4 NICS App. 123, TULALIP CASINO v. HOOD (October 1996)

123, TULALIP CASINO v. HOOD (October 1996) IN THE TULALIP TRIBAL COURT OF APPEALS. TULALIP INDIAN RESERVATION. MARYSVILLE, WASHINGTON Tulalip Casino, Appellant. Yamah Hood, Respondent NO. TUL-EMP-4/96-493 (October 2, 1996) SUMMARY.

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IN THE TULALIP TRIBAL COURT OF APPEALS

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TULALIP INDIAN RESERVATION

MARYSVILLE, WASHINGTON

Tulalip Casino, Appellant

v.

Yamah Hood, Respondent

NO. TUL-EMP-4/96-493(October 2, 1996)

SUMMARY

Tulalip Casino appeals Employment Court decision which reversed a five-day suspension imposed against Casino employee for two alleged unexcused absences. An unexcused absence of up to one working day is a minor offense and imposition of discipline on the basis of a major offense is improper. We affirm.

FULL TEXT

Before: Elbridge Coochise, Chief Justice; Christopher P. Williams, Justice, Charles R. Hostnik, Justice.

Hostnik, J.:

This matter came before the Tulalip Tribal Court of Appeals for oral argument on July 9, 1996, pursuant to an appeal filed by the Tulalip Casino from a decision of the Tulalip Employment Court rendered on May 17, 1996. That decision reversed a five-day suspension imposed by the Casino against Mr. Hood for two alleged unexcused absences.

At the time of oral argument the Casino appeared by representatives Michael McCarthy, the Casino’s General Manager; Sharon Perry, the Casino’s Human Resources Manager; and Trenton Galusha, the Security Supervisor and immediate supervisor of Yamah Hood. Mr. Hood did not appear personally, and was not represented by any attorney or spokesperson. The matter was scheduled to be heard at 2:30 p.m. on that date, and the Court of Appeals waited until approximately 4:00 p.m. before proceeding to hear oral argument on this appeal.

This Court issued its opinion on July 31, 1996. This matter comes back before the Court upon the Court’s own motion. Since this Court’s original opinion was rendered, the Court has been provided a copy of amendments to Ordinance 84, showing that subsection two of Section VI.D was

4 NICS App. 123, TULALIP CASINO v. HOOD (October 1996) p. 124

deleted by Resolution 95-0131, adopted on August 5, 1995. That amendment was not brought to the attention of the Court by the parties to this appeal.

I. RELEVANT FACTS

The discipline imposed in this case resulted from two alleged instances of unexcused absence. The first instance occurred on March 10, 1996, when Mr. Hood called his employer at 4:05 a.m. to state that he had flu symptoms and would not be coming to work. At the hearing before the Employment Court, a casino employee testified that she observed Mr. Hood carrying a shovel and appearing to be working outside his yard at 12:30 p.m. that same day. The Appellant denied working in his yard, but stated that he did go outside to pick up his newspaper. The Employment Court found that there was insufficient evidence to support a determination by Mr. Hood’s supervisor that Mr. Hood was abusing sick leave on March 10, 1996. The Casino does not dispute that finding on appeal and does not dispute the Employment Court’s reversal of the imposition of discipline based upon that March 10 incident. Therefore that incident is not before us.

The second instance of alleged unexcused absence occurred on March 14, 1996. On that date Mr. Hood called the Casino to state that he would not be at work due to an emergency. It is undisputed that the nature of the emergency was his inability to get his uniform because he had been locked out of his house, due to a dispute with his girlfriend. Mr. Hood’s supervisor testified that if Mr. Hood had reported to work without a uniform, the supervisor would have obtained a uniform for him, but would not necessarily have taken any disciplinary action.

Security employees are required to wear uniforms while on duty. It is the Casino’s policy that since a uniform could have been made available to him, Mr. Hood’s reason for being late or unable to come to work was not a legitimate excuse. Mr. Hood did not appear for work at all on March 14. It is unclear whether Mr. Hood was aware that he could obtain a uniform at work.

The Casino considered Mr. Hood’s absence from work on March 14 an unexcused absence, and suspended him for five days, without pay. Mr. Hood appealed that discipline to the Tulalip Employment Court. By order dated May 17, 1996 that discipline was reversed by the Employment Court upon the following grounds:

. . . Although it appears that Appellant’s late call-in and subsequent failure to appear for work on March 14, 1996 may constitute an unexcused absence, a single unexcused absence would be a minor violation not justifying a suspension under HRO 84.

Employment Court Order of May 17, 1996, at p. 2. The reference to HRO 84 in the Court’s decision relates to the Tribe’s Human Resources Ordinance, Tulalip Ordinance No. 84.

4 NICS App. 123, TULALIP CASINO v. HOOD (October 1996) p. 125

II. JURISDICTION

This Court has personal jurisdiction over Appellant because he is a member of the Tulalip Tribes and resides on the Tulalip Indian Reservation. The act which is the subject of this appeal, and the employment of the Appellant, occurred and is within the exterior boundaries of the Tulalip Indian Reservation, giving rise to territorial jurisdiction. This Court has subject matter jurisdiction over this matter pursuant to Tulalip Human Resources Ordinance No. 84, as amended by Tulalip Resolution No. 96-0020.

III. STANDARD OF REVIEW

The Tulalip Tribes permit any party to an Employment Court proceeding to appeal to the Tulalip Court of Appeals any final decision of the Employment Court. In such an appeal, the jurisdiction of the Court of Appeals is to uphold the Employment Court’s decision, unless that decision is found to be arbitrary, capricious, or unsupported by substantial evidence. If such a finding is made, then this Court can only reverse the Employment Court and direct a new trial. See Tulalip Ordinance No. 84, § X.B(10) as amended by Tulalip Resolution No. 96-0020, passed February 3, 1996. We are constrained to follow this standard of review.

IV. DISCUSSION

The Casino appeals the Employment Court’s decision on the basis that Ordinance 84 permits the imposition of five days suspension without pay for a single unexcused absence. They base their argument upon § IX.D(2)(d). This section indicates that an unauthorized absence of more than two hours in duration is defined as a major offense. The discipline warranted for the first major offense of any type includes suspension without pay for five to fifteen working days or dismissal, dependent upon the seriousness of the offense. See Ordinance 84, § X.A(3)(b)(1). Therefore, the Casino argues that the five day suspension without pay was appropriate for a single instance of an unauthorized absence of more than two hours in duration.

An unauthorized absence of less than two hours is defined as a minor offense under Ordinance 84, § IX.D(1)(e). The discipline that can be imposed for a first minor offense is defined as a written warning notice and counseling by the employee’s immediate supervisor. See Ordinance 84, § X.A(3)(a)(1).

An unauthorized absence is not defined by the Ordinance. However, an unexcused absence is defined by § VI.D(1), as follows:

An employee who is absent without notifying the supervisor and obtaining authorized leave is considered to be absent without leave (mi). The Tribe’s reserves [sic] the right to verify

4 NICS App. 123, TULALIP CASINO v. HOOD (October 1996) p. 126

the reason for the employee’s absence.¹

The reference in this provision to “(mi)”designates a minor offense. References in the code to “(ma)” designate a major offense. See Ordinance 84, § X.A(1, 2).

Ordinance 84 also contains an absenteeism and tardiness provision:

An employee who is going to be absent must notify the appropriate supervisor or the department head no later than one half-hour after the employee’s workday begins. Employees who fail to give such notification shall receive an unexcused absence for the day in question and shall be subject to discipline (mi).

Ordinance 84, § VI.C.

It is undisputed that Mr. Hood complied with the absenteeism provision. On March 14, Mr. Hood contacted the Casino at 6:08 a.m., approximately two hours before his shift was scheduled to begin at 8:00 a.m. The message he left on the Casino’s answering machine was transcribed as:

“Something came up and he would not be able to come in. Unable to get uniform, kicked out of house”. Exhibit No. 2.

He therefore gave the notification required by Ordinance 84, § VI.C.

It is also undisputed that Mr. Hood did not obtain authorized leave from his supervisor for the March 14 absence. Although there is no time specified under Ordinance 84 by which such authorization must be obtained, there was no evidence introduced that authorization for the absence was obtained at any time prior to the imposition of discipline. Therefore, although Mr. Hood did notify the Casino, since he did not obtain authorized leave, he was considered to be absent without leave under § VI.D(1) of Ordinance 84. This is an unexcused absence under that section, and an unauthorized absence under § IX.D. of Ordinance 84.

The absenteeism provision of § VI.C. and the unexcused absence provision of section VI.D.(1), when read together, imply that an employee who is absent without obtaining authorized

Tulalip Casino App

4 NICS App. 123, TULALIP CASINO v. HOOD (October 1996) p. 127

leave: (1) is to receive an unexcused absence for the day of the absence and (2) is subject to discipline for a minor offense. There is nothing in § VI.D that indicates that an unexcused absence will subject an employee to discipline for a major offense. Specifically, there is no provision that indicates that an unexcused absence of more than two hours in duration shall be classified as a major offense. This is directly contrary to the guidelines set forth in § IX.D(2)(d), which indicates that an unauthorized absence of more than two hours in duration is a major offense.

Under general principles of statutory construction or contract interpretation, ambiguities or inconsistencies are generally resolved against the drafter of the instrument in which the inconsistency appears. U.S. v. N.A. Degerstrom, Inc., 408 F.2d 1130 (9th Cir. 1969); Taylor-Edwards Warehouse & Transfer Co. of Spokane, Inc. v. Burlington Northern, Inc., 715 F.2d 1330 (9th Cir. 1983). The drafter of Ordinance 84 is the Tulalip Tribes, and it is a Tribal entity employer that imposed the discipline in this case. Therefore, the inconsistency in Ordinance 84 must be construed against the Casino.

To the extent that § IX.D is used as a guideline only, it is subordinate to the provisions of § VI.D. Section IX.D. states: “. . . Other rules of employment, the violation of which is a major (ma) or minor (mi) violation of this Ordinance, are listed throughout this Ordinance.” Ordinance 84, § IX.D. This implies that other, more specific, rules concerning discipline are to prevail over the general guidelines suggested in § IX.D. In that case the inconsistency between § VI.D. and § IX.D. must be resolved in favor of utilizing the former section.

V. CONCLUSION

Under either analysis, the imposition of discipline on the basis of a major offense is unwarranted. An unexcused absence of up to one working day in duration is deemed a minor offense by §§ VI.C and VI.D of Ordinance 84.

There is no dispute that Mr. Hood did notify the Casino in advance of his absence on March 14, 1996. There is also no dispute that he did not obtain authorized leave, and therefore his absence is an unexcused absence. An unexcused absence of one working day is a minor violation. Discipline consisting of a written warning notice and counseling by the immediate supervisor is warranted for the first minor offense.

Therefore, the Employment Court’s decision will be affirmed. The trial court’s conclusion that Mr. Hood’s failure to appear for work on March 14, 1996 may constitute an unexcused absence, and the conclusion that a single unexcused absence would be a minor violation, not justifying a suspension under Ordinance 84, is correct. The decision of the Employment Court is not abitrary or capricious, nor is it unsupported by substantial evidence.

4 NICS App. 123, TULALIP CASINO v. HOOD (October 1996) p. 128

VI. DECISION

Therefore, it is hereby ordered that the Employment Court’s reversal of the discipline imposed for the March 14, 1996 unexcused absence is affirmed.

It is further ordered that the Employment Court’s order requiring back pay and benefits to be awarded to Appellant for the five day suspension is affirmed.

Coochise and Williams, JJ., concur.

This Court’s original opinion noted the inconsistency between § VI.D(2) and § IX.D of Ordinance 84. The former provision declares an unexcused absence for one working day to be a minor infraction, whereas the latter section declares an unauthorized absence of more than two hours in duration to be a major offense. This was declared to be an irreconcilable inconsistency.

The former subsection two of Section VI.D was deleted prior to the events complained of in this appeal. However, deletion of that subsection does not cure an inherent inconsistency that continues to exist in the Human Resources Ordinance. See discussion supra.

5 NICS App. 1, RENECKER v. TULALIP CASINO (May 1997)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

MARYSVILLE, WASHINGTON

Tulalip Casino Hotel

Dell Renecker,Appellant/Defendant,

v.

Tulalip Casino,Respondent/Plaintiff.

No. TUL-EMP-11/96-667 (May 29, 1997)

SUMMARY

In September of 1996, an employee of Respondent Tulalip Casino filed a grievance against her supervisor, Appellant herein, with regard to incidents that took place in November of 1995 and July of 1996. Respondent Casino terminated Appellant’s employment in November of 1996. Finding that the grievance against Appellant and his termination were not procedurally related, the trial court upheld Appellant’s suspension. Court of Appeals finds that employer’s failure to follow its own personnel policies and procedures results in fatal flaw.

FULL TEXT

Before: Elbridge Coochise, Chief Justice; Larry King, Justice; Yvonne M. Leveque, Justice.

Appearances: Dell Renecker, Appellant; Carlos Echevarria, spokesperson for Appellant; Dean Fryberg, Jr., spokesperson for Tulalip Casino; Lee Topash, representative for Tulalip Casino.

King, J., writing for a unanimous panel:

I. NATURE OF ACTION

Employee Renecker appeals a decision of the Tulalip Employment Court which upheld his suspension by his employer, The Tulalip Casino.

II. BACKGROUND

On November 5, 1996, Renecker was working in his capacity as a first line supervisor at the Tulalip Casino. On that day he was served with a notice of suspension which outlined three separate incidents in which Renecker allegedly made gender and race biased statements against an employee who he supervised and one incident in which he allegedly threatened her.

5 NICS App. 1, RENECKER v. TULALIP CASINO (May 1997) p. 2

The Tulalip Tribes have a detailed Human Rights Ordinance (HRO 84) which allows for a suspension of an employee if he or she commits a “major offense” within the meaning of HRO 84 (IX)(D)(2). The parties agree that any one of the four allegations involves “major offenses” and, if proven, could result in suspension or dismissal. The parties also agree that conditions of Renecker’s employment are subject to the procedures and rules detailed in HRO 84. (This agreement is implicit in the parties’ positions: Renecker relies on procedural errors and the Casino relies on substantive violations of rules of conduct.) The transcript offers no evidence of a formalized employment agreement other than HRO 84.

The above referenced notice of suspension was the result of a grievance filed against Renecker by an employee he supervised, one Kim Sanderson. The grievance, which was filed on September 16, 1996, references in strong language the above incidents of racial and gender slurs and threats which, according to Sanderson, occurred “approximately November of 1995” and “around July 6, 1996.”

HRO 84 (X)(B)(1) addresses in relevant part the filing of grievances:

Employee grievances must be in writing, specific, and clearly express an employee’s dissatisfactions with a job-related employment practice or a job-related decision of supervisors. (b) If the supervisor is considered to be the problem then a formal grievance is filed. This requires a written grievance from the employee and a written response from the supervisor. The written grievance and response are then submitted to the next level of supervision, with copies to the human resources office. A written grievance filed more than twenty days from the date of the event that caused the grievance shall not be considered.either may submit a notice of dissatisfaction to the supervisor rendering the decision within five working days of receipt of the decision. This notice will be a request to have the case submitted to the C.E.O. for review and consideration. [Emphases added].

The parties agree that subsection (b) was violated because the grievance was filed more than “20 days from the date of the event that caused the grievance.” (Sanderson’s September 16, 1996, grievance stated that the most recent event was “sometime around July 6, 1996.”)

III. JURISDICTION

This Court has personal jurisdiction as Appellant is a member of the Tulalip Tribes. Territorial jurisdiction exists as the action occurred within the exterior boundaries of the Tulalip

5 NICS App. 1, RENECKER v. TULALIP CASINO (May 1997) p. 3

Reservation. Subject matter jurisdiction exists as the action was under the Tulalip Tribes’ Human Resources Ordinance.

Tulalip Casino Entertainment

IV. ISSUE

Does the employer’s violation of the tribe’s personnel ordinance invalidate the employee’s suspension?

The Tulalip Casino argues that the error referenced above is harmless and that such a technicality should not bar the Casino from taking disciplinary action against Renecker in this case. The Tulalip Employment Court agreed with this position when it found as a matter of law that HRO 84 (X)(B)(1)(b) did not apply “to the disciplinary procedure initiated against him.”

We do not agree with the Casino’s position or with the Employment Court’s interpretation of the Tulalip Human Resources Ordinance.

V. DISCUSSION

The court below seems to rest its opinion, at least in part, on the premise that disciplinary action against Renecker was not procedurally related to the grievance against him by Sanderson. We disagree with this interpretation for the following reasons:

1. A close reading of the entire HRO 84 shows that procedures and substantive outcomes are closely related when an employee files a grievance against her supervisor. Within HRO 84 (I)(A), which defines its purpose, is the following language: “Every employee can use the ordinance as a basis for making decisions about their employment status, the status of their supervisor, and the status of the employees supervised by them.” (Emphasis added).

2. The grievance filed by Sanderson was against Renecker. Sanderson’s grievance involves allegations that Renecker committed “major offenses,” some of which were said to have occurred an entire year before Renecker was disciplined. Discipline followed grievance as an automatic result. One process relied on the outcome of the other. The two are procedurally and substantively connected.

3. Contrary to the opinion of the Employment Court we find that the Casino violated Renecker’s rights when it did not take disciplinary action in a timely fashion. HRO 84 (X)(A)(8) establishes the “date for taking disciplinary action” as follows:

Disciplinary actions under this Ordinance must be taken within twenty days from the date of discovery of the event or events for which the disciplinary action is taken; or if the event leading to discipline requires investigation, from the date that the investigation is considered complete. Supervisors must document an investigation. (Emphasis added).

5 NICS App. 1, RENECKER v. TULALIP CASINO (May 1997) p. 4

Because we believe that the entire HRO 84 is for the benefit of both the accused and the accuser, it follows that Renecker’s rights under the HRO 84 should attach at the same time of the alleged incidents. This, we believe, is the “date of discovery” referenced in HRO 84 (X)(A)(8). Any other interpretation would allow the Casino to “investigate” an incident for an indefinite amount of time; in this case for approximately one year, in other cases for possibly several years.

4. The short time frames for taking action under the HRO 84 serve a useful purpose. They afford all accused employees an opportunity to gather fresh evidence and witnesses with reliable memories so that they can defend themselves against clear allegations. Without these safeguards the “who, what, where and when” of a statement made in the context of a busy work environment can become quite unclear. This potentiality becomes evident upon review of the transcript in the instant case.

Under the HRO 84, allegations must be documented and investigated quickly. Then, following the investigation, disciplinary action must be accomplished quickly. There is nothing in the HRO 84 that indicates that the parties cannot mutually agree to extend any given time frame; however, the record shows no such extension in the case before us.

5. The law in this area is in a state of flux; however, certain principles seem to be developing and may serve as guidance in the future:

(a) With few exceptions, case law does not require employers to develop and utilize employee policy manuals such as the HRO 84 in the instant case; however, the employer’s act of voluntarily issuing and operating under a policy manual can lead to obligations that govern the employment relationship. Thompson v. St. Regis Paper Company, 102 Wn. 2d 219, 685 P. 2d 108 (1984).

(b) The principle reason employers issue such manuals is to create an atmosphere of fair treatment and job security for their employees. Parker v. United Airlines Inc., 32 Wn. App. 722, 649 P. 2d 181 (1982).

(c) Once an employer announces a specific policy or practice, especially in light of the fact that he expects employees to abide by the same, the employer may not treat its policies as mere technicalities when expedience seems to so require. Toussaint v. Blue Cross, 408 Mich. 579, 292 N.W. 2d 880 (1980).

VI. CONCLUSION

There is no indication of any malice on the part of the Casino. In fact there is ample evidence that the Casino committed procedural errors in a quest for a just result. Regardless of this, however, we conclude that the Casino’s failure to follow its own policies and procedures results in a fatal flaw.

5 NICS App. 1, RENECKER v. TULALIP CASINO (May 1997) p. 5

Tulalip Casino Applications

VII. ORDER

When Will Tulalip Casino Reopen

We hereby REVERSE the Employment Court's decision to uphold the November 5, 1996, suspension of Mr. Renecker.