The Arbitor's Analysis
In the case of
Sandy Pelath

The Arbitrator has concluded that the college did not have just cause to terminate the Grievant. The Arbitrator accepts that there clearly were deficiencies in the CC 10’s prepared by the Grievant; as there were in the forms prepared by Ms.Ridolfi. However, the Arbitrator is not convinced that the underlying reason for the errors was the Grievant inability to learn the job. What is clear from the creditable testimony of Ms. Ridolfi is that there was no sustained, concentrated training provided to the Grievant. In a Summary of her description of the problems that impeded the Grievant’s training, Ms. Ridolfi said, with authority, that “things were chaotic;” that Ms deWit had introduced all new procedures which everyone was having problems learning, that because Ms.deWit did not know her job, she was constantly interrupting everyone’s work with questions and sending everyone’s work to be redone her way, that she and the grievant had to share a computer, and that the Grievant was not given the password needed to access the program for imputing the cc10’s into the system. In addition, while the Grievant was with Ms. Rogers in the mornings she was primarily doing PreRetirement planning because Ms. Rogers simply did not have the time to do training. At best, Ms. Ridolfi Testified, the Grievant got 30 to 45 minutes a training a day, certainly not the 3 to 4 hours, 3 times a week, which had been the original direction. Given all this, it was, as the Union characterized it, basically unfair to judge the Grievant’s performance as unsatisfactory when she essentially was not given the opportunity to learn to perform satisfactorily.
The College tried to use any lack of training that the Grievant received as her own fault since neither she nor her trainers alerted Ms. DeWit to any problems. That is clearly unacceptable. As the Supervisor, it was Ms. DeWit’s responsibility to make sure that her directions in that regard were being carried out. At the very least, Ms. DeWit should have known that since the grievant did not have a computer, but rather had to share time with her co-workers, that there would be a problem in achieving the requisite proficiency. When you add to this the fact that the Grievant had to move campus to campus to do any work, could anyone really expect the Grievant to meet goals and standards that assumed optimum works conditions?
Also, the Arbitrator finds it strange, to say the least, that up until August 1st the Grievant was performing two different jobs yet not a single reference was made to her work with the PreRetirement course. The Arbitrator can only conclude that the Grievant’s performance in at least half of her assigned duties was without reproach.
Even more compelling for a just cause finding, is the lack of notice to the Grievant.

Once again this Arbitrator finds, as did Arbitrator LaRue, that there was a fatal error in the College’s actions in terminating the Grievant. To wit, There was a failure to inform, or warn, the Grievant that there were impending consequences for the quality of her job performance with respect to the cc 10’s. Such notice, to be fair and meet the test of due process, must be specific, not implied. In this instance there was no notice. So, like Arbitrator LaRue, this Arbitrator finds that the failure to provide appropriate notice is “sufficiently” egregious” to find that just cause for the termination did not exist. Therefore, the grievance is sustained and the Grievant shall be reinstated.
During the hearing the college offered extensive documentation and testimony regarding what it referred to as the Grievant’s excessive absences and her failure to follow through on the “priority “ rehire status granted by the Chancellor. This, the College believed provided proof that the Grievant was not motivated to perform successfully. The Arbitrator has given no weight to either of these claims.
With regard to the pattern of absences, the Arbitrator is precluded from considering that as an element of just cause by the simple fact that the college did not cite excessive absence as a determining factor in the decision to terminate. They simply used the absences as a reason why she had not made satisfactory progress toward learning the job and as a basis for their position that she was not interested in learning the job. If, indeed, the college found the Grievant to be abusing leave, then they certainly should have made that a specific part of the charge.
Furthermore, post discharge conduct, in this case the Grievant’s approach to applying for other jobs at the college is not an appropriate basis for consideration here because it is not a work-related matter considered when the decision to discharge was made. Moreover, the Arbitrator is skeptical of the extent to which Ms. Martinez actually complied with the intent to offer the Grievant substantive assistance with any application she might make subsequent to her discharge.
After careful consideration of the Union’s request, the Arbitrator cannot include in the Award reimbursement of any expenses that the Grievant may have incurred as a result of the termination. However, a condition in the make whole reinstatement award is restoration of medical benefits.

AWARD

The grievance is sustained.
Remedy: The College is directed to reinstate the Grievant with full back pay and with the restoration of full seniority and benefits.