BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
FOND DU LAC COUNTY
FOND DU LAC COUNTY INSTITUTIONAL
EMPLOYEES LOCAL 1366A, AFSCME,
(Grievance of Shirley Liegl)
Mr. James E. Miller, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 639 West
Scott Street, #205, Fond du Lac, Wisconsin 54937, appearing on behalf of the Union.
Mr. Richard J. Celichowski, Director of Administration, Fond
du Lac County, 160 South Macy
Street, Fond du Lac, Wisconsin 54935, appearing on behalf of the County.
Fond du Lac County, hereinafter referred to as the County, and Fond du Lac County
Institutional Employes, Local 1366A, AFSCME, AFL-CIO, hereinafter referred to as the
parties to a collective bargaining agreement which provides for final and binding arbitration
grievances. Pursuant to a request for arbitration the Wisconsin Employment Relations
appointed Edmond J. Bielarczyk, Jr., to arbitrate a dispute over the discipline of an employe.
on the matter was held in Fond du Lac, Wisconsin on January 7, 1999. Post hearing
arguments and reply briefs were received by the undersigned by March 16, 1999. Full
has been given to the evidence, testimony and arguments presented in rendering this Award.
During the course of the hearing the parties where agreed upon the following issue:
"Did the County have just cause to verbally reprimand
"If not, what is the appropriate
. . .
ARTICLE VI. DISCIPLINE, DISCHARGE AND
6.01 No regular employee shall be disciplined or discharged
except for just cause. Written
notice of the suspension, discipline or discharge and the reason or reasons for the action shall
to the employee with a copy to the employee and the Union within twenty-four (24) hours if
reasonably possible. Any grievance that may result from such action shall be considered
unless presented in writing within ten (10) calendar days of the receipt of the notice by the
and the Union. The grievance may be started at Step 2 or Step 3 by mutual agreement.
6.02 An employee who has no
disciplinary incidents for a period of two consecutive years
shall have his/her personnel file cleared of all documents relating to past disciplinary actions.
6.03 An employee may be subject to
discipline including discharge for excessive
unapproved leaves of absence. Unapproved leaves of absence shall be defined as any unpaid
of absence from scheduled employment for which the employee has not received prior
the employer in accordance with Article XV. Included in the definition of unapproved leaves
absences are any unpaid leaves which would have qualified for paid sick leave had the
accrued sick leave at the time of the absence. This policy shall be administered in a fair and
The County, amongst its various governmental functions operates a health care center
(hereinafter referred to as the Center) where at it has employed Shirley Liegl, hereinafter
as the grievant, as a Licensed Practical Nurse (LPN) since 1973. The grievant is also the
president of the local union. During 1997 and 1998 the grievant's supervisor, Director
Kerry Schumacker, met with her on a number of occasions to discuss her work performance.
meetings were as follows (Employer Exhibit No. 2):
Shirley Liegl's, counseling record demonstrates the supervisor's
need to rationalize (explain) why
Shirley, as the unit nurse, is expected to do something in regards to resident cares. Other
do it when told it needs to be done.
9/11/98: Informed that if an employee attempts to discuss
personal work business or union
business when she (Shirley) is delivering resident care, she is to redirect them to a different
9/3/98: Discussed careplan development and her responsibility as
the unit nurse.
7/6/98: Did not update a resident careplan after being told to in
the careplan conference. When
questioned stated, "I was going to do it but didn't have time." The p.m. nurse was instructed
it and did.
6/25/98: Did not return an employee 3 month evaluation as
assigned. Discussed the employee's
performance at this time. Instructed she is to return these completed in the future.
5/6/98: Informed to receive permission to leave the unit for
union business. On 5/5/98 she left
the unit 20 minutes early for union business, and on 5/6/98 was off the unit for one hour and
minutes without informing a supervisor. That was also for union business.
3/25/98: Discussed ulcer area on resident's ankle and I
questioned the need for an OT or PT
involvement to assist in treating and healing. I felt this needed to be done sooner than it
Shirley indicated she would discuss this with the p.m. nurse to have the doctor involved at
of the week if there was no improvement.
8/19/97: Informed not to meet with Jim Miller in the medication
room. They were going over
notes in preparation for a grievance hearing that afternoon.
7/16/97: Informed to instruct and make sure CNA's follow
expectation of careplan review.
3/7/97: Discussed resident care issue's and need for improved
communication with other
departments/staff. There was a fall without an incident report that
Shirley should have made sure was
completed and should have documented a nurse assessment.
Shirley also changed a resident's custom made w/c without communicating the need for
states, when questioned, that she forgot.
1/28/97: Informed that she needs to complete the resident
monthly summaries as assigned.
The instant matter arose when on July 12, 1998 the night LPN noticed a reddish area
skin on the right heel of a resident and marked it in the unit's log. When Physical Therapy
Lyn Wolf read the Center's log book she approached the grievant and indicated she wanted
an "E-Z boot" for the resident and wanted slippers used instead of shoes to help heal the
grievant indicated the doctor was coming in that day and felt he should be consulted before
was ordered and disputed the use of a slipper noting the shoe fit well. The doctor examined
resident that day and directed an "E-Z boot" be placed on the resident during nighttime
July 15, 1998 Wolf asked about slippers again and demonstrated to the grievant how the shoe
irritating the resident's heel. The grievant informed Wolf the doctor had not directed that a
be used but did direct the employes on the unit to begin putting a slipper on the resident's
of a shoe. However, no notation was put in the resident's Care Plan and the grievant was
for making such a notation. Thereafter the matter was reported to Schumacker, who on
1998, when the grievant returned from a vacation, gave the grievant a verbal reprimand.
grieved the verbal reprimand and the matter was processed to arbitration in accord with the
The County contends it was unrefuted that Wolf and Physical Therapist Barbara
suggested the use of slippers to the grievant. The County asserts the normal practice would
the grievant to incorporate the removal of the shoe and replacing it with a slipper into the
Care Plan. The County stresses it was the grievant's responsibility to maintain the Care
instruct staff on resident care, and, to ensure the care is carried out. The County points out
herein demonstrate that everyone agreed the resident's heel needed treatment. However, the
contends the grievant did not agree with the use of slipper treatment initially, or if she did,
follow through to ensure that this treatment was followed. The County asserts her failure
demonstrates substandard work and conduct. The County concludes the grievant did not
best interest of the resident in mind, did not function as a team leader by developing an
care plan, and did not fulfill her responsibility as the unit nurse. The County contends it
just cause to issue a verbal reprimand to the grievant. The County would have the
The Union points out it is unusual to grieve a verbal warning but stresses that the
been observing the grievant's actions, both work related and non work related as
Employer Exhibit 2 (Counseling Record). The Union points out the Counseling Record also
identifies comments concerning the grievant's responsibilities as Union president. The Union
at no time was the grievant informed these counseling meetings were to be considered
Union also stresses that the only apparent disagreement between the grievant and Wolf was
grievant was aware the doctor was coming and wanted the doctor to be consulted before the
boot" was ordered. The Union also points out the grievant directed the nursing assistants to
slippers on the grievant. The Union also points out the grievant was preparing to go on
that the only procedural thing she forgot was to place on the resident's Care Plan the use of
The Union points out there is no evidence the staff failed to use the slippers after the grievant
them to do so nor is there evidence there was any problem with the resident's heel.
The Union questions whether the real issue herein is a lack of resident care or a
of cooperation between different disciplines within the Center. Wolf, Flaherty, and the
have professional opinions on how to accomplish the goals established for the resident's care.
Union contends the use of discipline is not the best way to deal with conflict that may arise
The Union concludes the County did not have just cause to discipline the grievant.
County's Reply Brief
In its reply brief the County points out that contrary to the Union's assertions the
been disciplined in the past but by argument acknowledged there has not been any during the
years. The County also stresses that Schumacher's counseling sessions with the grievant
disciplinary in nature but discipline did result when the grievant ignored the couseling.
The County also points out that while the grievant was scheduled to
leave for vacation on July 20, 1998, her failure to write the order
in the resident's Care Plan to use slippers is in and of itself
grounds for discipline. The County also points out that even it
the grievant directed staff to use slippers, two days later Barbara
Sotello noticed shoes were on the resident and directed staff to
remove the shoes.
Union's Reply Brief
The Union points out there are two separate incidents herein, the ordering
of the "E-Z boot" and
the directive to use slippers. In the ordering of the boot, the Union stresses the grievant was
that unless a doctor ordered the "E-Z boot" there would be problems in
paying for it, that the grievant told Wolf she would tell the doctor, and the doctor did
order a boot.
In directing the use of a slipper the Union points out it is unclear who had the authority to
a directive and that the County has no chain of command established as to how directives or
suggestions from the physical therapist are to be followed. The Union concludes that the
not demonstrated it had just cause to verbally reprimand the grievant.
The burden herein is on the employer to demonstrate it had just cause to discipline
grievant. The record demonstrates that when the grievant was initially approached about the
resident's heel she determined that the doctor would be there that day and he should
"E-Z boot" for the patient. The record also demonstrates the doctor did examine the resident
did order the "E-Z boot" for the resident. The undersigned finds no basis to include this in
grievant's discipline. If the Physical Therapist and Assistant Physical Therapist were
how this was handled the place to take the matter up is with the employer on how future
as this one are to be handled.
The undersigned also finds that how the grievant responded to
the therapist concerning the use of slippers also did not rise to
the level of discipline. The fact the grievant stated that the
doctor had not directed the use of slippers in treating the
resident's heel does not lead to a conclusion the grievant failed
to have the best interests of the resident in mind. While Wolf may
have told the grievant initially that an "E-Z boot" and slippers
should be used, the doctor did examine the resident and only
directed the use of the boot. When Wolf raised the issue a second
time and the grievant then orally directed the staff to use
slippers the matter should have been resolved. However, the
grievant's failure to properly place into the Care Plan the
instruction to use slippers is grounds for discipline. The record
demonstrates that this is not the first time the County has
discussed the proper upkeep of Care Plans with the grievant. The
record also demonstrates that the grievant is responsible for
properly maintaining the Care Plan. Her failure to properly update
the plan may have resulted in not using slippers to be placed on
the resident. The undersigned therefore concludes the County had
just cause to verbally reprimand the grievant.
Therefore, based upon the above and foregoing, and the
testimony, evidence and arguments presented the undersigned finds
the County had just cause to verbally reprimand the grievant. The
grievance is therefore denied.
The County had just cause to verbally reprimand the grievant.
Dated at Madison, Wisconsin, this 18th day of October, 1999.
Edmond J. Bielarczyk, Jr. /s/
Edmond J. Bielarczyk, Jr., Arbitrator