BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
BAY AREA MEDICAL CENTER
BAY AREA MEDICAL CENTER EMPLOYEES
LOCAL 3305, WISCONSIN COUNCIL 40, AFSCME,
(Judy Tipler-Noel Termination)
von Brieson, Purtell & Roper, S.C., by Attorney Daniel T.
Dennehy, 411 East Wisconsin Avenue, Suite 700, Milwaukee, Wisconsin 53202-
4470, appearing on behalf of the Bay Area Medical Center.
Mr. David A. Campshure, Business Representative, Wisconsin
Council 40, AFSCME, AFL-CIO, 1566 Lynwood Lane, Green Bay, Wisconsin 54311-6051,
appearing on behalf of Local 3305.
Pursuant to the provisions of the collective bargaining agreement between the parties,
Area Medical Center Employes Union Local 3305, Wisconsin Council 40, AFSCME,
(hereinafter referred to as the Union) and Bay Area Medical Center (hereinafter referred to
Employer) requested that the Wisconsin Employment Relations Commission designate Daniel
as arbitrator of a dispute over the termination of Judy Tipler-Noel from her position as a
nurse at the
Center. The undersigned was so designated. Hearings were held at the Center's facility in
Menominee, Michigan, on January 21 and March 29, 1999, at which time the parties
full opportunity to present such testimony, exhibits, other evidence and arguments as were
to the dispute. The parties submitted post-hearing briefs and reply briefs, the last of which
exchanged through the arbitrator on May 28, 1999, whereupon the record was closed.
Now, having considered the testimony, exhibits, and other evidence, the arguments of
parties, and the record as a whole, and being fully advised in the premises, the undersigned
The issue before the arbitrator is whether the Employer had
cause under the contract to
discharge Judy Tipler-Noel and, if not, what is the appropriate remedy?
The contract contains a just cause standard for discipline, as well as a provision for
and binding arbitration of disputes.
The Bay Area Medical Center provides hospital services to citizens in the area of
Wisconsin and Menominee, Michigan, through facilities in both cities. The Union is the
bargaining representative for the Center's regular full-time and regular part-time
employes, including licensed practical nurses. The grievant, Judy Tipler-Noel, was
employed as a
LPN at the Center from 1991 through her discharge in October of 1998. She was considered
nurse, very attentive to and popular with her patients. In 1998, she was assigned to work on
second floor, east wing (2E) on the 3:00 p.m. to 11:00 p.m. shift.
Nurses provide medication, including narcotic medications, to patients in accordance
doctors' orders. Pain medication is often dispensed on a PRN basis, meaning that it is by
request. Generally a narcotic medication, such as Percocet or Vicodan (a/k/a Lortab) is
in that a patient cannot be given more than one dose every four hours. Thus, a patient with
prescription may have no pain medication, or may have as many as six doses in a
There is a medication room on the second floor of the hospital where the various
kept. Narcotics are kept in a double locked box in the med room. When a patient requests
medication for pain, the nurse checks the doctor's orders to be sure the patient has been
the medication and also checks the patient's MAR -- a record of what medications have been
administered and when. If the patient can have the medication, the nurse takes the patient's
the med room and opens the narcotics box. Inside is a log, known as the Controlled
Record or CSR. At the beginning of each shift, a count is made of each
controlled substance and is entered at the top of the CSR. As doses are removed, the
nurse notes the
patient name, room number, and time that the drug was removed from the box. She also
number of doses remaining in the narcotic box after that dose is removed, so that if there
doses of Percocet in the box, a nurse removing two pills for a patient would write "28" on
across from the patient's name. As these notations are made at the time the drug is taken
box, so all of the CSR entries should be in chronological order.
If a narcotic is removed from the box and is not actually administered to a patient, a
of entries must be made. On the MAR, the dosage and time would be shown, but would be
to indicate it was not administered. The nurse would also have to make an entry in the CSR.
medications, such as Percocet, come in blister packs and if the pack is not opened, the drug
returned to the narcotics box. The nurse would make an entry, correcting the count and
reason. If the medication was removed from the packaging, or if it was administered to a
the patient then vomited the dose up, the dose would have to be "wasted." The proper
for this is for the nurse to flush the dose down a sink with another nurse as a witness. The
administering nurse would then note the dose as "wasted" on the original CSR entry, and she
witnessing nurse would both sign the CSR.
At the end of each shift, a count is made by two nurses of the contents of the
to insure that it is accurate. The hospital pharmacy is responsible for a daily review of the
note any errors or discrepancies.
On September 29, 1998, Charge Nurse Sharon Barnhill checked the CSR and noticed
grievant showed a narcotic had been wasted. There was no signature in the space for a
she initialed it herself. Another nurse saw her do this, and told her she should not have.
why, and the other nurse asked if Barnhill had not noticed that the grievant seemed to waste
every single shift she worked. Barnhill was distressed by this observation, but realized that
grievant had wasted a pill the night before. She looked at the CSR entry, and saw the
wasted pill had
been noted as caused by a patient becoming nauseated. However, the record also showed a
dose of the medication to that patient 30 minutes later. She went to the patient's room and
how she was feeling. The patient said she was fine. Barnhill asked if she had experienced
and the patient said she had had none. Barnhill looked at the patient's chart, which showed
consistently alert and oriented.
The next day, Barnhill went to Roberta Morton, the Director of the medical and
She told Morton she thought there might be a problem, and that the grievant was wasting a
medication. She reluctantly admitted that nurses on 2E had been in the habit of signing the
witnesses to other nurses' wastage of narcotics without actually witnessing it. Morton
three other nurses on the shift, all of whom confirmed the practice of signing without
all of whom said they had noticed and been concerned about the grievant's high level of
Morton contacted Pharmacy head William Taccolini. Without identifying anyone,
him to review the CSR for the second floor, and see if he noted anything suspicious.
reviewed the records for the preceding four months, and reported back that he had found a
pattern involving the grievant. Morton told him to review all of 1998 and subsequently told
look at 1997 as well.
On October 2nd, Morton met with Taccolini, retired Human Resources Director
Wickland, and Interim HR Director Bernie Van Court. They discussed the problem and
have the grievant monitored. That evening the grievant called in sick. On the evening of the
4th, a per diem supervisor was working, and Morton did not want to have a per diem
conducting the inquiry. On October 5th, Morton contacted Christina Kafura, the Nursing
for the 3-11 shift and asked her to observe the narcotics records and follow up on any
on her shift.
On the October 5th shift, Kafura saw that the grievant signed out a Percocet for the
in room 228 at 3:20 p.m. She went to the patient's room and found him asleep. At 7:20
another Percocet was signed out by the grievant for that patient. A third Percocet was signed
with no time given, but the patient's MAR showed it had been given at 11:15 p.m.
The CSR showed
that this pill was removed from the drug locker between 7:20 p.m. and 8:45 p.m.
Kafura visited the
room several times during the shift, and the patient was asleep every time she went in. She
reviewed the MAR and noted that the second Percocet was circled, indicating that it was not
However, it was not listed as wasted on the CSR. The patient was shown as having eaten a
at 7:20, then having vomited bile and the Percocet immediately after that. This patient was
shown as having received 2 mg of morphine at 7:25 p.m. Kafura left an e-mail and a voice
message for Morton advising her of this.
On October 7th, Kafura noted that the patient in room 232 was shown on the CSR as
been given two Darvocet at 4:15 p.m. She went to the room and asked the patient how she
doing with her pain. The patient was alert and talkative, and said she was fine. Kafura
asked if she
had needed both pain pills, and the patient said that she only had one and it was working
checked the patient's MAR, which showed two pills had been administered. At 8:35 p.m.
patient was shown as having gotten two more Darvocet. Kafura went to her room and found
asleep. Kafura again advised Morton by voice mail and e-mail.
Morton spoke with this patient the next day and asked her about the medications she
received on the 7th. She said she had had some Tylenol, and had received one pain pill on
the 3 to
11 shift and one on the 11 to 7 shift.
Morton called the grievant into her office at the beginning of the shift, and she,
Van Court asked her about the discrepancies from the 5th and the 7th. The grievant denied
the narcotics and said she was at a loss to explain why the patients would say such things.
also asked about the incident reported by Barnhill, and gave
the same response. Van Court asked her if she wanted to participate in the hospital's
Assistance Program, and she said she didn't, since she didn't have a problem. Asked why
such a high rate of wastage, she told them that patients were nauseated or vomiting, and in
cases she was just clumsy. She was placed on suspension pending further investigation.
meeting, Morton contacted the local police, the Drug Enforcement Administration, and the
professional licensing boards to advise them of the suspicions about the grievant.
Taccolini completed his analysis of the CSR for 1997 and 1998 on October 11th.
found what he felt was a troubling pattern of excessive wastage by the grievant in 1998, as
to 1997 when she had relatively little wastage. He found that patients who received no
on other shifts received the maximum number of pills possible on the grievant's shift, and
were numerous alterations in the CSR, most of which had the effect of allowing the grievant
she had given out three doses in an eight hour shift, with the required four hour interval
doses. Taccolini's analysis of the grievant's 1998 entries in the CSR showed, among other
32 instances of altered dispensing times, eight instances of missing dispensing times, seven
a patient refusing a medication then getting another medication within 15 to 30 minutes, one
a patient refusing a Percocet and getting another Percocet at the same time, and an instance
grievant mistakenly taking a patient the wrong medication twice on the same shift. Of 47
21 were shown as caused by patient refusal, seven by dropping the medication, five by
nausea, three resulted from the wrong medication being taken from the drug locker, one each
patient spitting out the medication, the medication order being changed, and the medication
administered on the wrong schedule. Nine had no reason listed. All but four of the
involved Percocet. The other four involved Vicodan. Taccolini advised Morton that,
professional literature, increased wastage and alteration of records are two of the primary
signs of narcotics diversion.
On October 15th, Morton and Van Court met with the grievant, the local Union
AFSCME Business Representative David Campshure. Morton reviewed the data compiled
Taccolini, the altered CSR's and the statements of the patients, and asked if she could
explain it. She
said nothing beyond "So, I'm clumsy." Morton made another offer to enroll the grievant in
but the grievant declined. At the conclusion of the meeting, she was terminated on three
(1) stealing narcotic medication; (2) falsifying a patient's record and the narcotics records;
unusual pattern (excess) "wasting" of narcotic medications.
The instant grievance was thereafter filed, protesting the discharge. While the
pending, the district attorney undertook an investigation of the charges, but that investigation
been completed at the time of the hearing in this case. Likewise, at the time of this hearing,
nursing board had taken no action. At the arbitration hearing, in addition to the facts set
the grievant testified on her own behalf. She denied ever stealing or using narcotics, and
said that she
was allergic to Vicodan, Darvocet, Percocet and codeine. She explained that she was very
attuned to patients' needs for pain relief and
was very aggressive in letting them know that they had the right to pain medication if
it. She made it a practice to go to each patient's room before leaving to see if they needed
medication, so she did have a pattern of giving out narcotics right at the end of her shift.
expressed the opinion that the increase in wasted narcotics from 1997 to 1998 reflected a
patient load and sicker patients than in the past. As for the prevalence of Percocet and
the wasted medications, she noted that those were the two most commonly dispensed drugs
surgical unit. She also explained that it was her practice to open the blister packs of
she got to the door of the patient's room, so she could hold the medications cup in one hand
water in the other.
The grievant acknowledged that she had long had problems with her charting and had
under pressure to reduce the amount of overtime she spent on charting after the shift ended.
her habit to do her charting at the end of the night, so she would go back through the records
make sure the CSR, the nursing notes and the MAR's were all consistent. Sometimes this
filling in blanks or making alterations in the records, including the CSR. She did not know
some instances, despite changes in the records, the CSR and the MAR's showed different
The grievant acknowledged that, on occasion if a patient said they wanted another
as soon as possible, she would take the medication from the drug locker without first asking
patient, and the patient would then have changed his mind, resulting in waste. Sometimes
would be there, and would persuade the patient to change his mind and accept medication, or
patient would change his mind of his own volition, resulting in another dose being taken
Additional facts, as necessary, will be set forth below.
ARGUMENTS OF THE PARTIES
The Arguments of the Employer
The Employer takes the position that the grievant is guilty of serious misconduct, and
discharge is the only appropriate response. At the outset, the Employer argues that the
standard of proof in this case is "clear and convincing evidence," a standard widely
arbitrators as more appropriate in a civil proceeding than the "beyond a reasonable doubt"
which is drawn from the criminal law. Applying this standard, it is evident that the grievant
of diverting narcotics and falsifying records.
The grievant wasted 47 doses of narcotics in the period between January and
1998. In that span, she worked 976 hours. The remainder of the 2E nursing staff worked
hours and wasted 22 doses. She claimed that her patients were sicker than others, but there
nothing to support that claim and it defies common sense. She claims that she is more
attentive to her patients' needs for pain relief than other nurses, but in 1997 she wasted
doses of narcotics. She claims that patients refused medication, but that claim fails on two
First, the medications are packed in blisters, so they can be put back if they are not
Second, the medication is provided at the patients' request, and it makes no sense for her
repeatedly request pain medication and then refuse to take it. Moreover, these same patients
request medications at nearly the same rate on other nurses' shifts.
The grievant's entries in the Controlled Substances Record are consistently spaced at
hour intervals, with numerous time changes or entries out of order noted to make that
This is obviously intended to make it appear that she dispensed the medication in accordance
the four-hour minimum interval. Again, since these are as needed medications, it is very
her patients were demanding the maximum doses when she was on duty, and going without
medication on other nurses' shifts. It is striking that the grievant's only "errors" in the CSR
Vicodan and Percocet, two Schedule II narcotics. She did not waste other medications, and
no problem accurately charting other medications.
While the Union claims that there is no proof that the grievant did not waste these
as claimed, that ignores the fact that two patients were interviewed and denied getting the
medications that the grievant claimed to have administered to them. This is direct evidence
grievant's wrongdoing, and it validates the Employer's conclusions.
The Center acknowledges that other nurses failed to follow the proper procedures for
documenting the waste of narcotics, and that they were not fired. The difference is that
there is no
reason to think that these nurses did not actually waste the medication. Their punishment
at correcting their actual behavior. Had they too been falsifying records to cover up the
narcotics, they too would have been discharged.
For all of these reasons, the Center asks that the grievance be denied.
The Arguments of the Union
The Union takes the position that the grievant was not discharged for just cause. The
against the grievant are wasting of narcotic drugs, misappropriation of narcotic drugs and
records. These offenses involve questions of moral turpitude and criminal conduct. If found
the grievant faces the loss of her profession and she and her family face social disgrace.
clear arbitral precedent holds that the Employer is required to prove its case by proof beyond
reasonable doubt. It has utterly failed to meet that standard.
In order to prevail in this case, the Employer must prove both that the grievant is
wrongdoing and that summary discharge is the appropriate penalty. It has not done so with
to any of the charges. The allegation that the grievant wasted medication does not even raise
question of the Center's rules. The Center does have a policy on wastage, but it does
not address when a nurse should waste a medication, merely the procedures to be
accomplishing that act. The evidence shows that some patients refused medication, and the
disposed of the drugs. While some other nurses may not have removed drugs from their
before entering the patients' rooms, there is no policy governing when to open the pack.
suggested that the unused drugs should have been placed in a drawer in the patients' rooms.
itself would have violated the drug policies requiring a double lock for storage of narcotics.
point is that these are areas of judgment, without hard and fast rules to guide employes. The
chooses to draw sinister inferences from the degree of wastage among the grievant's patients,
has not provided evidence to support those inferences. At best, the Center has proved that
grievant violated the procedure requiring a witness to the wastage of a narcotic. Granting
is contrary to the rules, the record shows that many other nurses were also guilty of this, and
none of them were discharged. The Center cannot justify summary discharge on evidence
Turning to the claim that the grievant falsified records, the Union notes that there is a
difference between sloppiness and dishonesty. The grievant conceded that she would
busy with patient care, and would go back later to make entries in her charts. This resulted
time entries being out of order. That is not unheard of. It is a fairly common practice for
correct entries in the CSR and other records, and incomplete entries in these records is also
commonplace. The grievant's evaluations since 1993 all contain criticism of her errors in
and she has been under constant pressure to reduce her overtime usage for charting. It may
the Center needs to more carefully police these records and improve its oversight of the
register. It may be that the grievant needs to be better organized and more meticulous in her
The Center may have many steps it wishes to take to insure the accuracy of its records, but
discharging the grievant for falsifying records cannot be one of them. There is absolutely no
of intentional falsification here. Suspicion, even plausible suspicion, is not the same as proof
is proof that is required under a just cause standard. The grievant provided plausible
for the errors in her charting, and the Center cannot simply brush those aside in its eagerness
The final charge against the grievant is that she stole narcotics. There is not one
evidence to support this charge. No one saw her doing this, no one came forward to say she
narcotics off the Center's premises, no one says she ever used narcotics. This charge is pure
conjecture, based on the Center's belief that she could not have wasted as many narcotics as
Verifiable evidence is the touchstone of a discharge for theft and there is none in this record.
consistent thread running through all of these charges is the Center's substitution of suspicion
proof. On close examination, there is no case because there is no proof. Accordingly, the
that the grievant be reinstated and made whole for her losses.
The Standard of Proof
The parties disagree over the applicable level of proof required to sustain these
the Employer arguing for "clear and convincing proof" and the Union urging "proof beyond
reasonable doubt." Certainly a discharge of a nurse for diverting narcotics and falsifying
cover it up requires a greater degree of certainty than does a suspension for sick leave abuse.
long-term consequences for the grievant are far more severe, encompassing not only the loss
job but the probable loss of her profession as well. Having said that, "proof beyond a
doubt" is a standard drawn from the criminal law. It is a safeguard against the power of the
imprison citizens, and with the exception of a minority of arbitrators, it is not used in civil
Articulating a standard of proof is a somewhat artificial exercise, and the most honest
to this question is probably to say that these charges require that, at the end of the day, the
be convinced of the grievant's guilt. To the extent that a standard can be accurately stated, I
persuaded that the appropriate balance between the compelling interests of the grievant in her
her good name and the very strong interest of the Employer in detecting and deterring
misconduct is best struck by requiring that the charges be proved by the clear and convincing
preponderance of the evidence.
The grievant was discharged because the Employer concluded that she had
narcotics and altered records to disguise her misconduct. There are four basic elements to
1. The grievant wasted more narcotics than all of the other nurses on the ward
combined, most often
with no witness;
2. The records show a much higher rate of dispensing narcotics to patients on her
her shift than to those same patients during other shifts;
3. The records show a pattern of altered entries seemingly designed to justify the
dispensing of the
maximum doses of narcotics to her patients during her shifts;
4. Two patients who were interviewed disputed the grievant's documentation of their
One said she got only one Darvocet, while the grievant charted four pills being administered.
other patient denied being nauseated and unable to take medication while the grievant's
showed she refused a requested narcotic.
The Union is correct that any one of these charges, standing alone, can be explained
They do not stand alone, and taken as a whole they are damning. Starting with the wastage
1998, the grievant was responsible for 68% of the wasted narcotics on the ward while
of the nursing hours. Put another way, on a per hour basis, the grievant experienced a
more than 99 times that of the average staff member. Wastage at this excessive rate is not,
grounds for discharge. If there was no question that the grievant was actually disposing of
supposedly wasted narcotics -- if, for example, each instance was actually witnessed by
as required by the procedures -- the Center might have grounds to re-orient her on
caution her to avoid breaking open the blister packs of Percocet before going to the patient's
but it could not summarily discharge her. That is not what happened here. Her wastage was
witnessed by other nurses. It was confined to narcotics, particularly Percocet. It was often
to refusal of the medication by patients, which is uncommon since the patient must request
medication in the first place. It is the combination of laxity among the nurses in signing off
wastage, the very high rate of wastage by the grievant, and the unlikely reasons given for the
that trigger a reasonable suspicion.
The very high dispensing rate of narcotics to her patients during her shift is likewise
circumstantial and subject to explanation. Notwithstanding that, the explanations offered by
grievant do not make a great deal of sense. She said that her patients were sicker than other
but could not explain why. Nor could she explain why the patients were only sick on her
said she was more aggressive than other nurses in being sure that patients knew they had
medication available to them, but presumably they would have continued to know this during
shifts. Moreover, her philosophy of aggressive pain management does not explain why the
of heavy narcotics use by her patients developed in 1998, at the same time as her high
If the patients' use of narcotics was tied to her advocacy for their comfort, one would expect
statistics for 1997 would reflect that as well. They do not. As with the high level of
wastage, the high level of narcotics use by patients is transformed from suspicious to sinister
problems in the grievant's documentation. These narcotics can only be administered at
intervals. The grievant's entries repeatedly show doses at the very beginning, exact middle
end of her shift. Many of these entries are out of sequence with the entries before and after
with the times written over to make them fit the four-hour interval. The writeovers and
entries are exclusively for Percocet and Vicodan, whereas one would expect errors on other
if the grievant's problem was a general sloppiness in her record keeping.
The circumstantial evidence of the grievant's inexplicably high wastage rate of
equally inexplicable usage rate of narcotics among her patients and the alteration of records
that usage rate are all circumstantial evidence of diversion. Saying that the evidence is
does not say it isn't persuasive. It is the nature of charges like these that the evidence is
going to be
circumstantial. What eliminates any doubt about where the evidence points are the
patients by Barnhill, Kafura and Morton. Barnhill was prompted to bring this matter to
management's attention by a discussion with a patient who,
having been recorded as rejecting a medication due to nausea but accepting the same
minutes later, said that she had not experienced any nausea. The grievant could not explain
Kafura and Morton each spoke with a patient who was shown as getting four doses of
said she received only one. The grievant could not explain this.
As noted above, any one piece of evidence in this record can be explained more or
plausibly. Taken as a whole, the evidence against the grievant is absolutely overwhelming.
reasonable explanation for the altered records, the unusually high waste of narcotics, the
high rate of dispensing narcotics to her patients, and the contradictions between her records
reports of the patients is that the grievant was diverting the narcotics. Whether she was
herself or providing them to someone else is really beside the point. Theft from the
customarily considered grounds for summary termination. Theft of narcotics by a nurse is
fundamentally inconsistent with her job duties and her professional responsibilities. Given
Center was amply justified in deciding to terminate the grievant's employment.
On the basis of the foregoing, and the record as a whole, I have made the following
The grievant was terminated for just cause under the contract. The grievance is
Dated at Racine, Wisconsin, this 18th day of August, 1999.
Daniel Nielsen, Arbitrator