kekona (CU-03-3) (“Grievant Kekona”) was represented by Lowell K. Y. Chun-Hoon, Esq. and Elisabeth Contrades, Esq.  The Employer, Kapi’olani Health Systems/Kapi’olani Medical Center for Women and Children (“Kapi’olani” or “Employer”), was represented by Barry W. Marr, Esq. and Nicole Shimamoto, Esq.  Pursuant to the Order governing the Arbitration, the issues presented in the Arbitration are:  (1) whether Anita Ababon, Sebrina Kekona, and Corine Harada received a one-day disciplinary suspension for “just cause,” and, if not, what is the appropriate remedy; and, (2) whether Employer denied proper recognition of the Union and access to the Employer’s premises, and, if so, what is the appropriate remedy.  Also pursuant to the Order, the Employer has the burden of proof on the first issue, and the Union has the burden of proof on the second issue.

            In a proceeding arising from the same nucleus of operative facts involved in this proceeding,  the UPW filed an unfair labor practice charge with the National Labor Relations Board, and the Board administratively deferred issuing a complaint pending the resolution of two issues presented here:  the first being whether the Employer’s attempt to condition a lesser disciplinary penalty upon forfeiture of the bargaining unit employees’ right to grieve, linked to the Employer’s denial of the presence of dual representatives from the Union at the investigative meetings that led to the imposition of the allegedly discriminatory discipline, restrained the employees in the exercise of their rights under Section 7 of the National Labor Relations Act; and, second, whether such conduct constituted discrimination in the terms and conditions of employment of the employees, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act.

BACKGROUND

            The Employer, Kapi’olani, operates hospitals and medical facilities in the State of Hawaii, including the Kapi’olani Medical Center for Women & Children.  Kapi’olani Medical Center is a full spectrum maternal and child tertiary medical center that provides health care services in Honolulu, Hawaii.  Anita Ababon, Corine Harada, and Sabrina Kekona, (collectively referred to as “Grievants”) were unit secretaries working in the third-floor Family Birth Center (“FBC”) at Kapi’olani Medical Center for Women & Children.  The FBC serves as the labor and delivery portion of the Employer’s operation.  The primary purpose of the FBC is to provide obstetric and newborn services to patients.   As of December, 2002, Grievant Ababon had been employed by Kapi’olani since 1987, Grievant Harada since June, 1989, and Grievant Kekona for nine years and 10 months.

            In their capacities as unit secretaries, Grievants admitted and discharged patients from the FBC, processed in-patient and out-patient charts, entered lab orders into the SMS (patient billing system) and made sure that the information in the SMS coincided with the information in the Karelink system, scheduled patients, got supplies, maintained the function of the floor, performed basic secretarial tasks including answering the telephone and whatever other tasks they were asked to do by nurses or doctors.

            The FBC is divided into two separate stations, the makai station (ocean side) and the mauka station (mountain side).  On December 5, 2002, Grievant Kekona was assigned to work at the mauka station in the FBC from 11:00 p.m. to 7:00 a.m.  Grievant Harada was also assigned to work in the FBC, at the makai station, from 11:00 p.m. to 7:00 a.m.  Grievant Harada had been called in to work at the Mother/Baby care unit around 6:00 p.m. or 7:00 p.m. and had been transferred to the FBC for her regular 11:00 p.m. shift.

            On December 5, 2002 at around 7:00 p.m. an obstetric patient in labor was admitted to the mauka station of the FBC, where she almost immediately lost consciousness.  The patient was then taken to the operating room where it was discovered that she had suffered a ruptured uterus which caused extensive internal bleeding.  In a short time this catastrophic condition led to the mother’s death.  Fortunately the patient’s child, although in serious medical straits, was saved.  This situation resulted in the calling of a “code blue” in the FBC.  A code blue event is the designation assigned by the Employer for a situation wherein a patient suffers a respiratory and/or cardiac and respiratory shutdown.  The mother died approximately 18 minutes after midnight on December 6, 2002.

            The Employer described this situation as potentially a “sentinel event,” e.g. an unanticipated death or injury to a patient.  Shortly thereafter Dale Reimer (“Reimer”), the Director of Women and Newborn Services at Kapi’olani, initiated an investigation into the circumstances surrounding the maternal death to ensure that the Employer’s quality assurance standards had been met in the care of the deceased patient.  This investigation commenced early on December 6, 2002.  As a part of this investigation, the patient’s chart, which was kept in the Employer’s Karelink computer records system, was examined by the Employer’s in-house specialists.  Upon examination of the records, the specialists advised Reimer that a large number of entries into the patient’s chart had been made by personnel not directly involved in the patient’s care.

            The Karelink system is a computerized clinical charting system which allows everything that happens to a patient to be inputted into a computerized information system, rather than maintained in a paper chart.  Employees in a variety of classifications, including physicians, nurses, ward clerks and other ancillary service providers, all have access to the system.  The Employer is under an obligation to protect the privacy of its patients’ medical information under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which is a federal law governing the use of medical information, as well as a panoply of other professional, federal, and state regimes.  Kapi’olani’s employees, including the Grievants herein, were regularly trained on the required compliance with the practices and procedures imposed by these regimes.  When Reimer learned that there had potentially been inappropriate accesses to patient information via the Karelink system, Reimer immediately notified David Fox, who is the Employer’s Privacy Officer (“Fox”), and other key people in the Employer’s Human Resources Department.

            The Employer, as part of its work practices and policies, promulgated policies and instructions with respect to confidential health care information which identified four basic categories of information in its hospital setting:  Public; KH Internal; KH Confidential; and, KH Restricted Confidential.  The information regarding the condition of the patient involved in the “code blue” situation fell under the category of KH Confidential, which was defined as: “access is limited to those persons with a ‘need to know,”” per the testimony of Fox.  This “need to know” is defined as persons who require the information because it is necessary to do their job.

            Shortly following the code blue, Fox received two calls: the first call inquired about the propriety of people without a “need to know” accessing a patient’s chart; the second reported a major breach of confidentiality.  The patient’s chart was taken off-line to prevent further breaches of confidentiality.  Access to the newborn’s record could not be stopped because the infant was still in the nursery intensive care.

            On December 9, 2002 a meeting was held at the instruction of the Director of Employer Labor Relations, Chuck Hieb (“Hieb”), to discuss the newly discovered confidentiality breach with the nursing staff and other individuals.  Due to the developing nature of the data becoming available from the Karelink staff as it analyzed the entries into the Karelink system, a follow-up meeting was held on December 10, 2002.  At this second meeting, management reviewed an updated  list of approximately 60 individuals who had accessed the deceased patient’s and/or her surviving infant’s charts.  At this meeting it was decided that the individual managers involved in the healthcare process would review the list to determine which employees had a legitimate reason to access the patient’s chart and which employees did not.  Those employees not directly involved in the patient’s care or without a legitimate need to be in the chart for other reasons were to be called in for an investigative meeting with the Employer’s management staff to determine if their accesses to the charts were appropriate, given their relationship with the care of the patient and her baby.  On December 12, 2002, Hieb met with officials from the three unions involved; the Hawaii Nurses Association (“HNA”), the Teamsters, and the UPW, to advise them of the fact that their members would be involved in investigative interviews.

            Investigative interviews were scheduled for the weeks of December 16 and 23, 2002, after the individual managers involved determined that approximately 24 or 25 people had potentially accessed the patient’s and/or the infant’s charts improperly.  Thirteen of the individuals identified and scheduled for interviews were HNA, three were Teamsters, and eight were UPW members.  Twelve of the 13 HNA members that were interviewed were disciplined, two of the three Teamsters members interviewed were disciplined, and four of the eight UPW members interviewed were disciplined.  The UPW members disciplined included the Grievants here.

            Prior to the investigative meetings on December 12, 2002, at a meeting between Hieb and Clifford Uwaine (“Uwaine”) of the UPW, an offer was apparently made to give Uwaine a list of the eight UPW members who were being investigated.  However, the offered disclosure was premised upon an agreement by Uwaine not to contact the members involved and advise them of the investigation into their access of the patient’s records.  Uwaine declined the proposal and was not provided with a list.  Uwaine was informed that meetings were being scheduled and that the dates and times would be faxed to him.  At that meeting, Uwaine asked that both he and Unit Chair, Marie Aldover (“Aldover”), be present at the investigative meetings with the UPW members.  The record          is not clear as to whether or not the Employer agreed to dual representation at that meeting; however, according to Uwaine, when the faxed information was received, he called Aldover and told her to arrange for time off to attend meetings.  Aldover was apparently informed by her supervisors, when she advised them of her need to change her schedule to attend the meetings, that she would not be allowed time to attend the meetings with Uwaine.  When notified of this development, Uwaine called Hieb, who indicated that only one UPW representative would be allowed in the meeting.  Uwaine again expressed the UPW’s position that two representatives were necessary in order to effectively represent the employees involved, because he was familiar with HIPAA and the CBA, but he was not familiar with the Karelink system or the job duties of a unit secretary.  The UPW indicated that Aldover’s presence was also necessary because she had previously filled the unit secretary position and was extremely familiar with the Karelink system, although she was not familiar with the HIPAA and the CBA.  Uwaine testified that in response to the Employer’s denial of the UPW’s request for dual representation at the investigatory meetings, he prepared two letters.  The first letter, which stated the UPW’s position that the Employer should not conduct investigatory interviews of UPW members without the dual representation of himself and Aldover, he signed personally.  The second letter generated by Uwaine was a form letter which could be submitted to the Employer, requesting dual representation by both Uwaine and Aldover at the interviews, for signature by the UPW members under investigation.

            The first investigative meeting involving a UPW member occurred on December 18, 2002.  Uwaine appeared with employee Evelyn Sejalbo (“Sejalbo”) at the office of Ramona Clemente (“Clemente”) of the Employer’s Human Resources Department.  Clemente’s office was not located in a patient care area.  Before the meeting, the letters signed by Uwaine and the UPW member were presented to Clemente.  Clemente again stated the Employer’s position that one representative was enough and that it was not necessary to allow the UPW two representatives at the meeting.  Uwaine then stated that he could not be part of an improper meeting, taking the position that the Employer’s denial of the UPW’s request for dual representation at the interview violated the CBA and labor laws.  At that point Uwaine left the room, indicating to Clemente that he would wait in the hallway.  Clemente then moved the meeting from her office to a conference room in a patient care area adjacent to the Emergency Room (ER).  Uwaine attempted to follow Clemente and the UPW member into the ER conference room, but Clemente stopped him, indicating that because he refused to directly participate in the meeting, he was not allowed to remain in patient care areas.  There were waiting room-type accommodations nearby.  Uwaine protested and Clemente called a security guard and instructed the guard to remove Uwaine from the premises.

            Uwaine, after prevailing upon the security guard to take him to the Administration office, attempted to speak first with the hospital President or with the Vice President of Human Resources.  When these individuals were not available, he spoke with Richard Novak, who allowed Uwaine to stay on the premises.

            At the next investigative meting on December 18, 2002, in the company of UPW member Mary Maria (“Maria”), Uwaine again presented Clemente with two letters insisting on dual representation and stepped out of the office to wait in the hallway during the meeting.  Clemente then moved the meeting from her office to Chris Turner’s office, which was in the FBC, a patient care area.  Uwaine attempted to follow the meeting to the FBA, where he was met by a security guard who stopped him.  Clemente requested that the guard either escort Uwaine off the premises or to the hospital cafeteria.  Uwaine asked to remain in the family waiting area; Clemente refused.  Uwaine then asked to go to the Administrative office, and again Clemente refused.  The security guard was instructed to escort Uwaine off the property or to the cafeteria.  The security guard refused to allow him to either remain in the public waiting area or go to the Administrative office.  Uwaine testified that he was told that he was to be arrested if he attempted to go to the Administrative office.  Uwaine testified that he waited in the cafeteria, where he was under the observation of two security guards.  Uwaine was informed when the meeting was over and told that he would only be allowed to speak with Maria during her dinner.

After receiving this information Uwaine left the premises escorted by the security guards.  Following these events, Uwaine did not attempt to attend any more of the scheduled investigative meetings.

            Grievant Harada’s investigative meeting regarding her potentially improper access to the Karelink system took place on December 20, 2002.  Clemente and manager Susan Malczon, conducted this meeting with Grievant Harada.  Prior to the meeting, Grievant Harada presented Clemente with the letter which asked for representation by both Uwaine and Aldover.  Clemente showed Grievant Harada a highlighted paragraph in the Employee Handbook indicating that if any employee did not participate in an investigative meeting, he or she could be discharged.

            Grievant Harada remained in the meeting.  Grievant Harada was advised by Clemente that she was entitled to a UPW representative at the meeting and at that time Clemente proceeded to find a UPW steward representative for Grievant Harada.  After several unsuccessful attempts to find a UPW steward to represent Grievant Harada, Annette Moaananu (“Moaananu”) was located.  Grievant Harada had never met Moaananu, and Moaananu clearly was unaware of the prior request by Grievant Harada for representatives of her choice at the beginning of the meeting.  When the meeting proceeded Grievant Harada was evasive in answering Clemente’s questions.  When asked if she went into the patient’s chart, Grievant Harada answered with “I don’t remember; I can’t recall; I was busy that night.”  She admitted that “if a patient was on my floor, I probably did go into the chart.”  When Moaananu became aware of the contents of the letter signed by Grievant Harada requesting representation by Uwaine and Aldover, Moaananu promptly stopped the meeting, and apologized to Grievant Harada.

            Employer’s investigative meeting with Grievant Ababon took place on December 24, 2002.  Clemente and Chris Tuner, the Service Line Manager for the FBC, conducted the meeting.  Grievant Ababon, as had Grievant Harada and the other UPW members at the previously held meetings, presented Clemente with the letter prepared by Uwaine asked for representation by Uwaine and Aldover prior to the meeting.  As neither Uwaine or Aldover were available, Clemente attempted to find a UPW steward to attend, but was unsuccessful.  Grievant Ababon called Kristina Corini, a friend and co-worker, to attend the meeting with her.  During the meeting, Grievant Ababon admitted that she was involved in discharging the patient and that she went into the system to get discharge information.  Grievant Ababon did not recall going into the mother’s chart “multiple” times and also denied looking at the baby’s chart.

            Grievant Kekona’s investigative meeting was initially scheduled for December 20, 2002.  Grievant Kekona also presented the letter requesting representation by Uwaine and Aldover.  As neither Uwaine or Aldover were available, Clemente proceeded with the meeting.  Grievant Kekona refused to continue the meeting without Uwaine and Aldover.  Clemente then offered to allow her to reschedule the meeting on December 24, 2002.  Grievant Kekona requested consultation with a UPW representative before making a final decision.  Clemente then attempted to find a UPW steward and Alison Leahu, a UPW steward, was called and after speaking with her, Grievant Kekona insisted on rescheduling the meeting for December 24, 2002.  When held, the investigative meeting consisted of Clemente, Turner, Grievant Kekona and Kathryn Cabacungan, a UPW shop steward.  Clemente questioned Grievant Kekona about entering the infant’s chart on December 6, 2002.  Grievant Kekona stated that she did not recall needing to enter the infant’s chart on that date.

            Following the investigative meetings, Clemente contacted the Karelink staff to confirm the accesses by the Grievants to the record.  If an employee stated that he or she did not enter the medical charts, each entry was evaluated and validated as an entry by a user using the individual Grievant’s user ID and password.

            The Employer’s leadership held a meeting on December 23, 2002, regarding the appropriate discipline for the violation of the Employer’s privacy policies which might arise from the investigation of the accesses following the “code blue” incident.  Present were Ramona Clemente, Human Resources; Chuck Hieb, Human Resources; Larry O’Brien, CEO; David Fox, Privacy Officer; Dr. Winn, Chief Medical Staff Officer; Willow Martin, VP of Hospital Operations; Tracy Cancayo, Kapi’olani Medical Specialists General Manager; Edwina Lee, VP of Nursing; and Dale Reimer, Director of Women and Newborn Services.  At this meeting it was decided to offer employees found guilty of violating the Employer’s privacy policy the choice of either a written warning which wouldn’t be precedent-setting, if both the Union and the employee surrendered the right to grieve, or a one-day suspension, if the Union and/or the employee would not give up the right to grieve.

            Clemente scheduled follow-up conferences to present the two disciplinary options to the employees.  Neither Clemente nor any other of the Employer’s management directly advised the UPW of either the meetings or the disciplinary options.

            Of the UPW members investigated, only the Grievants here, Harada, Ababon, and Kekona were found to be in violation following the meetings and advised of their disciplinary choices.  Clemente met with Grievant Ababon on January 8, 2003, with Grievant Harada on January 9, 2003, and with Grievant Kekona on January 14, 2003.  Understandably, the Grievants wished to opt for the written warning, but the UPW took the position that the Employer had improperly bargained with the individual employees and refused to sign the agreement.  Grievants Ababon and Harada both received notice of a one-day suspension on January 16, 2003 and served the suspension on January 17, 2003.  Grievant Kekona was advised of her discipline on January 20, 2003, and served that suspension on the date of notice.

SUMMARY OF THE UNION’S POSITION

            The UPW has extensively briefed this matter and makes the following points:

            First, the UPW argues that the Employer improperly bargained with the individual Grievants in violation of Section I of the CBA and NLRA Sections 7 and 8, when it offered the Grievants a choice between a written warning and no right to grieve or a one-day suspension with the right to grieve, and then failed to directly inform the Union about the offer.  The UPW further argues on this point that the Employer’s failure to inform the Union of the offer and bargain over the terms, even though it required the Union to agree to those terms, was improper and that the Employer cannot credibly defend its actions.

            Second, the UPW argues that the Employer violated Section 7 of the CBA and committed an unfair labor practice in violation of Sections 7 and 8 of the NLRA when it denied Uwaine access to the premises.  The UPW argues that there was no legitimate reason to move the investigative meetings of Sejalbo and Maria to patient care areas from a non-patient care area, and that Uwaine had a legitimate business reason to be on the premises to be available to the UPW members should they have questions.

            Third, the UPW argues that the Employer violated Section 7 and 8 of the NLRA as well as the Grievants’ due process rights when it denied representation by both Aldover and Uwaine and when it failed to have a Union representative present at the second meeting, where the disciplinary offers were made to the individual employees.  The UPW bases this argument on the rationale that dual representation was necessary to properly represent the employees at the investigatory meetings due to the complexity of the issues presented, that there had been a past practice of dual representation in meetings of this kind, and that the Employer improperly denied the dual representation as a unilateral act contrary to the past practice.  Further, the UPW argues that by following this course, the Employer denied the employees the right to choose their own representation.  The UPW also argues that when the Employer failed to inform the Union about the second meeting and held the meetings without a Union representative, it committed an unfair labor practice by dealing directly with the employees on an issue that required Union consultation under the NLRA.

            Fourth, the UPW argues that the Employer lacked just cause to discipline the Grievants because the Employer did not provide the Grievants with adequate notice that their actions violated the rules for accessing Karelink and that they could be disciplined for those actions; that there is no evidence that the employees were ever specifically told what was an appropriate or an inappropriate access based on their job duties; and, that even the Employer’s representatives are unclear as to the criteria for determining what types of access fall within the scope of a unit secretary’s duties.  Further, the UPW argues that the Employer did not conduct a fair and adequate investigation and thus cannot prove that the Grievants violated the confidentiality policy and that therefore, the penalty assessed against the Grievants is improper and unjustified.  The UPW also argues that it was improper for the Employer to require the Grievants to waive their contractual right to utilize the grievance procedure in exchange for a lesser penalty, thereby imposing a harsher penalty upon the Grievants based upon their Union affiliation than on other similarly situated employees; and finally, that under the circumstances, the penalty imposed was too severe.

SUMMARY OF THE EMPLOYER’S POSITION

            The Employer likewise has extensively briefed this matter and makes the following points:

            First, the Employer argues that Kapi’olani had Just Cause to issue a one-day suspension to Grievants because the Employer satisfied the requisite standard of proof and standard for just cause in the discipline involved.  Specifically, in addressing the application of the just cause standard in this case, the Employer argues that the Grievants were forewarned of the consequences of their actions; that Kapi’olani’s policies are reasonably related to business efficiency and Kapi’olani could reasonably expect such performance by Grievants; that Kapi’olani conducted an investigation before imposing any discipline; that Kapi’olani’s investigation was conducted fairly and objectively; that Kapi’olani obtained substantial evidence of Grievants’ guilt; that Kapi’olani applied its rules fairly and without discrimination; and, that the degree of discipline was reasonably related to the seriousness of Grievants’ conduct.

            Second, on the issue of recognition and access, the Employer argues that the Weingarten doctrine established in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) permits the employee to have one available representative, and nothing more, and therefore as employees are entitled to only one representative at investigatory meetings, the Employer’s denial of dual representation was not improper and Uwaine’s refusal to participate in the meetings without Aldover represented a unilateral action by the Union and that as employee representatives were found for each of the Grievants prior to proceeding with the meetings, no violation of the Weingarten doctrine occurred.

            Third, the Employer argues that Kapi’olani did not improperly deny access to its premises.  The Employer notes that the burden of proof is on the Union to show that Kapi’olani improperly denied access to its premises as Grievants allege, and that Kapi’olani’s denial of access to Kapi’olani’s premises to Uwaine did not violate Section 7 of the CBA because on the date(s) that Grievants claim that the Union was denied access to Kapi’olani’s premises, duly authorized representatives of the Union were in fact present on the premises and attending the investigatory meetings, and Uwaine had already refused to participate in the meetings without Aldover’s presence and dual representation for the UPW members.

ARBITRATOR’S ANALYSIS

ISSUE 1:        WHETHER ANITA ABABON, SEBRINA KEKONA AND CORINE HARADA RECEIVED A ONE-DAY DISCIPLINARY SUSPENSION FOR “JUST CAUSE,” AND, IF NOT, WHAT IS THE APPROPRIATE REMEDY?

Establishing Just and Proper Cause

            In this matter, pursuant to the CBA and the body of decisions governing the interpretation of just cause, the Employer must show that just and proper cause existed for the Grievant’s discipline by the Employer. “Just Cause,” as defined by Arbitrators Hill, Sinicropi, and Evenson is as follows:

“Just Cause. The standard by which it is determined that the Employer has sufficient reason to remove an individual from employment. Basically synonymous with “reasonable,” “good,” or “proper cause.” Perhaps the most often-quoted statement of just cause criteria used by Arbitrators is in the form of a series of questions provided by Arbitrator Carroll Daugherty in Enterprise Wire Co., 46 LA 359, 363-64 (1966) and Grief Brothers Cooperage Corp., 42 LA 555, 558 (1964).”

Marvin F. Hill, Jr., Anthony V. Sinicropi, Amy L. Evenson, Winning Arbitration Advocacy (1997).

            In order to satisfy this standard, the Employer must meet the following tests required to show just cause for the Grievants’ suspension:

            1.         The Employee was forewarned of the consequences of his actions.

            2.         The Employer's rules are reasonably related to business efficiency and the performance the Employer might expect from an Employee.

            3.         An effort was made before discipline to determine whether the Employee was guilty as charged.

            4.         The investigation was conducted fairly and objectively.

            5.         Substantial evidence of the Employee's guilt was obtained.

            6.         The rule was applied fairly and without discrimination.

            7.         The degree of discipline was reasonably related to the seriousness of the Employee's offense and the Employee's past record.

Enterprise Wire Co., 46 Lab. Arb. (BNA) 359, 362-65 (1966) (C. Daugherty, Arb.); Koven and Smith, Just Cause The Seven Tests (2d ed. 1992); State of Hawaii, 109 Lab. Arb. (BNA) 289, 291 (7/11/97) (Nauyokas, Arb.); State of Hawaii, (7/27/97) (Nauyokas, Arb.); UFCW Union Local 480, AFL-CIO and Safeway (10/30/98) (Nauyokas, Arb.); IAM and Aloha Airlines (8/23/99) (Nauyokas, Arb.); Sheraton Waikiki Hotel, 114 Lab. Arb. (BNA) 1595, 1598-99 (2000) (Nauyokas, Arb.); SHOPO and City & County of Honolulu (9/20/00) (Nauyokas, Arb.); UPW and Hawaii Health Systems Corp. (2/24/01) (Nauyokas, Arb.); HERE, Local 5 and Hyatt Regency Waikiki (11/13/01) (Nauyokas, Arb.); see also Ogden, 111 Lab. Arb. (BNA) 251, 253 (8/31/99) (Nauyokas, Arb).

This decision will deal with each of these tests in turn:

            1.         Were the Grievants forewarned of the consequences of their actions?

            Grievants do not dispute receiving copies of Kapi’olani’s Standards of Conduct, Employee Handbook, or the many training materials that Kapi’olani distributed in the past several years, or to having received training on compliance with the Employer’s rules and policies governing the privacy of patient medical treatment information.  There is a legitimate need for these rules regarding HIPAA and Karelink.  These rules place considerable responsibility on the Employer to take affirmative steps to protect the privacy of all patients, and any violation of HIPAA could lead to serious legal consequences for the Employer.

            The problem perceived by the Arbitrator is that the general training regarding the issue of the legitimate “need to know” with respect to the Grievants’ job responsibilities is rather short of the sort of “bright line” that would normally exist in those privacy situations.  Particularly in the instances of Grievants Ababon and Harada, the actions for which they were disciplined were actions that they had taken routinely without being accused of violating the privacy rights of the Employer’s patients.  However, to the extent that the evidence at the hearing in this matter and in the record demonstrates that the Grievants each received a policy and signed off on it, the Arbitrator finds that the Employer took reasonable steps to advise the Grievants that the violation of the Employer’s privacy policy could result in disciplinary action, including suspension and/or termination.

            The Union argues that the Employer failed to provide adequate notice of the rules concerning Karelink then misapplied the rules to the Grievants; however, the record establishes that the Grievants were aware of the privacy policy.  Therefore the Arbitrator finds that the Grievants had sufficient notice that improper use of the files or failing to log-off after use were transgressions against the rules sufficient to result in discipline.

            2.         Were The Employer’s rules reasonably related to business efficiency and the performance the Employer might expect from an Employee?

            As noted above, and also conceded by the UPW in their briefing of this matter, there is a legitimate need for the Employer’s rules regarding the privacy of the patient’s medical information and access to this information via the Karelink system.  The various statutory regimes governing the Employer’s business operation place considerable responsibility on the Employer to take affirmative steps to protect the privacy of all patients’ medical information, and any violation of HIPAA could lead to serious legal consequences for the Employer.  Therefore, the Arbitrator finds that the Employer’s rules were reasonably related to the Employer’s business efficiency and the performance that the Employer could reasonably expect from its Employees.

            3.         Was an effort made before discipline to determine whether the Grievants were guilty as charged?

            A review of the record in this matter does show that the Employer, through its privacy officer and Karelink staff, first did na analysis of the entries into the system, followed by the submission of those entries into the system to the cognizant supervisors with authority over the personnel involved in the potential breaches, to determine whether the entries into the patient’s record were made by employees with the appropriate “need to know” as defined in the policies.  In addition, the record is clear, the Grievants were given an opportunity to respond to and/or explain their entries into the Karelink system with either a UPW steward or another employee of their choice present at the investigatory meeting.

            While the allegation is made by the UPW that dual representation was allowed in previous disciplinary proceedings against UPW members, the evidence in this record is insufficient to create a presumption that dual representation was the norm, or a bargained-for right under the CBA.  Specifically Section 24 of the CBA, Discipline and Discharge, is silent on the question of employee representation in matters involving discipline and/or discharge, setting forth only the just-cause standard.  Further, the Arbitrator’s understanding of the Weingarten doctrine is that while the doctrine does not preclude dual representation at an investigatory meeting, it certainly does not make that form of representation an obligation on the Employer, should the minimum requirements of the doctrine be satisfied.  The Employer was correct in its interpretation of Weingarten.

            Therefore, the Arbitrator finds that the Employer made a reasonable effort to determine whether the Grievants were guilty as charged prior to the imposition of discipline.

            4.         Was the investigation conducted fairly and objectively?

            In reviewing the record of the hearing, the exhibits and the submissions of the parties after the hearing, the Arbitrator is somewhat concerned by the conduct of both the Employer and the Union with respect to employee representation at the investigative meetings of the UPW members.  First, the UPW did clearly give the Employer advance notice of its intention to provide the members with dual representation at these meetings, and the Employer did not object until such time as the arrangements for Aldover’s attendance at the meeting were being made and it would be difficult to make other arrangements.  Second, it appears that the Employer was involved in a “rush to judgment” with respect to the disciplining of employees following the “code blue” incident, and its sudden awareness that there may have been inappropriate access to the patients’ medical information, although there was no complaint noted in the record from any source outside of the Employer/Employee relationship regarding the alleged beaches of confidentiality which occurred.  The Arbitrator finds that the Employer, between December 6, 2002 and January 20, 2003, investigated, cross-referenced extensive computer records, conducted investigatory meetings, came up with a proposed discipline, notified, and then disciplined approximately 25 employees from three different bargaining units.

            While the Arbitrator finds the efficiency of the Employer’s organization and execution of this process enviable, given its magnitude, he also finds it somewhat suspect.  On the other hand, and not necessarily to its credit, the UPW through its representative Uwaine, in an effort to obtain the benefit of dual representation for his members, essentially took the “my way or the highway” approach to their representation at these investigatory meetings.  While perhaps understandable given the “rush to judgment approach” of the Employer under the circumstances, the Arbitrator wonders if this arbitration might have been unnecessary had both the Employer and the Union attempted to arrive at a reasonable resolution of the matter through the bargaining process rather than taking the hard lines which are clearly demonstrated by the record here.

            Putting those issues aside, the Arbitrator determines that the investigation was conducted fairly and objectively.

            5.         Was substantial evidence of the Grievants’ guilt obtained?

            The UPW correctly observes that the Employer’s only real evidence that the Grievants did anything wrong is the Karelink record of their accesses.  The Employer based its investigation and imposition of discipline entirely upon an interpretation of what the Karelink record shows regarding the Grievants’ allegedly improper access to the patients’ medical records.

            It is possible someone could have used the Grievants’ log-on to access the system without the Grievants’ knowledge.  The testimony establishes that the unit secretaries did not always log-off the system if called away from the computer.  Grievant Kekona stated that if something was needed “stat,” it was customary for her to drop everything and run to do it.  Grievant Ababon testified that at times she would frequently be dealing with multiple telephone conversations simultaneously.  It is quite possible that the Grievants may have neglected to log-off of the system, which would have allowed other personnel to access the record under their ID and password.  The Arbitrator must note, however, that not logging-off is also a serious violation of the Employer’s computer policy.  The computer record is objective proof of either the access by the Grievants or their failure to log-off of the system, which would have allowed other individuals to use their IDs to access the records.  Whether the access was by someone with a “need to know” or not is not really determinative, as the Grievants may be disciplined for not logging-off, even if called away to do a task immediately.

            Again, although there are possibilities that there may have been other individuals using the system under the Grievants’ log-ins, the UPW was unable to provide any conclusive evidence that would refute the objectively verifiable log of accesses generated by the Karelink system showing accesses under the Grievants’ IDs.  Despite the Union’s vigorous argument that there is no conclusive proof that the Grievants were actually the individuals accessing the records under their user IDs, the burden of proof for the Employer is not guilty beyond a reasonable doubt, merely substantial evidence showing that there was an infraction of the rules involved, and the distinction between failing to log-off and improperly accessing the patients’ medical information is irrelevant to that analysis.  The Arbitrator therefore determines that substantial evidence of a violation of the Employer’s privacy policies was demonstrated prior to discipline.

            6.         Was the rule applied fairly and without discrimination?

            The CBA states in pertinent part:

                        “Section 6.  NONDISCRIMINATION

                        6.1 There shall be no discrimination by the Employer or the Union against any Employee on account of membership or non-membership in the Union or activity on behalf of the Union

            Joint Exhibit 1 – Agreement between Kapi’olani Medical Center and UPW

            [Emphasis added]

            The CBA is quite clear on the point of its recognition of the UPW:

                        Section 1.  RECOGNITION

                        “The Employer recognizes the Union as the exclusive representative for all employees covered by this Agreement for the purposes of collective bargaining with respect to wages, hours of work, and other conditions of employment.”

            Joint Exhibit 1 – Agreement between Kapi’olani Medical Center and UPW

            [Emphasis added]

            NLRA Section 7 guarantees employees “the right to self organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  29 U.S.C. § 157.  Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [section 7].”  29 U.S.C. § 158(a0(1).

            The Arbitrator finds that the Employer improperly bargained with the individual Grievants in violation of Section I of the Collective Bargaining Agreement and NLRA Sections 7 and 8 when it directly offered the Grievants a choice between either receiving a written warning and no right to grieve or a one-day suspension with the right to grieve, and failed to inform the Union about the offer prior to communicating it to the Grievants.

            The Arbitrator finds that by offering the Grievants here a lower level of discipline in exchange for surrendering a right protected under the CBA, essentially forcing the employees to negotiate for a lesser penalty with their own recognized representative on the Employer’s behalf, the Employer was attempting to circumvent bargaining with the UPW over the discipline, and interfere with the UPW’s standing as the sole representative of the Grievants.  There is a clear linkage between the  Grievants’ status as members of the UPW entitled to contractual grievance rights and the fact that they received a suspension rather than a letter of warning; hence, the Employer was discriminating against the UPW’s members by imposing a more severe penalty against the UPW’s members due to their affiliation with the UPW than it did on other employees found guilty of the same infraction, but represented by other unions (or those who chose not to exercise their rights).

            The enhanced penalty of suspension, which was based solely upon the UPW’s refusal to surrender the right to grieve discipline, guaranteed under the CBA and the NLRA, was clearly a violation of the requirements of “just cause” discipline.  Simply put, this was a discriminatory application of the rule which mitigates the Employer’s discipline of these Grievants.

            The Employer argues that the Grievants’ attempt to raise discrimination as a defense against the discipline because the employees “cannot control the Union’s action in what they do” is without merit.  The Employer notes Grievants were given the exact same waiver form as all of the other employees who were also found to have breached patient confidentiality.  The Employer argues that the fact that the UPW refused to sign the form does not indicate disparate treatment on Kapi’olani’s part and Kapi’olani treated each employee and each union in precisely the same manner, as this offer was made to all three unions that represented employees being disciplined for the same offense, and that the same discipline was imposed across the board for all of the Employees.

            Actually this is incorrect.  The offer was made directly by the Employer to the affected employees of all of the three unions involved who were being subjected to discipline by the Employer.  These employees, who clearly had a stake in reducing their discipline, then went to the unions in an effort to obtain union ratification of the discipline in order to obtain the lesser penalty.

            The fact that the other unions chose to ratify the Employer’s offer essentially waives those unions’ right to grieve the discriminatory nature of the discipline, and those ratifications are not currently before this Arbitrator.

            This “across the board” offer fell into the category of an offer that more correctly should have been bargained with the unions, rather than being characterized as proposed discipline.  Regardless of the across-the-board nature of the offer, by the nature of its presentation and enforcement, there was a discriminatory effect on the discipline imposed on Grievants.  The Grievants received suspensions and the other employees received warnings only because of the Grievants’ membership in the UPW and because they wouldn’t give up their rights.  This is the sort of discrimination that a just-cause analysis as contemplated by the CBA and stipulated to by the parties to this arbitration is intended to avoid.

            7.         Was the degree of discipline reasonably related to the seriousness of the

                        Employee’s offense and the Employee’s past record.

            The record is clear that in the past the Employer has suspended and/or terminated employees for breaching the confidentiality of patient medical information.  In the current instance, there were primarily technical violations of the policy, and no evidence of any disclosure to a third party or malicious or improper use of the information is found in the record.  The penalty imposed by the Employer was only a one-day suspension for the Grievants.  On that basis, the Arbitrator finds that the degree of discipline was reasonable on its face.  However, the discriminatory application of the penalty of a one-day suspension to the Grievants here, as opposed to the lesser penalty of a letter of warning given to the other employees found guilty of the identical offense, leads the Arbitrator to the inescapable conclusion that the penalty imposed on the Grievants was excessive on this basis.

            The Employer, as noted above, argues strenuously that the offer made was uniformly across the board; however, it is not the nature of the offer that determines the analytical outcome here.  The punishment imposed on the Grievants was greater than the penalty imposed on the other employees based solely on the fact that their Union declined to surrender their memebers’ right to grieve the proposed discipline.  This is protected concerted activity.  Therefore, this penalty cannot be sustained by the Arbitrator, given the discriminatory application of the rule and the penalty imposed on the Grievants by the Employer.

            Therefore the Arbitrator finds that as to issue (1) i.e.; whether Anita Ababon, Sebrina Kekona, and Corine Harada received a one-day disciplinary suspension for “just cause”; the Employer is unable to sustain the burden of proof imposed by the Pre-Arbitration Order governing this proceeding.  Under the standard set forth above, the finding of the Arbitrator is that there was not “just cause” for the Grievants’ one day suspensions.  There was, however, just cause for written warnings.

DECISION AND AWARD – ISSUE 1

            The Grievance is sustained.  The Arbitrator finds that the suspension of Grievants by the Employer was not for just cause.  The appropriate remedy is:

            1)         The Grievants will be awarded back pay equal to the time suspended by the

                        Employer at their pay rate on the date of the suspension.

            2)         The Grievants’ personnel files will have any reference to the suspension expunged

                        and shall be issued a letter of warning in the same form as the letters issued to the

                        other employees disciplined for unauthorized access to patient information as a

                        result of the “code blue” incident.

ISSUE 2:        WHETHER EMPLOYER DENIED PROPER RECOGNITION OF THE UNION AND ACCESS TO EMPLOYER’S PREMISES, AND, IF SO, WHAT IS THE APPROPRIATE REMEDY.

            The Employer violated Section 7 of the CBA and committed an unfair labor practice in violation of Sections 7 and 8 of the NLRA when it denied Uwaine access to the premises by moving the meetings to “patient care” areas and then excluding him from the premises.  The Supreme Court has repeatedly recognized that the right of Employees under Section 7 “necessarily encompasses the right effectively to communicate with one another regarding self-organization at the jobsite.”  Beth Israel Hosp. v. NLRB, 437 U.S. 483, 491 (1978).  Because “the undisputed right of self-organization assured to Employees under the .. Act and the equally undisputed right of Employers to maintain discipline in their establishments … are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon Employer or Employee,” the Board must “work[ ] out an adjustment” between these competing rights.”  Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797-98 (1945).  “Accommodation between [Employee-organization rights and Employer property rights],” the Court later explained, “must be obtained with as little destruction of one as is consistent with the maintenance of the other.”  NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956).

            The protection and acknowledgement of this right are clearly reflected in the CBA:

                        Section 7.  ACCESS TO EMPLOYER’S PROPERTY

                        The Employer shall allow duly authorized representatives of the Union to visit the
                        Employer’s facilities, except patient-care areas unless accompanied by a
                        representative of the Employer, at reasonable times to ascertain whether or not
                        this Agreement is being observed and to assist in adjusting grievances, provided
                        that no interference with the work of any employee shall result therefrom and that
                        the Union representatives shall advise the Employer of such visits and the
                        nature of the visit prior to entering the Employer’s premises.

                        Joint Exhibit 1 – Agreement between Kapi’olani Medical Center and UPW

                        [Emphasis added]

            This right of access has been judicially extended even into patient care areas of hospitals in some instances.  In Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), The Supreme Court explained that when an employer is charged with interfering with  Section 7 activity by prohibiting employees from engaging in union activity on its property, two questions arise:

                        “The first is whether, apart from the location of the activity, [the restricted
                        activity] is the kind of concerted activity that is protected from Employer inter-
                        ference by §§ 7 and 8(a)(1) of the National Labor Relations Act.  If it is, then the
                        second question is whether the fact that the activity takes place on [the
                        Employer’s] property gives rise to a countervailing interest that outweights the
                        exercise of § 7 rights in that location.”

Id. at 563.

            This is clearly not a solicitation case involving union entry into a non-union workplace for purposes of organization.  Uwaine was an agent of a recognized bargaining unit acting within the ambit of his duties and at the request of a UPW member.  Regardless of whether or not he chose to participate in the meetings or whether dual representation was allowed at the meetings, under Section 7 of the CBA, he was clearly on the property for the purposes of ascertaining “whether or not this Agreement is being observed” per the CBA.  The ambit of that access to the premises included personally observing whether the Grievants’ right to representation under the Weingarten doctrine was being observed by the Employer during the investigatory meetings with the Grievants.

            There is no evidence in the record that Uwaine at any time was disruptive of the Employer’s business operations or undertook actions that interfered with patient care or privacy.  Clemente made certain that Uwaine was under the supervision of at least one security guard throughout the time he was on the Employer’s property.  The exclusion of Uwaine from the premises on the rationale that he could not or would not participate in the investigatory meetings and therefore had no “business” on the premises is a spurious argument at best, as his business was actually to ascertain whether or not the CBA was being observed, regardless of his participation or nonparticipation in the meetings.

            Uwaine was representing the UPW and its members; further, the Employer had the requisite notice of his presence and its reason, as was required under the CBA, by way of the letters presented by each Grievant prior to the meeting.

            The record establishes that there were waiting rooms and seating available immediately adjacent to the meeting sites each time Uwaine was escorted out of the Employer’s designated patient care areas.  The fact that the meetings were in areas designated as “patient care” by the Employer is not determinative of whether a union’s presence and activity is permissible under the NLRA.  In Stanford Hosp. and Clinics v. NLRB, U.S., No. 03-501, cert. denied, 1/12/04, the D.C. Circuit Court agreed with the National Labor Relations Board’s August, 2001 decision (335 N.L.R.B. 488, 172 LRRM 1106) finding that, as patients seldom use the hallways and lounge areas adjacent to patient rooms which the hospital designated as “patient care” areas, union solicitation and distribution activities to employees in those areas were unlikely to disturb patients or interfere with patient care and were therefore permissible, despite the employer’s attempt to ban such activities.  Uwaine’s presence on premises to insure that the UPW’s members were properly represented under the contract was significantly less intrusive than the organizing activities in similar areas which have been sustained by the NLRB.

            The Employer argues that on the dates that the Grievants claim that the Union was denied access to Kapi’olani’s premises, duly authorized representatives of the Union were in fact present on the premises; and, that it is undisputed that Kapi’olani provided Weingarten rights, by allowing a Union representative to be personally present at each and every employee interview meeting.  The Employer concludes, therefore, that the Grievants cannot assert that the Union was denied access to the premises because the “Grievants took full advantage of their Weingarten rights.”  The Employer also argues that “solicitation/no distribution”  cases are easily distinguishable from the present case, apparently because after having Uwaine, who was not cooperating with the manner in which the meetings were being conducted, isolated from the process, he was properly excluded from the premises because, as Clemente testified, he had “no business” there.

            The Arbitrator finds that the movement of the meetings from non-patient care areas to patient care areas following the refusal o f Uwaine to proceed, was reasonably calculated by the Employer to deny Uwaine access not only to the individual UPW members, but also to the process, and any communication with the UPW representatives who were later hurriedly located and brought in to “sit” with the Grievants at the investigatory meetings.  Clearly Uwaine had business there and should have been allowed to have access to both the Grievants and the UPW representatives for purposes of consultation and guidance without having the meetings in patient care areas.

DECISION AND AWARD -  ISSUE 2

            The Grievance is sustained.  The Arbitrator finds that the Employer denied proper recognition of the Union and access to the Employer’s premises.  The appropriate remedy is:

            1)         At future investigatory meetings involving potential discipline, the Employer shall
                        allow representatives of the Union to be present upon the premises pursuant to the
                        Collective Bargaining Agreement in a manner which allows the Union to ensure
                        that the Agreement is being honored, regardless of whether the Representative is
                        participating directly in the meeting, or an employee/union-member is
                        representing the employee/subject of the investigatory meeting.
            2)         The Union shall give reasonable notice of its intention to enter the premises on
                        those occasions as required under the Collective Bargaining Agreement.
            3)         The employer shall not make future offers to settle discipline directly to UPW
                        members without first providing the UPW with notice of the offer prior to
                        contacting the UPW member.

            DATED:  Honolulu, Hawaii,                                      , 2004.

                                                                                                                                               
                                                                                    MICHAEL F. NAUYOKAS
                                                                                    Arbitrator


STATE OF HAWAII                                    )
                                                                     )           SS
CITY AND COUNTY OF HONOLULU    )

            On this            th day of                      2004, before me personally appeared Michael F. Nauyokas, to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and will.

                                                           
Notary Public, State of Hawaii
My Commission expires:                    

 

  

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