Arbitration Summary UW 10-02

Agency/Contract:  University of Washington, Campuswide

Contract Article(s):    Art. 23 (Corrective Action)

Arbitrator:  Alan Krebs

Action: Dismissal

Outcome:    Grievance Denied, 03/01/2010

The issue in this case was whether the employer had just cause to terminate the grievant’s employment for a variety of alleged offenses. The grievant worked for the employer for approximately ten years, four of which as a lead worker. The employer terminated the grievant for inappropriate behavior, willful failure to follow safety regulations, and for inappropriate activities regarding purchase of materials for work and for taking material for use in his personal business.

The employer argued that the grievant admitted having used inappropriate language and gestures.  The employer also argued the grievant had placed himself and his crew in danger by ignoring safety regulations.  The employer asserted the grievant inappropriately mixed his personal business with work by ordering parts for his business at the same reduced rate given to the university. Lastly, the employer argued the grievant engaged in gross malfeasance when ordering an excessively large quantity of supplies for the employer when the employer already had the supplies on hand for a project that had not yet been approved.  The employer also argued the circumstantial evidence was clear and convincing that the grievant had been complicit in the disappearance of two items from the employer’s inventory.

The union argued that discipline less severe than termination should be imposed commensurate with the behavior actually proved by the employer.  The union conceded that the grievant had exhibited poor judgment when he discounted safety regulations, but that such an isolated incident had never before resulted in termination.  The union argued that although the grievant admitted to using inappropriate language, no one had ever complained before about his behavior, and his behavior was not unusual in the type of work he performed.  The union asserted that the grievant adamantly denied having engaged in any inappropriate activities related to the purchase or use of employer property, and there was no evidence the grievant engaged in theft.  The union argued that the grievant was a valuable long-term employee who deserved progressive discipline.

The arbitrator determined the grievant engaged in improper conduct by violating his ethical obligation to keep his private business totally separate from his employment.  The arbitrator did not find the grievant credible. The arbitrator found that the ethical violations combined with the profane behavior and the willful violation of a safety rule created a sufficient basis to uphold the termination.   The grievance was denied. 

Agency/Contract:    University of Washington, Campuswide

Contract Article(s):    Art. 5 (Management Rights); Art. 23 (Corrective Action); Art. 24 (Grievance Procedure).

Arbitrator: Eric Lindauer

Action:  Final Counseling and Termination

Outcome: Grievance Denied, 03/31/2010

The issue in this case was whether the employer violated the collective bargaining agreement when it issued a final counseling and then termination to an employee for inappropriate, hostile, and insubordinate conduct.  The grievant had been employed by the employer for approximately six years at the time of his termination.

The employer argued that the grievant had a long history of inappropriate conduct in interacting with employees and supervisors. The employer did not dispute that otherwise the grievant’s job performance had been satisfactory.  The employer asserted that on one occasion, the grievant interacted in an inappropriate and insubordinate manner with his supervisor.  Based on previous inappropriate actions and that incident, the employer then issued a final Counseling.  The employer then asserted that there was a second incident just a few months later where the grievant became involved in a heated exchange with co-workers, and behaved in a rude, loud, and angry manner.  The employer reviewed the grievant’s record, and determined he had a long-standing problem with interpersonal relations, a problem for which he had been counseled on numerous occasions.  The employer argued the grievant’s conduct violated employer policies which required employees to show respect for patients and for each other, and which prohibit conduct which constitutes verbal assault or threatening behavior. The employer argued termination was therefore appropriate.

The union argued that with regard to the issue that resulted in the final counseling, the grievant admitted to having raised his voice when speaking to his supervisor, but that he was not loud, insubordinate, or sarcastic. The union asserted the grievant was no insubordinate during the event that resulted in his termination, because he did not disobey or ignore an order.  The union argued the employer’s allegation the grievant was defiant and uncooperative was based upon facts taken out of context and misinterpreted.  The union also argued the absence of any prior disciplinary actions warranted the reversal or modification of the disciplinary actions taken by the employer.

The arbitrator determined that the grievant had been inappropriate and insubordinate on both occasions.  The arbitrator clarified that insubordination takes many forms, including when an employee exhibits a general attitude of defiance or disrespect.  The arbitrator found that the employer had made numerous efforts over a four-year period to correct the grievant’s behavior, but to no avail.  The arbitrator found the disciplines to be reasonable and appropriate, upheld the final counseling and the termination, and so denied the grievance. 

Contract:  University of Washington, Campuswide

Article(s):  Art. 2 (Non-Discrimination); Art. 4, (Affirmative Action); Art. 5, (Management Rights); Art. 45.4, (Promotions/Transfers)

Arbitrator:  Frederick Rosenberry

Action:  Denial of Transfer

Outcome:  Grievance Denied, 02/03/2010

The issue in this case was whether the employer violated the collective bargaining agreement when it failed to hire the grievant for a vacant position in the unit.  The grievant was a long-term employee who had applied and interviewed for the vacancy, but the employer chose the other interviewee for the position.  The grievant felt his status as a current employee, his age, and his past military service gave him the exclusive right to the position.

The union argued the grievant was well qualified for the position, and that the employer’s two desired qualifications it looked to were insufficient to reject grievant for the position.  The union asserted the employer disregarded its obligation under Article 45.4 to “refer” the grievant for the position, which it argued was tantamount to transferring him to the requested position.  The union asserted the employer failed to consider the grievant’s status as a Vietnam era veteran and failed to consider any affirmative action plan in the hiring process in violation of Articles 2 and 4.

The employer agreed the grievant possessed the essential qualifications for the position, but maintained it was not obligated to offer the job to the grievant exclusively.  The employer argued the term “refer” was to be read plainly, and did not guarantee an automatic transfer.  The employer argued it was a management right for the employer to take into account the desired qualities criteria when hiring for a position.

The arbitrator determined that because the parties had defined other words found in the contract, but not the word “refer,” the dictionary meaning of the word would apply.  The arbitrator found that under Article 45 the employer was required to consider bargaining unit employees’ applications, but not to transfer them into an open position.  The arbitrator agreed that the employer had retained the management right to have discretionary authority in evaluating and comparing employees who requested a transfer to outside candidates.

The arbitrator found the grievant failed to provide evidence that the employer had acted discriminatorily against the grievant based on age or veteran status.  Accordingly, the arbitrator determined that argument failed.   The arbitrator denied the grievance.

Contract:  University of Washington, Campuswide

Article(s):  Article 23 (Corrective Action)

Arbitrator:  Alan Krebs

Action:  Discipline-Dismissal

Outcome:  Grievance Denied, 11/18/2009

The issue in this case was whether the agency had just cause to terminate the grievant for excessive absenteeism.  The grievant had been employed in a health care facility for approximately eight years at the time of her termination. The grievant worked the night shift with one other medical assistant in a particularly work intensive unit.  Her evaluations were satisfactory, other than concerns regarding grievant’s use of sick leave.  After receiving other lesser disciplines, the grievant was terminated for her absenteeism.

The employer argued it had just cause to discharge the grievant for failing to meet attendance expectations and for consistently violating the attendance policy, even after numerous counseling sessions.  The employer asserted that although the grievant disclosed at the pre-termination meeting that she had a serious health condition, she offered no medical evidence that it was a condition for which she needed leave.  The employer asserted her attendance problems could not be attributed exclusively to her condition, because her performance evaluations established she had attendance problems for a period of years before she was diagnosed with the condition.  The employer claimed in order for its obligations to be triggered under FMLA, it had to be notified of the grievant’s serious health condition and of her request for FMLA leave.  The employer asserted that despite being provided with FMLA paperwork, the grievant never returned the paperwork, nor had she requested FMLA, even at her pre-determination meeting.  As such, the FMLA requirements were not violated. 

The union argued the grievant did not abuse her sick leave, rather she was truly unable to work whenever she missed work.  The grievant provided a doctor’s note whenever she was ill, and there was no proof of actual misdeeds. The union argued the employer violated its obligations under FMLA in the contract by terminating the employee after the employer was informed that her absences qualified as a serious medical condition protected by FMLA.  The union asserted the employer violated the contract by terminating the grievant for taking sick leave guaranteed by the contract. 

The arbitrator determined grievant’s dismissal was reasonable in light of the grievant’s record of excessive absenteeism.  The arbitrator recognized that employers have the right to discipline employees for such absenteeism, even where such absences are caused by unavoidable circumstances such as illnesses.  This is based upon management’s right to maintain efficient operations and to expect that its employees will work on a regular basis. The arbitrator found that grievant’s absences had a significant effect on her co-workers’ workload, and on the level of care given to patients.  The arbitrator found insufficient evidence to show the grievant’s absences were caused by a serious medical condition.

The arbitrator denied the grievance.

Contract:  University of Washington, Campuswide

Article(s):    Article 26.1 (Health and Safety); Art. 26.7 (Workplace Review)

Arbitrator:  Michael Cavanaugh

Action:  Non-Disciplinary; Failure of Employer to Maintain Safe Work Environment

Outcome:  Grievance Denied, 10/24/2009

The issue in this case was whether the employer’s actions surrounding an electrical accident to the grievant violated the collective bargaining agreement. The grievant was a master electrician who suffered a serious injury when he received an electrical shock while working on a light fixture.

The union argued the grievant suffered the shock due to shoddy workmanship previously done by an outside contractor.  The union argued the employer should be accountable for the failure of its outside contractor to ensure the work was inspected by the City as required.  The union argued such an inspection would have added a safeguard, which would have perhaps avoided the accident.   The union argued the grievant was given unsafe directions by his supervisor, which contributed to the accident.  The union asserted the employer failed to ensure compliance with applicable law as required by Article 26.1. The union also argued the employer failed to fix the electrical problem once it became known, and there was some question as to whether the scene of the accident had been altered.  The union asserted the university thus violated Article 26.7.

The employer denies it gave any unsafe instructions to the grievant.  The employer argued that nothing in the contract guaranteed an absolutely accident free workplace, and that the investigation by the employer’s health and safety officials strongly suggested the grievant had worked on a bare wire without properly insuring it was dead.  The employer argued it acted appropriately at all times.

The arbitrator found insufficient evidence to conclude the employer prevented the grievant from protecting himself by denying him the use of a particular work method.  The arbitrator determined the language of Article 26.1 did not support a conclusion that the parties agreed the employer would ensure anything, nor that the failure of the employer or its contractor to obtain a proper permit would become a justiciable matter under the contract.  The arbitrator found Article 26.1 was a statement of goals and intention, not a guarantee, and that the employer had not abandoned its policy and intention to meet the goal of complying with applicable codes to maintain a safe workplace.  The arbitrator found the employer responded appropriately to an identified and recognized hazard, and thus did not violate Article 26.7.

The grievance was denied.

Contract:  University of Washington, Campuswide

Article(s):  Article 23 (Corrective Action)

Arbitrator:  Janet Gaunt

Action:  Disciplinary; Dismissal

Outcome:  Grievance Denied, 09/27/2009

The issue in this case was whether the employer had just cause to terminate grievant’s employment.  The grievant was a custodian and had been so employed at the university for eleven years.  The grievant was terminated based on an allegation by a program administrator who worked in one of the buildings grievant serviced. The program manager claimed the grievant had taken several flowers from the program manager’s office and placed them on her cleaning cart.  The administrator claimed when she confronted the grievant and retrieved the flowers, the grievant admitted having taken them, but thought they were trash.  The grievant denied ever having taken the flowers and denied ever having a conversation regarding any flowers with the program administrator.

The employer argued it should only have to prove its case under the preponderance of evidence standard, but if the arbitrator chose a higher standard, it had proved misconduct by clear and convincing evidence.  The employer asserted the administrator was credible, and the grievant was not credible.  The employer argued the grievant’s inconsistent statements were not attributable to purported problems understanding English. The grievant had always understood her supervisors well enough to handle job duties without the need for an interpreter. Furthermore, the grievant was aware of the zero tolerance policy against taking any items from work areas, and her taking of the flowers coupled with her denial of her actions caused management to doubt whether she could be trusted to work unsupervised.  For these reasons, termination was appropriate in this case.

The union argued the grievant consistently denied that she took any flowers, nor had she had the conversation with the administrator alleged by the employer.  The union asserted the grievant had a good record, and that any inconsistencies claimed by the employer in grievant’s accounting of events were due to her struggles with English.  The union argued the grievant had a good job record, admitted to knowledge of the zero tolerance policy, and it made no sense that after eleven years of services, she would risk her job over flowers.  The union maintained the administrator’s story was no more believable than the grievant’s; therefore, the employer had failed to meet its burden of proof.

The arbitrator based her decision on the clear and convincing burden of proof standard.  The arbitrator found the employer met its burden of proving misconduct.  The arbitrator found the administrator to be more credible than the grievant.  The arbitrator decided that based on the grievant’s prior behavior, the administrator’s credible testimony, and the convincing evidence that the grievant’s integrity could no longer be relied upon, termination was appropriate.  The arbitrator denied the grievance.

Contract:  University of Washington, Campuswide

Article(s):  Article 23 (Corrective Action)

Arbitrator:  Michael Beck

Action:  Disciplinary; Dismissal

Outcome:  Grievance Denied, 09/16/2009

The issue in this case was whether the employer, based on an allegation of work place violence, had just cause to terminate an employee who had worked as a food service worker for the employer for approximately two years.  Specifically, the employer claimed the grievant engaged in a physical altercation with a police officer at work on work time.

The employer argued the witness testimony and the inconsistent statements of the grievant proved the grievant initiated a physical altercation with a police officer who was present to serve a civil legal notice upon the grievant.  The employer argued the grievant had violated its policy regarding violence in the workplace, and that termination was the only appropriate discipline for an allegation of this type.

The union argued it was the police officer who initiated the physical altercation, and the grievant was simply trying to defend himself.  The union asserted the grievant did not know the officer was an officer at the time of the altercation.  The union argued the employer therefore did not have just cause to dismiss the grievant.

The arbitrator determined the grievant was not credible, and that the grievant initiated the physical confrontation with the police officer.  The arbitrator found termination was appropriate in this case despite the lack of prior discipline, as grievant had engaged in very serious, violent misconduct, which had the potential to either cause injury to himself or others.  The arbitrator found the misconduct was in direct violation of the Employer’s Workplace Violence Policy.  The arbitrator denied the grievance.

Contract:  University of Washington

Article(s):  Article 23 (Corrective Action)

Arbitrator:  Eric Lindauer

Action:  Disciplinary; Final Counseling

Outcome:  Grievance Sustained, 08/24/2009

The issue in this case was whether the employer had just cause to issue a final counseling to the employee for job performance issues.  The employee had been working for the university for approximately 12 years when the final counseling was issued.  The employer disciplined the grievant for three separate allegations: a safety violation, working overtime without authorization, and failing to provide accurate and comprehensive status reports.

The employer argued the grievant’s violations, particularly the safety violation, were serious and that under progressive discipline principles, it had just cause to issue the final counseling.  The employer asserted the level of discipline was appropriate because the grievant had been previously counseled and/or placed on an action plan for all three issues listed in the final counseling.

The union argued the employer’s allegations were exaggerated, and the employer did not have just cause to issue the final counseling.  The union argued the grievant did not violate any of the university’s rules, and to the extent he may have, such violations were minor in nature and unequally enforced.  The union asserted the grievant’s supervisor had a documented personal dislike for the grievant, which the union believed was the underlying cause of the discipline.

The arbitrator, using the preponderance of evidence standard, determined the employer failed to prove it had just cause to discipline the grievant.   The arbitrator found no basis for disciplinary action based on the facts presented.  The arbitrator found there had been miscommunication and misunderstandings, but could not determine whether the alleged misconduct was a product of the personality conflict between the grievant and his supervisor or inadequate reporting on the part of the grievant.  The arbitrator found the hostile nature of the work environment was a significant contributing factor, if not the root cause, of the issues in the arbitration.   The arbitrator found it troubling that the employer waited six months from the dates of the alleged misconduct to issue its discipline, particularly since the employer offered no explanation for the delay.  Considering all these factors, the arbitrator sustained the grievance.

Contract:  University of Washington

Article(s):  Art. 39, (Hours of Work and Schedules); Art. 40 (Overtime)

Arbitrator:    Howell Lankford

Action:    Failure to Pay Overtime

Outcome:    Grievance Denied

Decision Date:    04/29/2009

In this case, due to procedural defects, the arbitrator never reached the substantive issue of failing to pay overtime.

The union had the burden of proof, because this was a contract violation claim.  At hearing, the union argued a contract violation theory, which the university claimed had not been raised before.  The union witnesses testified the theory had been raised in the course of the grievance steps.

The university argued the case was not arbitrable, because the particular theory argued by the union was not presented in the initial grievance nor addressed in the earlier steps of the grievance process.  The university claimed the union had presented one theory before arbitration, and then changed at arbitration to a significantly different claim.  The university witnesses testified to this.

The arbitrator stated in light of the conflicting testimony, he was forced to fall back on the scant written record, which he determined was more in line with the university’s version of events.  The arbitrator found the two theories to be substantially different.  The arbitrator found that to allow the substantive matter to go to hearing would send a message to the parties they were free to “shift ground” between the internal grievance process and arbitration.  The arbitrator denied the grievance, stating it was not arbitrable, and that it would be irresponsible for him to suggest a rule that might encourage parties to bring to arbitration matters they had not dealt with during the grievance process.

Agency/Contract:  University of Washington/UW, HBVW., 2005-2007 CBA

Contract Article(s):  Art. 23 (Corrective Action/Dismissal Process)

Arbitrator:  Michael Cavanaugh

Action:  Disciplinary-Termination

Outcome:  Grievance Sustained, 09/26/08

The issue in this case was whether the employer had just cause to terminate a public safety officer for allegedly using excessive force while restraining an intoxicated patient who was actively resisting examination and care.

The employer argued that as a health care facility, the employees were stewards of patient welfare required to treat patients humanely and in the least restrictive ways possible.  The employer argued a public safety officer is never justified in resorting to defensive strikes against a patient, even if being subjected to violent assault by the patient.  The employer argued the grievant struck the patient, and the only appropriate remedy was dismissal.

The union argued the employer’s rule that defensive strikes were never appropriate was never communicated to staff.  The union also asserted that the employer’s policy manual expressly allowed “the appropriate amount of force necessary… to overcome the level of resistance …offered.”   Furthermore, the manual allowed the minimum amount of force needed to accomplish the restraint needed.  The union argued the grievant acted appropriately and in conformity with established policies and procedures.

The arbitrator agreed the appropriate question was whether the grievant had applied more than the minimum amount of force necessary.  The arbitrator found that under the circumstances, he could not find the grievant applied more than the minimum amount of force necessary to free himself from the patient and to prevent the patient from hurting him.  The arbitrator found this because the grievant explained convincingly why he was unable to successfully use the non-violent techniques suggested to him.  The arbitrator found the grievant’s use of force to be a “last resort” and thus in keeping with the employer’s policies.  The arbitrator sustained the grievance and ordered full reinstatement.

Agency/Contract:  University of Washington/UW, HBVW., 2005-2007 CBA

Contract Article(s):  Art. 23 (Corrective Action/Dismissal Process)

Arbitrator:  Alan Krebs

Action:  Disciplinary- Suspension, Reassignment of Grievant

Outcome:  Grievance Sustained, 10/22/08

The issue in this case was whether the employer violated the corrective action process in the CBA when it imposed an unpaid, multi-month suspension on an employee as a form of discipline, and then returned her to a different assignment than the one she had before the suspension.

The employer argued that the circumstantial evidence proved by a preponderance of the evidence that the grievant in this case engaged in an unauthorized and unlawful concerted work stoppage.  The employer argued the grievant lied to investigators and to management regarding her knowledge of and participation in the sickout.  The employer asserted that the grievant’s conduct was egregious enough to warrant termination, but also recognized that it conceded through its actions that termination may not have been justified.  The employer maintained its initial decision to terminate the grievant was justified by the serious nature of the grievant’s offense and her being deceitful about it.  The employer asked the arbitrator to exercise his inherent power to fashion a remedy by denying the grievant back pay from the time of her termination to the time of her reinstatement.  The employer denied its reinstatement to a different position was retaliatory.  Rather, it argued it acted appropriately under the contract by reassigning the grievant to a vacant position.

The union argued that the employer terminated the grievant, then unilaterally rescinded the termination, and then imposed no discipline other than the multi-month long unpaid break in service.  The union argued this was in fact an unpaid suspension, which was beyond the authority of the language of the CBA, and therefore beyond the authority of the arbitrator to impose.  The union maintained the employer’s unilateral rescission of the termination indicated the employer determined it did not have just cause to terminate the grievant.  The union argued the only question for the arbitrator was what an appropriate make-whole remedy would be.  Further, the union argued it was improper to summarily transfer the grievant to a different work zone and management prerogative could not be used as a pretext for punitive action taken against the grievant.

The arbitrator determined the issue to be decided was whether there was just cause for the action described in the employer’s reinstatement letter, which was an unspecified corrective action with an unpaid break in employment, with the corrective action to be determined after the grievant returned to work.  However, the employer did not determine any alternative or additional discipline. The arbitrator found the evidence proved that the grievant engaged in a sick out and encouraged others to do so, and thus committed misconduct.  Nevertheless, the arbitrator found that the employer had essentially imposed a nine-month suspension, which was beyond the right of the employer under the CBA.  Accordingly, the arbitrator ordered the suspension be replaced by a “final counseling,” and ordered the grievant be made whole from her termination date to the date she was given the offer to return to work.   The arbitrator found the employer acted within its authority when it reassigned the grievant upon her return to work to fill a vacancy, finding the employer had the power under Article 5 to reassign and transfer employees to work assignment appropriate for their classifications.