Article Ten, Section 10 of the collective bargaining agreement states, “Employees who report for mandatory/required training will be paid for a minimum of two (2) hours.” When members noted that the employer was not paying employees the minimum of two hours for reporting to in-services, the stewards filed a class action grievance. The employer maintained that it did not have to pay employees for two hours unless they stayed after the in-service and continued to work. The Union took the case to arbitration.
After a one-day hearing and the filing of post-hearing briefs, the arbitrator decided in favor of the Union. “The closest study of Article Ten, Section Ten of the collective bargaining agreement,” he said, “establishes that the language is clear and unambiguous.” The arbitrator did not agree with the employer’s contention that it could require employees to continue working after the in-service in order to earn the minimum pay. This requirement was “not referenced or contemplated in the language of Article Ten, Section Ten and therefore constitutes a unilateral and contravening extension of the provision by the Employer.” The arbitrator also did not find merit in the employer’s argument that it had not agreed to such a “guarantee” at the bargaining table. “It is indispensably observed,” ruled the arbitrator, “that where clear and unambiguous Contract language exists, bargaining history is irrelevant.”
For remedy, the arbitrator ordered that “Tendercare West review its ‘hours worked’ systems for the purpose of accurately ascertaining and identifying all bargaining unit employees who have not been provided two (2) hours of minimum pay for reporting to mandatory in-service training regardless of the reason. All such employees are to be expeditiously reimbursed for their loss in wages retroactive to October 2013 and/or to the date any such employee was not provided the two (2) hour minimum and paid accordingly – back to June 2013 when the Contract was consummated. In other words, all affected employees are to be made whole. The Employer is further directed to henceforth adhere to the language of Article 10, Section 10 which states that ‘Employees who report for mandatory/required in-service training will be paid for a minimum of two (2) hours’”
Congratulations to the members at Tendercare West!
AUTUMNWOOD OF LIVONIA
Grievant worked in the housekeeping and then dietary department for a total of approximately 15 years when employer issued grievant a written warning for violation of work rules by failing to complete job duties and not labeling products correctly with open/use by dates. Grievant contended that she always labeled and dated products and alleged that this incident must have involved an employee from another shift. Grievant then filed a grievance concerning the disciplinary action alleging that it was an unjust discipline.
The parties took this matter to arbitration. The Arbitrator found that there was a lack of written and/or oral testimony that offered eyewitness proof that the grievant was observed committing the offense with which she was charged. The Arbitrator found the employ used only circumstantial evidence to infer that the grievant was guilty of this offense.
The Arbitrator reasoned that while it was true that the grievant was responsible for beverages for the morning shift on the date in question, there was nothing in the CBA nor the work rules nor the evidence at the hearing which (1) requires only the grievant to handle the Lactaid containers; (2) required anyone seeking Lactaid to make that request known to the grievant before obtaining the Lactaid from the refrigerator or anywhere else by that person or anyone on the kitchen staff; (3) that required the person in the #1 Dietary Aide position to records all requests for Lactaid by persons coming to the kitchen; and (3) that the person in the #1 Dietary Aide position is the only one with the key to the refrigerator (or that part of it that contains Lactaid) so that no one could obtain Lactaid without getting the key from her.
The Arbitrator therefore concluded that any kitchen staff member could go to the refrigerator at anytime during the shift and retrieve a Lactaid container and open it and replace it into the refrigerator without the person in the #1 Dietary Aide position knowing that this was done. The Arbitrator also concluded from the evidence at the hearing that it was clear that the employer representatives involved in the incident never questioned the other members of the 6 a.m. to 2 p.m. shift kitchen staff about the incident at anytime after the Lactaid was found on that date and prior to the issuance of the written warning to the grievant. This was not a thorough investigation.
The Arbitrator GRANTED the grievance and awarded that the written reprimand shall be removed from grievant’s personnel file and that grievant shall be made whole for all wages and benefits and seniority rights an in all other respects.
CONGRATULATIONS to the grievant and the members at Autumnwood of Livonia!
DETROIT MEDICAL CENTER
Grievant is employed at DMC as a Telemetry Associate. Employer allegedly observed grievant sleeping while on the clock. Grievant was suspended for three (3) days and issued a final written warning (FWW), and placed upon a 1-year disciplinary probation.
The Union argued that the suspension with FWW was unjust and that the Employer had inadequate proof of the alleged policy violation and that
The Arbitrator considered the fact that the Employer did have a photograph taken by the supervisor of the grievant, allegedly asleep, showing the grievant slumped in her chair with her chin bent towards her chest. However, the Arbitrator also considered that the employer’s witness provided inconsistent testimony regarding the amount of time she watched the grievant before taking her picture and entering the telemetry room. The Arbitrator further considered testimony regarding the grievant’s response upon being awakened, stating that a sleeping employee may become disoriented or startled when wakened, or the supervisor may have to actually awaken the employee. None of these factors were present in this case. The Arbitrator also evaluated employer’s witness testimony in respect to the claim that the witness viewed the grievant with her eyes closed. The Arbitrator visited the telemetry room and found that the window to the room did not afford the witness a direct or clear view of the grievant’s eyes, when the grievant sat in the same chair as in the photo, the Arbitrator could not establish if the grievant’s eyes were closed or open.
Due to the above factors, the Arbitrator found that the employer had not established that the grievant was sleeping. However, the Arbitrator found that the grievant’s conduct when slumped in her chair for at least several minutes did have a negative impact on the safety and welfare of patients, in that at least for several minutes she was ignoring her job duties. The Arbitrator therefore found that the record supports the conclusion that the grievant improperly assumed the posture or appearance of sleeping for at least several minutes during which she neglected her job duties.
The Arbitrator then concluded that given the grievant’s twenty-three (23) years of employment with DMC and prior record of no disciplinary action, the Arbitrator found it appropriate to modify the discipline issued by the employer, and ordered the suspension with FWW be reduced to a 2-day suspension, and that the Employer must make the grievant whole for any losses sustained beyond those resulting from a two day suspension; Employer must remove the FWW from her record.
Congratulations to grievant and members at DMC!
GREENFIELD REHAB & NURSING CENTER
Grievant was a CNA who was terminated for allegedly violating the Employer’s standards of conduct regarding unsatisfactory job/work performance, leaving work location during working hours without permission, and any act of violence such as fighting; abusive, harsh, loud or profane language, abuse, misuse or destruction of property; harassing, humiliating, threatening, coercing or intimidating. The Employer alleged that the grievant interrupted another CNA as she was caring for a resident, and in a loud and angry voice told the CNA that her immediate responsibility was to assist in passing out lunch trays to residents on the floor, yelling at the CNA in front of residents, staff and family.
The grievant claimed that on the day in question during the time for trays to be passed the other CNA came back from lunch late and then began care for a resident that was supposed to have been done prior to taking the lunch break. Grievant claimed that she knocked on the open door to the room that the other CNA was in and merely said, “Trays are up.” Grievant then testified that the Employer suspended both employees later that day, and that when grievant asked about a steward being present, she was told, “go clock out.” Grievant filed a grievance the following day. Grievant further claimed that no one from management ever interviewed her to get her version of events between the time she was sent home and the date she received her termination notice in the mail. The grievant did receive a phone call from employer verbally telling her she was terminated. During this call the grievant requested a steward and the employer stated that the steward was not available.
The Union claims that the discharge was unjust and that the grievant’s Weingarten rights were violated, and took this matter to arbitration.
The arbitrator found that the grievant did engage in unacceptable and prohibited conduct in her actions on the date in question. However, the arbitrator further found that the employer’s due process violations rendered the termination to be null and void, meaning that the termination was unjust due to the procedural grounds. The grievant is entitled to due process, meaning she was entitled to a fair, objective and complete investigation and a pre-disciplinary hearing. Further, grievant was entitled to a reasonable notification of the specific and definite charges at or near the time of the disciplinary action, and an opportunity to respond.
Here, when grievant was suspended she asked for union representation and was told, “go clock out.” She received no union representation, which due process entitled her to. Additionally, when employer called grievant to notify her of the termination, grievant asked for a union steward and was told by employer that the steward was unavailable. This again violated due process, in that if union representation is unavailable, the employer must desist from proceeding with disciplinary action until such time that a union representative can be provided.
Further due process violations were found in that prior to grievant’s suspension and discharge she was not interviewed regarding the incident by the employer. Thus, the employer’s investigation was flawed and incomplete. Grievant was not given a pre-disciplinary hearing in any format, thus she was deprived of an opportunity in her own defense to explain her version of events in the presence of a union representative, which is fundamental to due process.
The arbitrator found that these due process violations establish that the grievant’s discharge was not for just cause, and ordered that the grievant be reinstated and made whole in wages and benefits. Congratulations to the grievant and the members at Greenfield Rehab!
VILLAGE OF REDFORD
Grievant was terminated from her CNA position at Village of Redford on or about 4/13/12 due to an expired CNA certification. Grievant had worked as a CNA for over 26 years at various employers and was reemployed at Village of Redford as a CNA on 1/30/03. A grievance was filed regarding the termination.
Grievant’s license expired 6/21/11. On 8/18/11 Grievant completed a Registry Renewal Form after being signed by the DON at Redford. This form was accompanied by the required letter from the Employer advising that the Grievant was employed at Redford. This document was received by Prometric on 8/30/11, beyond the 60-day grace period.
9/1/11 Prometric advised the Grievant that she was ineligible for automatic renewal because the grace period had elapsed, but that she could apply for an exemption of training at the State agency. On 10/17/11 Grievant received an exemption from training until 4/17/12 to facilitate the re-testing procedure. The exemption from the State read, “Individuals that have been approved for exemption are allowed to work up to 4 months during the 6 month period their exemption is valid.”
Grievant worked as a CNA continuously until she was terminated on 4/13/12. This went beyond the date of 2/17/12, when the 4-month exemption would have expired.
Grievant did not re-test until 3/15/12 when she took, but failed, the blood pressure portion of the skills test. When the Employer received the notification of the failed test on 4/9/12, Employer claims that this was the first time the current Employer administrator was aware of the license issue. The Employer policy stated that it was the employee’s responsibility to provide renewal or re-issuance to Redford, and that all required licenses must be kept current. When the current Administrator learned of the expired license, he took Grievant off the schedule and sent her home that day.
Grievant claimed that she and her Union steward verbally told the former DON and former CNA scheduler that her license had expired and Grievant asked for a transfer to an aide position that did not require licensure, a conversation that took place on or about 9/2011. A corrective action was initiated 4/13/12; a termination letter dated effective 4/13/12 but was mailed on 4/23/12 to Grievant, stating she was terminated due to an expired CNA certification effective 4/13/12.
Meanwhile, Grievant sought to retest and on 4/13/12 she received notification that she had passed and that her name was being placed on the CNA registry effective 4/13/12 to expire 4/13/14.
The Union took this matter to arbitration, claiming the termination was unjust as the Grievant was pursuing her recertification; she had notified the former DON and scheduler and asked for a transfer, but was told to keep working; she obtained the regulatory approval for an exemption; she took steps to renew her certification and did pass the skills test and was issued a license on 4/13/12, the same day she was unjustly terminated.
The Arbitrator considered that the Grievant was a 26 year CNA and had worked for Redford for close to 10 years. The Arbitrator further considered that Grievant was working without a license from 2/17/12 to 4/9/12 and the impact of that short time on Employer. The Arbitrator did not find the Grievant blameless in the overall circumstances, stating that she was not immediately forthcoming when she knew she had not passed the test and that she waited a lengthy time before taking the steps to put all of this to rest.
The Arbitrator finally considered the severity of the penalty in light of things like seniority, past work history, past disciplines, ongoing renewal efforts (extenuating circumstances).
The Arbitrator determined that the termination was an abuse of discretion on the part of Employer and ordered Grievant reinstated. However, because Grievant did work from 2/17/12 – 4/9/12 without a license, which is contrary to state and federal law as well as Employer policy, Grievant was subject to a 90-day unpaid suspension (served upon the start of reinstatement on 4/13/12). Grievant was also entitled to return to her seniority and any other contractual accruals from 4/13/12 forward, including backpay from 5/21/13 forward.
HEARTLAND PLYMOUTH COURT
The members at Heartland Plymouth Court filed a class action grievance when the employer reduced their regular scheduled hours in the Dietary Department. The Union also filed an Unfair Labor Practice charge (ULP) against the employer for unilaterally changing the working terms and conditions of employees.
On January 17, 2012 the ULP matter was deferred to the parties’ grievance and arbitration procedure. The Union arbitrated the class action grievance on June 6, 2012. The Arbitrator denied the grievance at arbitration, citing that the CBA language explicitly does not “guarantee to any employee any number of hours of work,” and found that the employer did not violate the agreement by the reduction in hours.
The Union then notified the NLRB, Region 7 of the arbitration decision and argued that the arbitral decision did not address the issue of the unilateral change in working terms and conditions. The Region agreed!
On November 27, 2012 the Regional Director for the NLRB, Region 7, issued a Complaint and Notice of Hearing against the employer, requesting several remedies, including that of rescinding the work hour changes described in the Complaint and making whole any unit employees adversely affected by said changes.
The hearing was held January 15, 2013, after which the parties submitted briefs on the issues involved. The ALJ issued a decision in the matter on March 12, 2013 concluding that the employer did engage in unfair labor practices by failing to afford the Union prior notice and opportunity to bargain over the effects of the decision to reduce the hours of full time employees in the dietary department!
The employer then filed twenty-three (23) individual exceptions to the ALJ’s decision in this matter, arguing that the ALJ erred with respect to his findings.
On July 15, 2013 the NLRB issued a decision in this matter after reviewing the ALJ decision and the employer’s exceptions to that decision, along with the Region 7 General Counsel’s response to those exceptions. The NLRB has adopted the recommended Order of the ALJ (as modified) and ordered that the employer pay the affected employees the difference between their normal weekly wages and their weekly wages after the reduction in their scheduled hours in September 2011, among several other remedial actions that must be taken by the employer!
Congratulations to the members of Heartland-Plymouth Court….this was a lengthy battle, but you have claimed the victory!
DETROIT MEDICAL CENTER – SINAI GRACE
The grievant worked at DMC as a Dietary Aide, and at the time of her termination had over 32 years of seniority. The grievant was suspended pending investigation and later discharged from employment for alleged “theft of a food product.” The Employer claimed that the grievant took a bagel from the cafeteria without paying for it, and for taking the free pop/coffee from the cafeteria without having the cashier record it. The Union claimed that the grievant was not told of having to record her free pop/coffee with the cashier until February 7, 2011, and that she regularly brought bagels from home to eat but used the cafeteria plates, napkins and toaster/microwave for them.
The question to the arbitrator was whether there was just and sufficient cause to discharge the grievant for this offense. In this case, the Arbitrator considered the grievant’s seniority a mitigating factor in his review of the merits of the case, along with the relatively small amount of value involved in the alleged theft (price of a bagel). The Arbitrator found that the 32 years of seniority was a substantial mitigating factor in the case, and that the seniority along with the surrounding aspects of the case put the discharge outside the bounds of just and sufficient cause.
The Arbitrator therefore reinstated the grievant as a Dietary Aide.
Congratulations to the grievant and the members of DMC!
EASTWOOD CONVALESCENT CENTER
Grievant was terminated for alleged patient abuse and for practicing outside the scope of her responsibilities as a CNA, when she chemically treated a resident’s hair, resulting in burns to the resident’s hairline. Grievant had been employed at the facility for approximately 4 years at the time of her discharge.
The Union claimed that the grievant did treat the resident’s hair, but that the charge nurse on duty had witnessed the events take place and had not asked her to stop, and in fact the grievant had never been advised during her employment that it was wrong to give perms to the residents, and had in fact done so regularly in the past. Further, the resident did not complain about being burned, and attempted to cover the injury afterwards. The grievant did not learn of the problem until several days later, at which time she was told to speak with a state investigator, who was present in the facility on another matter. The grievant had no prior disciplines in her file.
The grievant informed the investigator that she had gone to cosmetology school, and provided a card showing that she had such training. The state did not charge the grievant with abuse or any other infraction, nor was the facility cited.
The Arbitrator considered that this incident was not a classic case of abuse towards a resident as the grievant had previous training in cosmetology; the resident had requested that the grievant apply the hair relaxer; and that the grievant did not intend to harm the resident. The Arbitrator also considered the work rules, and that the CNA job description does not include the work of a cosmetologist. The Arbitrator did not find that the CNA failed to properly report the injury, as the facts showed that the resident attempted to cover her hair, as she did not want the CNA to get in trouble for any reason. Once the grievant discovered the injury, another staff person had already reported the injury. Therefore, there was no failure to report.
The Arbitrator further considered that lax enforcement of a work rule by management was relevant in this situation, as on the night grievant treated the resident’s hair, grievant stated that the charge nurse was aware and did not stop her.
The Arbitrator found that the discharge was not supported by just cause, and ordered reinstatement of the grievant with seniority.
Congratulation to the grievant and to the members of Eastwood Convalescent Center!