Major Union Victory!
In December 2019, an employee in OHSU’s Food and Nutrition Services department was fired for what management determined was a violation of OHSU's attendance policy — she had used sick time for three occurrences in a 90-day period. The HR business partner and the Food and Nutrition retail manager decided to terminate the employee, despite there being no evidence of sick-time abuse and no prior history of attendance issues. Our union immediately filed a grievance on the employee’s behalf, taking the case to arbitration after OHSU denied a step-two grievance. On October 16, ten weeks after an arbitration hearing, an arbitrator ruled in favor of Local 328 on our termination grievance — meaning that reinstatement was on the table, with full back pay for time lost.
The potential reinstatement of a wrongfully terminated member is a significant legal victory for our union. However, perhaps even more important is the reason why Local 328 won this case and what that means for our 7,000 represented employees. We’ll make this clear later in this article, but first we need to define a few principles related to discipline.
Our union contract protects workers via the principles of progressive discipline and just cause. These principles are fundamental job protections that the vast majority of non-union workers in this country don’t have, and are part of what makes a union job so valuable — you can’t be fired on a manager’s whim.
Just cause means that management cannot discipline or terminate you without meeting certain criteria laid out in Appendix D of our contract. For example, one just-cause criteria is that the discipline must be equivalent to the offense.
Progressive discipline essentially means that the purpose of discipline is not to punish, but to assist employees in understanding performance problems and correcting their behavior. This doesn’t mean that an employee can’t be fired, but it does mean that low-level offenses, such as an attendance-policy violation, are not fireable on the first offense. It also means that attendance-related discipline is not necessarily related to a job-performance issue.
The principle of progressive discipline means that discipline must be nuanced and thoughtful. That brings us back to the arbitration case, in which OHSU’s agents were neither nuanced nor thoughtful. OHSU has been practicing, to the protests of our union, something called one-track discipline.
One-track discipline can easily be described as “three strikes and you're out.”
That is how OHSU’s agents looked at this employee’s case. She had prior discipline for job-performance issues that had resulted in a final warning; none of the issues were particularly serious, but had caught her manager’s attention. When she accumulated three occurrences for legitimate use of sick time, her manager and the HR business partner saw their chance to fire her. They bundled the attendance occurrences with the previous, unrelated disciplinary action and terminated her. To be clear, she should not have received any discipline for going home sick, but if discipline had been warranted, it should have been something like a coaching -- and on an entirely different “track” of discipline since it had no relation to the other job issues.
The arbitrator wrote:
“An employer may develop employment policies such as a one track interpretation in discipline matters, but only if the policies do not violate the terms of the CBA. The ‘one track’ interpretation as applied to [the employee] is inconsistent with Article 23 and Appendix D of the CBA which require OHSU to follow the principles of progressive discipline and just cause in administering discipline.”
For OHSU to legitimately practice one-track discipline, it would have needed to bargain it into the contract. OHSU did not do that, instead choosing to unilaterally implement an unfair practice. Our union has opposed the legitimacy of this practice, but hadn’t had a solid test case to fight it legally — not until OHSU fired this employee. Her case became our solid test case. The arbitrator ruled that:
“The parties bargained for the terms and policies of the collective bargaining agreement. In that agreement the parties included just cause and progressive discipline limits on the employers right to discipline employees. The one-track policy would unilaterally and negatively alter the progressive discipline and the just cause provisions of the CBA. OHSU does not have the power to unilaterally change the provisions of the Collective Bargaining Agreement.”
What does this mean?
For one, the arbitration ruling only covers this specific case — it does not mean OHSU must retroactively fix previous disciplines where it has bundled disciplines that it shouldn’t have. In a just world, HR would form a labor-management committee to evaluate all disciplines that didn’t follow progressive discipline and make members whole when warranted; our union will likely push HR to do so in the coming weeks.
More broadly, we are somewhat hopeful that OHSU will change its practice and stop using one-track discipline; we have our doubts that this will happen, of course. Regardless, we now have the arbitration ruling to help us fight back when OHSU oversteps the contractual limits both parties agreed to and attempts to unjustly discipline or terminate one of our represented employees.
The importance of this ruling will be fleshed out over the next few years, but it is without a doubt a major victory for our members’ contractual rights.