BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL 346
VILLA MARINA HEALTH AND
REHABILITATION CENTER, INC.
(Grievance of Joan Johnson)
Falsani, Balmer, Berglund and Peterson, by Mr. Timothy W.
Andrew, on behalf of the Union.
Ruder, Ware & Michler, by Ms. Cari L. Westerhof, on
behalf of the Employer.
The above-captioned parties, herein "Union" and "Employer", are privy to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
held in Superior, Wisconsin, on November 6, 1997. The hearing was transcribed. Both
thereafter filed briefs and the Employer filed a reply brief that was received by January 9,
Based upon the entire record and arguments of the parties, I issue the following Award.
The parties have agreed to the following issue:
Was the discharge of grievant Joan Johnson for just cause and, if
not, what is the appropriate
The Employer operates a skilled nursing facility in Superior, Wisconsin, which
some long-term patients who are severely disabled.
One of those patients, here called "M" to protect her privacy, has a reputation for
very belligerent and very difficult to handle. That is why aides have been instructed to
work in pairs when caring for "M", who has dementia and hence was incapable of testifying
Grievant Johnson and Jennifer Carlson, (now Yadon), both certified nursing aides
("CNA's") were caring for "M" on June 24, 1997, 1 by trying to put on her pants and by
stringing a catheter tubing through her pants leg. Carlson at that time was trying to hold
"M", as Johnson worked with the catheter. Both Johnson and Carlson testified that "M"
kicked Johnson; once in her chest and once in her throat.
They sharply disagree, however, as to what happened next. Johnson, a 12-year
with no record of patient abuse, said that "M" "kicked me pretty hard" and that she then
"Geeze, Marion" and that she pushed down "M"'s leg with her "open hand". Carlson, who
been working for only six months, testified that Johnson said, "You son-of-a-bitch, Marion",
that Johnson then punched "M"'s between the knee and ankle with a closed fist. Carlson
Johnson then grabbed her own throat and went over to a mirror to see where "M" had kicked
Johnson denied going over to the mirror to check on her throat.
Carlson then left "M"'s room. She testified that she shortly thereafter heard
coming from "M"'s room; that she returned to "M"'s room to see what was happening; that
saw Johnson talking to CNA and Union Steward Sandy Hillenbrandt; and that Johnson told
Hillenbrandt "I was going to be 'narcing' on her" (i.e. reporting her), and that she, Johnson,
in "big trouble". Both Johnson and Hillenbrandt - who are friends - denied being in the
together at that time and both denied that Johnson ever made the statements to Hillenbrandt
Carlson attributed to her. Johnson, who said her neck was red, did not file an incident
detailing how "M" had kicked her even though she was required to do so under the
Carlson, who said she was scared to do so, did not immediately report that day's
with "M" to anyone else even though all CNA's under the Employer's policies are required
immediately report all instances of patient abuse. Carlson - who had called in sick the day
- on Sunday, June 29, subsequently met with Director of Nursing Cathy DeRosier, who also
happens to be her sister, at a restaurant to announce that she was immediately quitting her
effective that day. When pressed by DeRosier as to why she was quitting, Carlson
reported that Johnson had abused "M" June 24 and that she, Carlson, was fearful that other
employes would retaliate against her.
DeRosier that day reported Carlson's comments to Administrator Leann Nichols who
in her cabin and who subsequently investigated what had occurred when she returned to
When "M" was examined, there were no marks or bruises on her leg and she had no
of the incident. Both Johnson and Hillenbrandt during the investigation denied Carlson's
of what she had reported. Nichols subsequently suspended Johnson on June 29 and - after
completed her investigation - terminated Johnson effective July 16.
POSITIONS OF THE
The Union asserts that the Employer lacked just cause to terminate Johnson because
in fact, did not strike or swear at patient "M". It thus maintains that "there was no objective
evidence that abuse occurred"; that Johnson has no prior history of patient abuse; that
testimony is corroborated by Hillenbrandt; that Johnson made no effort to hide what
that "Carlson was not credible"; and that the Employer's "investigation was not conducted
or objectively." As a remedy, the Union asks for Johnson's reinstatement and a backpay
The Employer, in turn, contends that it had just cause to discharge Johnson because it
met its burden of proving that she engaged in patient abuse. It thus argues that it completed
"full and fair investigation" and that Carlson should be credited over Johnson because she
reason to lie.
The Union is correct in pointing out that some parts of the Employer's case simply
hold water. For example, the Employer makes much of the fact that Johnson tried to
housekeeping at the time of the incident; that Johnson and Hillenbrandt were seen arguing in
parking lot after one of the grievance steps; that Johnson was upset on the day of the
that Johnson sought reinstatement in her first grievance after she had been suspended. While
can argue that all of this shows Johnson's state of mind, it hardly constitutes the kind of
evidence needed to support a finding of patient abuse.
Nevertheless, the Employer conducted a fair and objective investigation in spite of
flaws since it interviewed Carlson, Johnson, and Hillenbrandt and since it withheld a final
on Johnson's employment status until after its investigation was completed. Hence, very
weight can be given to the fact that Administrator Nichols did not consider the absence of
bruises on "M" in her discharge decision. While Nichols should have considered that fact,
failure to do so simply goes to the weight of the evidence supporting the Employer's
decision. It does not, however, so taint the Employer's discharge decision so that it can be
overturned on this basis alone.
The real problem in the Employer's investigation was the fact that Carlson waited so
to report Johnson, thereby making it impossible to examine "M"'s leg for bruises until
June 30. The Union rightfully complains that had Carlson complained on June 24 - the day
alleged incident - it would have been very easy that day to see whether "M"'s leg was
However, it is also true that Johnson herself did not fill out a written incident report on what
happened on June 24, as she was required to do under the Employer's policy. Had she done
it is entirely possible that "M" would have been examined on June 24. Johnson's failure to
out an incident report thus helps neutralize the fact that "M" was not examined until five
This case thus stands or falls on Carlson's credibility. If she is believed, the
stands. If she is not, the discharge must be overturned.
Given the highly credible way in which she testified and her actions at the time, I
Carlson and hence discredit Johnson (and Hillenbrandt). I do so because it is very clear that
Carlson had no reason to fabricate her testimony and because the record shows that she was
upset over what she saw on June 24 when she and Johnson were caring for "M". That is
decided to immediately quit her employment and that is why it was so difficult for her to tell
DeRosier, her sister, the real reason why she was doing so.
In addition, some of Johnson's story is inherently implausible. Carlson testified that
"M" kicked Johnson, she, Johnson, went over to a mirror to view her throat. Johnson
going over to the mirror. However, Johnson testified her throat was red that day. That
how did she know it was red if she did not view it in the mirror in "M"'s room? Are we to
believe that she waited until after she left "M"'s room to check on her throat?
That hardly seems
likely since the need to view her injured throat was most immediate right after "M" kicked
This represents an added reason to credit Carlson.
The Union argues to the contrary by suggesting that Carlson has lied because she "no
longer wished to do the demanding work of a . . .CNA," which is why she called in sick on
29. There, in fact, is not one iota of evidence to support this claim or any other reason as to
Carlson would lie. Absent any such evidence, I credit her account and find that Johnson did,
indeed, curse at "M" and hit her with her fist. Since this constitutes patient abuse, the
had just cause to terminate Johnson.
In light of the above, it is my
That the discharge of Grievant Joan Johnson was for just cause; the grievances are
Dated at Madison, Wisconsin, this 1st day of April, 1998.
Amedeo Greco /s/
Amedeo Greco, Arbitrator
1. Unless otherwise stated, all dates hereinafter refer to