BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
POLK COUNTY GOLDEN AGE MANOR
LOCAL 774-A, AFSCME, AFL-CIO
Mr. Steve Hartmann, Staff Representative, Wisconsin Council
40, AFSCME, P. O. Box 364,
Menomonie, Wisconsin 54751, for Polk County Golden Age Manor Employees, Local
referred to below as the Union.
Mr. Robert L. Hachey, Polk County Corporation Counsel, Polk
County Courthouse, 100 Polk
County Plaza, Suite 40, Balsam Lake, Wisconsin 54810, for Polk County, referred to below
the County or as the Employer.
The Union and the County are parties to a collective bargaining agreement which was
effect at all times relevant to this proceeding and which provides for the final and binding
arbitration of certain disputes. The Union requested, and the County agreed, that the
Employment Relations Commission appoint an Arbitrator to resolve a dispute reflected in a
grievance filed on behalf of Sharon Parson, referred to below as the Grievant. The
appointed Richard B. McLaughlin, a member of its staff. Hearing on the matter was
January 30, 1997, in Balsam Lake, Wisconsin. The hearing was not transcribed, and the
filed briefs April 2, 1997. The parties reserved the right to file reply briefs, but did not file
I confirmed the close of the record in a letter to the parties dated September 22, 1997.
The parties stipulated the following issue for decision:
Did the Employer have just cause to discipline the Grievant
alleged patient abuse
regarding Lillian Fox?
RELEVANT CONTRACT PROVISIONS
ARTICLE II - MANAGEMENT
Section 2.01 Management Rights
The Union recognizes the lawful management rights repose in the
County which include:
. . .
D. To suspend, demote, discharge and take other
disciplinary action against employees
for just cause;
. . .
ARTICLE XXVII - DISCIPLINE -
Section 27.01 Employer Authority
The parties recognize the authority of the Employer to discipline,
discharge, or take other
appropriate disciplinary action against employees for just cause.
. . .
The complaint of abuse involving Lillian Fox, a resident at the County's Golden Age
Manor nursing home, was initiated by Christi Hendricks, a County Social Worker.
testified that she first learned of the incident through a rumor relayed to her by a Nursing
Assistant. She documented the complaint on a "RESIDENT COMPLAINT FORM" dated
December 6, 1995, 1 which states:
. . .
Social Worker was notified on 12-5-95, of a rumor on the floor
that . . . (the Grievant) had
told resident Lillian Fox that if she used the call light again, she would slap her hand.
Assistant Tammy Harrison was a witness to this event.
Social Worker talked with nursing assistant Tammy Harrison who
was a witness to this event.
About 3-4 weeks ago, during the week on the day shift, Tammy was working with (the
It was a slow time of the day, somewhere between 1:30 pm and 2:30 pm so they were not
busy. Lillian Fox had been using her call light quite a bit during the day. (The Grievant)
to answer the light and Tammy followed her into the room. (The Grievant) apparently went
to Lillian who was laying in bed, took her call light away from her and put it into the drawer
the bedside stand, and stated "If you touch that light again I'll break your fingers." The
stated that Mrs. Fox did not appear to be overly upset by this but just looked at her in a
way as if she did not understand. (The Grievant) then left the room and did not inquire
Mrs. Fox turned on the call light. Nursing Assistant Tammy then went over, gave Lillian
the call light and inquired about what type of assistance she needed.
When Social Worker went in to talk with Mrs. Fox, who is quite
forgetful. (sic) She had no
recollection of the incident and stated that "most every one is nice to me here".
Hendricks eventually turned this form over to a five person committee for a
determination of the
appropriate response. The committee met on December 6 and 7, and decided to suspend the
Grievant. The balance of the background to the grievance is best set forth as an overview of
Harrison testified that on or about November 9, she was walking from the break
passed Fox's room. She looked into the room and saw the Grievant, roughly five to eight
from her, bending over Fox, who was seated in a wheelchair. The Grievant told Fox that if
used the call light again, the Grievant would break her fingers. Harrison stated the Grievant
appeared to be angry or frustrated as she spoke to Fox. The Grievant ultimately took Fox's
light and put it into Fox's nightstand drawer, then closed it. After the Grievant left the
Harrison entered and returned Fox's call light to the top of the nightstand.
Harrison spoke of the incident with a co-worker that day or the following day. She
unsure of what to do, but when informed prior reports such as hers had not been acted on,
she would not report the incident.
Hendricks summoned Harrison to her office, and showed her the complaint form set
above. Harrison informed her the report was inaccurate because it placed Fox in her bed.
Hendricks informed Harrison that she would receive a written warning for not reporting the
incident immediately. Hendricks did not speak to her after this meeting. Harrison noted she
the Grievant only as a co-worker.
The Grievant has been employed at Golden Age Manor since October of 1988. Fern
Skoug, the Manor's Director of Nurses, summoned her to a meeting in Hendricks' office at
roughly 11:00 a.m. on December 6. The meeting involved the Grievant and a committee of
Manor managerial employes, including Skoug, Gary Taxdahl, the Manor's Administrator,
Hendricks. She was shown the complaint report set out above, while Hendricks read it. She
not offered a Union Steward, and was quite upset.
The Committee asked the Grievant what had happened, but she could not remember
anything. She indicated that she might have been kidding Fox, and that she thought she had
good relationship with Fox. After this, the members of the committee other than Skoug and
Taxdahl left. Skoug or Taxdahl informed her that she would receive a five day suspension.
Skoug or Taxdahl then gave the Grievant an "EMPLOYEE COUNSELING
December 6, which stated:
#1 On Sat., Dec 2, 1995, an employee from 3-11 shift offered to
work 7-3 as we were short.
Her partner on North wing was the above named employee who promptly informed the 3-11
that, "I have my people and you have yours so don't bother me." This 3-11 N/A said, "I'm
familiar with 7-3, so may need help." She was told -- "You have to learn sometime."
#2 This above named employee was heard to say in the break
room that she was tired of
N/A's tattling to Fern and was going to start breaking some necks. She went on to say,
one N/A that was not reporting her anymore as she told her she'd break her neck in 6
#3 This employee also takes extra cigarette breaks, even tho she
has been told she cannot do
this. Told another N/A I take my breaks whenever I want.
The Grievant acknowledged incident #2 occurred, but happened years ago. She
she had taken extra cigarette breaks, but denied the other allegations made in #1 and #3 of
counseling form. She was then informed to come back at 2:00 p.m. She did so, and
Union Steward. The complaint form prepared by Hendricks had been amended to place Fox
the wheelchair. After some discussion, the Grievant was again informed of her suspension.
On December 11, 1995, the Grievant and her Union representatives met with
At that meeting, the Grievant was shown the complaint form which had been sent to the State
Wisconsin. That form was signed by each member of the committee, and dated
1995. The form had a typewritten reference to "a five day disciplinary suspension" changed,
in handwriting, from "five" to "three (3)." She also received a copy of an
COUNSELING FORM," dated December 6, 1995, which included the incidents set
and the following additional paragraph:
This will be a 3 day suspension which also is inclusive of resident
abuse. See attached form.
Employee has 3 days to appeal this decision.
At this meeting, the Grievant was informed her statements to Fox, not the three
on the counseling form, were the basis for the suspension.
Sometime in the processing of the grievance, the Grievant filed the following written
response to the suspension:
I went back to check the charting to see what day this incident
could have occured (sic). I
remember the incident, but I knew I had never worked on W1 with Tammy (Lillian Fox is
group called W1). My partner that day was Barb D. on W1, and Tammy worked on W2
Sandy Y. There are storage rooms, etc., between these 2 groups all down the hallway,
cannot see the W1 rooms from W2, or vice versa.
. . .
On this day, I was sitting at the desk doing my charting when I
heard a buzzer go on. I
looked at the board and could see it was room 208. I went down to answer it, assuming it
Lillian Fox. Some days about this time she puts her call light on thinking it has
something to do
with the light that is at the head of her bed. She was sitting in her chair in front of her night
and the call light was hanging from the top drawer of the night stand, or in her hands. (I
remember this incident, her being in her chair.) I asked her if she needed something or if
wanted to go to the bathroom. She said no to both and said something about the light, which
not make sense. I asked her if she wanted to go out to the activity room. She said no. I
that I did not place the call light in her drawer or tell her that I would "slap or break her
Lillian is a sweet confused lady. And I especially would not say anything of that kind if
nurses aide was in the room. I asked Lillian if she wanted to watch T.V. with her
She seemed content with that, so I turned her chair around to face the T.V. and left the
(Tammy was not in the room. If she had been and what she said occurred had
occurred, I would
have stumbled over her in my haste to leave the room, or she would have stumbled over me
her haste to protect Lillian from me.) When I got about 20 feet up the hall from the room, I
Tammy hurrying down the hall. She asked if I needed help and I said no. I cannot say if
continued on into Lillian's room. Also, I would not
have gone with Tammy into the room. Lillian Fox is a one
person transfer. I would either
have told Tammy that I would get the light or that she could answer it and she could buzz
light if she needed help.
. . .
But I know from my experience of viewing Tammy at the times I
have worked on the same
wing as she, that I do not have respect for Tammy's behavior (swear words, threats of suing
getting even, words that seem to me to be untrue or bragging.) I guess I remember this
because I do not trust or respect Tammy. A couple of days after I was presented with these
charges, I went into the smoking room before work and Tammy was in there by herself.
me that she had said something out on the floor to someone else (about me) and before she
it she was "coerced" into giving these allegations, but a minute later she threatened me. . . .
Tammy knows how to look out for Tammy, and I have become the scapegoat.
Taxdahl, according to the Grievant, threw the statement back at her, then stated it was
and that the suspension stood.
The Grievant's testimony tracked her written statement. She did add that Fox tended
turn her call light on at roughly the same time each day, apparently believing the call light
was for her room lights. She also acknowledged she may have made a statement, in jest,
Fox's hands. She was not formally notified that her suspension would be three days until
Skoug has been the Manor's Director of Nurses for roughly twenty years. Skoug
the Grievant's evaluations from 1991 through 1996. Those evaluations document satisfactory
better performance with some documented concern regarding the Grievant's ability to
with other employes and abruptness in handling residents. She acknowledged the Grievant
not been disciplined prior to the incidents posed here.
Skoug prepared the two counseling forms the Grievant received. She acknowledged
she had not heard the statements recorded as incidents #1 and #2, and that she could not
who reported the incident. She testified that "I don't really know why" she included the
allegations noted as incident #3 on those forms.
Skoug saw her role on the committee to be to follow through on the allegation of
abuse. She was unwilling to testify that the Grievant lied regarding the incident, and could
say why she favored Harrison's account of the incident over the Grievant's.
Hendricks noted Taxdahl made the decision to reduce the suspension from five to
days. She also noted this was done to better effect the purposes of progressive discipline.
spoke with Harrison by phone before the committee met, and could not recall whether she
with the Grievant on December 6 or December 7. The counseling forms issued to the
were not placed before the committee, and played no role in the suspension as far as she was
concerned. She noted she credited Harrison's account over the Grievant's due to "clarity,
she expressed it." Hendricks felt that Harrison must have been in the room at the time to
as vivid a recollection as she related to Hendricks.
Further facts will be set forth in the DISCUSSION section below.
THE PARTIES' POSITIONS
The Union's Brief
After a review of the evidentiary background, the Union notes that the Grievant is a
long-term employe with a good work record and no history of discipline. The County's
into the alleged abuse was little more than an effort "to find mud to add to the patient abuse
charge." Even this effort could produce nothing of substance.
The discipline eventually turns on a credibility determination. An analysis of the
of the two witnesses to the event will not, according to the Union, yield "enough credible
. . . to find that this resident has been abused by the grievant." The Union concludes that
grievance must be upheld, all documentation related to this matter should be removed from
Grievant's) file and the employee made whole for the loss of . . . pay and benefits."
The County's Brief
After a review of the evidentiary background, the County notes that the conflicting
testimony offered by Harrison and the Grievant is not the only evidence regarding the
The Grievant's written statement acknowledges that the Grievant did believe Fox had used
light inappropriately in the past. The Grievant also made a statement which implies she may
said something inappropriate to Fox. Since Harrison had "no run-ins or grudges" with the
Grievant, it follows that she had no reason to fabricate her account. Her delay in reporting
incident is unremarkable, and occurred only "because she was new on the job." That she has
received discipline for not promptly reporting the incident underscores that she has no reason
Beyond this, the Employer urges that the Grievant's past evaluations offer some
she can be abrupt with residents and prefers to work alone. The evidence, including witness
testimony, is sufficiently credible "to support the employer's disciplinary action" against the
The stipulated issue turns on whether the County had just cause to discipline the
In the absence of a stipulation by the parties concerning the standard appropriate to a just
analysis, the determination of cause must address two elements. First, the County must
the existence of conduct by the Grievant in which it has a disciplinary interest. Second, the
County must establish that the discipline imposed reasonably reflects that interest.
The stipulated issue highlights that the application of the first element focuses on the
alleged abuse of Fox. As preface to examining this issue, however, it is necessary to address
allegations of the two counseling forms issued the Grievant. None of those allegations,
of the reference to the alleged abuse on the second form, affords any basis to support the
Grievant's discipline. The Grievant's acknowledgement of certain of those accusations
make up for the lack of any evident link in time or in substance between those allegations
alleged abuse of Fox. The presence of these otherwise unfounded allegations serves, if
to cast doubt on the significance of the County's allegations of resident abuse.
The evidence does, however, warrant assessing the alleged abuse independently of the
allegations of the counseling forms. Hendricks' testimony establishes that the committee did
consider the counseling forms in assessing the allegation of abuse. Beyond this, the Grievant
informed that the alleged abuse of Fox was the key component of the discipline.
The evidence regarding the alleged abuse is troublesome, but is sufficient to establish
existence of a disciplinary interest in the Grievant's handling of Fox. While the exact
involved cannot be precisely identified, the evidence supports a conclusion that the Grievant
treated Fox gruffly, and spoke to her in a threatening fashion.
Harrison's testimony on this point cannot be dismissed as incredible. Her account
as Hendricks noted, vivid and detailed. Beyond this, she had no reason to fabricate the
There is no indication of ill-will on her part toward the Grievant. Nor can her reporting of
incident be dismissed as manipulated. She was disciplined for not reporting the incident, and
not offered any inducement for belatedly reporting it.
More significantly, the Grievant's testimony does not afford a persuasive rebuttal of
Harrison's account. The most striking aspect of the Grievant's account is that it is detailed
effectively tracks Harrison's. This, however, underscores the reliability of Harrison's
The Grievant did not learn of the accusation until a month after the incident. If nothing
remarkable happened in Fox's room, there would be nothing for the Grievant to recall about
shift, much less to recall in detail. That she recalled a shift on which nothing out of the
ordinary happened is, standing alone, remarkable. That her recall is detailed is more
That the detail tracks Harrison's account is too remarkable to warrant concluding Harrison
the Grievant had not viewed the same incident.
The areas of agreement between Harrison's and the Grievant's accounts are too great
be dismissed as coincidental. Harrison informed Hendricks that Fox had not been in her bed
the time of the incident. The Grievant confirmed this orally and in writing. Both accounts
the Grievant going into Fox's room to address a summons from the call light. Both accounts
the Grievant in the room, hovering over Fox's wheelchair, addressing Fox, then leaving the
without doing anything involving her care. That Harrison would recall these events after a
month lapse is not surprising. She perceived the encounter as abusive, and this made it
other than an ordinary shift. That the Grievant would recall the events after a one month
is surprising if those events were routine. That she would recall not only that Harrison was
in Fox's room, but also where Harrison was in the hallway during a shift on which nothing
particular happened is even more striking. If the encounter in Fox's room was uneventful,
is no apparent basis for the Grievant's recalling it in any detail. Nor is there any apparent
for her recall to track Harrison's. The most persuasive inference from the two accounts is
the Grievant and Harrison viewed the same incident.
Thus, the County has demonstrated the existence of conduct on the Grievant's part in
which it has a disciplinary interest. It is now necessary to determine if the three day
reasonably reflects that interest. There are significant problems in reconciling the
of the three day suspension with the County's disciplinary interest.
The conduct involved in the Grievant's handling of Fox is imprecise. Even under
Harrison's account, the nature of the abuse is problematic. It is apparent she believed she
witnessed improper conduct on November 9. The degree of that impropriety would appear
easily overstated than understated. Harrison hesitated to report the incident. That reluctance
would appear to manifest doubt concerning the underlying severity of the Grievant's
More significantly, Harrison did nothing to intervene until the Grievant had left the room.
is not reconcilable with a concern for Fox's immediate safety. That Harrison was not
with Fox's safety is further manifested by her immediate response. She did not find it
to defend Fox. Rather, she entered the room and acted to soothe her feelings.
The ambiguity in defining what happened in Fox's room surrounds and complicates
County's response to it. It is apparent Harrison perceived coercion, reflecting either the
Grievant's "anger" or "frustration." There is, however, a difference between an offhand
uttered in frustration and the deliberate communication of a threat of physical injury.
This difference received, however, no express consideration in the managerial
of Harrison's account. Hendricks' report treats the reference to a slap of the hand as
with a threat to break Fox's fingers. Skoug was not willing to expressly credit Harrison's
over the Grievant's.
The imprecision in the County's evaluation of the Grievant's conduct is complicated
procedural irregularities in the imposition of discipline. The investigation of the incident was
cursory. It is not clear whether Hendricks secured the Grievant's side of the story prior to
imposition of discipline. Beyond this, the inclusion of the unsubstantiated assertions of the
employe counseling forms manifests something less than a disinterested search for the facts
surrounding the incident.
These problems complicate the assessment of the penalty. It is not apparent what
abuse the County sought to hold the Grievant accountable for. Beyond this, her detailed
treated above as a significant indicator of the reliability of her account, is arguably a
response to an unsubstantiated series of accusations. From her perspective, the County's
investigation could be characterized less as a search for truth than for a scapegoat. This
perspective cannot be lightly dismissed.
An allegation of abuse is sufficiently significant to warrant a good faith attempt to
determine relevant fact; to evaluate that fact to isolate disciplinable behavior; and to impose
discipline against specifically identified conduct consistent with the evidence acquired. The
in this case strains each of these points.
The strain regarding these points is sufficiently significant to warrant lessening the
suspension imposed. The Award entered below does not, however, do so. The reasons
supporting this conclusion should be detailed. The County's inquiry, if cursory, was made in
good faith. Beyond this, the County had, in Harrison's account, sufficient evidence to
a conclusion that abuse had occurred. It is not clear when the County first permitted the
to respond to the charges. It appears to have been late in the process, but the evidence
indicate that the County delayed the imposition of discipline until it had her account. That
County understood there was imprecision in identifying the underlying behavior is apparent
reduction of the suspension from five to three days. Against this background, it is apparent
County concluded that a disciplinable event had occurred, and that it should be handled more
severely than the written reprimand issued Harrison for failing to report it. This conclusion,
light of the stipulated issue, cannot be considered unreasonable.
The stipulated issue does not include a question regarding remedy. I interpret this to
reflect the parties' desire to have the three day suspension evaluated as an all or nothing
proposition. As noted above, I have doubt on the propriety of a three day suspension on this
evidence. However, the reasonableness of some form of suspension has been demonstrated.
The Employer did have just cause to discipline the Grievant for alleged patient abuse
regarding Lillian Fox.
Dated at Madison, Wisconsin, this 8th day of October, 1997.
Richard B. McLaughlin /s/
Richard B. McLaughlin, Arbitrator
1. References to dates are to 1995, unless otherwise