BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
COLUMBIA COUNTY EMPLOYEES, LOCAL
WCCME, AFSCME, AFL-CIO
COLUMBIA COUNTY (HEALTH CARE
Mr. David White, Staff
Representative, Wisconsin Council 40, AFSCME, AFL-CIO, 8033 Excelsior
Drive, Suite B, Madison, Wisconsin 53717-1903, appearing on behalf of Columbia County
Employees, Local 2698, WCCME, AFSCME, AFL-CIO, referred to below as the Union.
Mr. Donald J. Peterson, Columbia County Corporation Counsel,
400 DeWitt Street, P.O. Box 256,
Portage, Wisconsin 53901-0256, appearing on behalf of Columbia County Health Care
referred to below as the Employer or as the County.
The Union and the County are parties to a collective bargaining agreement which was
at all times relevant to this proceeding and which provides for the final and binding
certain disputes. The parties jointly requested that the Wisconsin Employment Relations
appoint an Arbitrator to resolve a grievance filed on behalf of Mary Fischbeck, who is
below as the Grievant. The Commission appointed Richard B. McLaughlin, a member of its
Hearing on the matter was held on May 21, 1998, in Wyocena, Wisconsin. The hearing was
transcribed. The parties entered their positions at the hearing, and chose not to file written
The parties stipulated the following issues for decision:
Did the County have just cause to suspend and reassign the Grievant?
If not, what is the appropriate remedy?
ARTICLE 2 MANAGEMENT RIGHTS
2.01 The County possesses the sole right to operate County
government and all management
rights repose in it, subject only to the provisions of this contact (sic) and applicable law.
include, but are not limited to the following:
A) To direct all operations of the Health Care Center;
B) To establish reasonable work rules and
schedules of work;
C) To hire, promote, transfer, schedule
and assign employees to positions within the Health Care
D) To suspend, demote, discharge and take
other disciplinary action against employees for just
cause . . .
ARTICLE 14 MISCELLANEOUS
. . .
14.02 Evaluations and written reprimands will be in effect for a
twelve (12) month period. At
the end of twelve (12) months they shall become null and void and shall serve no further
. . .
The County's Health Care Center, referred to below as the Center, includes four
wings radiating at right angles from a lobby area, which includes a nurses' station. The
stipulated that the incident underlying the discipline, referred to below as the Incident,
October 16, 1997, in and around Room 408 on the residence wing known as Birch
residents then living in that room were KW and GH. KW was, at the time, aphasiac and
GH was in the facility for a period of convalescence, hopefully to return home after a limited
He was, at the time, alert and responsive to others. The Grievant and RS, another Aide, at
worked the 10:00 p.m. to 6:30 a.m. shift. SS, a Registered Nurse, was the shift supervisor
time. The Grievant's team leader was JH, a Licensed Practical Nurse.
The first documentation of the Incident was filed by the Grievant at the close of her
October 16. The Grievant reported the Incident to JH and SS. SS spoke to GH, then asked
Grievant to document her view of the Incident. The Grievant's written response states:
At approximately 2:20 am, on Oct. 16, 1997, we (RS & I)
were doing our bedcheck on Birch
Blvd. We heard KW yelling "Hey, Hey" while we were in room 413. Approximately seven
later we headed to K's room. In the course of the seven minutes, K's room-mate, GH, rang
bell. After finishing in room 413, we headed to K's room. Upon entering the room, GH
swearing saying, "this f***ing call bell's been on forever." I did not answer. I walked past
to K's bed. My partner . . . tried to explain why it took seven minutes to get to the room.
hollering at R about not being taken care of. He then told R if "you don't want to do your
job, then quit." I did not hear all of the conversation as it transpired. She didn't answer G
last statement. We finished changing K and left the room without further conversation.
On October 21, GH filed a complaint with Heather Blackmore, a Center Social
Worker. Her written
summary of the complaint states:
G reports that his roomate (sic) . . . was verbally calling for help
when he heard a CNA in the
hallway loudly state "I hope K learns to use that fucking call light soon!" G at that point
call light as he knew it was difficult for K. When the CNA entered the room to help K, G
"This is not a 'fucking' call light, it is a call light" in order to correct the CNA's language as
her language was not appropriate. The CNA responded "Why are you talking to me like
that" in an
angry tone. G responded "I'm just repeating to you what you said earlier, & I don't
approve of that."
G also reports that during this altercation the CNA stated "I have 26 other res. to care for on
that need our attention." G replied to that "If you don't like your job then why don't you
tells writer he says this because the CNA was becoming very angry . . . G reports that the
ended when the CNA stated "if you don't like it here, you can talk (with) Social Services in
and G stated he would do that. G did report this to LPN DW A.M. of 10/18/97. Writer
if he could identify the CNA or knew the name. G. stated
"No, I couldn't because she was behind the privacy curtain while
doing cares for K and my side
of the room was dark, but it had to either be R or M because they were the only ones there
. . .
GH's complaint was ultimately brought to the attention of Sharon Kotowski, the
Kotowski interviewed the Grievant and RS on October 24, 1997. The interviews
separate and the Grievant and RS were each afforded a Union representative. Kotowski took
handwritten notes of each interview, then had those notes typed. She discarded the original
Her typewritten notes of the interview with the Grievant state:
How long before you heard him calling and answered?
Ken yells when he wants
- We were in E's room
doing her bed check. We went from E's room to K's room and
took care of him.
- The light went on
between the ladies. (Could tell because they hear a light go on and
Ken was still yelling.)
sk - You went right from E to K's
We finished in the room and
then went to care for K.
sk You didn't care
for anyone accept (sic) E prior to going to see what K needed.
We finished in the room and
What did K need
He needed to be changed.
What did you say outside the room.
We never said anything.
I read the quote
No, that didn't happen.
Did you report the incident.
After the bedcheck we came
up and told. Told S "G went off. He was pretty mad at us."
What did nurse say.
S gave us letter head and
asked us to write down what happened.
Why did you prepare a statement.
S asked us to.
sk Do you do this often?
No. This was unusual for
him to be that mad at us.
sk This was different.
Yes, Not his usual self,
usually he's just grumpy.
sk - Have you ever told S about issue
She said he gets grumpy.
She told us he had complained about the noise at night, he would
complain that the wheels on the linen cart was (sic) squeaking too loud. She told us
we needed to be more quiet at night.
sk- Did you feel you had done anything
I suppose you can answer
this question. I've asked many people what do you do if your (sic)
taking care of someone and some one puts on a call light. Do you stop what you're
doing and answer there's (sic)?
sk - Obviously you need to
complete the care or task that you are doing. If there are two
staff and it is safe, one should go and at least acknowledge that they will be next.
Otherwise if it is not safe, you should both go and answer the light when you are
finished with the resident. . . .
sk - Have you show (sic) K how to use
his call light.
- We've shown him
how to use it. G apparently puts his on for K because he figures
sk - But if K is calling for
help, it wakes him up and no one is coming, don't you think he
was trying to get help for his roommate?
Maybe. I haven't talked to
him at all since this happened. I go in and do my business and
leave. I don't say a word. I've never seen him this mad.
sk - And can you tell me why it was
different this time?
sk - What do you remember about the
conversation in the room.
I don't remember much, G
was swearing at R, saying it took so long. I pulled the curtain and
took care of K. I know she was trying to explain that we were doing cares. But he
sk - Is there anything else you remember
or want to tell me.
. . .
Kotowski suspended the Grievant with pay at the close of this interview, pending
investigation. Kotowski's typed notes of the interview with RS state:
How long before you heard him calling and answered?
We were caring for E, K
was yell (sic) for about 6-7 minutes before G put on his light. (The
Grievant) and I chose to check A, B, N and R. E, A and B were wet and had to be
sk - How long did that take.
sk It took you five
minutes to check five residents, change, do peri care and reposition
We only changed three of
them, N and R were dry. We don't move them if they are sleeping.
S said it is better to let them sleep.
sk - So you are saying that
K was yelling, the light was on and you took five minutes to
check and or change five residents.
- We chose to finish with
our rounds. You don't work nights so you don't understand. We
knew that the reason he was hollering was because he probably pooped.
What did K need
He needed to be cleaned.
sk - He was laying in his feces?
- Yes, But sometimes he isn't he wants
What did you say outside the room.
sk - read the statement.
No, we never said such a
thing. The next morning Yvonne said she had heard that R was
swearing at G.
Did you report the incident.
We told what happened, that
he was angry.
What did nurse say.
S had us write our
statements. She asked us how long it took from when K was yelling until
we took care of him. She and J didn't have a problem with it.
Why did you prepare a statement.
S said she knows how G can
make complaints and turn things around.
sk Can you tell me why you chose
not to answer the light.
Because, he is incontinent,
he sits in it and hollers. . . .
My statements were probably out of line. That's
why we don't spend as much time with G.
We only do what we have to. We try not to ignore him. But we get out as fast as
possible so he can't complain about us.
sk - R, I can appreciate the
care you have given. However, you still haven't explained why
you let some one who is oriented yell for help without acknowledging him, wake his
roommate, who puts on his light. You and M decide for some reason you can't
explain, to wake up other residents to check and change them. Then you get into a
shouting match with a resident and blame all of this on him. I am going to suspend
you with pay until completion of this investigation.
So you're going to suspend
me because of such a silly thing. I hope you know how short
they are going to be. I hope someone hurts there (sic) back and it will be your fault.
sk- I know you are angry.
But I must insure that you and the residents are protected until
I can determine what needs to happen.
You have no idea what goes
on at night. You don't understand that we knew he had pooped.
So what. . . .
In a letter dated October 29, 1997, Kotowski and Lisa Olejniczak, the Center's
a "Facility Self Report" with the State of Wisconsin's Bureau of Quality Assurance. The
On October 21, 1997 (sic) at approximately 2:30 a.m. KW,
resident on Birch Blvd. began calling
out for help. He woke his roommate, GH, with his calling. G put on the call light for K. .
RS, CNA and (the Grievant), CNA were in
EG's room taking care of her. They both heard K
calling and heard the call light audible signal. They both state that they knew that K would
he had moved his bowels. The aides completed care on E. They then decided to continue
They both acknowledged that there were no other residents calling out and there were no
lights on. They proceeded to check and clean DV, AJ, and BS who had been incontinent.
checked NS and RZ, who were dry. They both entered the room of K and G.
G states that before the aides entered the
room he heard one of them say "I hope K learns to use
the Fucking call light soon." They deny making such a statement. G states when they
room he said "This is not a fucking call light, it is a call light." The aides state that G
on the length of time it took to answer the light. A verbal altercation issued between R
and G. At on (sic) point R stated "If you have a problem, you
need to to (sic) and talk to
Social Services in the morning". G stated he would. The aides completed care on K and
room. . . .
The letter notes that the Grievant received a fifteen-day suspension and "will be
reassigned to the day
shift for closer observation and supervision." It also notes RS received a ten-day suspension
be reassigned to the evening shift for closer observation and supervision." The letter also
SS "has been counseled . . . (and) reassigned to the evening shift for closer observation and
The discipline prompting the grievance is set forth in a letter from Sharon Kotowski,
Center's Director of Nursing, to the Grievant. The letter, dated October 31, 1997, states:
This letter is to inform you that you have been found in violation
of resident rights, Columbia
Health Care Center and Columbia County, policies and procedures.
On October 24, 1997 an investigative
meeting was held with you, Yvonne Boomsma CNA, union
representative and myself. You were informed of the complaint filed against you. On the
October 21, 1997 (sic) you and a peer were caring for E.G. in room 413 when you heard
K.W. calling for help in room 408 (you state that he yells when he has had an involuntary
then stated you heard a call light sound and assumed it was K.W.'s roommate G.H.
roommate since no one was responding to his yelling). You both continued to care for the
D.V. You state that you both then went directly to room 408.
You're (sic) peer states that after finishing
the residents in room 413 you both discussed what
to do next and decided to complete rounds. You both then went into room 411 and cared for
and B.S., you then proceeded to room 412 to care for N.S. and R.Z.
You state that upon entering room 408,
G.H. had a verbal altercation with your peer due to the
delay of answering the call for help. You state that you could not hear all of the
you pulled the curtain between G.H. and K.W. You stated you began to clean K.W. who
involuntary stool. You then left the room with your peer and reported to the nurse that
been very angry.
When questioned if you felt you did
anything wrong, you did not answer the question. You were
suspended with pay upon completion of the investigation.
Upon completion of the investigation we find that you failed to
give complete and accurate
information regarding the incident. You failed to report the residents (sic) request to file a
with the facility. You also failed to uphold the residents G.H. and K.W. (sic), rights to be
with dignity and respect.
Your behavior is in violation of Federal
Regulation F241 483.15 (a) . . . You are also in violation
of HSS 132.31 (e) . . . You have also violated CHCC policy and procedure on Resident
to have violated Columbia County Work Rules (10) . . .
Review of your personnel record indicates
the following discipline: A ten day suspension without
pay due to a resident rights violation, on November 9, 1995. A verbal warning regarding
absence from work on October 7, 1997. A written reprimand regarding excessive absence
on October 1, 1997.
Due to your repeated intentional misconduct
and negligence as well as continued failure to
comply with policies and procedures as directed, progressive discipline will be followed.
October 28, 1997 you began a fifteen day suspension without pay. Upon completion of the
suspension you will be reassigned to the day shift to allow increased observation and
You will also meet with the Director of Social Services to review resident rights. . . .
The Union responded by filing a grievance dated November 3, 1997, which seeks the
"Place Grievant back on noc. shift remove all paperwork from files
Reimburse for all wages lost."
It is undisputed that federal and state regulations govern the Center's operation and
regulations sanction verbal abuse and patient neglect. It is also undisputed that the Center
policies, which also sanction verbal abuse and patient neglect. Those policies treat a failure
patient abuse or neglect as tantamount to abuse or neglect. It is undisputed that the Grievant
aware of these policies and regulations. There is no dispute that these policies are reasonable
The balance of the background to the grievance is best set forth as a brief overview
Sharon Kotowski's Testimony
Kotowski noted that she determined the level of discipline to be imposed. She based
discipline on the Grievant's failure to respond promptly to the calls of KW and the call light
She also based the discipline on the Grievant's failure to promptly and accurately report
behavior. She testified that the Grievant's written statement is inaccurate and understates the
of the health care issues. She also interpreted the Grievant's October 24, 1997 account to be
inconsistent with her written statement of October 16 and irreconcilable to GH's and RS's
of the Incident.
The Grievant's Testimony
The Grievant has served as a County CNA for roughly six years. She testified that
completed the care for the residents of room 413 before moving her laundry cart closer to a
fountain located in the vicinity of room 412. She then went to room 408, entered it shortly
went to the bathroom to moisten a cleaning towel, then proceeded to K's bed, drawing the
curtain behind her. She stated that GH, without provocation, started to swear at RS about
amount of time the "fucking call light" had been on. She could hear GH and RS arguing,
not make out what they were saying. She testified she did not hear RS swear at GH. She
acknowledged RS spoke to GH "kinda loudly" but she stated RS speaks "loudly anyway."
had finished cleaning KW, she left the room. While leaving, she did hear GH state that he
turn them in. She then went to the nurses' station, but could not report the Incident, because
was there. She reported the Incident after she had completed her rounds. JH and SS were
at the nurses' station.
The Grievant acknowledged her recall of the Incident was less than photographic.
repeatedly reaffirmed her belief that she did not tend to any residents after she finished in
Rather, she proceeded directly to room 408. Her recall of where she left the laundry cart
was, to her,
an indication that she had placed it to permit her to return to her rounds at rooms 411 and
she finished in room 408.
Hohn is the Center's Human Resources Manager. She noted that the County will
employes for failing to promptly respond to a call light signal. She could not, however,
case in which an employe had been suspended for failing to promptly respond to a call light.
Further facts will be set forth in the
THE COUNTY'S POSITION
The County contends that the suspension rests on two sound bases. The first is the
failure to promptly report the Incident and the second is the Grievant's lack of candor in
the Incident when she finally reported it.
The County asserts that there is no dispute that the Grievant was aware of the need to
promptly, accurately and fully report the entire Incident. The extensive and rigid regulatory
background to resident care establishes the egregious nature of the Grievant's conduct.
behavior is extensively addressed in Federal and State regulation, County policy, and the
That KW is incontinent establishes that the Grievant should have responded more
to him and that her failure to do so is egregious. The suspension imposed for this conduct
That the Grievant casually informed her team leader that an Incident had occurred is
inadequate response. At a minimum, the Grievant should also have informed her team leader
wanted to make a formal complaint. Beyond this, the Grievant's response to supervisors
the events surrounding the Incident has been less than candid. The evidence establishes that
Incident manifests more than "slap on the wrist" type of conduct, and that the County had
to suspend the Grievant for fifteen days. Given the rigid regulatory framework the County
operate within, its disciplinary response must be swift and sure, as it was in this case.
The County further contends that the Grievant's reassignment from the night shift
valid exercise of a management right, independent of the Incident underlying the discipline.
THE UNION'S POSITION
The Union notes that the reasonableness of the rules and regulations governing the
conduct is not at issue. Rather, the issue is whether the Grievant acted as the County
Union contends the County has failed to prove any conduct by the Grievant which could
reassignment or discipline.
It is undisputed that KW called for assistance, but the Union argues that the Grievant
at the time of KW's call, dealing with a soiled resident. That she finished her duties in that
before proceeding to KW was proper. That GH and RS had a verbal row cannot be held
Grievant, who did no more than perform her job.
Nor can the Grievant's report of the Incident be faulted. She promptly reported the
to her team leader, and did nothing to hide any relevant detail. No testifying witness,
other than the Grievant, witnessed the underlying Incident. The County's case rests on
hearsay. The Union contends that this hearsay cannot be viewed as a more accurate
portrayal of the
Incident than the Grievant's direct testimony. Kotowski's notes are a dubious guide to the
since they rest on hearsay and have been edited to leave out any part of the events which
corroborate the Grievant's testimony. In any event, that the Grievant did not report a loud
between RS and GH has no disciplinary significance, since the Grievant did not believe such
occurred and believed RS was attempting to calm GH.
The Union concludes that the County has failed to demonstrate any conduct
discipline. Beyond this, the Union argues that the Grievant's reassignment must be
disciplinary. She used her seniority to secure work on the night shift. By losing that work
lost her chosen shift and the premium pay associated with it. The Union requests that the
be sustained and the Grievant be made whole for the County's failure to act with just cause.
The stipulated issue is whether the County had just cause to discipline the Grievant.
absence of the parties' stipulation of the standards appropriate to a just cause analysis, the
determination of cause must address two elements. First, the County must establish the
conduct by the Grievant in which it has a disciplinary interest. Second, the County must
the discipline imposed reasonably reflects that interest.
Application of the first element is troublesome. Kotowski stated the conduct
discipline in her letter of October 31. The sixth paragraph of that letter isolates the two
advocated during the hearing. The first is that the Grievant "failed to report the residents
request to file a complaint with the facility." The second is that the Grievant "failed to
residents (sic) . . . rights to be treated with dignity and respect."
The first allegation is unproven. At most, it questions the completeness of the
written statement of the Incident. The allegation presumes GH made a request to file a
with the facility. GH did not testify, and what he wanted must be inferred from his written
the statements from the October 24 interviews, the Grievant's testimony, and Blackmore's
None of that evidence indicates GH requested to "file a complaint with the facility." Rather,
evidence indicates he engaged in a verbal sparring match with RS and responded to her
or taunt that he talk to social services in the morning. This is more than a technical point.
discipline assumes GH sought to file a complaint and that the Grievant was aware of this
deliberately ignored it. The evidence is that RS and GH argued, and the Grievant heard bits
pieces of the argument. Her written statement reflects precisely what the evidence indicates.
knew GH was sufficiently angry to make the Incident reportable. There is no dispute she
written statement confirms her verbal report to JH and SS. Her statement details what
reasonably be expected to. Once the Incident was reported to Center management, the
was in their hands.
Against this background, the first allegation is unproven. At most it quibbles with
Grievant reported the Incident. More significantly, it presumes the Grievant's account is
and holds her accountable for failing to relate a request she claims she never heard. Even if
account was incredible, it is not apparent that there is an established complaint procedure the
could have, or should have referred to. Even if there was, it is not clear how she can be
disciplinarily accountable for her report of the Incident. Her report provoked contact
management and GH. That contact is the essence of a complaint procedure. There is, in
proven conduct in which the Center has a disciplinary interest regarding the first allegation.
The second allegation is the focus of the County's arguments, and poses troublesome
Kotowski's October 31 letter asserts the Grievant failed to "uphold" the right of KW and GH
treated with dignity and respect." This broad statement is itself troublesome. If the Grievant
modify inappropriate behavior, there should be a concise statement of what the improper
is, and how it can be made proper. The second, third and fourth paragraphs of that letter
Center's investigation, but must be taken as the statement of what was inappropriate in the
behavior. The ninth paragraph of the letter would appear to assert that the Grievant's
constitutes "intentional misconduct" and "negligence."
The contention that the Grievant is guilty of "intentional misconduct" is unproven. It
presumes the Grievant and RS completed their rounds before administering to KW. This
credits RS's account and discredits the Grievant's. This is a defensible conclusion, but must
rooted in either RS's account or the Grievant's. The evidence will not, however, afford
support for concluding RS and the Grievant completed their rounds before attending to KW.
Significantly, there is no evidence Center management weighed the two accounts against each
Rather, they presumed the Grievant's account was incredible. That the accounts were not
is, standing alone, a troublesome point. A facial review of Kotowski's October 24
establishes RS and the Grievant were not acting in concert to cover up the Incident. Rather,
accounts are irreconcilable. The Grievant's account depicts a direct response to room 408
completion of room 413, while RS's account depicts no response to room 408 until the end
There is no reliable basis to reject the credibility of the Grievant's account. Her
internally consistent and credible. She admitted without prompting that her recall was less
photographic. She did not attempt to cover up potential errors of judgment. Beyond this,
account is consistent with Kotowski's notes from the October 24 interview.
Those notes manifest the Grievant's acknowledgment that she was unsure whether to
413 before responding to room 408. This establishes, at most, an error of judgment. It falls
of "intentional misconduct." Beyond this, there is reason to question the reliability of RS's
She did not testify, but Kotowski's notes from the October 24 interview show evident anger
unwillingness to acknowledge fault outside of intemperate statements to GH. According to
notes RS vaguely threatened Kotowski. Why Kotowski would credit this account over the
is not apparent.
At best, then, the second allegation turns on a potential error of judgment or
Significantly, the error in judgment is ill defined. Nowhere in the October 31 letter is the
conduct specified. Presumably the objectionable conduct is the amount of time it took to
to KW. Since the assertion that RS and the Grievant completed their rounds is unproven,
the Grievant's contrary assertion is credible, the negligence must turn on RS's and/or the
failure to leave room 413 to respond to KW. This is underscored by Kotowski's response to
Grievant's questioning whether "you stop what you're doing and answer" a call light.
Kotowski's response to this question succinctly states the improper conduct and its
It presumes the response to room 408, however it occurred, was tardy and thus negligent.
objectionable behavior thus becomes the Grievant's failure to respond to the call light or her
to ask RS to do so.
The evidence will support a conclusion that objectionable conduct occurred. The
of the Grievant's account cannot undercut this conclusion. Her account acknowledges, but
explain the level of GH's anger. Since it is undisputed GH was upset before RS and the
entered his room, there is no way to account for his anger other than by concluding the
room 408 was tardy.
The strength of this conclusion should not, however, be overstated. Significantly,
Blackmore's record of GH's statement posits a hallway obscenity, not the delay in response,
immediate cause of his anger. That there was a delayed response is proven. The amount of
remains, however, undetermined.
In sum, the only proven misconduct is the tardiness of the response to GH's call
becomes necessary to determine whether the reassignment and suspension reasonably reflect
County's disciplinary interest in this conduct.
By the terms of the October 31 letter, the suspension is rooted in "intentional
and "negligence." The absence of any intentional misconduct by the Grievant severely
degree of the County's disciplinary interest.
Nor will the error in judgment noted above support a suspension. It is undisputed
County's progressive discipline system starts with a written warning. There is no reason to
the Grievant's conduct would warrant more than such a warning. As Kotowski's notes of the
October 24 interview show, the Grievant was confused about what she should have done.
shows no reason to believe the Grievant could not have understood or would not have
Obviously you need to complete the care or task that you are
doing. If there are two staff and
it is safe, one should go and at least acknowledge that they will be next. Otherwise if it is
you should both go and answer the light when you are finished with the resident.
The difficulty posed in the determination of the reasonableness of the County's
is that the County imposed two levels of discipline. Concluding it had cause to issue the
warning leaves untouched whether it had cause to reassign her to the first shift.
The County contends the reassignment can be viewed as a management right, and the
language of Section 2.01 offers support for this view. The stipulated issue, however, focuses
cause to discipline, and it is apparent that the reassignment would not have occurred in the
of discipline. Thus, the reassignment must be treated as disciplinary. As noted above, the
disciplined the Grievant for egregious misconduct, but the evidence establishes a far more
of judgment. That misconduct cannot reasonably support two levels of discipline.
The issue thus becomes remedial and complex. Resolution of this point requires
discussion. The error in judgment posed was, in a sense, shared. RS no less than the
to split the team to address the situation in room 408 while room 413 was completed. What
there is would cast greater doubt on RS's conduct than the Grievant's. There is no dispute
Grievant moved the cart and initiated the hands-on care of KW. Nor is there any reliable
to indicate the Grievant started or exacerbated the verbal sparring between GH and RS.
County's disciplinary interest in the Grievant's conduct is attenuated.
As the County notes, the Center's response was swift and sure. Three of the four
employes involved in the Incident were disciplined and reassigned. This reflects the
concern for resident rights. An excess of concern on this point arguably promotes the quality
resident care, and reflects that night shift employes must be expected to function with limited
oversight. The reassignments reflect Center concern that employes be observed and trained
or to restore the confidence underlying assignment to a shift with limited supervision. This
be considered unreasonable.
The Award entered below overturns each aspect of the discipline but the
error in judgment noted above cannot support two levels of discipline. I have selected the
reassignment as the sole level of discipline for which cause exists. The reassignment, unlike
or suspension, reflects the uncertainty underlying the events of the Incident. Reassignment
the Center's consistent and reasonable concern with observing the conduct of employes
under limited supervision. Subtle errors of judgment are more significant in situations in
judgment must be exercised autonomously. Reassignment also reflects that responsibility for
Incident is shared, and that the Grievant's
personal responsibility will not warrant both reassignment and traditional discipline.
reassignment, unlike a suspension or a warning, permits the Center to break up a team of
it may have lost confidence in, while permitting the Grievant and Center management to
relationship built on confidence in observed conduct. Returning the Grievant to the night
this record, would do nothing to address evident mistrust between her and Center
is, however, a two edged sword. The reassign- ment cannot be considered permanent
Nothing said in this decision should be taken to limit any contractual right the Grievant may
return to the night shift in the future. The Award cannot guarantee that return, but can
conditions under which her return may become possible.
The make-whole aspect of the Award requires only limited discussion. Although it is
that she could have been reassigned at the point she was suspended, the fact remains that she
The County chose to punish her twice. Thus, the back pay award includes her shift
differential, if any.
The expungement of her personnel file(s) poses a subtle point. Reference to the disciplinary
of the reassignment should be carefully tailored to reflect the specific and narrow nature of
Center's disciplinary interest in the Grievant's role in the Incident. In the event this poses
problems than it solves, the Award permits the County to place this decision in her file(s) as
documentation of its disciplinary interest.
The County did not have just cause to suspend and reassign the Grievant. The
however, have just cause to reassign the Grievant.
As the remedy appropriate to its violation of Section 2.01 D), the County shall make
Grievant whole by compensating her for the wages and benefits, including any shift
would have earned but for the fifteen day suspension noted in the October 31 letter. The
expunge any reference to the suspension from her personnel file(s). The County may,
amend her personnel file(s) to note that she was reassigned to the first shift to permit
observation and supervision. This amendment shall not state nor
imply that the reassignment precludes a return to any other shift, and shall not state a
interest in conduct broader than that sustained in this decision. If the County elects not to so
her personnel file(s), it may include a copy of this decision in her personnel file(s).
Dated at Madison, Wisconsin, this 9th day of July, 1998.
Richard B. McLaughlin, Arbitrator