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National Arbitration Center

Title: Stanford Junior University and United Stanford Workers
Date: May 30, 1990 
Arbitrator: Luella E. Nelson
Citation: 1990 NAC 103


In the matter of arbitration between:








Involving termination of Bettie Brown

Grievance No. U-88-25

LUELLA E. NELSON - Arbitrator

            This Arbitration arises pursuant to Agreement between UNITED STANFORD WORKERS, LOCAL 680, SEIU, AFL-CIO, herein­after referred to as the "Union," and THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY, herein­after referred to as "Stanford," under which ADOLPH M. KOVEN was selected to serve as Arbitrator, and under which the Arbitrator's Award would be final and binding upon the parties.
Hearing was held December 14, 1989, in Stanford, California.  The parties were afforded every opportunity for the examination and cross-examina­tion of witnesses, the introduction of relevant exhibits, and for argument.  Both parties filed post-hearing briefs.  Thereafter, the parties were notified that the Arbitrator had died.  The parties agreed that the Arbitrator's associate would prepare a final and binding award in this matter.


            On behalf of the Union:

                        James E. Eggleston, Esquire, 
1330 Broadway, Suite 1700, 
Oakland, California 94612.

            On behalf of Stanford:

                        Priscilla Wheeler, Attorney at Law, 
Stanford University, Office of the General Counsel, 
P. O. Box N, 
Stanford, California 94305


Whether there was just cause for the February 16, 1989, termination?


          B.      Discipline, Suspension and Separation

          1.      Just Cause

330    No worker, who has passed his/her trial period, may be disciplined (including written warnings and reprimands), terminated (unless concluding a fixed-term appointment), or suspended, except for just cause.  Such cause must be job related or must arise out of some act which disrupts, interferes with, or damages the University or its operation in a way not protected by this Agreement.

          2.      Role of Steward in Discipline


332    a.      When supervision has determined that a worker is to be dis­ciplined, the steward shall be informed. ...


           3.      Just Cause Termination Primarily for Unsatisfactory Work Performance


333    a.      Before a worker, who has passed the trial period, can be termi­nated primarily for unsatisfactory performance under the just cause provision herein, he/she must be interviewed by supervision.  During the interview the worker must be thoroughly informed, orally and in writing, of those areas of job performance where he/she is considered unsatisfactory.  Supervision should then seek to work out a plan with the worker, aimed at eliminat­ing performance problems, or, if this is not practicable, the worker should be told what sort of improvement will be expected of him/her over the term of a reasonable probationary period.


334    b.      If the worker has not demonstrated his/her ability to satisfac­torily perform his/her job after such reasonable opportunity, he/she may be terminated under the just cause provision herein.


335    c.      The steward will be informed when supervision determines that a worker may be placed on probation and shall be given the oppor­tu­nity to be present in the interview process described above unless the worker objects.  ...

          4.      Notice

337    Except in cases involving gross misconduct, workers separated for just cause shall receive two (2) weeks notice or two (2) weeks pay in lieu of notice.


        Grievant worked for Stanford for 14 years, and in 1989 was the only black Lab Assistant in the Pathology Department of the Medical School, where she was responsible for washing glassware and preparing media for three laboratories.  She was discharged in February 1989, based on both her prior attendance record and her absence due to a jail term she was then serving.
        Grievant's Attendance Record
        During Grievant's final absence, Grievant's supervisor, Administrative Assistant Roberta Bernstein, prepared a summary of her attendance based on Bernstein's appointment book entries.  That summary shows that between April 1988 and February 3, 1989, Grievant took sick leave or went to medical appointments for all or part of 26 days.  Apart from those days, she was late on eight occasions (three of which she worked late); was early on four occasions (on two of which she did not inform Bernstein when she left); left early on seven occasions; was gone during part of the workday on two occasions; was absent for three days; and took unpaid vacation for two days.
Because Grievant relied on a complicated series of public transpor­tation routes to get to and from work, Bernstein permitted her to vary her work schedule.  Bernstein testified that she made no attendance entries on days when Grievant's work schedule varied simply because of transportation problems, but did make entries on days when she reported to work at a time other than when Bernstein expected her.  Although Stanford's records reflect whether each instance of absen­teeism or tardiness was excused or unexcused, the summary does not include that information in each instance.  The instances marked as unauthorized on the summary are one occasion when she was gone during part of the workday, one day when she came in early, five days when she left early, two days when she was late, and one day when she both arrived late and left early.  On two other occasions, Bernstein noted that Grievant came in early and did not tell Bernstein when she left.
Be­tween July and October 1987, Grievant's previous supervisor issued three memoranda to her concerning attendance and unauthor­ized ab­sences during the workday.  Two of those memos specifically warned her that further atten­dance problems could result in termination.  Between mid-September 1988 and late January 1989, Bernstein issued four memos to her notifying her of attendance problems.  Two of Bernstein's memos informed Grievant that she would not be paid for unau­thor­ized time off she had taken, but none of the memos discussed the possibility of other disci­pline in the event of additional attendance problems.
Bernstein's last memo was issued a week before Grievant's final absence.  Grievant came in late and left early without authorization on the day she re­ceived that memo, was absent due to sick leave for two days in that week, came in early and took sick leave for part of one day, and came in early and failed to tell Bernstein when she left on two other days.  During that week, Bernstein attempted to schedule a meeting with Grievant and the Union steward to discuss her attendance, but Grievant said she wanted nothing to do with such a meeting and Bernstein did not pursue the matter.  Bernstein was "heading toward" more serious disciplinary measures when Grievant's final absence occurred.
Grievant's Incarceration and Discharge
Grievant was arrested in early February 1989, pleaded guilty to a criminal offense, and was jailed until March 8.  Under the rules of the jail, she was only permitted to make collect telephone calls.  She called her sister and roommates, but did not try to call Bernstein because she did not know whether Bernstein would accept a collect call.  Instead, she initially asked a friend to notify Bernstein of her whereabouts, and later also asked her sister to provide informa­tion to Bernstein.
Grievant left work early on February 1, 1989, a Wednesday, and took sick leave for the remainder of the week.  When she did not return to work the next week, Bernstein called her home.  The person who answered the phone claimed that Grievant was in jail and would be back in two days.  Bernstein did not ask how to contact Grievant, leave a message asking Grievant to call her, or tell the person who answered the phone that Grievant would be discharged if she did not return to work.  On February 8, when Grievant still did not appear for work, Bernstein sent her a telegram and a letter asking her to contact Bernstein and advising that she was believed to have abandoned her job.
On February 10, Grievant's sister, Katherine McCrewell, picked up Grievant's paycheck and left her own phone number with Stanford.  Bernstein called McCrewell and learned that Grievant expected to return to work on February 13.  On February 13, McCrewell notified Bernstein that Grievant was still in jail and might remain there for another 45 days, but would be calling McCrewell with more information about the duration of her sentence.  On February 14, McCrewell notified Bernstein that Grievant would be in jail until March 23.  Bernstein did not ask how to get in touch with Grievant or leave instructions for Grievant to call or report to work.
During Grievant's incarceration, Bernstein met with the faculty members whose labs Grievant served and prepared a memorandum for their signature.  The memo complained about Grievant's "illness, unauthor­ized absenteeism, and habitu­ally `not being here' during her work schedule," and complained that "It is entirely unsatis­factory for us to have to continue with a substitute, untrained, glassware washer at this time."  The memo went on to request that Grievant be terminated and a permanent replacement hired.
After Bernstein's meeting with the faculty and the February 14 conversation with McCrewell, Bernstein reviewed Grievant's performance and attendance, and prepared a summary of her attendance record.  On February 16, Bernstein sent a letter to Grievant stating, in relevant part:

          Your unexcused absence from work has created a severe operational hardship upon the department.  In addition, your past work record indicates that you have had serious attendance problems.  We are unable to authorize further absence from work, and we are terminating your employment from the University effective February 3, 1989.

Following Grievant's discharge, Stanford hired the on-call employee who had performed Grievant's duties during her absence as her replacement.
          The Union introduced evidence regarding the treatment of one other em­ploy­­ee during an incarceration.  In February 1989, and again in August of that year, a mail room employee whose job included issuing payroll checks was jailed, on each occasion for approximately a week.  He requested permission to use sick leave for the February incarceration, and during the August incarceration his girlfriend falsely informed Stanford that he was sick and requested sick leave on his behalf.  Stanford brought in an outside contractor to replace him tempo­rarily, denied him permission to use sick leave, warned him that he would be disciplined if he again sought sick leave, and suspended him for one day for the second infraction.


          Just cause existed for this discharge.  Bernstein kept track of employees' attendance and made Grievant aware that she was required to report to work consis­tently.  Grievant's record of repeated absenteeism alone would have warranted serious discipline.
Grievant completely disregarded her obligation to notify her supervisor of her whereabouts after February 1.  The February 8 letter and telegram put her on notice that she was expected to contact Bernstein and that the department considered that she had abandoned her job.  Nonetheless, it was only because of Bernstein's diligence that Stanford acquired any information about her status.  By February 14, Stanford still had conflicting reports of her status and expected date of return, and she had taken no direct and conclusive personal action to clarify her status.  Significantly, the friend who allegedly agreed to notify Stanford of Grievant's whereabouts was not called to testify.  Although Grievant called her roommate and arranged to have her paycheck picked up, she made no attempt to contact Bernstein.
Progressive discipline was not available here.  Grievant's failure to communicate with Stanford was tantamount to job abandonment and gave just cause for termination.  Stanford was not required to wait indefinitely to see whether she would return to work.  Her work record provides no grounds for mitigation.  The Union presented no credible evidence that Grievant was the target of race discrimination.


          Stanford has not applied progressive discipline.  Bernstein did not notify Grievant of the consequences of further incidents, work out a plan to eliminate her alleged "serious attendance problems," or tell her what improvement was expected in order for her to keep her job.  Bernstein's earlier memos discussed the impact of Grievant's legitimate illnesses, but contained no warning of the consequences of future absences.  Stanford did not follow the contractual steps for termination based on unsatisfactory work performance--i.e., establish­ment of a probationary period, development of an improvement program, and notice and consultation with the Union.
The alleged grounds for termination were fabricated post-termination.  The actual records of Grievant's attendance were not offered into evidence or pro­vided to her during her employment.  The summary did not indicate whether ab­sences were approved or disapproved, although those entries reflecting sick leave or personal leave involve approved leave.  Although Bernstein permitted Grievant to have a flexible schedule because she used public transportation, she retroactively labelled instances where Grievant had arrived early or late as "unauthorized" on the summary.
Despite Union requests for evidence of faculty complaints, Stanford pro­duced the memo Bernstein prepared only at the arbitration hearing.  That memo falsely claimed that Grievant's replacement was untrained and unsatisfac­tory.  In fact, her substitute was trained and experienced, and was hired to replace her after her discharge.  Therefore, her absence created no operational hardship.

The reasons for Grievant's incarceration are not relevant to the issue of just cause.  The only bases for Grievant's termination were her prior attendance problems and the operational hardships created by her absence.  When compared with a fellow employee who falsely claimed to be sick while actually in jail, Grievant's treatment reflects a departure from past practice and a pattern of disparate treatment designed to accomplish her termination.  At most, she should have suffered a short suspension and probation to permit a fair opportunity for her to correct the asserted attendance problem.  Grievant should be reinstated and made whole for losses resulting from her termination.


          The discharge must stand or fall on the grounds upon which Stanford actu­al­ly relied in discharging Grievant.  Although Bernstein's February 8 letter and telegram raised the issue of "job abandonment," that charge was not re­peated in the discharge letter, which instead relied on the charges of unexcused absence and continued absen­tee­ism, and therefore cannot form a basis for the dis­charge.[1]
Strictly speaking, absenteeism is not a problem of work performance.  There­­fore, the specific steps prescribed by the Agreement for correction of work performance problems--i.e., an interview, plan for improvement, and probation--do not apply here.  However, the Agreement explicitly requires just cause for any discipline.  The element of just cause that is of most concern here is the question of notice of the consequences of Grievant's conduct.
In general, employees know that they must report to work regularly.  The availability of a substitute does not wholly ameli­orate the inconvenience of an absence, and even an employee who is unavoidably absent (e.g., for illness or, as here, incar­ceration) is subject to discipline or discharge for excessive absen­teeism.  After all, the consideration received by an employer for the wages and benefits paid to its employees is the attendance of those employees at work.  Like most employers, Stanford tolerates some absenteeism, including that caused by incarceration, and hence must give employees notice that their attendance has placed their jobs in jeopardy before the ultimate penalty of discharge is imposed.
During 1987, Grievant received unequivocal notice that she risked termi­na­tion if her attendance record did not improve, and she avoided further written warnings for nearly a year thereafter.  However, the corrective effect of the earlier warnings was dissipated when she received no serious discipline after again exhibiting attendance prob­lems under Bernstein.  Only a week before her final absence, Grievant received a memo from Bernstein that merely declined to pay her for unauthorized time off, without warning that her job was in jeopardy.
Grievant's attendance during the subsequent week warranted some disci­pline.  Immediately after receiving a warning for leaving work early, she left early without permission, came in early on three consecutive days without prior approval, and did not notify Bernstein that she was leaving early on two of those days.  While Bernstein did not discipline her on the spot for those incidents, Grievant's absence for most of the remainder of the week provided very little time in which to impose discipline.  Grievant's subsequent lengthy incarceration and discharge mooted the question of the appropriate level of discipline for her conduct during the week following her last written warning.
Grievant's final absence also warranted some discipline, especial­ly in light of her attendance record.  The inconvenience of Grievant's final absence was aggravated by the delay in contacting Bernstein and the constantly shifting predictions of the date on which she would return to work.  Regardless of the reason for her absence, Stanford was not required to suffer an indefinite disruption of its operations by holding her job open.  However, particularly in view of Stanford's equivocal response to her earlier absenteeism and the history of minimal discipline for absences due to incar­ceration, just cause required that she receive notice that her absence in this instance would not be excused and that she would have to return to work by a certain date or be fired.  One can only speculate as to whether or not Grievant would have been able to secure a release from jail in time to comply with any deadline for her return to work, but she was entitled to receive notice of the consequences if she did not.
Grievant's failure to call Bernstein herself following her incarceration is not an aggravating factor.  Her only mode of contact outside the jail was a collect phone call, and she reasonably could have assumed that such a call would not be accepted.  When McCrewell learned that Grievant's friend had not followed through on Grievant's request to notify Bernstein of her whereabouts, she made a series of status reports to Bernstein.  Grievant's reports to Bernstein through McCrewell demonstrated Grievant's sincerity in wanting to keep Stanford informed of her anticipated date of return, and Bernstein did not advise Grievant or McCrewell that this mode of contact was unsatisfactory.
In summary, had her incarceration and discharge not forestalled it, disci­pline would have been in order for Grievant's attendance during her final week of work.  Grievant repeated the very conduct for which she had just been warned on the day she received her last warning, and therefore knew, or should have known, that her attendance continued to be unsatisfactory.  She had every reason to believe at that point that she could receive more serious discipline.  She then missed work for a lengthy period of time due to her incarceration.  But for the lack of notice, discharge may well have been appropriate even for this long-term employee.  In these circumstances, she must be reinstated, but without back pay.


          There was not just cause for the February 16, 1989, termination.  However, severe discipline was warranted in light of her prior record.  Accordingly, she shall be reinstated, but without back pay.


Dated:  May 30, 1990                                 ADOLPH M. KOVEN, Arbitrator       


                                            by LUELLA E. NELSON - Associate Arbitrator


    [1]       In any event, while there was an initial delay in notifying Stanford of her whereabouts, Grievant's sister informed Bernstein of the reason for Grievant's absence and followed up with two phone calls updating her status.  Therefore, although it received no direct contact from the grievant, Stanford knew where she was and why she was not at work at the time of her discharge.  This conduct does not fit within the traditional concept of job abandonment, in which the employee entirely shirks the responsibility of getting word to the supervisor.

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