Arbitrator Rules Against California Agents Continuing Fight For Kincare

An Arbitrator recently denied two grievances regarding our CA members' rights under Labor Code 233, otherwise known as Kincare. First, he denied the grievance of a SAN agent, who the Company had claimed attempted to utilize 29.9 hours under the Kincare provision. The Arbitrator then stated under "Discussion and Conclusions" that,

"The Company needed to ensure it was both protecting and fully paying the first 48 hours of absences due to personal illnesses or to care for a family member."

He later contradicted his own ruling by stating,

"Agent A was scheduled to work 16.7 hours on January 20 (the 13 hours for Agent B that he picked up the night before, and 3. 7 additional hours that he picked up on January 2, he did not have 16.7 hours available to have January 20 protected and paid per the requirements of the CPSL laws."

The Arbitrator is apparently under the impression that 16.7 plus 13.2 exceeds 48 as opposed to the traditional answer being 29.9 which is well shy of the 48 hours that Kincare provides. All of these figures in violation of the contractual maximum of 8 per day which would have resulted in only 16 hours being used. 

The second arbitration was to settle a group grievance regarding the Company's position of forcing agents to utilize the protections of Kincare and AB 1522(Healthy Families, Healthy Workplaces) instead of their requested use of contractual protections such as Dr's statements. 

Again, the Arbitrator ruled in favor of the Company and cited an out of context use of Labor Code 219 while completely ignoring the Union's case and the language of Labor Code 233 which states, 

"(f) The rights and remedies specified in this section are cumulative and nonexclusive and are in addition to any other rights or remedies afforded by contract or under other law."

This is exactly the point at hand. The law specifically states that the rights afforded by the State are in addition to those afforded by contract. The Company has chosen to take the position that their interpretation of State law overrides our CBA which contradicts both the language and the intent of the legislature. 

Currently, the State is investigating these issues of the terminated agent and the numerous violations that have been brought to their attention through the countless state claims submitted by SAN agents. Other CA agents are encouraged to file state claims regarding the Company's misguided position regarding our state rights. For information regarding the filing of claims, please contact Education Committee Member Jason Sonnabaum. We will update the membership when the State rules in these cases. United, Invincible!