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May 5, 2011
(“CPR”). AX 3. She was certified in July of 2008; that certification was good
(UX 3), but called in sick that day. When she returned to work on August 2,
2010, she was informed that she would not be allowed to work with patients
until she was recertified. The next CPR class to be offered at the Battle Creek
Medical Center was not going to be held until August 12, 2010, so Grievant was
placed on paid leave. After she exhausted her paid leave, she was allowed to
return to work in a position not involving patient care. All told, between August
2 and August 12, 2010, Grievant was charged with 41.25 hours of paid leave
and 1.25 hours of leave without pay, hours which she now seeks to recoup in
this arbitration.
A grievance was filed on August 30, 2010. Following its denial by the
2
16, 2011, at the Medical Center in Battle Creek. Briefs were filed on April 22,
2010, and the arbitrator requested additional information from counsel on May
2, 2011. Having received the information requested, the arbitrator renders the
The Union contends that under Medical Center Memorandum No. 11-
1022, dated November 2008 (AX 2 or “Memo 11-1022”), Grievant was entitled
Id., ¶ 4.b(5).
Grievant claims that the first notification she received was an email from
LMS on July 18, 2010, which indicated that her certification would expire on
expires on the last day of a month; in Grievant’s case, on July 31, 2010. Only
one more CPR class was scheduled at the Medical Center in July, after this July
18 notice, namely, the one on July 30. UX 4. Grievant was, therefore, scheduled
for that July 30 class. UX 3. The Union contends that Grievant was prejudiced
by the lack of sufficient notice and opportunity to have taken an earlier class.
The Agency counters that the month and year in which a CPR
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certification expires are listed on the employee’s certification card itself (AX 27)
and that ultimate responsibility for recertification lies with the employee. The
last sentence of ¶ 4.b(7) of Memo 11-1022 plainly states: “All personnel are
out of the national office, over which the local Battle Creek Medical Center has
no control. The national notice policy was changed sometime around April or
May of 2010 to provide notices 30-15-7 days in advance and thereafter weekly.1
believe that Grievant did not receive notices under the new 30-15-7 policy.2 The
Agency has evidence that Grievant received at least one notice (AX 24), and
III. Discussion
At first glance this case might seem like an inviting one for the arbitrator
to split the difference between the parties’ positions and award each one half a
loaf, particularly since each party seems to have had some responsibility for the
events in dispute and the collective bargaining agreement was not even entered
into evidence and was referenced only in passing in the Union’s demand for
4
resolved on the basis of the language of Memo 11-1022.
implements locally, makes clear that BLS includes CPR education. Directive
Id., ¶ 4.b(7); emphasis supplied. The next ¶ 4.b(8) provides that “[i]f BLS …
may not treat patients.” Finally, AX 3 states that Nursing Assistants are required
The testimony about Grievant calling in sick on July 30, 2010 was quite
Union Exhibit 3 shows that on July 28, 2010, Kelly Dunmire sent an e-
mail to Ms. Williams and other employees notifying them that they were
scheduled to attend the CPR class on July 30, 2010. Page 2 of that exhibit
shows that Ms. Williams read the e-mail once on the day before the
training, July 29, 2010. Ms. Williams testified that she honestly didn’t
remember opening and reading the e-mail.
On Friday July 30, 2010, Ms. Williams was ill and called in sick to work.
She was not aware that she had been scheduled for the CPR class that
day.
Union brief @ 3.
5
In an effort to obtain more precise information about Grievant calling in
sick, the arbitrator, via an email sent to counsel on May 2, 2011, posed the
following questions:
2. When Grievant called in sick on July 30, 2010, with whom did she speak
at the VAMC?
3. Did Grievant describe the nature of her illness and, if so, how did she
describe it?
Union response: Ms. Williams called the “nurse of the day” to say she
was ill and wouldn’t be in to work. There is not a requirement to state
the nature of her illness since the procedure is to call the “nurse of the
day.”
Agency response: No. Ms. Williams advised that she was ill and
wouldn’t be in to work. There is no requirement for the employee to
describe the nature of their illness.
4. Who at the VAMC authorized her to take sick leave that day?
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Agency response: The NOD takes the call (request from the
employee) and delivers a “yellow slip” message noting the call and
the absence on to the Supervisor, Ms. Sharon James. When the
employee returns to duty, the employee enters their specific leave
request in the computer. In this case, the computer entry was done on
August 2, 2010. Ms. Sharon James then approved the requested Sick
Leave later that same day. In that the employee was not on a “Sick
Leave Certification Letter” and had a positive sick leave balance to
cover the day requested, Ms. James is required to approve the Sick
Leave request by the employee.
5. Did her service chief excuse her from attending CPR training that day?
Union response: Ms. Williams did not know she was scheduled for
CPR training on July 30th, when she called in sick. She didn’t find out
until the following Monday when she returned to work that her
supervisor signed her up for the class on the 30th. In order for Anne
Garrett to excuse her from the class, the leave would have to have
been approved prior to the date in question. Ms. Williams took the
next CPR class offered by the VA.
Agency response: No. The employee was not excused, she was on sick
leave. The employee was notified multiple times in multiple ways
regarding the CPR training scheduled for her on July 30, 2010. Her
absence did not excuse her from the training on July 30, 2010.
The email of July 28, 2010, which Agency computer records show that
Healthcare Provider Review module in the LMS prior to attending the class.”
The exhibit further indicates that Grievant at least opened the email at 7:31 in
the morning on July 29, 2010, so that she had ample time to complete the
Review module before class the next day, which was scheduled to run from
7
Grievant’s claim of forgetfulness is not very convincing, and the
arbitrator finds that she had a responsibility to read the email and that she knew
or ought to have known about the training class set for July 30. According to
information furnished by counsel, Grievant’s service chief did not excuse her
from attending the CPR training for which she was scheduled, and therefore
of the fact that the scheduled CPR training was to last only half a day. She
should have bucked up and toughed out the four-hour CPR session. If she was
so sick that she was unable to do so, all she had to do was contact her service
chief and obtain dispensation.3 In general, Grievant did not seem that anxious to
complete her recertification. When queried about the available option of taking
another CPR course offered elsewhere, she replied in effect, “I would have had
to travel out of town and to me, it was not worth doing that.” Agency brief @
10.
Creek practice, at least in recent years, has been to send employees home if their
certification lapses. As in Grievant’s case, they are allowed to take paid leave to
3
Since Grievant was not excused from the class, it is unnecessary to speculate about what might have happened if
she had been excused. If the suggestion in Part V infra is followed, missing the last class at the Medical Center
should cause no problem.
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the extent accrued, but some facilities are not so generous.4 In any event, it is
maintain a required license. See, for example, Teamsters State, County and
Municipal Workers, Local 214 and Muskegon Area Transit System, 08-1 ARB ¶
4196, 108 LRP 14955 & 27005 (Arb 2008) (bus driver discharged for losing
license); and Ikner and Baldwin County, Alabama, Board of Education, 06-1
ARB ¶ 3485, 34 LAIS 275, 106 LRP 61431 (Arb 2006) (teacher discharged for
Another weakness in Grievant’s case is her complaint that she was not
afforded the opportunity to take leave without pay. Union brief @ 3. To remedy
such an alleged “wrong”, Grievant would have to repay the Agency the amount
she was paid while on leave or allow the Agency to offset that amount against
any paid leave restored to her in arbitration. Her theory of recovery is, therefore,
It should be noted that the Agency cut Grievant a lot of slack. Before she
was sent home on August 2, 2010, she was allowed complete some of her
module. After she exhausted her paid leave, she was allowed to work several
days in a non-healthcare position. The Agency tried to assist her but cannot be
4
Future misunderstandings might be avoided by embodying this practice in Memo 11-1022, which is due to be
republished in November 2011. Id., @ 2-2.
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responsible for her failure to read her email or for forgetting about her CPR
class. She ultimately took the class in August of 2010, and should note carefully
IV. Award
V. Observation
fact, other employees were in the same boat at the same time. AX 10. The
situation is bound to recur. Both Directive 2008-008 and Memo 11-1022 allow
American Heart Association Basic Cardiac Life Support System (BLS) for
The Associate Director for Patient Care Services testified that numerous
CPR classes are given throughout the Battle Creek area, for example, by fire
them. The biweekly courses offered at the Medical Center are taught by
instructors from Kellogg Community College, which offers its own courses.
better yet, the Agency and the Union working together—to compile and
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maintain a list of acceptable CPR classes offered in the area. It would even seem
than an employee losing two weeks’ pay, as can happen now. It just does not
seem right that an employee who misses the last Medical Center class before her
certification expires, even if it is her own fault,5 should have to be off work for
as much as two weeks, waiting for the next class at the Center.
5
If the employee is completely at fault, then it would not be unreasonable to require the employee to bear any
expense involved.
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