This Arbitration arises pursuant to Agreement between American Federation of State, County, and Municipal Employees, Local 328 (“Union”), and Oregon Health Sciences University (“University”), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.

Hearing was held on August 31 and September 1, 1998, in Portland, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute.  Both parties filed post-hearing briefs on or about October 13, 1998.

APPEARANCES:

On behalf of the Union:

Allison Hassler, Esquire, Legal Counsel, Oregon AFSCME Council 75, 1174 Gateway Loop, Suite 112, Springfield, OR   97477

On behalf of the University:

Victor J. Kisch, Esquire, and Karin L. Guenther, Esquire, Tonkon Torp LLP, 1600 Pioneer Tower, 888 SW 5th Avenue, Portland, OR  97204‑2099

ISSUE

Was the dismissal for just cause; if not, what shall be the remedy?

RELEVANT SECTIONS OF AGREEMENT

ARTICLE 2
MANAGEMENT RIGHTS

The parties agree that the Agency has the right to operate and manage the institution including, but not limited to, the right to maintain order and efficiency, to direct employees ... to discipline, demote or discharge employees for just cause; ... provided that such rights shall not be exercised so as to violate any of the specific provisions of this Agreement.

...

ARTICLE 10
DISCHARGES AND DISCIPLINE

10.1 The principles of progressive discipline shall be used except when the nature of the problem requires more serious discipline or immediate action.  Progressive discipline includes the following steps: verbal warning; written warning; suspension without pay, salary reduction, demotion; and dismissal.

An employee may be disciplined, denied a salary increase, suspended, reduced in pay, demoted or dismissed only for just cause which shall include misconduct, inefficiency, incompetence, insubordination, indolence, malfeasance, or other unfitness to render effective service.  The “Just Cause” standard is attached hereto and incorporated by reference under Appendix E.

...

ARTICLE 11
GRIEVANCES AND ARBITRATION

...

11.4 Expenses of Arbitration.  The arbitrator fee and expenses shall be paid by the losing party.  If, in the opinion of the arbitrator, neither party can be considered the losing party, then such expenses shall be apportioned as in the arbitrator’s judgment is equitable. ...

APPENDIX E
JUST CAUSE STANDARD

The following questions will assist the parties in determining whether or not the “just cause” standard has been properly applied in instances involving the discipline or discharge of an employee as specified in Article 10 - Discharges and Discipline.

 

1. Did the employer give to the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?

 

Note 1: The forewarning or foreknowledge may properly have been given orally by man­age­ment or in writing through the medium of typed or printed sheets or books of rules and of penalties for violation thereof.

 

Note 2: There must have been actual oral or written communication of the rules and pen­alties to the employee.

 

Note 3: A finding of lack of such communication does not in all cases require a “no” an­swer to question #1.  This is because certain offenses such as insubordination, coming to work intoxicated, drinking intoxicating beverages on the job, or theft of the property of the University or of fellow employees are so serious that any employee in working society may properly be expected to know already that such conduct is offensive and heavily punishable.

 

Note 4: Absent a contractual prohibition or restriction, the employer has the right unilater­ally to promulgate reasonable rules and give reasonable orders, and those need not have been negotiated with the Union.

 

2.                Were the employer’s rules or managerial order reasonably related to:

a. the orderly, efficient, and safe operation of the employer’s business, and,

b. the performance that the employer might properly expect of the employee?

Note: If any employee believes that the rule or order is unreasonable, the employee must never­theless obey it (in which case the employee may file a grievance) unless the em­ployee sincerely feels that to obey the rule or order would seriously and im­me­di­ately jeopardize his/her safety and or integrity.  Given a firm finding to the latter effect, the employee may properly be said to have had justification for the disobedience.

3. Did the employer, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of manage­ment?

 

Note 1: This is the employee’s “day in court” principle.  An employee has the right to know with reasonable precision the offense which is being charged and to defend his/her behavior.

 

Note 2: The employer’s investigation must normally be made before its disciplinary deci­sion is made.  If the employer fails to do so, its failure may not normally be excused on the grounds that the [employee] will get a day in court through the grievance procedure after the exaction of discipline.  By that time there has usually been too much hardening of positions.  In a very real sense the employer is obligated to conduct itself like a trial court.

 

Note 3: There may, of course, be circumstances under which management must react im­me­diately to the employee’s behavior.  In such cases the normally proper action is to suspend the employee pending investigation with the understanding that (a) the final disciplinary decision will be made after the investigation and (b) if the em­ployee is found innocent after the investigation, the employee will be restored to the former job with full pay for time lost.

 

Note 4: The employer’s investigation should include an inquiry into possible justification for the employee’s alleged rule violation.

 

4. Was the employer’s investigation conducted fairly and objectively?

 

Note 1: At the investigation the supervisor may be both “prosecutor” and “judge” but may not also be a witness against the employee.

 

Note 2: It is essential for some higher detached management official to assume and consci­entiously perform the judicial role, giving the commonly accepted meaning to that term in his/her attitude and conduct.

 

Note 3: In some disputes between an employee and a management person, there are not witnesses to an incident other than the two immediate participants.  In such cases it is particularly important that the management “judge” question the management participant rigorously and thoroughly, just as an actual third party would.

 

5. At the investigation did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?

 

Note 1: It is not required that evidence be conclusive or “beyond all reasonable doubt.”  But the evidence must be truly substantial and not flimsy.

 

Note 2: The management “judge” should actively search out witnesses and evidence, not just possibly [sic] take what participants or “volunteer” witnesses tell him/her.

 

Note 3: When the testimony of opposing witnesses at the arbitration hearing is irreconcil­ably in conflict, an arbitrator seldom has any means for resolving the contradic­tions.  The task is then to determine whether the management “judge” originally had reasonable grounds for believing the evidence presented by the people.

 

6. Has the employer applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?

 

Note 1: A “no” answer to this question requires a finding of discrimination and warrants negation or modification of the discipline imposed.

 

Note 2: If the employer has been lax in enforcing it [sic] rules and orders and decides henceforth to apply them rigorously, the employer may avoid a finding of discrim­ination (unequal treatment, not necessarily unlawful discrimination) by telling all employees beforehand of its intent to enforce hereafter all rules as written.

 

7. Was the degree of discipline administered by the employer in a particular case reasonably related to (a) the seriousness of the employer’s [sic] proven offense and (b) the record of the employee in service with employer?

 

Note 1: A trivial proven offense does not merit harsh discipline unless the employee has properly been found guilty of the same or other offenses a number of times in the past.  (There is no rule as to what number of previous offenses constitutes a “good, a fair, or a bad” record.  Reasonable judgment thereon must be used.)

 

Note 2: An employee’s record of previous offenses may never be used to discover whether the employee was guilty of the immediate or latest one.  The only proper use of his record is to help determine the severity of discipline once the employee has properly been found guilty of the immediate offense.

 

Note 3: Given the same proven offense for two or more employees, their respective records provide the only proper basis for “discriminating” among them in the administra­tion of discipline for the offense.  Thus, if employee A’s record is significantly better than those of Employees B, C, and D, the employer may properly give A lighter punishment than it gives the others for the same offense, and this does not constitute improper discrimination.

 

Note 4: Suppose that the record of the arbitration sharing [sic] establishes firm “yes” answers to all the first six questions.  Suppose further than [sic] the proven offense of the accused employee was a serious one, such as drunkenness on the job, but the employees’s [sic] record has been previously unblemished over a long, continuous period of employment with the employer.  Should the employer be held arbitrary and unreasonable if it decided to discharge such an employee?  The answer de­pends, of course, on all the circumstances.  But, as one of the country’s oldest arbi­tra­tion agencies, the National Railroad Adjustment Board, has pointed out re­peatedly in innumerable decisions on discharge cases, leniency is the prerogative of the employer rather than of the arbitrator, and the latter is not supposed to substi­tute judgment in this area for that of the employer unless there is compelling evi­dence that the employer abused its discretion.  This is the rule, even though an arbitrator, if he/she had been the original “trial judge,” might have imposed a lesser penalty.  Actually the arbitrator may be said in an important sense to act as an appel­late tribunal whose function is to discover whether the decision of the trial tribunal (the employer) was within the bounds of reasonableness set forth above.  In general, the penalty of dismissal for a really serious first offense does not in itself warrant a finding of employer unreasonableness.

FACTS

Grievant was employed as a housekeeper from 1991 until her discharge on June 26, 1997.  Her discharge was based on the following charges:

As a result of the pre-disciplinary hearing and subsequent investigation, you have been found to be either unable or unwilling to communicate in an acceptable manner suitable for the work­place.  Additionally, your actions have been found to have jeopardized the safe and effi­cient operation of the department as well as the delivery of appropriate patient care.  Your actions have been found to constitute:

 

1. Failure to follow departmental expectations relative to manner and means by which you communicate to co-workers.  Specifically you have been rude, condescending, non-participative, and indolent in your communications with your peers.

 

2. Failure to follow Department Director’s directive to leave the workplace immedi­ately and to discontinue unwarranted shouting within a sensitive patient care area.  Spe­cif­ically you were both indolent in your communications with your superior’s [sic] and insubordinate in your failing to adhere to your superior’s clear and de­mand­ing orders to both leave the unit and to cease any further disruption of the workplace.

The first enumerated charge arises out of alleged interactions with fellow housekeepers.  The second charge relates to an incident on June 4, 1997, when Grievant was placed on administrative leave.  Most of the alleged incidents are disputed in whole or in part.

GRIEVANT’S WORK HISTORY

Grievant transferred into the Cardio-Thoracic and Surgical Intensive Care Unit (“ICU”) in May 1993.  By all accounts, she was the most technically proficient housekeeper in the ICU.  Her only two evaluations, both prepared in 1992 when she worked in another unit, had noted she got along well with co-workers and super­visors.  In the ICU, she was supervised by a succession of Clinic Managers--Audrey Nickodemus, Valli Brunken, and eventually Sandra Dealy.^[1]  No ICU Clinic Manager or other supervisor prepared annual ap­praisals for her between 1993 and her discharge.  She had no history of any discipline.

In the fall of 1993, while Brunken was Grievant’s supervisor, she and the Department Director met with Grievant and float pool employee Tim Kilgore over an incident between the two.  After Kilgore locked the housekeeping closet after getting supplies, Grievant became frustrated at not being able to get into the closet, and said something about “you f-----g float pool people.”^[2]  In the meeting, Grievant and Kilgore con­firmed the event had occurred as described.  Brunken admonished Grievant that the use of profanity at work was inappropriate, and that it was unacceptable to make float pool staff feel unwelcome.  Grievant apolo­gized to Kilgore.  This incident was not documented and is not referenced in the termination notice.

THE ALLEGED 1997 EVENTS PRIOR TO JUNE 4

THE EMPLOYEE MEETING

In March 1997, Pat Southard, the Associate Hospital Director for Patient Care Services, held an em­ployee meeting.  The agenda for that meeting included issues relating to interactions with Kilgore, who was responsible for inspecting units and reporting areas needing further assistance as part of the CQI (Continuing Quality Improvement) process.  According to Brunken, Southard reported to her Grievant had been con­frontive and disruptive during the meeting, and had to be asked twice to sit down and be quiet.

Southard was not called as a witness.  Kilgore testified Grievant came in late.  He testified she seemed to want to discuss comments she had heard from others regarding him, but that Southard quickly stopped her.  Southard told Grievant that was not the purpose of the meeting and offered to meet with her later to go over the complaints.  His recollection was that Grievant attempted to continue talking, and that Southard had to tell her two or three times to stop.

Grievant testified Southard brought up complaints from Kilgore that housekeepers were being rude and disrespectful toward him and demanded that they treat him with respect.  Grievant commented that respect went both ways, and sought to bring up two incidents in which she believed Kilgore had been dis­re­spectful of employees.  Southard stopped her and asked her to discuss this subject later in private.  Grievant testified the room went silent at that point, and that she said nothing further herself.

Housekeeper Jacqueline Fuller testified she under­stood the meeting was for housekeepers to voice concerns.  She was concerned that Kilgore was telling housekeepers to do things contrary to their training.  How­ever, as soon as Grievant began raising concerns about Kilgore, Southard  stopped her.  Fuller concluded housekeepers would not be allowed to voice their concerns, and did not raise her own concerns.  She testified Grievant had to be told only once to be quiet.  Housekeeper Maudell Minniweather testified that, after Southard told Grievant it was not an appro­priate time to raise questions, Grievant said nothing more.

BRUNKEN’S RESPONSE TO THE MEETING

Brunken testified she spoke briefly with Grievant about Southard’s report of the meeting.  Her recollection was that Grievant claimed Southard recited Kilgore’s reports of problems with several house­keepers.  Grievant said she had scripted out what she wanted to say but that they would not listen to her.  She indicated she did not feel her concerns had been heard.  According to Brunken, Grievant was defensive and angry after they talked.  Brunken did not document this event or issue any discipline as a result of it.

Grievant testified Brunken spoke to her several times about the meeting.  In one discussion, Brunken asked if she had a problem with Kilgore doing the inspections.  Grievant responded she had no problem except that she wanted to know why the position was not posted so more qualified or ex­per­ienced people could have bid.  She recalled that Brunken quoted Southard as saying something to the effect that Grievant was “poisoning the well” (referring, apparently, to the CQI well).

OTHER EMPLOYEE COMPLAINTS

On May 16, Brunken learned of a complaint from a float pool employee named Kris.  Kris reported to a manager that Grievant was rude toward her, to the point that Kris ap­proached other staff on the unit to see if she had done anything wrong.  Brunken discussed the situ­ation with the charge nurse on duty, who reported Kris had come to her to ask about Grievant’s comments.

On May 23, Brunken notified Kris’ supervisor that she was developing a “work plan” for Grievant, and asked for specific information about the interaction between Grievant and Kris.  On May 27, the super­visor responded Kris’ perception was that Grievant’s tone of voice was putting her down.  She also reported Kris said that, when she again worked with Grievant the next day, everything was different, and she trusted there would be no further incidents.

Grievant testified Brunken talked to her by phone on May 21 about Kris’ complaint.  Her recollection was that Brunken told her Kris had left the previous Friday feeling bad about something she had said, but did not say what comment she was accused of making.  She recalled Brunken mentioning something about a work plan, without explaining what that entailed, and expressing a desire to set up a meeting with Grievant and her Union representative.  Grievant agreed to meet if she could see her accusers face to face.  Her recollection was that Brunken responded, “You may not know this, but Americans don’t like confronta­tions.”  Grievant responded she was an American, born and raised here.  She testified Brunken made other comments regarding her cultural background and upbringing, and suggested those influenced the way she com­municated and behaved toward others.  After this conversation, Grievant called the University’s Affirmative Action officer to ask whether she should fill out a complaint.  She also called her Union repre­sentative to find out what a work plan was, but learned he knew nothing of the proposed work plan.

Kilgore testified he changed his CQI schedule to avoid contact with Grievant.  He made this change after Grievant told him she did not need him “coming around here telling us what needs to be done.”  In response, he suggested she discuss the situation with the managers.  On another occasion, he felt a wad of paper go past his shoulder; when he turned, he saw Grievant, who commented, “Oh, I missed.”  The unit secretary also told him Grievant was mimicking his actions.  He testified the schedule change was less than optimal because part of his function was to check the units’ condition at different times of the day.

Brunken testified she called Grievant on May 28, after learning of Kilgore’s schedule change, to set up a meeting to develop a non-disciplinary work plan addressing her behavior and communication.  She testi­fied Grievant was upset and defensive, and wanted to know who had complained.  Brunken declined to go into all the details before the meet­ing, but did mention the concerns reported by Kris and said others in housekeeping had also raised con­cerns.  Grievant asked to have her union representative present at the meet­ing.  Eventually, the meeting was set for June 6; however, that meeting did not occur because of the events of June 4.

Brunken testified Grievant commented several times during the May 28 phone call that she could not help it, this was just the way she was, and “This is just the way we are.”  Brunken at­tempted to clarify what Grievant meant by the last comment.  She asked who “we” referred to, suggesting Grievant, her family, or the fact that she was Hispanic.  At that point, Grievant became angry and accused her of discrim­ination.  Brunken told her they would discuss the matter further in the meeting for the work plan.

On May 29, Brunken met with Kilgore.  He reported he felt continually confronted by Grievant ever since he began working in the unit in 1993.  He reported nasty glances and rude com­ments, and that she was mean-spirited, discourteous, and confrontive.  He confirmed he had changed his schedule to avoid her, and reported his other recent concerns with her.

THE EVENTS OF JUNE 4

Grievant testified she believed she would be going to a different unit because of downsizing.  She became concerned that Brunken’s earlier comments about her cultural background and communications would taint her entry into a new unit.  She therefore had sought references from three co-workers; one of those co-workers solicited a fourth reference on her behalf from Nurse Carolyn Lynnes.

On June 4, Brunken and Dealy received information that employees had been asked on work time to write references for Grievant.  After consulting with the Labor Relations office, Brunken decided to order Grievant not to solicit references on paid time.  If Grievant would not agree to refrain, Brunken had decided she would place her on paid admin­is­trative leave until the scheduled June 6 meeting.

Brunken and Dealy met with Grievant in Dealy’s office at approximately 3:50 p.m.  Brunken testi­fied she told Grievant she had learned she was soliciting references on work time, that this was inter­rupting the flow of work and generating complaints, and that employees did not want to be involved.  Brunken recalls telling Grievant she was esca­lat­­ing the situation more than necessary, and that the matter was non-disciplinary.  She testified she admonished Grievant not to solicit references on work time.

According to Brunken, Grievant responded “I have the right to say whatever I want.”  Brunken told her she did not have that right during work time and needed to refrain from this conduct.  Grievant com­mented she had the right to do whatever she wanted and said she could not agree to refrain.  Brunken told her if she could not agree, then she could not stay and disrupt work, so she would be placed on paid admin­istrative leave until the June 6 meeting.  Brunken testified she did not explain what administrative leave was or say how long the leave would last, but that she did say they would try to resolve the issues in the meeting set for June 6.  She instructed Grievant to collect her things from the housekeeping closet and leave the unit.  Grievant became very upset, pushed a chair, and stormed out of the office.

According to Dealy, Grievant said, “I’ll do anything I want on my work time.”  Brunken responded she was asking her to stop soliciting references on work time, that it was inappropriate and disruptive.  Grievant retorted she was going to do or say whatever she wanted.  Brunken responded that if she felt that way, she would be placed on paid administrative leave.  Dealy recalled this comment was all that Brunken told Grievant about administrative leave, and that Grievant then got up angrily and left abruptly.

Grievant testified Brunken did not refer to work time, but simply told her not to solicit references from co-workers, and that she responded “Well, okay.”  Brunken then began discussing other complaints she had re­ceived.  Grievant asked to defer any further discussion until the June 6 meeting, when her Union repre­sent­­ative could be there.  She testified Brunken became angry, told her she was on administrative leave, and ordered her out.  She sat for a moment, stunned and numb, then left.  She testified she did not know what adminis­trative leave was, nor did Brunken explain the term.  She estimated the meeting lasted approximately a minute.  Grievant denied saying she had a right to say anything she wanted.

Grievant testified she went from Dealy’s office to a nearby telephone to call her Union repre­sent­a­tive, but could not reach him.  His voice mail logged in her message at 3:51.  She went to the housekeeping closet, found the door locked, and went to her cart to get her key.  A co-worker appeared and asked what she was doing.  The two walked to a nearby room, where Grievant described what had happened.  She testified her co-worker did not know what administrative leave was, but suggested perhaps Grievant could return in a few days.  After this conversation, Grievant stopped to get a paper towel to wipe her nose.  She then walked back toward her cart, which was near the nurse’s station.

Lynnes was at the nurse’s station.  Grievant stopped to tell her what had hap­pened.  In her unem­ploy­ment hearing, she testified she asked Lynnes if she was finished writing the reference letter; in this proceeding, she testified that later in the incident Lynnes mentioned she was writing her letter and that Grievant responded she should write quickly.  Gabriel Martinez, Grievant’s brother, arrived after his shift in the University’s Environmental Services department;^[3] shortly there­after, a Respiratory Therapist named Cathy Grove also came by.  Grievant described what had occurred in the meeting.  Martinez reminded her to clock out, and she did so by phone at 3:59.  Lynnes and Grove started to ask questions, but Martinez encouraged her to leave.  Grievant went to the housekeeping closet to get her coat and purse.  She testified that, after locking the closet, she noticed she had left her vacuum cleaner out.  She unlocked the closet, stored the vacuum cleaner, re-locked the door, then returned to the nurse’s station.

Martinez testified Grievant’s eyes were red from crying when he arrived.  She told him she was on administrative leave, but could not tell him why.  She said she had tried to call the Union and had not yet clocked out.  He told her to clock out, and she did so.  Other nearby employees began asking her questions.  After a couple of minutes, she went to her closet to gather her belongings.  While she was gone, Brunken and Dealy arrived at the nurse’s station.  A dispute exists regarding the events there.

THE UNIVERSITY’S ACCOUNT

Brunken and Dealy testified they remained in the office for a few minutes to discuss replacing Grievant during her administrative leave.  They then went to the nurse’s station.  As they stood at the nurse’s station, Grievant came up behind them.  Grievant ap­proached Brunken and yelled, “I want to know why you placed me on admin­istrative leave; I have a right to know.”  Brunken responded quietly that they had dis­cussed that in Dealy’s office, and invited Grievant to return to the office if she wanted to discuss it further.  Grievant repeated her comment, still in a loud tone.  Brunken told Grievant she needed to step out of the nurse’s station and back into the office, and that she should not yell in the nurse’s station.  Grievant again repeated her comment loudly.  Dealy recalled that this exchange repeated four or five times.

CNA Heather Turner testified she was at the nurses station when this exchange began.  She testified Grievant loudly asked why she was placed on administrative leave, said she deserved an explanation, said it was not fair, and wanted an explanation.  Grievant sounded very angry.  Turner’s recollection was that Brunken quietly invited Grievant back into Dealy’s office to discuss the matter, and that Grievant repeated her comments, again very loudly.

Brunken testified she started to take Grievant by the elbow to usher her back to the office and calm her.  Grievant drew back, put her finger in Brunken’s face, and loudly said not to touch her.  Brunken put her hands up and stepped back.  Brunken and Dealy testi­fied Brunken assured Grievant she would not touch her again.  Turner recalled this interaction as well.  Turner testified she left after this, but continued to hear Grievant loudly say she wanted to know why and deserved to know why.  She could no longer hear Brunken’s responses.  She went to a utility room from which she could no longer hear the incident.

Brunken testified she noticed that nearby employees had stopped work to watch, and she motioned to them to resume work.  Brunken and Dealy testified Grievant asked again why she had been placed on ad­min­istrative leave and said she had a right to know.  Brunken responded she needed to leave, she was on paid administrative leave and was being insubordinate, and if she did not leave Brunken would have to call secur­ity.  Grievant repeated she had a right to know why she was on administrative leave.  Brunken responded she did not want to have to call security, but would have to if Grievant continued to be insubordinate.

 Brunken initially testified she called security in response to another repetition of Grievant’s com­ments, and Grievant again repeated her comments while Brunken was on the phone with security.  Dealy testified Brunken reached for the phone, hesitated to give Grievant a chance to leave, then picked up the phone when Grievant persisted.  Both agree that Martinez told Grievant several times that it was time for them to leave, then took her arm and escorted her out.  Brunken initially testified that occurred while she was on the phone with security, whereas Dealy recalled that it was as Brunken picked up the phone.  Brunken, Dealy, and Turner did not hear Martinez make any other comments that day.  Brunken and Dealy testified that, as she was leaving, Grievant stopped at the door, turned, shook her finger, and said, “Just you wait.”

On cross examination, Brunken initially testified she called security and was trying to explain why she needed assistance when Grievant said “just you wait” and left.  After being shown the transcript of the call to security, she testified she was placed on hold when she called, and that Grievant left and made the comment “just you wait” while she was still on hold.

The security transcript begins at 4:05 p.m. with Brunken reporting “I have a hospital employee who has just left section II that needs to be escorted off campus” and that the employee was “at the C-wing elevators.”  After confirming the location, the dispatcher paused to dispatch an officer; that dispatch was logged into the system at 4:07.

THE UNION’S ACCOUNT

Grievant testified Brunken and Dealy were at the nurse’s station as she approached after gathering her belongings; a Social Worker, Gloria Tuma, had also arrived.  Each of the people she talked to after the meeting had asked why she was on administrative leave, but she had no answer.  She therefore approached Brunken and asked why she had been put on administrative leave.  She testified she could not hear all of Brunken’s response, but that it began with the comment that Brunken had not told her in the office; she surmised that Brunken concluded by saying she was not going to tell her now.  Grievant re­sponded she had a right to know.  She testified she did not repeat either comment during the remainder of the incident.

Grievant testified Brunken responded by coming toward her with her arm out, and made contact with her in a manner she did not consider calming; in her unemployment hearing, she described it as a push.  She lost her balance, stepped back, shook her finger at Brunken, and said not to touch her; her brother also protested verbally.  As Grievant turned to leave, Lynnes handed her the letter she had been writing; Grievant thanked her.  Although Martinez told her as they walked away that she should call the police, she simply sought to leave the area.  Brunken walked after them and told Grievant, “I’m going to get you for insub­ordination.”  Grievant asked why and reminded her she was on administrative leave and had clocked out.  Brunken responded, “For still being on the premises.”  Grievant reminded her that it took time to walk out.  As she left with her brother, he commented the clock on the wall read 4:03.  She went with him to the University’s Affirmative Action office, where she filed a discrimination complaint.

According to Martinez, when Grievant returned to the nurse’s station, she asked Brunken why she was put on admin­istrative leave.  He re­called she was distraught and on the verge of crying, but her voice was not loud.  Martinez was unable to hear Brunken’s response because she had her back to him.  Brunken put her arm around Grievant and pushed her.  Martinez yelled, “Hey, you can’t do that.”  Grievant said she had a right to know and told Brunken not to touch her.  Martinez said to call the police.  Instead, Grievant turned to leave.  Lynnes started to hand Martinez her letter of recommendation, then gave it to Grievant.

According to Martinez, as he walked out with Grievant, Brunken yelled after Grievant that she was going to “get you for insubordination.”  Grievant asked why, pointed out she had already clocked out, and reminded Brunken that it took time to leave.  His recollection was that both Brunken and Grievant raised their voices in this exchange.  As they left, he continued to encourage Grievant to call the police.  Because he wanted to report the exact time to the police, he noted the clock on the wall read 4:03.

Grievant and Martinez both recalled that Turner was not at the nurse’s station at any point during this incident.  They did recall that Lynnes, Grove, and Tuma were present; none of these personnel were called as witnesses.  Neither saw Brunken pick up the phone to call security.

THE UNIVERSITY’S INVESTIGATION

Brunken contacted David Blair, the University’s Director of Labor Relations, and recommended Grievant’s dismissal.  Blair placed Grievant on paid administrative leave and scheduled a pre-disciplinary hearing.  He spoke with Brunken, Dealy, and Martinez; he also spoke with potential witnesses, including Turner, Lynnes, Tuma, and Grove, as well as other nursing personnel in the unit, either in person or by phone.  His recollection was that none of the potential witnesses, other than Martinez, supported Grievant’s version of events.  Grievant and Martinez both testified on her behalf at the hearing.  Brunken and other potential witnesses did not attend.  Based on his investigation, Blair discredited Grievant’s account of events.

OTHER EVIDENCE

Brunken testified she thought Grievant could be used to translate for Spanish-speaking patients and families if she were properly trained.  She suggested Grievant get training as a unit secretary and become familiar with medical terminology.  She arranged for Grievant to work with a unit secretary on her days off, for additional pay.  However, because of Grievant’s unfamiliarity with medical terminology, she discon­tinued that arrangement and suggested Grievant seek training in medical terminology before pursuing the unit secretary position.  Grievant did not follow through on that suggestion.

     POSITION OF THE UNIVERSITY

Grievant’s gross insubordination constituted a dischargeable offense.  Tirades similar to hers against a manager have been found insubordinate.  Shouting at length and shaking her finger in her supervisor’s face in front of other employees is unacceptable in any environment, much less in the extremely controlled en­vironment of a critical care unit.  She defied Brunken’s instructions in at least three matters: to stop soliciting references on work time; to lower the tone of her voice; and to leave the unit.  The fact that this occurred in the presence of other employees aggravates the severity of the offense.  At least five employees witnessed her defiance of Brunken.  By engaging in such conduct, she virtually discharged herself.  Her direct challenge to the supervisor’s authority warranted discharge.

Discharge was also warranted given Grievant’s history of disrespectful communication with her co-workers.  She was aggressive toward float pool housekeepers for years.  She inappropriately mounted a verbal attack on Kilgore both privately and in a meeting.  She demonstrated blatant insubordination to Brunken by saying she could do whatever she wanted on work time, by immediately leaving the room and soliciting a reference, and by yelling repeatedly at Brunken.  Even if she had no troubled history, her public display of insubordination would be sufficient to merit her termination.

The testimony of the University’s witnesses was consistent and more credible than that of Grievant and Martinez.  Dealy and Brunken were laid off, were not compensated for their time, and had no stake in the outcome.  Turner was a Union member with no stake in the outcome.  Grievant was unable to deny the basic events constituting gross insubordination.  She ad­mitted she staged a loud confrontation in the ICU by repeatedly demanding an explanation of why she was put on admin­istrative leave and declaring she had a right to know.  She sought to deny the severity of her actions and outright denied other parts.

The Union presented only Grievant and her brother, despite the fact that Grievant identified at least three other witnesses.  The Union’s failure to call these witnesses gives rise to a presumption that their testimony would undercut Grievant’s version of the facts.

Grievant’s credibility was undermined by her demeanor.  She was confrontational and unresponsive to many questions.  She contradicted her earlier unemployment compensation hearing testimony.  She split definitional hairs regarding whether her request that Lynnes quickly write her reference letter was “soliciting a personal reference.”  Her testimony was supported only by her brother.

Grievant’s conduct is not excusable on grounds she disagreed with Brunken’s decision to put her on paid administrative leave.  She was obligated to obey first and grieve later, even if Brunken’s order was improper.  Her decision to force a confrontation with Brunken was especially egregious where Brunken had already scheduled a meeting for just two days later at which the Union representative would be present.  Grievant’s claim that she was confused about the nature of administrative leave is inconsistent with what she repeatedly shouted.  She did not ask Brunken what administrative leave was; she only asked why Brunken had put her on administrative leave.  She was not asking for clarification; she was publicly defying Brunken’s supervisory judgment.  Whatever the reason for her misconduct, she could not engage in a pro­longed verbal attack on Brunken and ignore the available grievance procedure.

Grievant had clear notice of the consequences of her insubordination.  She solicited a personal refer­ence minutes after Brunken instructed her to stop soliciting personal references.  She ignored Brunken’s repeated instructions to lower her voice and leave the ICU.  Brunken informed Grievant her behavior was insubordination and could lead to termination, but Grievant did not stop shouting at Brunken.

The grievance should be denied in its entirety.

     POSITION OF THE UNION

Grievant’s termination did not meet the contractual standard of just cause.  The University did not prove either of the two charges in the termination letter.

The only direct witness to an incident of rudeness, Kilgore, described an incident four years before Grievant’s discharge.  The only later incident involving Kilgore was when she allegedly threw a piece of paper at him in jest.  His testimony regarding events at the housekeeping meeting is directly contradicted by Grievant and two other witnesses who were at the meeting.  This event demonstrates no more than a per­son­ality clash between Kilgore and Grievant.  Under either version of the events at the meeting, Grievant was participative in her communications and willing to voice her opinion and make suggestions.  There was no direct testi­mony regarding the only other allegation of rudeness, the alleged interactions with Kris.  An iso­lated, unpleasant incident between two employees does not warrant dismissal.

No significant difference exists in the accounts of the June 4 meeting.  By all accounts, Grievant was put on administrative leave and asked to leave; administrative leave was not explained to her, nor was she told if or when she would come back to work.  Her account of her movements after leaving the office was con­sistent with a responsible employee who wished to secure all hospital belongings before leaving.  She clocked out at 3:59 and left at 4:03.  This was not insubordinate behavior.  The termination letter did not charge Grievant with insubordination for asking Lynnes to write a reference letter after being told not to do so.  In any event, her comment to Lynnes that “you better write fast” was not insubordination.  Lynnes was already writing the letter.

No matter how loudly, or how many times, Grievant asked why she was on administrative leave, she was not asking the question to be insubordinate.  She was trying to understand what was happening to her.  She was not trying to confront Brunken.  Brunken’s claim that she felt physically threatened is unbelievable.  Brunken grabbed Grievant’s arm and tried to move her; she would not have done so if she felt threat­ened.  The security records show she called after Grievant left.  She is clearly exaggerating the situation.

The University did not use progressive discipline.  The only incident in which Brunken clearly re­calls talking to Grievant about her communications with co-workers occurred four years ago, and she has no records of this conversation.  The conversation was not intended to be disciplinary.  No discipline resulted from Kris’ complaint.  Grievant had no reason to believe her behavior could lead to discipline.  The work plan was to be non-disciplinary.

The University did not do a performance appraisal for Grievant for five years.  If, as claimed, her communication style was an ongoing problem for years, performance appraisals would have been the appropriate means by which to notify her.

The University contributed to and aggravated Grievant’s behavior.  By all accounts, Brunken un­ex­pectedly told Grievant she was on administrative leave and she must leave.  By all accounts, she did not explain or describe administrative leave.  Grievant left Dealy’s office without understanding what admin­is­trative leave was and why she had been put on it.  Had Brunken adequately explained her actions, rather than summarily dismissing Grievant from the office, Grievant would not have approached her later to ask why she was put on administrative leave.  Grievant would not have been in an agitated emotional state.

Brunken’s unwelcome physical contact agitated Grievant further, and was offensive enough that her brother objected.  Grievant’s reaction was not insubordination or inappropriate communication.  Brunken exer­cised poor judgment in trying to physically move Grievant.  This contributed to the volatile situation.

The discipline was too severe.  The University did not honestly believe Grievant’s communication style was grounds for discipline.  It intended to put her on a non-disciplinary work plan.  If it had believed it necessary and justifiable, it could have disciplined her more severely.

Even if Grievant asked why she was put on ad­min­is­trative leave as loudly and as many times as alleged by the University, termination is too harsh a penalty.  Grievant has a spotless disciplinary record.  The University contributed to the volatility of the situation.  Grievant should be reinstated and made whole.

OPINION

PRELIMINARY MATTERS

            The University bears the burden of establishing, by clear and convincing evidence, that it had just cause for the discharge.  It must show both that Grievant engaged in the mis­conduct alleged in the termination notice and that discharge was within the range of reasonable responses to that misconduct.  The University’s decision must stand or fall on the grounds on which it acted.  Factors upon which the University did not rely at the time of the discharge cannot provide just cause for this discharge.

Discipline must be corrective rather than punitive.  An arbitrator has no authority to second-guess the level of discipline merely because the arbitrator would have imposed different discipline. So long as the discipline is within the range of discipline proportionate to the proven offense and the employee's work record, that discipline must stand.  However, if the discipline falls outside that range, or if the offense proven is less serious than the offense charged, then adjustment of the discipline is appropriate.  If no offense is proven, no discipline is warranted.

The testimony in this case presents a large degree of factual conflict, requiring a credibility reso­lu­tion.  Demeanor is a relatively unreliable basis for assessing credibility.  The Arbitrator is unfamiliar with the witnesses' usual demeanor.  The hearing process itself puts witnesses in an unnatural situation that affects demeanor for reasons unrelated to veracity.  Therefore, credibility is best tested by evaluating the internal consistency and logical probability of the testimony, as well as the consistency with known facts and the recollections of unbiased witnesses.  In assessing cred­ibility, the Arbitrator is mindful that sudden exciting events may be difficult to recall with precision even at the time, much less months after those events.

THE MERITS

Some allegations in the termination letter were not proven at this hearing.  The termination letter asserts that Grievant was counseled regarding her communication style during the past year by Nickodemus.  No evidence of such counseling was adduced.  The letter also asserts that, before approaching Brunken on June 4, while gathering her belongings in the hallway, Grievant was “slamming doors and making a scene.”  No evidence exists of such conduct.  Accordingly, these allegations do not support this termination.

Arguments of University counsel regarding a pattern of poor communications were not supported by the evidence in this case.  In any event, this argument goes beyond the charges in the termination letter.

THE CHARGES REGARDING COMMUNICATIONS WITH CO-WORKERS

­­Unsubstantiated hearsay is entitled to no weight in determining whether just cause exists.  Absent cross examination, one cannot gauge the opportunity to observe, perceive, recall, and describe events ac­cu­rately.  One cannot resolve inconsistencies or determine whether any portion of the hearsay ac­count arises from speculation, mistake, or bias.  Thus, except where supported by more probative evi­dence, Brunken’s testimony regarding information she gleaned from others is not a basis for factual findings regarding Grievant’s com­ments or other interactions with her co-workers.

No dispute exists that Grievant made inappropriate remarks to Kilgore some four years before her discharge.  However, after being admonished about those remarks, she apologized to Kilgore.  No probative evidence exists of other frictions with Kilgore or other employees until very shortly before her discharge.

Although no evidence exists that Southard was unavailable, only Kilgore gave first-hand testimony in support of the University’s version of events at the house­keep­ing meeting.  By his account, Grievant did not get into the substance of her remarks.  His testimony did not describe the tone or content of her remarks.  It therefore is insufficient to prove she was condescending, non-participative, or indolent­­.  It was arguably rude for her to complain about a co-worker while that co-worker was present.  However, other housekeepers ­also under­stood the meeting was an opportunity to air housekeep­ing concerns.  Southard discussed Kilgore’s complaints regarding other housekeepers’ conduct toward him.  Grievant’s voicing of corres­pond­ing con­cerns about Kilgore was consis­tent with this understanding.  Kilgore’s claim that Grievant had to be stopped two or three times was disputed by independent testi­mony that she (as well as the other house­keepers) made no comments after Southard told her to be quiet.

In summary, the proven communications with peers do not fit the charge of “rude, condescending, non-participative, and indolent.”  The University recognized the minor nature of the incidents by its decision not to document or impose discipline for them.  The idea of a work plan was raised two months after the housekeeping meeting, apparently in response to the renewed friction with Kilgore, and even then the plan was to be non-disciplinary.  Grievant received no other notice that her communications with co-workers would lead to severe discipline or that her relationships with others were deemed to have changed since the complimentary remarks in her earlier evaluations.

Turning to her communications with managerial co-workers such as Brunken, Grievant disputes the charge that, when confronted about her communication style, she claimed it was “just how I am,” and instead aserts that it was Brunken who raised Grievant’s cultural heritage.  The University did not present records from its Affirmative Action office to rebut Grievant’s claim that these remarks led her to consult that office.  In any event, it is unnecessary to resolve the testimonial conflict regarding how the subject of Grievant’s cultural heritage arose.  Brunken’s response to the conversation was to pur­sue a non-disciplinary work plan, not to begin the disciplinary process.  This suggests that, at the time, Brunken did not consider Grievant’s remarks to be a disciplinary matter.  Were it otherwise, one would expect she would have documented notice to Grievant of a need to change her communication style or face the consequences.

THE JUNE 4 MEETING AND ITS AFTERMATH

In resolving the credibility disputes here, it would be inappropriate to draw an adverse inference against the Union from the fact that Lynnes, Grove, and Tuma were not called as witnesses to the events at the nurses’ station on June 4.  All three were employed by the University at the time; Blair noted them as potential witnesses in his investigation.  No evidence exists that they have since left the University.  They therefore were equally available to the University, which bears the burden of proof.

The Arbitrator is intrigued by the University’s characterization of Grievant’s comments on June 4 as “indolent.”  That term appears in the Agreement.  Its usual meaning is “idle” or “lazy.”  No evidence exists that the parties agreed on a unique or specialized meaning for that term.  Nothing in the evidence regarding her remarks suggests either idleness or laziness, and that aspect of the charge has not been established.

The more serious aspect of the second charge is the alleged insubordination.  Insubordina­tion is commonly defined as a refusal to obey a bona fide, valid, clear and unambiguous work order, where compliance would not endanger the employee's health or safety, despite notice of the consequences of refusal.  Insubordination prompts severe discipline because it is, in effect, a one-person strike.

A distinction exists between what might be called "simple insubordination" and gross insubordina­tion.  Gross insubordination goes beyond a mere refusal to obey orders.  It incorporates such concepts as defiance, uncooperativeness, or insolence.  Gross insubordination may make summary discharge available as a penalty.  However, in that case, the insubordination must be clear-cut and must unequivocally suggest that no alternative was left to the employer other than to terminate the wrongdoer on the spot.

Defiance, uncooperativeness, or insolence, by themselves, do not constitute insubordination, gross or otherwise.  It is only when they augment a refusal to obey a work order that they become aggravating factors in a charge of insubordination.  When they occur without a refusal to work, they constitute the sepa­rate, but lesser, offense of disrespectful conduct.  The Employer's right to demand respectful conduct from employees toward super­visors arises out of the inherent right to manage the operation and maintain order in the workplace.  A breach of that expectation does not call for discharge for the first offense, and usually not even for the second or third offense.  It does call for a milder penalty aimed at correction.

In this Arbitrator’s experience, some employees do not fully realize the limits on their workplace rights or the range of possible mana­gerial responses to their conduct.  This is one reason they must receive notice of all but the ob­vious consequences of their behavior.^[4]  Such notice gives the opportunity to change the undesirable behavior and make those consequences unnecessary.

Under any proffered version of the facts, Grievant’s conduct during the meeting in Dealy’s office was not insubordinate.  By all accounts, she received a clear and direct order not to solicit references, and that order was sufficiently related to her work obligations to require compliance.  However, no evidence exists that she disobeyed this order during the meeting; indeed, no opportunity existed to comply or disobey at that time.  She also did not receive notice of the consequences of a refusal to comply.  Instead, after she twice voiced her belief that she had a right to say what she wanted, but without any discussion of the consequences of her insistence on this point, she was placed on administrative leave.  Thus, the response described by Brunken and Dealy would amount to defiance, but not insub­or­dination.

The Arbitrator finds Dealy’s account of the events in the meeting to be the most likely version.  No reason appears why a request to defer further discussion until the June 6 meeting would so enrage Brunken that she would summarily put Grievant on administrative leave and order her out of the office.  ­In contrast, it was logical to place Grievant on paid administrative leave if she would not agree to stop activity that was disruptive in the workplace.  The Arbitrator is therefore convinced that Grievant’s response to Brunken’s order was not as com­pliant as she asserts, and that this prompted her administrative leave.

However, the Arbitrator is not convinced that Brunken explained the leave would only last until June 6, assured Grievant that things would be resolved at that meeting, or instructed her to leave immediately.  Dealy, who was not personally involved in the exchange, recalled no such further com­ments.  Her recollec­tion in this regard is consistent with her description of Grievant’s abrupt departure and the very brief time between the start of the meeting and Grievant’s post-meeting voice mail message to the Union.  At the nurse’s station, Brunken did not refer to any prior reassurances or any prior instruction to leave immediately.  Grievant’s presence for up to 14 minutes after the meeting therefore did not breach her instructions.

Grievant’s mistaken belief that she had the right to solicit references at work undoubtedly made it difficult for her to understand why she was being placed on administrative leave.  The Arbitrator therefore concludes that Grievant did not initiate her later questioning of Brunken as a challenge to her au­thor­ity, but rather because of genuine confusion about the reason for the administrative leave.  The fact that she contributed to her own confusion by leaving the meeting abruptly does not eliminate the confusion.

In the encounter at the nurses’ station, no evidence exists that Brunken ever warned Grievant of poss­ible discharge for any of the conduct with which she is charged.  On the contrary, the University’s witnesses consistently recall that Brunken initially invited Grievant to return to the office to discuss the matter further.  This invitation did not give clear notice that discharge was in the offing if she did not leave immediately.  By the University’s ac­count, Brunken ulti­mately threatened to call security, but still did not warn Grievant of possible discharge for her conduct at the nurse’s station.  As noted above, she also did not warn Grievant of possible discharge for soliciting references.

The Arbitrator cannot fully credit either party’s version of the events at the nurse’s station.  Examin­ing the University’s version first, it would have been difficult for the encounter at the nurses’ station to have been as prolonged as alleged.  Independent evidence establishes that Grievant clocked out at 3:59, and had already left the unit and gone to the elevator by 4:05, only six minutes later.  Included in those six minutes were a walk to and from the house­keeping closet, as well as a walk out of the unit.  There simply was not time left in the interim for some five or six repetitions of her question, intervening responses by Brunken, the physical contact and its consequences, and the alleged parting com­ment.  On the other hand, if the encounter had been as quiet and brief as Grievant suggests, then no credible reason appears why Brunken would have called security after her departure to ask that she be escorted off campus.  Martinez’ testimony that he initially heard Grievant’s question, but not Brunken’s answer, also suggests Grievant was, at a minimum, speaking more loudly than Brunken.

The testimonial conflicts in this case do not suggest an attempt by either party’s witnesses to distort the truth.  Such differences often arise from the differing perspectives from which witnesses view events, particularly sudden and exciting events such as this.  For example, no dispute exists that Grievant was upset.  It is therefore understandable that she would be less sensitive to the volume at which she was speaking than Brunken and Dealy, who were responsible for maintaining order and decorum in the unit.  Not all of the percipient witnesses were called, reducing the information available to resolve these conflicts.

In summary, the credible evidence does not establish that Grievant was insubordinate at any point in the unfortunate chain of events of June 4.  She was defiant during the meeting in Dealy’s office, and loud and disruptive in questioning Brunken at the nurse’s station.  She exercised ques­tionable judgment in engaging Brunken in a loud discourse at the nurses’ station rather than working through the Union and in engaging Lynnes in any form of discussion regarding a reference letter.  Because of the sensitive patient care area in which it occurred and its heated nature, the encounter with Brunken warranted serious discipline.  Grievant was sufficiently experienced to know such loud and disruptive conduct would be unacceptable in this area, and the Arbitrator is convinced that Brunken asked her to lower her voice, to no avail.

However, the University’s handling of both encounters mitigates the seriousness of Grievant’s con­duct.  ­Brunken anticipated that administrative leave might be the outcome of the meeting in Dealy’s office, and Grievant previously had requested Union representation when Brunken sought to meet regarding her interactions with co-workers.  Brunken nevertheless did not take steps to have a Union representative present.^[5]  Brunken did not tell Grievant the consequences of continuing to solicit references; she simply imposed those consequences when Grievant stated her erroneous belief that she was entitled to continue to solicit.  This omission could have been a minor point if the only consequence had been a paid administrative leave until the scheduled meeting two days hence.  However, it was compounded by the communications gap regarding Grievant’s status while on administrative leave.  This omission set the stage for Grievant’s later inappropriate conduct at the nurse’s station.  Brunken also exercised questionable judgment in initiating physical contact at the nurse’s station.  This had the foreseeable effect of escalating the con­frontation.^[6]  Other mitigating factors include Grievant’s lack of prior discipline and her excellent work habits.