Agency/Contract:  Higher Education Coalition (CC of Spokane)

Contract Article:  11 Sick Leave; 17 Leave Without Pay; Just Cause, 27

Arbitrator:  Carol Teather

Action:  Disciplinary; Termination

Outcome:  Grievance Sustained, Discipline Reduced to Reduction in Pay

The grievant worked in a classified position for the College. The employer dismissed the grievant alleging excessive absenteeism, unauthorized leave, misuse of leave, insubordination, and willful violation of a management directive or published institutional policy. The issue presented to the arbitrator was whether the employer had just cause to terminate the grievant's employment, and if not, what remedy should have been imposed.

The employer alleged that grievant had: (1) refused to provide the employer with requested leave information regarding his need to care for an ill relative; (2) taken unauthorized leave for union business while he was using Family Care Act (FCA) sick leave; and (3) refused to follow the directive of administrative personnel to complete certain forms regarding the Family Care Act.

The union argued that the grievant had worked an alternative schedule for 3.5 months with his supervisor's approval, and without any requirement that he provide medical certification. The union also argued that the employer had sufficient information to grant Family Care Act leave to the employee without a specific form being filled out, and further, the form the employer provided was for the Family Medical Leave Act (FMLA), not the FCA. Nevertheless, the grievant ultimately provided the completed FMLA form, along with a Medical Certification.

The arbitrator found that the only conduct at issue was the conduct from mid-February forward, as no one had questioned the grievant's leave usage from November until February.  The arbitrator found that the information provided by the grievant did not comply with the requirements for FCA leave or the employer's administrative procedures, and that the grievant, despite being asked to complete the forms, failed to do so, and that it was the grievant's obligation to provide the necessary information.  Neverthesless, the arbitrator determined that the employer failed to prove it properly denied grievant FCA leave, as it appeared that the employer had sufficient information to determine that grievant was entitled to FCA leave.

The arbitrator found that the grievant was absent without leave on the days he spent on union business during the period in question, and that the grievant was absent without leave for the six days after he was no longer eligible for FCA leave.  The arbitrator therefore sustained the charge of unauthorized leave.  However, the arbitrator stated that approximately twelve days of unauthorized absence did not constitute excessive absenteeism, and that charge was not sustained.  The arbitrator found that although the grievant failed to modify his request for FCA leave while he was engaged in union business, he never concealed the fact that someone else was caring for his relative during those dates. Accordingly, the charge of dishonesty was not sustained, nor was the charge of misuse of leave for these days sustained, because during the dates in question, grievant was already in an unapproved, unpaid leave status.

The arbitrator determined the employer failed to establish the grievant was insubordinate when he refused to complete and submit the forms and information necessary to obtain the appropriate leave; however, the arbitrator found that grievant's inaction was "willful and unjustified."

Based on the total findings, the arbitrator determined that the grievant engaged in misconduct.  The grievant had the obligation to justify his absence and to obtain approved leave.  He was also obliged to request leave in accordance with the procedures established by his employer.  However, the arbitrator determined the penalty assessed was too severe.  Grievant had over 25 years of service with the employer with no evidence of any prior discipline.  Furthermore, "the confusion and miscommunication*was not wholly attributable to [the] grievant.  Management's actions also had some part."  The arbitrator found that an appropriate penalty was a reduction in pay, although the specific amount and duration thereof she left to the employer to determine.