ARBITRATION
DECISION NO.:
415
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Mental Health
Oakwood Forensic Center
DATE OF
ARBITRATION:
January 9, 1992
DATE OF
DECISION:
February 5, 1992
GRIEVANT:
Larry E. Fairburn
OCB
GRIEVANCE NO.:
23-12-(91-08-05)-0270-01-03
ARBITRATOR:
Anna Smith
FOR THE
UNION:
Bob Rowland
Advocate
John Hall
Second Chair
FOR THE
EMPLOYER:
Rick Mawhorr
Advocate
Rodney Sampson
Second Chair
KEY WORDS:
Removal
Neglect of Duty
Insubordination
Refusal to Work
Mandatory
Overtime
ARTICLES:
Article 13-Work Week, Schedules
and Overtime
§13.07-Overtime
Article 24-Discipline
§24.01-Standard
§24.02-Progressive
Discipline
FACTS:
The grievant, a
Psychiatric Attendant at Oakwood Forensic Center since December 1983, was
removed from employment for refusing mandatory overtime. The grievant was mandated for overtime on
May 13, 1991 at 1:30 p.m. by the Psych/MR Nurse Manager. The grievant notified the employer at 2:25
p.m. that he would not work the overtime.
The grievant signed off duty at 3:00 p.m., his normal quitting
time. The employer had properly
followed the overtime procedure before mandating the grievant to work
overtime. The grievant claimed that he
could not work the overtime because he had to be home to meet his children's
school bus. The grievant unsuccessfully
tried to find someone to babysit his kids and when he was unsuccessful he had
to go home. The grievant had two prior
suspensions for failure to work mandatory overtime.
EMPLOYER’S
POSITION:
The employer
argued that the grievant deliberately left the work area after being given a
direct order to perform the overtime and that he was aware of the
consequences. The employer claims that
removal would be proper even if this were the grievant's first offense. The employer stated that it was not
responsible for the grievant's private affairs.
UNION'S
POSITION:
The union states
that the grievant informed the employer of his situation but that the employer
refused to cooperate with him as it had promised to do in a prior arbitration
involving the same issue. The union
argued that the employer could have used a management person to fill the
overtime opportunity but it refused to do so.
Further, the union points out that it was a staffing shortage at the
facility which caused the mandatory overtime and continues to cause problems
for many employees.
ARBITRATOR’S
OPINION:
It is clear that
the grievant willfully violated an order by the employer and that he knew the
consequences. In most situations, the
appropriate response from employees is to follow the order first and then
grieve later. However, there are
exceptions such as imminent danger to the employee. Here the grievant had a legitimate concern with his children
arriving home from school. The employer
does have a right to direct its workforce but employees should not be on call
every minute of the day.
Here, where a legitimate excuse was given by the grievant, the employer
abused its discretion by not finding alternative ways of covering the
position. Nevertheless, the grievant
does have a history of insubordination and has repetitively failed to make
alternative arrangements for child care.
Thus, the employer's lack of discretion must be weighed against the
grievant's irresponsible actions.
AWARD:
The grievance is
sustained in part, denied in part. The
removal was not for just cause and is reduced to a 60 day suspension without
pay or benefits.
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
23-12-910805-0270-01-03
Larry E.
Fairburn, Grievant
Removal
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
Edward R.
McPheron, R.N., C.N.A.; Psych/MR Nurse Manager,
Oakwood
Forensic Center; Witness
Peggy S.
Bockey, R.N.; Psych/MR Nurse Supervisor,
Oakwood
Forensic Center; Witness
Jane
Latane; Ohio Office of Collective Bargaining;
Observer
For OCSEA Local 11, AFSCME:
Bob
Rowland; Staff Representative, OCSEA Local 11,
AFSCME,
AFL-CIO; Advocate
John Hall;
Staff Representative, OCSEA Local 11,
AFSCME,
AFL-CIO; Second Chair
Larry E.
Fairburn; Grievant
Hearing
Pursuant to the
procedures of the parties a hearing was held at 9:15 a.m. on January 9, 1992,
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 1:00 p.m., January 9, 1992.
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
removal 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, May 13, 1991
5. Call-In Log, May
13, 1991
6. Daily Schedule,
First Shift, May 13, 1991
7. Overtime Schedule,
First Shift, May 13, 1991
8. Daily Schedule,
Second Shift, May 13, 1991
9. Overtime Schedule,
Second Shift, May 12, 1991-May 16, 1991
10. Key Assignment
Sheet, May 13, 1991
11. Statement of Ed
McPheron, May 14, 1991
12. Corrective Action
Policy, June 25, 1990
13. Policy
Acknowledgment Sheet, August 22, 1990
14. Position
Description for Psychiatric Attendant
15. Letter from Allen
County Children Services, May 29, 1991
18. Memo from George
Nash, January 7, 1991
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 May 13, 1991 at 1:30 p.m. by Mr. McPheron, Psych/MR
Nurse Manager. Mr. Fairburn notified
Mr. McPheron at 2:25 p.m. that he would not work the overtime. Mr. Fairburn signed off duty at 3:00 p.m.,
his normal quitting time.
3. Mr. Fairburn was
aware of the Corrective Action Policy and possible consequences for any
violation.
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 within classification.
5. All appropriate
contact had been made by the supervisor prior to mandating and Mr. Fairburn was
the next appropriate person to mandate.
6. The Order of
Removal was signed on July 24, 1991.
7. 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 removal for neglect of duty and/or failure of good behavior
and/or 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 May of 1991, Management was hiring a significant amount of
overtime. 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 May 13, 1981,
such a situation arose when several employees called in sick or to cancel
scheduled overtime. 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, whose wife that morning had
decided to go out of town for the day, told Management (Edward McPheron) that
he had to be home to meet his children's school bus. McPheron told him he would be permitted to take his paid break at
the time he needed to pick up his children and suggested he get someone else to
babysit. The Grievant made several
phone calls unsuccessfully, so notified McPheron at 2:25 p.m. that he would not
stay for the start of the second shift (3:00), but could return at 7 o'clock, when
his wife would be at home. McPheron
made it clear the mandated overtime was a direct order, but said he would
continue to try to find someone else to work the position. The Grievant left at the end of his
shift. McPheron mandated the next least
senior psychiatric attendant, who was relieved at 7 p.m. by a volunteer found
by a second
shift supervisor. The Grievant did not
return that evening and was subsequently removed for intentionally refusing to
obey instructions or orders in a matter related to patient care.
A grievance
protesting the removal under the Preamble, Article 24 and "all other
pertinent articles and sections" of the Contract was timely filed (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.
Records submitted
as exhibits and testimony of witnesses show that Management was going outside
the Grievant' s classification to hire overtime at the time, and that an exempt
employee worked voluntary overtime (relieving a mandated employee) that week. However, no supervisors worked overtime the
night of May 13, although §1.03 of the Contract permits this.
The record also
discloses that the Grievant, himself, had worked mandatory overtime (and, in
fact, did so later that week) but had been previously disciplined for
insubordination upon refusing to work mandatory overtime (a 2-day suspension in
1988 and a 6-day suspension in 1990, Joint Ex. 3). A supervisor, Peggy Bockey, testified that in the past she had made
efforts to accommodate him when his second job conflicted with the Agency's
overtime needs.
The corrective
action policy under which the Grievant was disciplined calls for removal on the
third offense, but also states that the grid is to be used as a guideline and
that serious consideration will be given to circumstances surrounding the
violation, seriousness of the offense, past record of the offender, and the
corrective action taken in similar situations with other employees (Joint Ex.
12).
Arguments of the Parties
Argument
of the Employer
The Employer
first points out that the facts of this case are not at issue. The Grievant deliberately left the work area
after being given a direct order to perform overtime. He was aware he had been mandated and knew his refusal could
result in discipline. Refusal of a
direct order is insubordination, which is a cardinal industrial offense since
it strikes at the fundamental managerial right to direct the work force. The Arbitrator is asked to apply the
following tests for insubordination: (1) Was the grievant given an order? (2)
Was the order legitimate? (3) Did he have a legitimate reason to refuse? (4)
Was he warned of the consequences of his refusal? In disobeying a Management order, the Grievant violated a
principle overwhelmingly supported by arbitrators: work, then grieve. Removal, the Employer claims, would be
warranted even if this were a first offense.
The Grievant and
Union defend on the basis that Management allegedly claimed it would work with
the Grievant if he made Management aware of his circumstances. The Employer asks the Arbitrator to review
the record of the case she previously heard (#23-12-900613-0202-01-03) to
appreciate the context of the CEO's alleged statement. In the instant case, Management did make an
offer to accommodate the Grievant's need to pick up his children, but this
offer was not satisfactory to the Grievant.
The workplace is not a debating society, management contends. The Agency has a responsibility to provide
service to those entrusted to its care.
Although it tries to provide adequate staffing without mandating
overtime, sometimes it is necessary and the Contract permits it. Management is not responsible for employees'
private affairs, and most employees manage to balance their work and family
obligations. This employee, who has had
previous opportunities to learn from disciplinary action and to correct his
behavior, needs to be held accountable for his actions.
With respect to
the Union argument that a supervisor might have covered the position, it is
true that the Contract permits this, but the intent of §1.03 is to protect
Management's right to insure the functioning of the Agency, not to have
supervisors fill in for bargaining unit employees. Moreover, this Arbitrator has said that the Contract does not
require the employer to exhaust all alternatives before mandating the least
senior employee.
The Employer
concludes by stating that it has progressively disciplined this employee, and
acted in compliance with the Oakwood Forensic Center disciplinary policy. It believes it has been fair and accordingly
asks that the grievance be denied.
Argument
of the Union
The Union
contends the Grievant was unjustly discharged.
At his last arbitration, Management testified that if the Grievant had
informed Management of his circumstances when he was mandated, they might have
worked something out. This time he did
tell, but was fired anyway. The
supervisor McPheron testified about alternatives to mandating the Grievant and
he was aware of §1.03 about use of management to avoid mandated overtime, yet
he chose not to use these alternatives.
Joint Exhibit 9 shows the Agency does use supervisors. It could have done so on May 13 to help out
the Grievant, but it did not. McPheron
also did not explain to the Grievant that the coverage offered could be for
more than the 40-minute break--an inadequate time to accomplish the errand,
given where the Grievant lives. If he
had, this might have given the Grievant another option.
The Union goes on
to claim that the Grievant did not refuse a direct order. What he did was to offer an accommodation or
alternative. The Union points out that
the institution was not unsecured on that night, for Management just mandated
another employee when the Grievant could not work.
The Union renews
its argument raised in the Step 3 hearing that a staffing shortage at the
institution is creating the need for mandated overtime. A newspaper article of September 1991 (Union
Ex. 1) supports this claim. The staffing
shortage has been putting a hardship on the least senior employees
who are ordered to work long hours of overtime. The condition still exists at Oakwood Forensic Center and other
employees are at risk of discipline when family responsibilities conflict with
work demands.
The Union
concludes by saying that Management has used its most severe discipline. It is not bound by the grid of the
policy. The Collective Bargaining
Agreement, specifically §24.02, permits "one or more suspension (s).”
The removal was not commensurate and was therefore unjust. The Arbitrator is asked to grant the
grievance, return the Grievant to work, and award back pay and benefits.
Opinion of the Arbitrator
There is no
question that the Grievant willfully left the work site at the end of his shift
after being given a legitimate direct order to work overtime. It is equally clear that he knew he was
subject to discipline as a consequence, since he was informed on the Agency's
disciplinary policy and had been suspended four times in as many years for
insubordination. Of the tests the
Employer asks me to apply, three are clearly satisfied. It is the remaining test--reason for
refusal--that fails and causes me to overturn the removal.
As the Employer
points out, it is a well established principle that when an employee’s initial
effort fails to persuade management that an order is faulty, the employee
should obey anyway and use the grievance procedure to secure justice. This principle, however, has its exceptions,
imminent danger to the employee being the most widely regarded. Here, the Grievant claims an exception and
it is thus necessary to strike a balance between the Grievant’s reason for
refusing the overtime order and Management's need to have him work at that
time.
The reason
claimed by the Grievant is the childcare obligation that remained despite his
last-minute attempts to secure a substitute.
I would agree that he was between a rock and a hard place, and dependent
on the Employer's reasonableness to get him out of his dilemma. That his Employer was unyielding when he
again informed the supervisor he had to meet his children's bus really left him
no choice but to disobey. However, the
Grievant must bear some responsibility for getting into the dilemma in the
first place, for he well knew from past experience that he could be mandated at
any time, yet he made no contingency plan for his children's welfare. I shall return to this when I fashion a
remedy below.
As to
Management's need to have the Grievant work, it is true it has the right to
direct its workforce, including the specific contractually-guaranteed right to
mandate overtime to the least senior employee, but this right must be exercised
with reason and fairness. Employees are
not on call every minute of every day.
There occasionally will be extenuating circumstances legitimately
excusing them from heeding their Employer's demand for overtime. If they are reasonable excuses, made known
to the Employer, and not used to avoid unwanted job obligations, the Employer
must accept them unless its need for the employee's extra work is over-riding or it
can accommodate the employee's needs as well as its own. In this particular instance, where a
legitimate reason for refusing the overtime was raised at the time and the
Employer had other ways of covering the position, the Employer abused its
discretion when it removed the Grievant for insubordination. In view of Management testimony that it had
previously made adjustments to accommodate the Grievant's second job, refusal
to accept a childcare excuse seems particularly arbitrary and
unreasonable. Moreover, the Employer's
own disciplinary policy calls for consideration of circumstances surrounding a
violation when a corrective action is contemplated. An employee's inability to secure childcare coverage is such a
mitigating circumstance.
If this case
stood alone, the Arbitrator would have no difficulty granting the grievance in
its entirety. However, the Grievant's
substantial history of insubordination and continuing intransigence in solving
his childcare problems persuade me that further corrective action is
necessary. This is a situation, like
others before, that the Grievant had the ability to avoid with advance
planning. He must learn that he cannot
use his failure to plan to shield him from unwanted overtime. In view of the fact that modest suspensions
have not had the desired impact, a lengthy one is in order. The removal is accordingly reduced to a
60-day suspension and the Grievant is warned that this is a last chance for him
to put his private affairs in order such that he might satisfactorily fulfill
his employment obligations.
Award
The grievance is
sustained in part, denied in part. The
removal was not for just cause and is reduced to a sixty-day suspension without
pay or benefits. The Grievant is to be
reinstated as a Psychiatric Attendant, with back pay, seniority and benefits
retroactively restored to the 61st day following his removal. Back pay is to be reduced by such interim
earnings as the Grievant may have had on account of his removal and he is to
supply the Employer with such evidence of earnings as it may require. If reinstatement to the Grievant's former
post and shift would have the effect of violating the Contractual seniority
rights of more senior employees, he shall be placed in accordance with his
seniority.
Anna D. Smith, Ph.D.
Arbitrator
February 5, 1992
Shaker Heights, Ohio