ARBITRATION
DECISION NO.:
404
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Mental Health
Oakwood Forensic Center
DATE OF
ARBITRATION:
November 6, 1991
DATE OF
DECISION:
December 9, 1991
GRIEVANT:
Larry E. Fairburn
OCB
GRIEVANCE NO.:
23-12-(90-06-13)-0202-01-03
ARBITRATOR:
Anna Smith
FOR THE
UNION:
Bob Rowland
FOR THE
EMPLOYER:
Rick Mawhorr
Rodney Sampson
KEY WORDS:
Suspension
Refusal of Mandatory
Overtime
Sleeping on Duty
ARTICLES:
Article 24 - Discipline
§ 24.01 -
Standard
FACTS:
The grievant, a
Psychiatric Attendant at Oakwood Forensic Center for almost six years, was
issued a six day suspension for refusing mandatory overtime and sleeping/not
being alert on duty. On September 8,
1989, the employer was unable to fill two second-shift positions with
volunteers for overtime. It therefore
mandated the two least senior employees, including the grievant, to work. The grievant refused, saying he had other
plans, but he did not explain further.
Before the pre-disciplinary conference concerning this incident took
place, a second alleged infraction occurred.
On October 13th the grievant's supervisor entered the day hall where the
grievant was working and observed him sitting with his eyes closed and his feet
on the chair in front of him.
Patients and
another psychiatric attendant were present.
The supervisor called his name at which time the grievant opened and
blinked his eyes. As a result of both incidents, the grievant was suspended for
six days.
EMPLOYER'S
POSITION:
The employer
argued that just cause existed for the grievant's suspension. The grievant knew that he could be mandated
to work overtime by the employer. If
the grievant had a situation where he could not comply with this policy, it was
his responsibility to explain his situation to the nursing supervisor that day
so they could work together on the problem.
Despite being cautioned to do so, he did not. His failure to make prior arrangements does not mitigate the fact
that he walked off duty when ordered to stay and work. The appropriate response was to work, then
grieve. As to the second charge, it was
clear that the supervisor saw the grievant with his eyes closed while patients
were in the area. The employer cannot
tolerate lack of alertness on duty and has disciplined others for such action.
UNION'S
POSITION:
The union
believes that just cause did not exist for the grievant's suspension. As for the charge of insubordination, the
grievant was unable to work the mandatory overtime because of child care
responsibilities - an obligation he could not change. The grievant had notified the employer of his circumstances in
the past and it made no difference.
Therefore, the grievant found it fruitless to notify them again of his
responsibility on the day on which the incident occurred. Moreover, the employer had alternative means
for filling the position, for management staff was available. As for the sleeping/not being alert charge, the
grievant had just finished using eyedrops.
The grievant has a documented history of eye problems. The grievant also testified that he had a
phone conversation just prior to the supervisor approaching him which shows
that he was not asleep on duty. The
union argued that the disciplinary action was more punitive than corrective.
ARBITRATOR’S
OPINION:
The arbitrator is
sensitive to the grievant's dilemma, but management's point about the
responsibility of all employees to balance work and family obligations is
well-taken. The grievant was aware of
the mandatory overtime policy and yet did not plan backup child care
coverage. One cannot blame the grievant
for choosing his family when the chips were down but he must accept the
consequences. Discipline is warranted
for insubordination. As for the
sleeping on duty/not being alert charge, the grievant could have been alert and
aware of his surroundings, even though his eyes were not fully open. The grievant's medical problems and his
testimony of the phone call just prior to the incident are credible. Thus, the only question is whether a six day
suspension is appropriate for insubordination.
In view of the fact that the grievant has had a one and a two day
suspension for insubordination, I believe a six day suspension was warranted.
AWARD:
The six day
suspension was for just cause. The
grievance is denied in its entirety.
TEXT OF
THE OPINION:
In the
Matter of Arbitration
Between
STATE OF OHIO,
DEPARTMENT OF MENTAL HEALTH
and
OHIO CIVIL SERVICE EMPLOYEES
ASSOCIATION, LOCAL 11,
A.F.S.C.M.E., AFL/CIO
OPINION and AWARD
Anna D.
Smith, Arbitrator
Case
23-12-900613-0202-01-03
Larry E.
Fairburn, Grievant
Discipline
Appearances
For the State of Ohio:
Rick
Mawhorr; Labor Relations Officer, Oakwood Forensic
Center;
Advocate
Rodney
Sampson; Assistant Chief of Arbitration Services,
Ohio
Office of Collective Bargaining; Second Chair
Ronald G.
Gilroy; Captain (Retired), Oakwood Forensic
Center;
Witness
John
Allen; Chief Executive Officer, Oakwood Forensic
Center;
Witness
Janet
Campbell; Psychiatric Nurse Supervisor, Oakwood
Forensic
Center; Witness
For OCSEA Local 11, AFSCME:
Bob
Rowland; Staff Representative, OCSEA Local 11, AFSCME,
AFL-CIO;
Advocate
Larry E.
Fairburn; Grievant
Gary
Hobbes; Chapter President, OCSEA Local 11, AFSCME, AFL-
CIO;
Witness
Clementine
Bates; Psychiatric Attendant, Oakwood Forensic
Center;
Witness.
Hearing
Pursuant to the
procedures of the parties a hearing was held at 9:30 a.m. on November 6, 1991
at Oakwood Forensic Center, Lima, Ohio before Anna D. Smith, Arbitrator. The parties were given a full opportunity to
present written evidence and documentation, to examine and cross-examine
witnesses, who were sworn and excluded, and to argue their respective
positions. The record was closed upon
conclusion of oral argument at 2:30 p.m., November 6, 1991. This opinion and award is based solely on
the record as described herein.
Issue
By
agreement of the parties, the issue to be decided by the Arbitrator is:
Was the
six (6) day suspension issued for just cause?
If not,
what shall the remedy be?
Joint Exhibits and Stipulations
Joint
Exhibits
1. 1989-91 Collective
Bargaining Agreement
2. Grievance Trail
3. Discipline Trail
4. Sign-In/Sign-Out
Sheet, September 8, 1990
5. Call-In Log,
September 8, 1990
6. Daily Schedule,
First Shift, September 8, 1990
7. Daily Schedule,
Second Shift, September 8, 1990
8. Daily Schedule,
Third Shift, September 8, 1990
9. Statement of Ron
Gilroy, October 13, 1989
10. Patient I.D. Card
of Larry Fairburn
11. W-2-N Ward Log,
October 13, 1989
12. Patient
Verification Sheet, October 13, 1989
13. Corrective Action
Policies, July 19, 1988 and August 15, 1989
14. Overtime Policies,
June 21, 1988 and August 15, 1989
15. Policy
Acknowledgment Sheets, August 9, 1988 and September 29, 1989
16. Position
Description
17. Medical Restriction
18. Statement of Joe
Horstman, November 5, 1991
19. Statement of Ken
Hollar, November 5, 1991
20. Annual Performance
Evaluation, 1989.
Joint
Stipulations of Fact
1. Mr. Fairburn was a
psychiatric attendant at Oakwood Forensic Center on first shift (7:00 a.m. -
3:00 p.m.) and has been employed since December 29, 1983.
2. Mr. Fairburn was
mandated for overtime on September 8, 1989.
He refused and signed off duty at 3:00 p.m., his normal quitting time.
3. Mr. Fairburn was
aware of the corrective action policy.
4. The overtime
hiring procedure at that time was:
a. Contact all
persons on the overtime roster within classification;
b. Contact persons
who volunteered for overtime outside classification;
c. Mandate least
senior on work site.
5. All appropriate
contact had been made by the supervisor prior to mandating.
6. Mr. Fairburn had
eye surgery in 1987.
7. There is a
typographical error in the Order of Suspension and Order of Removal. The current date should be October 13, 1989.
8. This grievance is
properly before the Arbitrator.
Case History
Oakwood Forensic
Center is an acute-care maximum-security facility for the mentally ill who have
been probated to the Ohio Department of Mental Health from the Ohio Department
of Rehabilitation and Correction. The patients
under the care of the facility are dangerous to themselves or others. Their behavior is unpredictable and can be
volatile. The Grievant has been
employed at the facility since 1983. At
the time of his discipline for neglect of duty (sleeping or unalert on duty)
and insubordination (refusal to work mandated overtime), he was a
psychiatric attendant on the first shift.
As such, he was responsible for supervising patients’ daily activities
and for their safety and security.
Because of the nature of the patient population, psychiatric attendants
rarely work alone and must be alert at all times. In September of 1989, Management was hiring overtime because of
chronic understaffing (according to the Union) and/or scheduled vacations
(according to the Employer). Section
13.07 of the Collective Bargaining Agreement permits the Employer to require
the least senior employee who normally does the work to perform overtime if it
is not filled by volunteers. On
September 8, 1989, such a situation arose.
Following established procedure, the Employer was unable to fill two
second-shift positions with volunteers.
It therefore mandated the two least senior employees, including the
Grievant, to work. The Grievant
refused, saying he had other plans, but did not explain further. The nurse supervisor advised him of
disciplinary consequences. He
nevertheless left at the end of his regular shift and was thereafter written up
for insubordination.
Before the
pre-disciplinary conference on this incident took place, a second alleged
infraction occurred. On October 13 at
1:59 p.m., Captain Ronald Gilroy entered the dayhall where the Grievant was
working and observed him sitting with his eyes closed and his feet on the chair
in front of him. Patients and another
psychiatric attendant were present. A
fourth employee, Mr. Cooper, came on to the unit a minute later. Capt. Gilroy watched the Grievant
for three or four minutes, after which he approached him and called him by
name. The Grievant opened and blinked
his eyes. Gilroy informed him he would
write him up for sleeping on duty and left.
The Request for Corrective Action was issued October 31, 1989, charging
the Grievant with "sleeping/unalert" on duty.
These two charges
were consolidated for subsequent processing and a pre-disciplinary conference
was held on November 15, 1989. At this
time the Grievant provided explanations for his behavior. As to the refusal to work overtime, the
Grievant stated he had to meet his child's school bus. In arbitration the Grievant further
explained that he and his wife were separated, that he had made plans to pick
up his son at the bus and spend the weekend with him, that his in-laws (who
usually care for the boy) were gone, and that he had a legal obligation not to
leave his children unattended. He
further stated that he had previously informed his employer of his childcare
responsibility and that it had never been taken into consideration. This history and his emotional state was why
he did not explain his refusal to work on this occasion.
As to the
incident of October 13, Mr. Fairburn has a documented history of eye trouble,
including surgery and intraocular lenses.
His eyes were bothering him that day because of cigaret smoke in the
dayhall. Shortly before Capt. Gilroy came on the ward, the Grievant had
used eyedrops. When Gilroy came in, the
Grievant says he was sitting with his eyes partially closed watching
television. He could see Capt. Gilroy and Mr. Cooper when they came
in. He asserts he was not asleep and
had, in fact, taken a phone call a few minutes before Gilroy
arrived. He gave this explanation to
his immediate supervisor before being written up and again when presented with
the Request for Disciplinary Action.
The other attendant on duty, Tina Bates, supported his explanation at
the pre-disciplinary conference and in arbitration. Also offered as a joint exhibit was a written statement from the
person with whom the Grievant had the phone conversation. The pre-disciplinary hearing officer, Mr.
Allen, testified that he spoke to Mr. Cooper, who saw nothing. Neither side called Cooper or submitted a
statement from him in arbitration.
The result of the
pre-disciplinary conference was a removal order, signed by the Director on
December 17, 1989. However, this action
was held in abeyance pending completion of an Employee Assistance Program
Participation Agreement. The Grievant
completed this program on April 5, 1991, whereupon Mr. Allen recommended
modification to the removal action.
Discipline for the two alleged offenses was consequently reduced to a
six-day suspension beginning June 26, 1990.
The Grievant's
performance evaluation for 1989 was acceptable on all dimensions. His prior disciplinary record is as follows:
9/3/86
Oral Counseling
Unprofessional Conduct
1/22/87
Written Reprimand
Patient Abuse
7/15/87
1-day Suspension
Insubordination
3/21/88
2-day Suspension
Refusal to Work Mandated Overtime
Mr. Allen testified and documents were submitted to show
that a previous superintendent of the institution dropped an additional charge
of refusal to work overtime in 1988 where the Grievant <PAGE NAME="7">claimed extenuating
circumstances. The superintendent at
that time directed the Grievant's nurse supervisor and union representative to
work with him to resolve his mandatory overtime problems. Mr. Allen also testified that he had advised
the Grievant at another pre-disciplinary conference to explain his reasons to
his supervisor when he is unable to work overtime so they can work on the
problem together. Additionally, from
February 6 through June 1, 1989, the Grievant was medically restricted to
working a maximum of eight hours per day.
This overtime restriction was not in effect at the time of either of the
incidents.
Following
notification of the suspension, a grievance was filed, alleging violation of
the "Preamble, Article 24, and all pertinent articles and sections"
of the Contract (Joint Ex. 2). Article
24 of the Collective Bargaining Agreement states in relevant part,
"Disciplinary action shall not be imposed upon an employee except for just
cause .... The Employer will follow the principles of progressive discipline
.... Disciplinary measures imposed shall be reasonable and commensurate with
the offense and shall not be used solely for punishment.'' The parties being unable to resolve their
differences at Step, 3 of the grievance procedure, the case was appealed to
final and binding arbitration, where it presently resides free of procedural
defect.
Arguments of the Parties
Argument
of the Employer
The Employer
argues that the Grievant is guilty of both offenses and that the penalty
imposed is appropriate. On the overtime
charge, Management states that the extenuating circumstances were its own, not
the Grievant's. Management took
precautions to assure staffing sufficient to meet its needs under the mission
of the institution by hiring overtime in advance. When four called off, it hired outside the bargaining unit and a
supervisor to fill positions before mandating bargaining-unit employees. Management tries to avoid this when
possible, but it is within its rights under Section 13 of the Collective
Bargaining Agreement. As to the
Grievant, he knew he could be mandated.
At one time he was on medical restriction. Either he became capable of working more than eight hours a day
or he chose not to have the restriction renewed. This was his choice.
Regarding the plans he had made that conflicted with the overtime, he is
not unique in his family responsibilities.
All who have children face similar challenges. It was his responsibility to explain his situation to the nursing
supervisor that day so they could work together on the problem. Despite being cautioned to do so, he did
not. Neither did he make any attempt to
change his plans, nor did he have an alternative course of action prepared for
use in the event he had to work. His
failure to make prior arrangements does not mitigate the fact that he walked of
f duty when ordered to stay and work.
The appropriate response was to work, then grieve.
On the second
charge, the testimony of Management's witness was detailed and specific: he saw
the Grievant in an unalert or sleep condition for some minutes. Patients were in the area. The Union might have called Cooper or
submitted his statement to rebut this testimony, but it did not do so. Management witnesses also testified to the
necessity for psychiatric attendants to be alert at all times. The Grievant had alternatives. He could have waited for another employee,
or called another unit for relief. His
choice showed poor judgment, placing himself and others in jeopardy. Management cannot tolerate lack of
altertness on duty and has disciplined others for their failure in this regard.
Management goes
on to point out that, given the Employee's record, either of these separate
charges could result in a six-day suspension under the disciplinary guidelines
(Joint Ex. 13). It therefore asks that
the grievance be denied in its entirety.
Argument
of the Union
The Union does
not believe Management has shown just cause for discipline. Regarding the charge of insubordination, it
argues the Grievant was between a rock and a hard place. While mandatory overtime is not uncommon at
the facility, employees do not know until the last minute that they will have
to work. The Grievant had notified
Management of his circumstances in the past and it made no difference. He therefore knew it would be fruitless to
mention his family responsibility this time.
Moreover, the record shows that the Employer had alternative means for
filling the position, for management staff was available.
On the charge of
being asleep/unalert on duty, Capt. Gilroy testified that he could not see the
Grievant's eyes from his position at the desk, yet Mr. Allen testified that he
made his disciplinary decision based on Gilroy having observed the Grievant's
closed eyes. Capt. Gilroy should have
confirmed his suspicion by checking further.
Upon being confronted, the Grievant immediately told his supervisor
about the eyedrops. There is also
independent corroboration of the phone call the Grievant received just prior to
Capt. Gilroy's observation.
The Union
concludes and argues that the disciplinary action here is more punitive than
corrective. It seeks restoration of six
days back pay and benefits and that the Grievant’s record be expunged of the
action.
Opinion of the Arbitrator
Charge of
Insubordination
That the Grievant
walked off the job at the end of his regularly scheduled shift after being
ordered to work a second shift is an undisputed fact. So is his failure to explain his inability to work to the nursing
supervisor who issued the order. This
employee has been cautioned before to identify special circumstances to the
supervisor so that they can work together to find a mutually agreeable
solution, or at least one superior to the outcome experienced here. The Grievant says he provided this
information in the past to no effect.
No doubt his frustration explains his failure to seek an accommodation
this time, but it does not relieve him of the duty to apprise his employer of
his situation when he wants special consideration. It may not always be possible to give an employee his preferred
result or even to accommodate him at all, but the testimony of the nurse
supervisor shows alternative solutions meeting critical requirements of both parties
were available. Failure to consult with
his Employer deprived the Employer from considering the extenuating
circumstances the Grievant now claims.
In short, if an employee wants extenuating circumstances considered when
overtime assignments are made, he must make them known while the decision can
still be affected.
The Union argues
that Management might have ordered a supervisor to work instead. This is true. However, the Union does not argue and the Arbitrator does not see
a contractual requirement for Management to exhaust all other alternatives
before mandating the least senior bargaining unit employee who normally does
the work. Indeed, in following
established procedure, Management did obtain personnel outside the unit before
exercising its right to mandate and meeting its obligation to choose the least
senior individual. Again, if the
Grievant wished Management to consider this or another solution to the problem,
the thing to do was-to explain his predicament at the time.
The Arbitrator is
sensitive to the Grievant's dilemma, but Management's point about the
responsibility of all employees to balance work and family obligationsl is
well-taken. This employee was well
aware of the consequences both of refusing to work mandatory overtime and of
neglecting his childrens' needs. He
also knew the possibility of mandatory overtime with little notice. Despite this knowledge he did not have a
contingency plan. Now he blames his
employer when the decision not to plan backup coverage for his children was
entirely his own. One can hardly blame
him for
choosing his family when the chips were down, and certainly one sympathizes
with those who live with challenging role conflicts, but the employee must be
accountable for the decisions he makes.
Discipline is warranted for insubordination.
Charge of
Being Unalert/Asleep on Duty
Unlike the first
charge, the Grievant's guilt on the second charge is in dispute. Management's witness to the incident made a
prima facie case against the Grievant.
However, the Grievant's explanation of his behavior as corroborated by
the testimony and statements given by other Union witnesses raises considerable
doubt as to Capt. Gilroy's
interpretation of the Grievant's posture.
The phone call immediately prior to Gilroy's appearance and recent use
of eyedrops necessitated by the Grievant's physical condition and smokey
environment persuade me that there was little opportunity for the Grievant to
doze off before Gilroy arrived. Additionally,
his behavior upon being called by name is not clearly that of one who was
sleeping or daydreaming. While I do not
doubt Capt. Gilroy's testimony about the Grievant's posture or the
reasonableness of his suspicion, I do think the Grievant could have been alert
in that position and aware of his surroundings, even though his eyes were not
fully open.
Appropriateness
of Penalty
Having found the
Grievant guilty of insubordination for refusing to work mandated overtime and
innocent of being asleep/unalert on duty, it remains to determine whether the
six-day suspension was justified under the circumstances. This is the Grievant’s third recorded
instance of insubordination resulting in discipline in a little over two
years. Previous penalties were a one
and a two-day suspension. The principle
of progressive discipline as specified in the Contract and the Employer's
policy calls for a lengthier suspension such as was imposed post-EAP
completion. The question is whether
this penalty ought to be mitigated by the reason the Grievant refused the order
and/or by completion of the EAP. In
view of the fact that the Grievant had been previously counseled to give his reason
for being unable to work at the time he receives an overtime order, and he did
not do so, the penalty should not be reduced on account of the employee's
extenuating circumstances.
As to the EAP,
this is one of several instances in which the Employer demonstrated willingness
to work with this employee to solve or accommodate his problems. At some point the employer's patience wears
thin and it calls upon the recalcitrant employee to experience the consequences
of failing to amend his behavior. In
such cases discipline is not for punishment, as the Union argues, but for
correction. That point has arrived in
this case.
There is also
considerable doubt in the Arbitrator's mind as to whether the EAP is
responsible for the Grievant's record since he completed it, since he testified
that the psychiatrists said they could not help him with his problem and he
stated that he only went to save his job.
Thus, in view of the fact that a six-day suspension is not an
unreasonable third penalty for insubordination, the Employer's choice of
penalty is upheld.
Award
The six day
suspension was for just cause. The grievance
is denied in its entirety.
Anna D. Smith, Ph.D.
Arbitrator
December 9, 1991
Shaker Heights, Ohio