BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
ROLLING HILLS REHABILITATION
EMPLOYEES LOCAL 1947, AFSCME,
Mr. Daniel R. Pfeifer, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, Route
1, Box 333, Sparta, Wisconsin 54656, appeared on behalf of the Union.
Mr. Kenneth Kittleson, Personnel Director, Monroe County,
Monroe County Courthouse,
Sparta, Wisconsin 54656, appeared on behalf of the County.
On July 5, 1996, Local 1947, AFSCME, AFL-CIO and Monroe County, filed a
with the Wisconsin Employment Relations Commission to have the Commission appoint
William C. Houlihan, a member of its staff, to hear and decide a grievance pending
parties. The matter was subsequently assigned to Mr. Houlihan, who conducted an
hearing on December 23, 1996, in Sparta, Wisconsin. Briefs were filed and exchanged by
February 26, 1997.
This dispute involves the discharge of employe A.P.
The County and the Union have been signatories to a series of collective bargaining
agreements. The relevant provisions of the applicable agreement are set forth below. This
involves the discharge of employe A.P. A.P. was terminated on March 7, 1996 by the
As a result of persistently poor performance of your LPN duties,
you are being terminated
from your position at Rolling Hills effective as of March 7, 1996.
The grievant has been employed by the Monroe County Rolling Hills Nursing Home
March 29, 1988. During her tenure, she has been the subject of significant discipline. The
Employer submitted a summary of discipline which included 18 entries between March of
and March of 1996, the day of discharge. The Union takes issue with the characterization of
many of the incidents. The Union contends there are but 7 instances of discipline. While
reasonable people may differ as to the precise number of prior disciplines, it is uncontested
the grievant has received significant discipline including a meaningful number of disciplinary
measures aimed at her inattentiveness to her patients, and her charting. Specifically, on
January 11, 1996, she was given a 5 day suspension for inattentive care and failure to
that time she was warned that another incident such as the one involved would result in her
Among the patients under the care of the grievant on March 2, 1996 was patient
number 1795, an elderly gentleman suffering with Huntington Corea. Among the
associated with this disease include a propensity to thrash about in bed. The patient was
sedated and bedridden. He periodically bruised his arms and legs, and got his legs
in the slats of his bedside rails. On Saturday, March 2, nursing assistants Nancy Volenze
Sharon Bebee discovered patient 1795's leg sticking through his bed slats. According to Ms.
Volenze, they removed his legs, put them back into bed, rolled down his socks, and
that his leg bore a red mark. Ms. Volenze testified that she reported this matter to the
and following a direction to do so, applied Bacterine. It was her testimony that the mark
that there was no drainage, and that it extended from the knee to the ankle. It was her
that the wound was not open on Saturday, March 2. Following her report to the grievant, it
her understanding that the grievant would chart the matter. Ms. Bebee testified to essentially
same event. Notably, she saw that the patient had his leg in the slats. She participated in its
removal, and saw the abrasion on the leg. It was her testimony that there was no torn skin,
blood, and that the wound resembled a carpet burn. It was her testimony that she told A.P.,
assuming the latter would check.
The grievant testified, and acknowledged, that Volenze and Bebee had indicated to
patient 1795 had sustained a leg injury. She testified that she checked the patient, rolled
his sock, felt the wound, and felt the matter was not serious. She described the wound as a
reddened area. She understood that Bacterine had been applied and believed that a
of the leg would cause blood to circulate and the wound to self-heal.
On Sunday, March 3, Ms. Volenze attended patient 1795. It was her testimony that
leg was still red. There was no charting of the incident which had occurred on the prior
Volenze approached Jane Parseneau, the Resident Care Coordinator. Parseneau
that Volenze advised her that patient 1795 suffered from a bruise on his leg. It was
Parseneau's testimony that she believed that A.P. would both take care of the injury, and the
charting. She testified that she noted that there had been nothing reported from March 2.
Bebee also testified as to her observations on Sunday, March 3. Her testimony
she believed she saw the same injury again. Ms. Bebee, however, became confused as to
it was Sunday or Monday, March 4, when she next saw the patient's leg.
Sherri Brueggeman, a nursing assistant, testified that she worked on March 2, 3 and
that she cared for patient 1795. It was her further testimony that on Sunday, March 3, she
changed his linens, his socks, gave him a bath, and lotioned his body. She testified that
were no marks on his legs on Sunday, March 3.
Mary Smith, a nursing assistant, testified that she worked both Saturday and Sunday.
was her testimony that she washed patient 1795 both days, changed his socks and gown both
and that he had no marks on his body.
On Monday, March 4, Irene Pollack, an LPN, discovered patient 1795's legs stuck in
bed slats. She helped remove his legs, but did not examine them at that time. Subsequently,
approximately 10:00 a.m., Pollack was approached by Sherri Brueggeman, who reported that
patient had suffered injuries. It was Brueggeman's testimony that on Monday, March 4 she
the patient stuck with his legs stuck in the slats. She indicates that she released his leg, and
what she regarded as a fresh leg injury. It was her testimony that she reported that injury to
Pollack and indicated her belief that it had just occurred. Brueggeman's testimony is
with that of Pollack, in that Pollack was drawn to the patient through Brueggeman's report.
Pollack testified that she checked the patient, and found abrasions which looked fresh to her.
testified that there was no draining, and no scab. Pollack testified that she did not regard the
bruises as serious enough to call a doctor or a registered nurse.
Later that day, Pollack informed Eleanor Mylotte, Director of Nurses, that she had
a resident's leg bruised and scraped. Pollack advised Mylotte that she had filled out an
report on the findings, thinking that it had occurred on her shift. When she gave the report
evening CNA's, she was informed by them that they had told A.P. on Sunday that the
leg was scraped and bruised from getting his foot stuck between the side rails. They
they had asked A.P. to check on the resident's foot and that she did not do so. Mylotte
the chart, and noted that there had been no entry. Mylotte discussed the matter with the RN
had supervised staff on Sunday, and was advised that she had received no report.
Mylotte went to patient 1795's room, and examined the injury to his leg. It was her
observation that the injury was not a fresh injury, due to the fact there was no drainage and
tissue was present. Based upon her investigation, Mylotte concluded that the grievant had
to attend to the patient, and to chart the injury received on Saturday. Mylotte did not talk
either Brueggeman or Smith during the course of her investigation.
On March 7, a disciplinary conference was conducted. During the course of the
conference, Mylotte notes that the grievant acknowledged "Well, I guess since I didn't chart
it, I didn't do it." Mylotte concluded that the grievant should be terminated, and provided
with an already prepared letter of termination.
The parties stipulated to the following issue:
Did the County violate the collective bargaining agreement by
terminating the employment
of the grievant, A.P., on March 7, 1996? If so, what is the appropriate remedy?
RELEVANT PROVISIONS OF THE COLLECTIVE
ARTICLE 3 - MANAGEMENT RIGHTS
The County possesses the sole right to operate county government
and all management rights
repose in it, subject only to the provisions of this Agreement and applicable law. These
include, but are not limited to, the following:
. . .
D. To suspend, discharge and take other disciplinary action
against employees for just
cause;. . .
. . .
ARTICLE 22 - GENERAL PROVISIONS
. . .
Section 5. The County shall not discipline or
discharge an employee except for just cause.
Any employee discharged and later through proper hearing is found
innocent of the charges, said employee shall return to his/her
former job with the County
paying said employee all wages and benefits he/she would have earned had he/she been
less any compensation received from Unemployment Compensation or other sources during
period of discharge.
POSITIONS OF THE
The Employer's brief recites the operative facts and poses the question, "How long
an employer carry a Licensed Practical Nurse who consistently fails to perform the most
rudimentary duties of her position?" The Employer goes on to argue that the grievant had
counseled, warned or disciplined no less than 16 times in the past 3 years for substandard
performance, usually involving failure to chart or report incidents.
In its review of the facts, the County notes that employes Volenze and Bebee both
identified a photograph, taken on March 7, as the same injury they had previously observed
March 2. Both indicated they had brought the matter to the grievant, to no consequence.
On March 4, Irene Pollack had the injury brought to her attention. Her initial
was that the injury was fresh and new, and she reported it as such. When approached by
who indicated to her that the resident's injury was not new, Pollack reported the matter to
of Nursing Eleanor Mylotte for investigation. Mylotte concluded that the injury to the
leg was reportable, and that the grievant had not documented the incident in the resident's
When Mylotte confronted the grievant, she initially claimed that she had gone in and looked
the resident's injury, and then abruptly reversed her story and stated, "Well, I guess since I
chart on it, I didn't do it." According to Mylotte, the grievant then pointed to the
and failings of other employes and claimed they were tolerated. In essence, the grievant
she was being singled out.
The County contends that the testimony of Mary Smith, and Sherri Brueggeman
be discarded. The County believes neither to be credible, and takes issue with written
they prepared which are undated.
In summary, the County believes that due to the severity of the incident, and the
lengthy disciplinary record, the only appropriate outcome is her termination.
It is the position of the Union that the County "dropped the ball" both procedurally
substantively. The Union contends that the County conducted a sloppy investigation which
resulted in an errant conclusion.
With respect to procedure, the Union contends that the grievant was denied due
her right to tell her story, before the Employer made a decision. The Union notes that the
had made its decision to terminate the grievant before she showed up for work on March 7.
time card had been removed, she had been replaced for the entire shift by another worker,
the termination letter was written and signed prior to the March 7 meeting between the
The Union notes that during the course of the March 7 meeting, the grievant was
as saying, "Well, I guess since I didn't chart on it, I didn't do it." The Union characterizes
as a sarcastic remark directed at a supervisor with whom the grievant had a tenuous
The Union attacks Mylotte's investigation, in that the Union contends Mylotte assumed the
she observed on March 4 was the same injury that existed on March 2. It was not the same.
Union takes issue with the testimony of Volenze and Bebee at least insofar as the testimony
that the grievant did not examine the patient's leg on March 2. The only direct testimony on
subject came from the grievant, who indicated that she did examine the patient's leg, found a
reddened area which she believed had been caused by lying for too long in one position.
The Union notes that several shifts passed between the March 2 discovery of the
area and the March 4 discovery of the bruised and bleeding leg. The Union asks the
the injury to this patient was so severe as to warrant a discharge, how could such an injury
gone unnoticed for two whole work days?" The Union answers its own question through the
testimony of Brueggeman and Smith. The Union notes that the Union president sought out
Brueggeman and Smith who indicated that they had cared for the patient, that there were no
bruises on the patient, and that no member of management had ever approached them to
investigate this incident. It was Brueggeman who reported the March 4 injury to Pollack.
The Union points to record testimony to the effect that not all injuries and bruises are
charted. Some element of discretion is inevitably required in that minor matters are not
The Union points to the cross-examination of Irene Pollack who testified that she
the injury had occurred on her shift. She further testified that the injury looked fresh when
first observed it.
The Union notes that the grievant was fired because the County believed that the
injury sustained by the patient on March 4 was the same injury, which incurred on March 2
that the grievant had not appropriately cared for them. This is clearly not the case. The
believes that the Employer is now shifting the focus of its determination to discharge to the
technical failure to chart. The Union contends that this is inappropriate and unfair.
All testimony, including that of the grievant, is that patient 1795 suffered some sort
bruise or sore on Saturday, March 2. All testimony in the record is to the effect that it was
open and bleeding, nor was it deemed serious by any person. All testimony suggests that the
injury was treated. It also appears that it was never charted. All testimony points to the
as being the individual responsible for the charting. The grievant does not disavow this
responsibility but essentially her testimony makes two claims: the first is that the matter was
serious enough to warrant charting. The second is that injuries or burns of this kind and
are frequently not charted, with no punishment or sanction forthcoming.
The real dispute in this proceeding is just how serious an injury patient 1795 had as
March 2. That question is substantially in dispute. It was the testimony of Volenze and
that there was a serious scrape. They testified to it being a long scrape the length of the
lower leg. Each witness identified a photograph taken on March 7, which showed a long
running the length of the lower leg and indicated that is the injury they saw on March 2.
grievant testified that she saw a red mark which she believed was the product of lying in one
position for too long. It was the testimony of Smith and Brueggeman that there was no
injury at all. Both testified to caring for the grievant over the two-day period that followed
reported March 2 injury. Both testified to giving care, to bathing, to changing the man's bed
linens and clothing without noticing any red mark. If the wound photographed by the
on March 7 was the same wound experienced by the patient on March 2, it would have been
serious matter indeed. To so conclude requires me to discredit the testimony of Smith and
Brueggeman in its entirety.
On Monday, March 4, there was another incident. There was eyewitness testimony
fact that patient 1795 had his legs stuck between the slats of his bed. Whether this incident
aggravated a pre-existing wound or originated a new wound cannot be determined from this
record. Pollack's first review of the injury persuaded her that it was fresh. She testified in
that there was no draining and no scabbing of the wound. While she did not regard it as a
scrape, she did regard it as freshly occurring. Her testimony in this regard is incompatible
Eleanor Mylotte. Mylotte testified the injury was not recent as of March 4; that there
ointment or salve present. She testified that she saw an older, smaller bruise on the right
running approximately two and one-half inches in addition to that described by Pollack.
I believe the investigation was flawed. Mylotte never talked with Smith or
It was Brueggeman who reported the March 4 injury to Pollack. Both Brueggeman and
were caregivers over the two-day time frame that spanned March 2 through March 4. It is
difficult for me to understand why the individual who discovered the patient wedged between
bed slats and who reported his injury would not be contacted for her perspective on
how the injury
occurred. Mylotte concluded that the grievant had known about, and failed to chart, a
patient injury for three days. Yet she did not follow up with certain members of the
staff who attended the patient during the period in question. It would certainly seem to me
the Director of Nurses would seek to determine how many people were aware of this wound,
what they did about it.
On March 7, the Employer photographed the patient's leg and showed the photo to
Volenze and Bebee, who identified the bruise as that which they had previously discovered
the March 2-3 weekend. For me to accept this requires me to ignore the fact that the patient
lodged his leg between the bed slats on March 4 and that Brueggeman and initially Pollack
believed this incident had left a mark on his leg.
Management did not interview all of patient 1795's weekend caregivers. One
of its failure to do so was that Brueggeman and Smith's observations were not a part of the
and were not taken into consideration at the point of discharge. The County urges me to
their testimony. Brueggeman testified that she believed the injury to have been caused on
4. The Employer urges that I disregard her observations in this regard also. I am not
disregard all of their testimony. Brueggeman discovered the patient's injury on March 4.
was ideally positioned to comment on how fresh the injury was. Pollack agreed with her
assessment. I am unwilling to ignore that fact. Mylotte, who also observed the patient,
disagreed. However, in her written summary, Mylotte notes that the presence of "2 1/2 old
yellow" on right foot. This observation is not inconsistent with the testimony of A.P. who
indicated on March 2 that she saw a "small reddened area" when she went to check on the
The testimony of Brueggeman and Smith is incompatible with that of Volenze. Ms.
Bebee's testimony became somewhat confused. Bebee could not recall whether she saw the
patient on Sunday or Monday. Bebee testified that she was not aware of the fact that the
had been injured/reinjured on the morning of March 4.
There was no effort in the pre-disciplinary investigation to uncover and reconcile the
seemingly incompatible facts. I am not free to simply ignore testimony and facts which are
incompatible with the Employer's conclusion.
The letter of termination is conclusory, as to the specific basis for discharge. The
grievance step answer is more revealing and indicates that A.P. was "Terminated following
incident involving not responding to an injured resident following report by two CNA's."
Nothing in the record supports a conclusion that A.P. did not respond.
I do not regard A.P.'s remark during the course of the disciplinary conference to be
admission. The record suggests that she is prone to wisecracks and the context of this
conversation more suggests sarcasm than confession.
I believe the weight of the evidence suggests that the patient did injure himself on
I believe that A.P. did look in on him and concluded that the injury was not serious enough
chart. Whether her judgment in that respect was well founded is impossible to tell. I am
comfortable concluding that the Employer has not established that her call was wrong.
The grievance is sustained.
The Employer is directed to reinstate A.P. and to make her whole, consistent with
Article 22, for any wage and/or benefit losses she has incurred as a result of this
Employer is directed to expunge A.P.'s file of reference to this matter.
I will retain jurisdiction in this matter for purposes of resolving any dispute which
arise with respect to the remedy.
Dated at Madison, Wisconsin, this 7th day of October, 1997.
William C. Houlihan /s/
William C. Houlihan, Arbitrator