FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL NO. 1629,
Union,
FMCS No. 11-50682
and

DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER, BATTLE CREEK, MI,
Employer.
___________________________________________/

OPINION OF THE ARBITRATOR

May 5, 2011

After a Hearing Held March 16, 2011 at

The Department of Veterans Affairs Medical Center, Battle Creek, MI

For the Union: For the Employer:

Tiffany L. Malin Margaret A. Smith

Minahan & Muther, PC Staff Attorney
Attorneys at Law Office of VA Regional Counsel
5132 W 26th Avenue 5500 Armstrong Road
Denver, Colorado 80212 Battle Creek, Michigan 49037
 I. Introduction

Grievant is a Nursing Assistant at the Department of Veterans Affairs

Medical Center in Battle Creek, Michigan (“Employer” or “Agency”), where

employees are represented by Local 1629 of the American Federation of

Government Employees, AFL-CIO (“Union”). In Grievant’s position, she is

required to maintain current certification in cardiopulmonary resuscitation

(“CPR”). AX 3. She was certified in July of 2008; that certification was good

for two years, expiring at the end of July 2010. UX 1.

Grievant was scheduled to take a recertification class on July 30, 2010

(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

Agency, the Union demanded arbitration. UX 5. A hearing was held on March

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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

decision and award.

II. The Positions of the Parties

The Union contends that under Medical Center Memorandum No. 11-

1022, dated November 2008 (AX 2 or “Memo 11-1022”), Grievant was entitled

to be notified that her CPR certification was expiring:

Learning Resource Service is responsible to arrange classes and notify

participants. Participants are notified via the Learning Management
System (LMS) starting at 90 days prior to the expiration date (followed
by 60, 30 and weekly notices).

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

7/25/2010. UX 2. The parties agree that a 2-year CPR certification actually

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

responsible to avoid lapses in recertification.” Moreover, all LMS notices come

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

Although proof of sending notices is not retained by LMS, there is no reason to

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

there is other disputed evidence that Grievant received more.

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

arbitration, UX 5. However, further analysis suggests that the case can be

1
Surprisingly, this change appeared to be a little known fact around the Battle Creek Medical Center. See AX 17.
2
Assuming that Grievant was certified on July 25, 2008, then the notice she received on July 18, 2010 was 7 days
prior to July 25, 2010. See UX 5 (“CPR expired on 07/25/2010”). As previously noted, the parties agree that CPR
certification expires at the end of a month; in Grievant’s case, on July 31, 2010. Nevertheless, it appears from AX
6 that records are kept of dates of completion of CPR training and notices are timed with respect to those dates; in
Grievant’s case, July 25, 2010.

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resolved on the basis of the language of Memo 11-1022.

In ¶ 4.a(1) of the Memo, Basic Life Support (BLS) is defined to be

“Training standard determined by the American Heart Association.” VHA

Directive 2008-008 (AX 1 or “Directive 2008-008”), which Memo 11-1022

implements locally, makes clear that BLS includes CPR education. Directive

2008-008, ¶ 4.b. Memo 11-1022 then provides:

Personnel who are required to maintain BLS certification must attend

training they have been scheduled for unless excused by their service
chief. All personnel are responsible to avoid lapses in recertification.

Id., ¶ 4.b(7); emphasis supplied. The next ¶ 4.b(8) provides that “[i]f BLS …

certification is required by an employee’s position and lapses, that employee

may not treat patients.” Finally, AX 3 states that Nursing Assistants are required

to have BLS Training. Thus, ¶ 4.b(7) of Memo 11-1022 applies to Grievant.

The testimony about Grievant calling in sick on July 30, 2010 was quite

sketchy. The Union explains the events in these words:

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.

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 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:

1. On July 30, 2010, who was Grievant’s service chief?

Union response: Anne Garrett

Agency response: Ms. Anne Garrett, RN

2. When Grievant called in sick on July 30, 2010, with whom did she speak
at the VAMC?

Union response: The Nurse of the Day

Agency response: The Nurse of the Day (NOD), Mark Thornton, RN

would have likely taken the call. His shift was midnight - 8:00am on
July 30, 2010 and the employee’s shift was 7:30am - 4:00pm.
Assuming the employee called the Medical Center on or about 7:30
am when her shift was to begin, Mr. Thornton would have taken the
call.

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?

Union response: Ms. Williams’ immediate supervisor, Sharon James,

approved her leave.

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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

Grievant opened, reminded recipients to “be sure to complete the BLS

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

8:00 am until noon.

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 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

Grievant was in violation of Memo 11-1022, ¶ 4.b(7).

Grievant’s claim of illness was not convincing either, especially in light

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.

Directive 2008-008 authorizes each Facility Director to establish “[t]he

consequences, if appropriate training is not maintained.” Id., ¶ 4.g(3). The Battle

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

not unusual for an employer to penalize or discipline an employee who fails to

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

failing to pass certification exam).

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,

most puzzling and unhelpful to her case.

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

delinquent LMS courses, including the BLS Healthcare Provider Review

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

that her current certification expires at midnight, August 31, 2012.

IV. Award

For all the foregoing reasons, the grievance is DENIED.

V. Observation

Grievant’s situation is hardly new to the Battle Creek Medical Center. In

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

flexibility in an employee’s choice of CPR course, “whether through the

American Heart Association Basic Cardiac Life Support System (BLS) for

Healthcare Providers, or through another similar program that includes both

CPR and use of public access AED [automated external defibrillators].”

The Associate Director for Patient Care Services testified that numerous

CPR classes are given throughout the Battle Creek area, for example, by fire

departments. A simple Internet search uncovers many organizations offering

them. The biweekly courses offered at the Medical Center are taught by

instructors from Kellogg Community College, which offers its own courses.

It would seem to be a simple matter for the Agency or the Union—or

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

that KCC instructors, or other qualified teachers, would be amenable to giving

private lessons in a pinch, a solution that undoubtedly would be less expensive

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.

Dated May 5, 2011 ________________________________

E. Frank Cornelius, PhD, JD, Arbitrator

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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