KAREN G. ANDRES

                         ARBITRATOR

CALIFORNIA STATE MEDIATION AND CONCILIATION SERVICE




APPEARANCES



I.INTRODUCTION


The arbitration arose pursuant to the Collective Bargaining Agreement (“CBA”) between the Head Start Development Council of San Joaquin County (the “Employer”) and the Service Employees International Union, Local 1021 (the “Union”) effective 2011 - 2014. (Joint Exhibit – JX - 1).

Christine Xxxx (“Grievant”) was a Head Start early childhood educator.  On October 3, 2011, the Employer terminated Grievant’s employment.  The Union filed grievances dated October 4 and 6, 2011.  The Employer upheld the termination.  (JX2).

Following the grievance process, the matter was referred to arbitration.  The parties selected Arbitrator Karen G. Andres (the “Arbitrator”). The case was heard on August 8 and 9, 2012 at the Employer’s administrative offices in Stockton, California.

The parties submitted closing briefs on September 10, 2012, completing the record herein.


II. ISSUES



Was the termination of the Grievant for just cause?  If not, what is the remedy?






III. RELEVANT CBA PROVISIONS

ARTICLE VII

DISCIPLINE AND DISCHARGE


Section I – General


The Agency shall have the right to discharge, suspend, and/or take any disciplinary action against an employee for just cause. If the employee believes such action was taken without cause, the matter may be pursued through the grievance and arbitration provisions of this Agreement.

All disciplinary notices, except verbal warnings, shall be given to the employee in question in writing and shall provide for the employee’s response.  The employee shall be provided with a space to indicate receipt of the document but not necessarily agreement with its content... 

The Agency shall provide a copy of all disciplines, suspensions, discharges and administrative leave pending investigation documents to the Union concurrent with notification to the employee.




IV. ARGUMENT OF THE EMPLOYER


Grievant was terminated because she failed to follow the reasonable instructions of the Employer to take her meal period, a requirement of California law.  The day before the terminating incident, the Employer issued a final written warning that there would be severe consequences if Grievant failed to maintain the work schedule established by the Employer and to communicate with her supervisor in the event there was any problem with adhering to her work schedule.

Grievant failed to fill in her time cards properly.  The man who brought her to work spent time on the premises, contrary to the Employer’s rules.


V. ARGUMENTS OF THE UNION


The discipline imposed was not consistent with the principle of just cause.  Grievant was fired with only the vaguest of explanations. 

The allegations in the Written Notices were not adequately investigated or proved and were dense and vague.  The May 25, 2010 notice was delivered to Grievant four months after it was written.  It is a basic requirement of just cause that discipline be issued promptly. 

Perfect adherence to the pre-set, printed schedule for lunch and rest breaks was often not possible due to the nature of the work.

Grievant believed that her FMLA paperwork was up to date.


VI. FINDINGS OF FACT


After considering the testimony at hearing, the exhibits, and the arguments of the Union and the Employer, the following facts are determined to be relevant to the matter:

Grievant was a Head Start early childhood education teacher at the Lodi location.  She had been a teacher for sixteen years prior to the termination.  She had no history of discipline prior to 2011 when the events in question occurred.


On May 25, Education Specialist and Supervisor Shannon Grant

prepared a Performance Correction Notice (the “May 25th Notice”, JX3). The Disciplinary Level was “Written Warning:  Time Card Fraud”.  The May 25th Notice was a three-page single spaced document with an attachment of a Performance Improvement Plan. The paragraphs were lengthy and difficult to read.  It was difficult to separate the topics and allegations.

The May 25th Notice was given to Grievant at a meeting on September 29 – fully four months later. Grievant, Joanna Swisher, Grievant’s supervisor, Cheryl Harris, SEIU representative, and Peggy Cannon Harris, Steward, signed the notice. At this time, the Employer relieved Grievant of her mentor teacher duties and returned her to a 7:00 a.m. to 2:00 p.m. shift with a half-hour meal break.

The reason given by the Employer for the four month delay in notification was that the term ended at the time the May 25th Notice was written. Grievant’s last day of work was May 19.  However, Grievant worked with the Head Start migrant program over the summer, and her address was known to the Employer.  She returned to her job at the Lodi location well before September 29.

The issues raised in the May 25th Notice were as follows:

Grievant was assigned to mentor other teachers.

In October 2010, a supervisor alleged that Grievant was causing a problem with the entire staff because she changed their room environment without their involvement.  When the issue was addressed to her, Grievant stopped mentoring.

Grievant stopped mentoring contrary to orders and did not gain approval or report this to Ms. Grant.

Grievant skipped meetings.

Ms. Grant counseled Grievant about unreported absences and shortened work hours.

Grievant was away from her work site at times when she was scheduled to work.

When Ms. Grant attempted to discuss the matter of leaving work and not returning to the site, Grievant complained that, “I was harassing you and that you were going to grieve me...You have (Family Medical Leave Act) FMLA, are entitled to sick leave pay or vacations pay and (have the) right to use any of this at any time.” (JX3, p. 2).

In January, Ms. Grant observed that Grievant seemed to understand her role as an 8 hour mentor teacher.

In February, it was brought to Ms. Grant’s attention that Grievant did not sign up to work on any projects and was not attending mentor trainings. Projects were voluntary; the mentor meetings were not.  Ms. Grant addressed this concern with Grievant at an evaluation meeting on March 1.

When Grievant attended the mentor meeting the next day, she looked unhappy and was texting on her phone.

On March 23, Grievant did not attend the mentor meeting and could not be found at the Park Street site or the Lincoln site.

After a mentor meeting on March 30, which Grievant attended, Ms. Grant met with her and Susan Fields to discuss Grievant’s absences at mentor meetings. Grievant explained that her daughter was sick a lot and that is why she had not been attending.  Ms. Grant explained that a typical work day is 6 1/2 hours, and mentor hours were an additional 1 1/2 hours.

Ms. Grant asked Grievant to provide a calendar of her activities, to complete assignments of training two new teachers at the Lincoln site.

Grievant said that she often did not take lunch so that she could leave early.  Ms. Grant told her that she was required to take the one-hour lunch break.

Grievant became upset and said that she would work 7:00 a.m. – 4:00p.m. but would not substitute and would not help the two new teachers.  She requested that the directives be in writing.

Ms. Grant again asked for a calendar of Grievant’s tasks.  She replied that she keeps track of her work, and it all works out in the end.

Grievant’s lunch was set for Noon to 1:00 p.m.

Grievant informed Ms. Grant that she would take FMLA time in the afternoon on Tuesdays until the end of the school year.

On April 6, Grievant did not return to the site.  Grievant’s TA, Hanna, was left in the classroom with a child who was not yet picked up.  Grievant attended a mandatory nutrition meeting from 1:00 p.m. – 2:00 p.m. 

Teaching staff, including Grievant, were given a key to the building.  They were not permitted to copy the key.  Grievant signed that she would not do this.  Keys were not provided to TAs.

On April 11, Grievant did not return to the site after her Noon – 1:00 p.m. lunch break until 12:50.  She did not report to Ms. Grant where she was.

On April 14, Ms. Grant instructed staff that they were required to be on site so that others could take their breaks on time.

Grievant was heard to say that she was going to copy the building key to give to the TA so that she could open the class in the morning.

On May 11, according to a teacher, Hanna gave her a break instead of Grievant.

On May 19, Grievant was absent from the site when she should have been working.

The memo concluded with the following statement,


“Christina in the last few months teachers at Lincoln came to me reporting that you were open to them about how you would go home at lunch and take a nap or do your personal business and you did not return to work.  They expressed how you would openly try to threaten them into thinking that because you were a mentor, you knew people in management, and you have been there for so long that nobody would pursue action.  Also during this time I observed your TA Hanna prepping all your daily activities.”  (JX3).


At the same meeting on September 29, Supervisor Joanna Swisher

gave Grievant a second Performance Correction Notice due to incidents that occurred following the May 25th Notice. The Disciplinary level was “Final Written Warning: Violations of

Hours of Work, Recording of Time, Paycheck Distribution and Standards of Conduct”.  (“Final Written Warning”, JX4). The infractions were enumerated in one long, single-spaced paragraph as follows:

“On August 31, 2011, you informed me you have a FMLA on file to release you to attend to your daughter’s doctor’s appointments.  When I inquired at Human Resource Department I was informed that you do not have a FMLA on file.”


There were two documented occasions on which Grievant did not work a full day, but her time sheet did not reflect her true hours.


On September 23, Ms. Swisher conducted a staff meeting and discussed thoroughly the completion of time sheets.  She informed staff, including Grievant, that if they were to leave the site during contracted hours, they were to inform Ms. Swisher immediately prior to leaving.  Later that day, Grievant was not on site.  When Ms. Swisher reached Grievant by telephone, she stated that she was at the pet store buying fish.  “Your contracted work hours are 7-4 and you left your work station prior to ending your contracted work hours, without informing me.”  (JX4).


Ms. Swisher, Cheryl Harris, SEIU representative, and Peggy Cannon Harris, Steward, signed the Final Written Warning as well.  Grievant was upset.

     In a memorandum dated September 30, 2011, Ms. Swisher wrote that Grievant telephoned her at approximately 1:59 p.m. to say that she did not take a scheduled lunch break because she had “a late child that was just picked up…she was leaving to go home”.  Ms. Swisher stated that she informed Grievant that she could have left the child with her TA or other staff and taken her lunch break.  Grievant responded that she did leave the child with her TA alone because of a statement that was made in a meeting the day before.  (Employer-EX-10). 

Ms. Swisher stipulated that there was no reason that prevented Grievant from taking her thirty-minute lunch break.  Both the TA and other staff could have assisted with the late child.  Grievant waited until the end of her shift to inform Ms. Swisher that she had not taken her lunch break. (ER10).

On October 3, Ms. Swisher informed Grievant by letter that her employment was terminated due to insubordination.  The letter did not specify a reason or incident (JX5). 

Grievant and her Union representative met with Program Manager Linda Craig for the Step II grievance meeting on November 15.  The Employer addressed to Grievant two versions of its Step II response dated November 30.  The version provided to the Union reads,

“You were disciplined by your supervisor on September 29, 2011 and asked to work your regular hours and take breaks on time.  On the very next day, you violated the rules by not taking a break; this constitutes insubordination.”  (Union-UX-5).


A second version of the November 30 letter reads,

“You were disciplined by your supervisor on September 29, 2011 and asked to work your regular hours, take breaks on time, and not bring your male friend to work. On the very next day, you violated the rules by not taking a break; this constitutes insubordination.”  (JX2, emphasis added.).


The allegation of bringing the “friend”, Grievant’s husband, to work did not arise until the November 30 letter.  Ms. Swisher testified that she did not deal with it previously as she determined that the failure to take the lunch break was adequate for termination.

The Employer alleged at the Arbitration that Grievant allowed her husband to see confidential files in the Head Start office.

Ms. Swisher’s account of the September 30 “late child” incident differed from Grievant’s account.  Grievant testified that Ms. Swisher was aware that she was left with a late child, and Ms. Swisher left the building anyway. It did not occur to Grievant to leave the child with the other teacher on duty, Jamie Vaughn, and she thought that she was not permitted to leave a child with the TA, Hanna.  The May 25th Notice faults her for leaving a child with the TA on April 6.

It was mandatory that employees take their meal breaks consistent with rules stated in the Employee Handbook (EX11) and the CBA (JX1 at p. 9).  Teachers were supposed to cover each other’s breaks.  Other teachers had difficulty getting Grievant to cooperate.  She often left for the day prior to the end of her shift.  She also often arrived late after the beginning of her shift, and other staff had to open the door.  Her time sheets were mistaken more often than those of other employees.  She missed many mentor meetings.  She often failed to inform a supervisor and her co-workers if she went on a home visit or to obtain approval if she performed an errand for the classroom.

Grievant’s time sheets often reflected her scheduled hours although she left early or arrived late.  She believed that the hours that she recorded were accurate in total.

Grievant’s certification for FMLA leave was dated April 1, 2009 and expired on April 1, 2010 ((UX2).  Grievant believed that her FMLA paperwork was up-to-date.


VII. OPINION


Having carefully reviewed and weighed the testimony and evidence presented at the hearing and after considering each argument raised by the parties in their briefs, the Arbitrator reaches the following conclusions:

While the CBA is bare-bones regarding discipline procedure, it is established law that an employee is entitled to due process to address the implementation of discipline.   Skelly v. State Personnel Board, 15 Cal.3d 194 (1975). 

Due process includes the requirement that charges be enumerated specifically in a manner that the employee can understand. 



Written discipline should be delivered promptly. Four months is not prompt by any stretch of the imagination.

The employee should have an opportunity to correct behavior before further discipline is imposed unless a subsequent incident is so egregious as to require immediate dismissal.  Fundamental fairness requires progressive discipline prior to discharge unless there is an incident so severe in nature as to lead to summary termination.

The Employer’s Written Notices were drafted in an extremely sloppy manner.  They were difficult to read and understand.  The May 25th Notice was not delivered in a timely manner, to say the least.  Grievant had no time to digest and address the allegations in the May 25th Notice or the Final Written Warning before the dismissal.  The October 3, 2011 termination letter did not specify the reason for termination.

On the other hand, Grievant had the benefit of Union representation from the time of the meeting on September 29.  Grievant and the Union had ample time to digest the allegations and respond to them before the Step II meeting on November 15.

There was considerable evidence to substantiate the bulk of the allegations in the May 25th Notice and the Final Written Warning.  The testimony and documentary evidence describes an employee who was difficult to work with and often uncooperative with the Employer’s directives.  Grievant failed to notify the Employer of her absences; she left early or arrived late; she filled out her time cards improperly.  One incident could be an oversight.  The testimony and documentary evidence showed a pattern.  Nevertheless, Grievant was credible that she believed that the hours that she worked added up to the requisite number.

The reason given for the termination was insubordination on September 30.  Had Ms. Swisher told Grievant to go to lunch and leave the child with another teacher or with the TA and Grievant refused, she would have been guilty of insubordination.  This incident is more in the realm of failing to understand the Employer’s rules.

Grievant was credible on the point of believing that she was prohibited from leaving a child with the TA, and it was preferable to stay with the child rather than to take her lunch break.  She was understandably rattled by the meeting on September 29.  She was not likely to defy her supervisor the next day and then call to inform her of this.

Grievant’s failure to make further efforts for supervision of the child and take the required lunch break was neither insubordination nor a policy violation that was adequate to lead to discharge.

Teaching young children is a sensitive position.  Sexual or physical abuse would lead to summary discharge.  Leaving a child alone would be an extreme error in judgment and would lead to swift termination.  The September 30 incident was a misunderstanding of the rules and a failure to figure out an alternative such as leaving the child with Ms. Vaughn. 

The allegation of bringing Grievant’s husband to work did not arise until the November 30 letter. The allegation that Grievant allowed her husband to see confidential files did not arise until the Arbitration. The Employer did not rely on these allegations in imposing the termination.  Therefore, the Arbitrator does not consider these allegations herein.

The Arbitrator must walk a fine line between fairness to the Employer and Grievant. Of course, the burden of proof is on the Employer.

The Arbitrator does not wish to encourage the Employer’s sloppy administration of discipline. Neither does the Arbitrator wish to reward Grievant for her failure to follow her Employer’s rules. The Union bears some responsibility to interpret the Notices and to present evidence at the Employer’s tribunals. 












VIII. DECISION AND AWARD


Because of all of the circumstances discussed above, the Arbitrator determines that there was not just cause for the termination of Grievant.  The discipline of termination is revoked. 

The discipline of the Final Written Warning is confirmed. 

As the evidence showed that Grievant violated the Employer’s rules, no back pay is awarded. 

The Arbitrator retains jurisdiction in the event of disagreement on the implementation of this award.







___________________________

KAREN G. ANDRES, ARBITRATOR         DATED:  October 16, 2012