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Ross Runkel
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Ross Runkel |
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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
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In the Matter of the Arbitration Between UNITED PUBLIC
WORKERS, AFSCME,
and KAPI’OLANI
Employer. _______________________________________________________________ |
) ) ) ) ) ) ) ) ) ) ) ) ) |
Grievances
Re:
Anita Ababon, Sabrina Kekona
Arbitration Hearings:
|
INTRODUCTION
This matter came to arbitration on
In a proceeding arising from the same nucleus of operative facts
involved in this
BACKGROUND
The Employer, Kapi’olani, operates hospitals and medical facilities
in the State of
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
On
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
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
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
The first investigative meeting involving a UPW member occurred on
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
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
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
Grievant Kekona’s investigative meeting was initially scheduled for
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
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
SUMMARY OF THE
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
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
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
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
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
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
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
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
Joint Exhibit 1 –
Agreement between Kapi’olani
[Emphasis added]
The CBA is quite clear on the point of its recognition of the UPW:
Section 1. RECOGNITION
“The Employer recognizes the
Joint Exhibit 1 – Agreement between Kapi’olani
[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
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
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
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
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
Employer’s facilities, except patient-care areas unless accompanied
by a
[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
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
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
1)
At future investigatory meetings involving potential discipline, the
Employer shall
DATED:
STATE OF
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
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