In re Arbitration Between Josephine Cnty. & Serv. Emps. Int'l Union Local 503
| Decision Date | 04 June 2021 |
| Parties | In the Matter of the Arbitration Between JOSEPHINE COUNTY, Employer, and SERVICE EMPLOYEES INT'L UNION LOCAL 503, OREGON PUBLIC EMPLOYEES UNION, Union. |
| Court | Oregon Employee Relations Board |
BEFORE STEPHEN DOUGLAS BONNEY, ARBITRATOR
D___ A___ Termination
Appearances:
For the Employer: JJ Schofield, Josephine County HR Director
For the Union: Shirin Khosravi, Supervising Attorney, SEIU Local 503, OPEU
This case involves a grievance challenging the termination of the employment of D___ A___ (A___ or grievant) by Josephine County (County or Employer). On April 12, 2021, the parties' representatives and their witnesses appeared before me for hearing by videoconference using the Zoom.us platform. I served as the host of the videoconference. The parties stipulated that this case presents no issues of arbitrability, either substantive or procedural, and that the matter is properly before me for a final decision on the merits. During this proceeding, the parties had a full and fair opportunity to present testimony and other evidence. At the conclusion of the hearing, the parties elected to submit briefs in place of oral argument. I received the parties' briefs by email on May 14, 2021, thus closing the record.
The parties could not agree on a statement of the issue, but they did agree to allow me to frame the issue as part of the decision in this case. The County maintains that the Grievant voluntarily resigned by failing to return to work after a leave of absence. The Service Employees International Union Local 503, Oregon Public Employees Union (SEIU or Union) maintains that the issue has two parts, first, "[w]hether the employer had just cause to terminate A___ and, if not, what is the appropriate remedy?" and, second, "[w]hether the Employer violated the leave provisions of the parties' collective bargaining agreement and, if so, what is the appropriate remedy?" Based on all the evidence and the parties' arguments, I find that the issues in this case are:
Did the County violate the provisions of the parties' collective bargaining agreement when it terminated D___ A___'s employment? If so, what is the appropriate remedy?
The County and the Union are currently parties to a collective bargaining agreement (CBA or labor agreement) covering the employees in a bargaining unit consisting of "all employees of the Josephine County Division of Public Works" except employees who are excluded by operation of law. When fully staffed, the Division of Public Works has sixty-one employees. Approximately, twenty-five of the Division's employees have school-age children.
The County hired A___ as a truck and heavy equipment mechanic in or around 2014. As a mechanic, the grievant is covered by the parties' CBA and, at the time of his termination, was the most senior mechanic in the Division of Public Works. A___ was a good mechanic and a hard worker. The grievant worked in the County's fleet maintenance shop, which is open five days a week from 5:30 a.m. until 5:30 p.m., and he specifically worked in the public works side of the shop, which means he maintained and repaired trucks and other equipment used by the Division of Public Works. The shop also includes a County fleet side, which includes mostly smaller vehicles such as cars. Mechanics in the fleet shop work flex schedules where possible in order to provide employees with maximum flexibility in scheduling and to provide the County'sfleet users with maintenance and repair service throughout the days and hours the maintenance shop is open. Management has determined that the County needs to have two mechanics on duty at all times whenever the shop is open.
In early 2020, a novel coronavirus known as SARS-CoV-2 began infecting people around the world. The disease caused by the virus is known as Covid-19. The first infection in the United States was reported in Snohomish County, Washington, on January 19, 2020.1 Eventually, the World Health Organization along with federal and state public health authorities in the United States recognized that we were in the beginning stages of a global pandemic, which has continued for about a year and a half at this point. By mid-March, schools, sporting events, offices, restaurants, and many other workplaces and businesses throughout the United States began shutting down in response to the directives of public health authorities. Workers who were able to do so started working from home. Everyone who had access to the Internet learned about videoconferencing. But essential workers in maintenance shops, public transportation, grocery stores, food processing, farming, manufacturing, construction, government service, and many other sectors of the economy bravely remained at work exposed to the virus and at risk of infection, illness, and at worst death.
In March 2020, the United States Congress enacted the Families First Coronavirus Response Act (FFCRA), Pub. L. No. 116-127, 134 Stat. 178, 188 (Mar. 18, 2020), which included a couple of provisions relevant to this case. Division E of the FFCRA, "The Emergency Paid Sick Leave Act" (EPSLA), §§ 5101-5111, entitles certain employees of covered employers to take up to two weeks of paid sick leave if the employee is unable to work for specific qualifying reasons related to Covid-19. One of those qualifying reasons was caring forthe employee's son or daughter whose school, place of care, or child care provider is closed or unavailable due to Covid-19 related reasons. FFCRA § 5102(a)(5). Division C of the FFCRA, "The Emergency Family and Medical Leave Expansion Act" (EFMLEA), §§ 3101-3106, amended Title I of the Family and Medical Leave Act (FMLA), 29 U.S.C. 2601, et seq., to permit certain employees of covered employers to take up to twelve (12) weeks of expanded family and medical leave, ten of which are paid, if the employee is unable to work due to a need to care for his or her son or daughter whose school, place of care, or child care provider is closed or unavailable due to Covid-19 related reasons. FFCRA § 3012, adding FMLA § 110(a)(2)(A). By its terms, the FFCRA expired on December 31, 2020.
By mid-April, the public health authorities in Oregon had ordered all elementary and secondary schools closed to in-person attendance because of the pandemic. At that time, the grievant's children were in the eighth and eleventh grades. Because the grievant's wife had just started a new job, she was unable to take any time off work at the beginning of the pandemic. Thus, the A___ family decided that the grievant would avail himself of his entitlement to the expanded FMLA leave provided by the EFMLEA. As a result, the grievant took about eight weeks of FMLA leave from approximately April 15 until the end of the 2019-2020 school year in June 2020. During that time, A___ helped his children cope with the changes required by the pandemic, including adjusting to on-line learning. At the end of the 2019-2020 school year, the grievant returned to work in the fleet shop. During the 2020 summer break, A___'s children stayed with his mother-in-law, who lives outside of Oregon. Around the time A___ returned to work in June 2020, the County advised him that he had four weeks of FMLA leave remaining for use in 2020.
On August 27, 2020, after learning that the Grants Pass School District would not reopen for in-person classes at the beginning of the 2020-2021 school year, the grievant submitted two leave request forms to the Division of Public Works in which he asked for additional leave for child care related to the continued school closures. A___ considered asking his mother-in-law to come to Grants Pass to watch the children, but medical issues of the mother-in-law made that option impossible. The A___s have no family members in Oregon.
The grievant's first application was to take FMLA leave from September 8 through September 28, 2020. Management granted that application, noting at the bottom of the form "Approved per 'Child Care Leave,'" an apparent reference to the EFMLEA. On August 27, the grievant also submitted a second leave request form asking to use paid time off (PTO) from September 29 through November 12, 2020 for a "sick leave due to school closures to care for my children." On or about September 9, 2020, management denied the grievant's application for leave from September 29 through November 12. At the bottom of the second leave form, management wrote
On September 3, 2020, the grievant's boss, Fleet Manager D___ M___, asked A___ to come to the office to sign papers related to his leave pay. A___ responded and indicated he would visit the office on September 4. Although M___ was in the facility that day, M___ did not meet with A___ about leave issues, alternative scheduling, or other options to accommodate A___'s family issues related to school closures.
Shortly before his FMLA leave expired on September 29, 2020, the grievant and his boss exchanged text messages. The grievant sent a text indicating that he still needed to take the leavehe had applied for to care for his children whose school remained closed to in-person attendance. M___ responded with the following text message:
Hi D___, you still have one more day of Covid 19 leave left. Your regular leave has been denied at this point. Like we had talked prior to you leaving I am not apposed [sic] to reviewing manning and work loads with the possibility of approving leave on a week to week basis. Fell free to come see me or call me tomorrow and we can discuss it further, otherwise I will plan on seeing you Tuesday morning and we can see what we can work out at that time. Thanks D___
A___ responded to M___'s text as follows: A___ also sent M___ part of the response he had received...
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