ATTORNEY BETSY EHRENBERG WINS REINSTATEMENT OF 1199 NURSE TERMINATED FOR ALLEGED THEFT OF TIME AND FAILING TO SIGN-OUT FOR BREAKS

It is often said that employers can terminate at-will employees for a good reason, a bad reason, or no reason at all, even when such an action relies upon dubious allegations, unfair process, or inconsistent treatment. A union can provide a strong defense against arbitrary actions of employers, as shown by the recent victory of SEIU Local 1199 United Healthcare Workers East. Unions typically enter into contracts that require employers to support all disciplinary action with “just cause” – that the Employer provided due process to the employee, conducted a fair and sufficient investigation, and imposed discipline consistent with the alleged misconduct and treatment of other employees. Most non-unionized employees lack this basic protection. Attorney Betsy Ehrenberg successfully represented 1199 and the concept of “just cause” in this case.

The Employer, MHM Services, provides medical care to patients and inmates of Bridgewater State Hospital, a correctional facility operated by the Commonwealth of Massachusetts. 1199 represents MHM’s nursing personnel.

MHM terminated a nurse after it discovered excessive and unauthorized breaks on a single day of work, or so it alleged. This alleged misconduct occurred when the nurse worked a double-shift (16.5 hours). MHM alleged that the nurse took almost two hours of unauthorized break time beyond the 1.7 hours to which she was entitled under the collective bargaining agreement – and was off her unit and out of the facility for a total of 3½ hours. MHM relied upon surveillance video of what it alleged to be the nurse exiting and entering the facility throughout her back-to-back shifts.

MHM charged the nurse with failing to sign out for breaks and “theft of time.” “Theft of time” or “stealing time” is a common, heavy-handed gambit of employers to make an employee’s exceeding allotted break time sound like a criminal offense. Here, the Employer’s strategy backfired. By making ‘criminalized’ allegations, the Employer, in effect, invited the arbitrator to scrutinize more closely the evidence relied by MHM upon to support its allegations. The Arbitrator wrote, “[A]ccusing one of being a thief is a serious allegation, which must be clearly proven. The visual record of the grievant leaving and returning to the institution during her double shift on November 15, 2011 would, of course, have resolved the central issue. Regrettably, that evidence is missing in this case.”

In fact, MHM never had showed the surveillance footage to the nurse or her union representative, to enable them to review or challenge her identification on the video. Instead, the Employer claimed the video was lost, and thus did not produce it at the arbitration hearing. The arbitrator found the evidence relied upon by the Employer – the testimony of managers who had watched, and taken notes about, the video – was insufficient to dispel doubts that the nurse actually took the breaks as alleged. The arbitrator also found that the Employer’s failure to have the nurse review and respond to the video amounted to a violation of her due process rights under just cause principles.

The arbitrator also found that termination was not supported by the nurse’s admitted failure to sign in and out of the facility. He found that the sign-out policy was not enforced with any consistency and that the Grievant’s failure to sign out was too trivial an offense to support termination of a 7.5-year employee with a minimal disciplinary history. He ordered MHM to reinstate the nurse, without back pay, pending a physical examination.