BEFORE THE ARBITRATOR
In the Matter of an Arbitration Of a Dispute Between
LABOR ASSOCIATION OF WISCONSIN,
PINE CREST NURSING HOME EMPLOYES
ASSOCIATION LOCAL 902
(PINE CREST NURSING HOME)
Yakes, Bauer, Kindt & Phillips, S.C., by Atty.
Andrew J. Phillips, 141 North Sawyer Street,
Oshkosh Wisconsin, for the labor organization.
Ruder, Ware & Michler, S.C., by Atty. Dean R. Dietrich,
500 Third Street, Wausau Wisconsin, for
the municipal employer.
The Labor Association of Wisconsin, Inc., Pine Crest Nursing Home Employes
Local 902 ("the association") and Lincoln County ("the county") are parties to a collective
agreement which provides for final and binding arbitration of disputes arising thereunder. On
3, 1999 the association made a request, in which the county concurred, for the Wisconsin
Employment Relations Commission to designate a member of its staff to hear and decide a
over the interpretation and application of the terms of the agreement relating to discipline.
Commission appointed Stuart Levitan to serve as the impartial arbitrator. Hearing in the
held in Merrill, Wisconsin on September 8, 1999, with a stenographic transcript being
available to the
parties by September 17. The parties filed written arguments and reply briefs, with the
on November 1, 1999.
The parties stipulated to the following issue:
Did the employer have just cause to
terminate the Grievant, John North, for playing tic-tac-toe
with an ink pen on the arm of a resident in the Special Care Unit on April 13, 1999? If not,
the appropriate remedy?
Article II - Management Rights
2.1: The management of
Lincoln County and the direction of the work force is vested exclusively
in the Employer, to be exercised through the department head, including, but not limited to,
the right to hire, promote, demote, suspend, discipline and discharge for just cause; the right
to decide job qualifications for hiring; the right to transfer or layoff because of lack of work
or other legitimate reasons; to subcontract for economic reasons; to determine any type,
kind and quality of service to be rendered to patients and citizenry; to determine the location,
operation and type of physical structures, facilities or equipment of the departments, to plan
and schedule service and work; to plan and schedule any training programs; to create,
promulgate and enforce reasonable work rules; to determine what constitutes good and
efficient County service and all other functions of management and direction not expressly
limited by the terms of this Agreement. The Union expressly recognizes the prerogatives of
the Employer to operate and manage its affairs in all respects. These rights shall not be
exercised in an unreasonable or arbitrary fashion. Nothing herein contained shall divest the
Association or its bargaining unit members of any rights existing under Wisconsin's
Employment Relations Act or other State or Federal Law.
PINE CREST NURSING HOME POLICY
ABUSE, NEGLECT, ILL TREATMENT OF RESIDENT
Any person in charge of or employed in a nursing home who
abuses, neglects, or ill treats a
resident of any such facility or who knowingly permits another person to do so is guilty of a
Felony. Section 940.26, Wisconsin State Statutes.
It is the policy of Pine Crest to expect that all employees uphold
the facility's objectives of
protecting the rights of the residents and to act appropriately when caring for residents in any
in accordance with HSS 129, HSS 132.31 (k) -and Federal Regulations 483.13(b)(c); F Tag
Abuse means any single or repeated act of
force, violence, harassment, deprivation, neglect or
mental pressure that could cause physical pain or injury, or mental anguish or fear and
misappropriation of resident's funds and/or property. Examples of abuse include but are not
to: hitting, pinching, grabbing, handling roughly, using restraints improperly, not meeting
needs, not washing or bathing a resident or not providing the physical care required or
a Supervisor, any incident of sexual abuse, intimidation or harassment, name calling,
swearing at a resident, refusing to speak to a resident, threatening a resident with retaliation,
deprivation or isolation, denying participation in allowed recreational activities or
or outside the nursing home or by refusing to assist a resident to attend recreational or social
activities, not allowing or providing privacy of person or disclosing confidential information
Pine Crest acknowledges that the above
definition of resident abuse may differ from that
described in byHSS 129 & HSS 132. Pine Crest Nursing
Home's interpretation of what constitutes
resident abuse and any resultant disciplinary measures will be based on our own policy.
Any allegations of -resident abuse.-will be
investigated according to established policy and
reported to the Division of Health as prescribed by law. Substantiated allegations of resident
may affect an individual's professional license and/or Registry Status and employment at Pine
Whenever and wherever people work together, certain standards
of reasonable conduct need to
be established in order to maintain an orderly and efficient work atmosphere and to insure
residents and staff have a clean, safe and pleasant environment. Pine Crest wants to take
that are designed to correct a problem the employee has and to make the employee aware of
adhering to our policies and procedures. In
some cases, it may be necessary to dismiss an
employee because of the seriousness or continuation of unacceptable conduct.
Records of disciplinary actions are kept in the employee's
personnel file and remain as part of the
permanent record, but will not remain in effect for more than two (2) years, unless the
rise to the reprimand or substantially similar conduct is repeated within the two (2) year
The following types of conduct are
unacceptable in our work place. This will serve as a
guideline, but is not intended to be a complete listing.
1 . Theft of employer, employee or
records or information.
. Refusal to follow the direct order of a supervisor or management.
4 Fighting, threats, intimidation or harassment of employees or residents.
absenteeism or tardiness.
6. Leaving the job
7. Excessive time at
8 Disclosing confidential
9. Sleeping on the job.
10. Failure to report
injury or accident immediately
11. Violation of safety
12. Substandard quality
and quantity of work.
13. Engaging in conduct
which creates an unsafe work environment.
14. Violation of resident
15. Resident Abuse.
Pine Crest's corrective action program is
designed to encourage individuals to become
satisfactory employees rather than punish them. Corrective action may take the form of 1)
warning; 2) written warning; 3) suspension and/or termination.
Based on the severity of the incident, as
determined by management, the oral warning and/or
written warning may be bypassed and the employee may be suspended or terminated. Pine
reserves the right to add to, modify or eliminate any rule when circumstances require a
In the case of a discharge of an employee for disciplinary reasons,
a copy of the disciplinary
notice or a letter notifying the employee of the discharge will be mailed or presented to the
The original copy will be filed in the employee's personnel file.
Pine Crest Nursing Home is a residential nursing home facility which Lincoln County
in Merrill, Wisconsin. The grievant, John North, was a maintenance employe at the facility
approximately seven and one-half years before he was terminated on April 16, 1999 for
playing tic-tac-toe with an ink pen on the arm of Resident X, a 62-year-old woman suffering
from Alzheimer-type dementia. This grievance is to determine whether that termination was
proper under the
provisions of the collective bargaining agreement requiring just cause for discipline.
North's job duties include general maintenance responsibilities, and do not include
care. While his personnel file includes indications his supervisors felt he could work harder
greater focus, his work record shows no formal discipline prior to this incident.
As a new employe in 1992, North received a new employe orientation on the
of Rights. He also attended inservice training sessions annually except for 1997, including a
inservice on treating residents with respect and dignity. In 1998, he received a copy of the
Employe Handbook Policy and an updated copy of the Resident's Bill of Rights and
Tim Meehean has served as the Pine Crest administrator, with overall responsibility
operation of the facility, for approximately ten years. Meehean's academic background is in
accounting, and he has no formal training in health care diagnosis or treatment. Meehean and
were formerly neighbors, and it was at Meehean's suggestion that North applied for a
Since coming to Pine Crest in early 1998, Resident X has been a resident of the
Unit, a locked and alarmed twenty-bed unit for residents who have behavioral issues, are
who need special attention, residents who otherwise cannot deal in large environments, or
who otherwise need more personalized care. Resident X can identify who she is, but not
where she is or other details of her surroundings and life situation. She can identify family
but her ability to identify facility personnel varies. She frequently interacts in a trusting and
way with males, whether they are in fact known to her or not. She sometimes believes she is
member of the facility staff.
On September 17, 1998, consulting physician Dr. Charles A. Garvey submitted the
evaluation of Resident X:
At the end of my day here at Pine Crest, I had the opportunity to
meet with (Resident X) for
a brief consultation. She is a 62-year-old woman admitted to Pine Crest several months ago
essentially due to inability to care for herself. She was known to be suffering from an
type dementia, and actually came from a group home or CBRF in Michigan. According to a
from her physician there, she was suffering from an associated "mood disorder", though
there are no
specifies. She was admitted on Depakote 1500 mg daily and Paxil 30 mg daily. She saw
Spurgeon in consultation last spring, was diagnosed with muscle contraction headaches, and
started on Nortriptyline, with follow up visits and increasing doses. In early August, the
Nortriptyline was increased to 60 mg. By mid August (Resident X) was showing
and inappropriate behaviors, and the Nortriptyline was reduced again to 40 mg daily.
Over the course of the past month, this
patient has had increasing activity during the day, often
walking around between patients, as if she is waiting on them, and becoming quite irritated
redirection. She has been much more talkative with nursing staff. When she was on the
of Nortriptyline, she was noted to be somewhat sedated during the day, but has shown no
sedation for the past month. Nursing staff are aware that she is talking much more
have documented that change on the behavioral frequency chartings over this time very
continues to sleep fairly well at night.
Additionally, she has a history of seizures,
and has taken different kinds of anticonvulsant
medications over the course of her life.
MENTAL STATUS. (Resident X) is
hyper-alert, chatty, and even pressured in her speech. She
makes five or six different remarks before we sit down to talk. She wonders if I am from
insurance company, tells me about her seizures, talks to me about some of the other
gives me bits and pieces of her life story all in fragments before I ask a question. She is
unconcerned about any part of her health, from headaches to mood to seizures. At times,
to believe that she is part of the staff, and refers to some of the other nurses as if they are
other times, she seems aware that she is a resident here. Flight of ideas is prominent. No
hallucinations. Affect is very pleasant, perhaps even euphoric. I did not see evidence of
but that it clearly documented in the nursing notes over the past two weeks especially on
redirection. Judgment impaired by her
manic-like inflation of purpose and duty; insight into any
previous history for same or similarcondition ispoor. Memory is poor, as she guesses that she has
lived here for four or five years; she has quick responses to trivia-like answers.
DIAGNOSIS: Manic Episode; Alzheimer's -
Type Dementia - presenile- mild to moderate
1. It seems most likely that the
increasing doses of the Nortriptyline have triggered
this type of manic episode. Accordingly, I have decided to discontinue the
2. Additionally, there are
certainly no evidences of depression since she has been at
Pine Crest; I will taper the Paxil and discontinue that medication over the course of
the next two to three weeks.
3 . You have ordered Depakote
levels monthly and we should be able to see whether
the Depakote alone will provide mood stability at therapeutic blood levels; if not,
additional mood stabilizing medication in the form of lithium or Carbamazepine
will be added.
4. If she begins to have
significant headaches without the Nortriptyline, perhaps we can
consider alternative approaches to tricyclic anti-depressants between yourself and Dr.
5. I have left word with the
staff to call me if she begins to show any signs of depression
without her anti-depressants; I frankly doubt we will see that, but it is possible.
I will check back
within the next month, and am available sooner if there is urgent need.
Thanks for the opportunity to see this most interesting phenomenon.
At about three o'clock in the afternoon on April 13, 1999, North was in the Special
working on a repair project when he noticed Resident X sitting by herself at a table. There
other residents or facility personnel in the room. North had previously had friendly
Resident X, whom he knew to be suffering from Alzheimer's
disease. North had on occasion visited with Resident X when he would come to the
Saturdays to visit his grandmother, who was also a resident of the facility. North has visited
Resident X on such occasions since his discharge.
After conversing with her, North asked if she wanted to play a game of tic-tac-toe, to
she assented. Finding no paper readily available, North drew a grid of about one inch
square, in ink,
on her right arm. A similar grid was drawn on North's arm. Soon realizing that Resident X
comprehend the game, he abandoned the effort and resumed his duties.
The following morning, the nursing supervisor, Mary Stevenson, noticed the ink
Resident X, and inquired of her how they came to be there. Resident X did not know.
reported the matter to the Special Care Coordinator, Carla McDonald, who was at home on
off. The next day, McDonald and a staff nurse again noted the markings, and McDonald
incident to Bev Busha, the facility's Director of Social Services. It was another staff member
suggested to supervisory staff that it was North who had placed the markings on Resident
Cathy Neumeier, the facility's Director of Nurses, subsequently instructed staff to
their attempt at removing the markings without irritating X's skin. She also contacted
contacted North via an announcement on the facility's public address system. Speaking to
him on the
closed telephone system, Meehean told North he was being investigated for patient abuse,
directed him to report for an investigative interview in the conference room. At that
acknowledged to Meehean, Busha and Neumeir that he had placed the markings.
Subsequent to that meeting, North contacted Witness H, Resident X's half-sister and
holder of her power of attorney. Witness H knows North because she had served as guardian
for his children when he got divorced several years before this incident. Based on her
with Resident X, Witness H believes that Resident X regards North as her friend, although
or may not know his name. At hearing, Witness H could not recall if she had ever witnessed
X and North together. Witness H has no professional experience or expertise evaluating the
of nursing home employes.
At the time that North spoke to Witness H, no one from the facility had contacted
As North explained the incident to her, Witness H did not find the matter unsettling
demeaning to Resident X. After her conversation with North, H contacted Meehean, because
not heard from the facility concerning the matter. In her conversation with Meehean, she did
him that she found North's conduct to be inappropriate or otherwise demeaning to Resident
the time of his conversation with Witness H, Meehean had not yet made his decision to
Meehean reported the incident to the northern regional office of the state regulators,
Bureau of Quality Assurance. That agency, whose jurisdiction is generally limited to
caregiver misconduct, took no formal action to further investigate the matter. The BQA did
interview North, and did not provide the facility with any written response or determination
Meehean did not interview resident X about the incident.
On April 16, 1999, following further discussions with senior staff, Meehean issued to
a disciplinary notice terminating his employment. In the section on the notice for the nature
offense, Meehean checked the box marked "other," explaining "Inappropriate behavior with a
resident." Meehean did not check the boxes marked "Resident Abuse:verbal/physical,"
work rule," or "Poor performance." In the section on Statement of facts, Meehean wrote as
On Tuesday April 13, 1999, John North, with an ink pen, played
tic-tac-toe on the arm of
(Resident X). (Resident X) is a resident of Pine Crest who has dementia and does not
nature of the above actions. Such behavior is demeaning to the resident and shows a total
for the resident's dignity.
Following a timely grievance filed on April 20, Meehean denied the grievance on
April 22 as
Mr. North readily admits that he wrote in ink and played
tic-tac-toe on the arm of the resident/
There also is no dispute regarding the mental capacity of the resident involved. It is my
that Mr. North's actions and behavior were totally inappropriate. The termination of Mr.
employment, was (and is) the appropriate response to such actions and behavior.
The association thereafter requested
arbitration, in which request the employer concurred.
POSITIONS OF THE PARTIES
In support of its position that the grievance should be sustained, the Association
avers as follows:
The grievant's conduct did not violate any work rule or policy,
even though the act was
inappropriate. The disciplinary notice which the employer provided to the grievant should
the employer's intent at the time of discipline; based on management's failure to indicate any
expected subject areas, and the lack of added explanatory testimony, all the behavioral areas
not marked off should be disregarded.
The sole basis for the decision to terminate
was the administrator's personal and subjective
opinion that the grievant's conduct was inappropriate. The administrator has totally
not disregarded the context in which the activity occurred, the grievant's clean record, and
that no specific policy or in-service meeting could be pointed to forewarn the grievant that
conduct was inappropriate.
Pine Crest management is fully aware that
special relationships frequently occur between staff
and residents, yet it has failed to craft any policy or rule which addresses these relationships.
that specific policy, given that the grievant's actual conduct cannot be deemed serious in
is simply unreasonable to believe the grievant should have known he was going to be
Although the grievant really did nothing to
warrant any discipline at all, if any punishment is to
be meted out, it should be limited to an oral or written warning, at most. The administrator
overreacted to what amount to a fairly trivial incident, and intentionally disregarded the
7.5 years of unblemished work history when summarily terminating him for a single incident
governed by any work rule at the facility.
The employer's disciplinary action was
clearly arbitrary, capricious and/or unreasonable, so that
the arbitrator must substitute his judgment to eliminate the draconian penalty of termination.
It is undisputed that there was no work rule
in place that governed the conduct in which the
grievant was engaged, and that the grievant was never previously warned (in any formal
situation) about such conduct. There is no possible way that an employe could anticipate
discharged for "goofing off" with one of the residents.
This was a very minimal incident which was
blown out of proportion by the administrator; even
the resident's own family members had no concern regarding the incident or thought it was
close to being serious.
Further, the employer's rules are not reasonably related to its own
business efficiency and the
performance it might expect from its employes.
The employer did not obtain substantial
evidence of the grievant's guilt prior to issuing its
discipline. The evidence of guilt should be limited to that obtained by the employer at the
disciplinary action was taken, and not include evidence obtained afterwards.
Clearly, the degree of discipline was not
reasonably related to the seriousness of the grievant's
offense and past work record. The administrator clearly overreacted to the situation; his
response was to discharge the grievant even though he did not violate any work rule or
not engage in resident abuse or violate any of the resident's rights. The administrator's
based solely on his own personal opinion that the grievant treated the resident in an
demeaning manner. At most, it was a trivial offense, and in no way should the grievant have
terminated for this activity.
The employer has not met its burden of
proof that the grievant committed any wrong-doing, and
has not submitted convincing evidence that the type of penalty assessed was reasonable in
light of all
the facts and circumstances. The employer's actions were clearly arbitrary, unreasonable and
capricious. Accordingly, the grievant should be restored to his position with full back pay
seniority, and, at most, a written warning.
In support of its position that the grievance should be denied,
the County asserts and avers
The arbitrator must take judicial notice of the legal responsibilities
under which the grievant's
employment occurs, including the nursing home's legal obligation to care for its clients.
Statutes grant nursing home residents a private cause of action for acts which impair the
health, safety, personal care, rights or welfare. Also, residents have the right, under
code, to be treated with courtesy, respect, and full recognition of their dignity and
playing tic-tac-toe on Resident X's forearm, the grievant violated this administrative code.
Resident X and her family could being a private cause of action against the nursing home for
of Resident X's personal rights. The lack of dignity and respect for another human being,
one as vulnerable as Resident X, violates law and regulations and should not be tolerated..
The grievant's discharge was in accord with
the provisions of the labor agreement. First, the
grievant readily admitted the conduct, namely playing tic-tac-toe with an ink pen on Resident
Next, the grievant was well oriented and instructed in proper treatment of residents, in that
orientation on the Resident's Bill of Rights, had received a copy of the employe handbook
which clearly addresses discipline, and had attended numerous Resident Rights inservice
programs. The evidence shows that the grievant had an adequate training on the proper
residents, and had proper forewarning of the possible consequences of his actions should he
resident in an unacceptable manner. To deny that playing tic-tac-toe on another human
does not show lack of dignity and respect for others is absurd.
An examination of arbitral law and the
record clearly demonstrates that the grievant's discharge
was appropriate under the circumstances. The sole issue here is whether the punishment fits
a review of the facts of this dispute unequivocally demonstrates that no violation of the
bargaining agreement occurred. Under accepted arbitral law, "just cause" simply means that
employer, acting in good faith, has a fair reason for disciplining an employe which reason is
by the evidence. Misconduct and inappropriate behavior which is directly connected with an
employer's work, represents willfull disregard of the employer's interest, and is inconsistent
employe's obligations to the employer, constitute "just cause" for discharge. Disrespectful
of nursing home residents is grounds for discipline or discharge and constitutes "just cause."
The grievant's conduct is so grossly
inappropriate in a nursing care facility that he should not be
permitted to continue employment in this environment. It is well recognized by arbitral law
employe has a heightened duty of care in dealing with dependent people and that improper
of any kind simply will not be tolerated and may ultimately lead to discharge. The lack of
process and common sense that the grievant showed by playing something so insignificant as
tic-tac-toe on another person's arm dictates that the grievant does not belong in an
vulnerable, dependent people may easily be taken advantage of. Further, that the grievant
a game with a resident rather than performing his maintenance duties reiterates the
concerns the employer has had with the grievant in the past such as the fact that prior
evaluations have addressed the grievant's performing only enough work to get by.
The grievant was well aware that Resident X suffered from
Alzherimer's-type dementia but
showed seriously flawed judgment when attempting to play tic-tac-toe on her arm. There is
for leeway for such a lack of common sense when considering employment in a nursing care
Thus, the employer clearly had "just cause" to discharge the grievant and the decision to
the only appropriate decision under the circumstance. Given the duties and obligations of a
home and the care and treatment of its residents and the condition of the resident involved in
the only conclusion can be that this employe must be discharged for his behavior. The size of
the tic-tac-toe board is not the issue; the only issue is the complete disregard for the dignity
of the resident
and the deliberate action by the grievant to write on her arm when she could not give any
permission to do so. Any continued employment of the grievant sends the absolute wrong
for an employer that must, both by law and by human compassion, place the protection and
of the resident of foremost importance under any circumstance.
It is impossible to specify all forms of
unacceptable standards of conduct in an employe handbook,
collective bargaining agreement or resident's rights. Some conduct is so clearly absurd to the
workplace that a reasonable employe would recognize it as prohibited; the grievant's conduct
far beyond the bounds of acceptable conduct that there is no reasonable argument to be made
The arbitrator must defer to the employer's
determination as to the proper penalty to be imposed
for the grievant's inappropriate behavior. Under arbitral law, an arbitrator should not
discretion for that vested with the employer to determine the proper penalty to be imposed
employe's inappropriate behavior and misconduct, but rather must be limited to the factual
determination of whether the employer committed the charged acts and whether good cause
In this matter, the grievant admitted to drawing on Resident X's arm and essentially admitted
existence of just cause.
The evidence clearly establishes that the
employer did not act in an unreasonable, arbitrary or
capricious manner, and was justified in its decision to terminate the grievant. The safety of
residents is at stake as well as the reputation and licensure of the facility if the employer
employe with this type of nonsensible behavior to continue employment in an environment of
vulnerable and dependent population.
The employer gave the grievant forewarning of the possible or
probable consequences of the
grievant's inappropriate conduct by way of yearly training on resident rights and more
treating them with dignity and respect. The employer's decision to terminate the grievant was
precipitated by its concern and responsibility for its residents. The employer conducted a fair
objective investigation of this matter; more importantly, the grievant admitted to the conduct.
mere admission of this inappropriate behavior by the grievant should lead to the termination
sustained. The grievant showed such a lack of dignity and respect for another human being
employment in a nursing care facility with fully dependent residents must not continue.
Accordingly, the grievance should be denied and the
In reply, the association responds as follows:
The county errs in citing the Wisconsin Administrative Code
pertaining to resident treatment, in
that it failed to cite this issue as a basis for the grievant's termination. As this is the first
time in these
proceedings that the county has mentioned this issue, it should be disregarded in light of the
in which it was raised. The county has also failed to provide any explanation of how the
actions violated any statutory or code provision, and has clearly failed to meet its burden in
The county errs in arguing that the grievant
had prior notice that his conduct was improper as a
result of the provisions of the policy handbook, the Resident's Bill of Rights and previous
training. But again, Pine Crest failed to state at the time of discipline that the grievant had
established policy. Also, the employer has not cited any particular piece of information
the grievant which would have alerted him to the fact that he could be disciplined for
engaging in any
type of voluntary activity with a resident. The employer's argument is filled with generalities
conclusions, like a sandwich without meat. It is the employer's obligation to prove its case,
grievant's responsibility to demonstrate why just cause did not exist.
Given the relationship that existed between
the grievant and Resident X, and the light-hearted
nature in which the activity occurred, the Association is at a loss to determine how this arises
level of disciplinary action.
The county also errs in asserting that arbitral law and the record
support the decision to terminate.
The county's argument would make discharge decisions unreviewable; but contrary to the
assertion, just because management makes a decision in good faith or with fair reason does
establish just cause. Just cause really means a standard arbitrators use to determine whether a
to discipline is fair, just and reasonable in light of all the facts and circumstances. The
fails to meet that standard.
Further, the county's argument that the
discharge was appropriate despite the lack of any specific
rule prohibiting the conduct the grievant committed is inconsistent with its stated position,
and is both
absurd and misleading. Moreover, the cases the county cites are not supportive of its
Like the emperor with no clothes, the
county's arguments are bare and unsupported by facts or
common sense; the decision to terminate the grievant for this trivial incident was, plain and
arbitrary and capricious. It is obvious the county is doing whatever it can now to justify what
to be Pine Crest's poor management decision.
The county errs in arguing that the
arbitrator should take a "hands off" approach and simply
review the facts and determine whether just cause existed for the grievant's termination. But
authority clearly establishes that the arbitrator should not act in this limited role, but should
an excessive penalty if warranted by the record.
The discharge of the grievant was clearly
unreasonable, excessive, arbitrary and plain unfair. It is
necessary for the arbitrator to overturn the imposed discipline, and reinstate the grievant to
position with complete back pay, seniority rights and benefits.
In its reply, the county responds further as follows:
The association errs in stating there was no dispute at hearing
over the grievant's work record,
when in fact the record establishes that the grievant has had in the past, and continued to
performance problems at work, which he acknowledged. There is record evidence of poor
performance, and the grievant's evaluations addressed concerns regarding tardiness,
the lack of work performed. The association's contention that the grievant's work record was
is contrary to the evidence.
The association also overlooks the chronological evidence, which
shows that the staff attempted
to remove the tic-tac-toe grid from the resident's arm the same day the marking was
attempting to portray the staff as completely ignoring the marking for 24 hours, the
again presented skewed facts that are completely unfounded.
The decision to terminate the grievant was
based on a fair investigation of the facts. The
association does not dispute that the administrator conducted a fair and objective
they now allege that the termination was based solely on the administrator's "personal
ignore that the administrator gathered all the facts and consulted with two long-term
givers with a combined 38 years of nursing care experience. The testimony further
the decision to terminate was made after consultation with staff and the resident's family
The association errs in alleging that the
employer has attempted to "undermine" Resident X's
mental capabilities. The mere facts that she is in the Special Care Unit, and has no
recollection of this
incident, is an obvious indication of her capabilities. The testimony of the daily care
establishes that the employer is not exaggerating her infirmities.
The association errs in ignoring the
unwritten rule that calls for the use of common sense, and
ignores the fact that the grievant received annual training on resident rights, specifically
training on treating residents with respect and dignity. The association also fails to recognize
Employe Handbook Policy provides that anyone who violates a resident's rights is subject to
including termination. By denying the significance of the grievant's conduct simply because
no specific rule that states that an employe may not write on a resident with an ink pen, the
association's rationale reaches a point of absurdity.
The association also errs in claiming a
so-called "special relationship" between the grievant and
the resident made this behavior acceptable. Having a special relationship does not give an
extra rights or privileges; and if the grievant had the relationship he claims, surely he should
recognized that the resident was not always able to comprehend things. Regardless of the
association makes for the grievant, his lack of basic judgment skills are not tolerable or
under any circumstances in a nursing care facility.
The association has not produced any evidence to support its
harsh allegation that the employer
acted in an arbitrary and capricious manner toward the grievant. The association argument
that the rules and guidelines of the genuine concept of care and dignity and respect that the
promises to its residents means nothing. It is apparent and unfortunate that the grievant and
association do not consider the act of writing on an elderly lady who suffers from dementia a
of her personal rights and dignity and respect. The association is merely grasping at straws to
the grievant's conduct.
The association's accusation that the
administrator did not conduct a proper and complete
investigation is just another feeble attempt to discredit the decision to terminate the grievant.
The association also errs in claiming that
the administrator should have used corrective discipline;
how can you correctively discipline an employe who lacks basic common sense skills and
for another person namely an elderly, vulnerable person who suffers from a sad
A nursing care facility cannot chance or
tolerate such foolish behavior from an employe and the
employer's decision to terminate is the only suitable response to such unacceptable behavior.
any real evidence that the employer has acted in an unreasonable, arbitrary or capricious
arbitrator should not substitute his judgment for the employer's.
The association's attempts to discredit the
facts and the employer's investigation are unsupported
by the evidence. The grievant had proper training and documentation notifying him of
treatment of residents and the consequences of violating a resident's rights. The grievant
extremely poor judgment and continues to fail to recognize the significance of his actions. It
facility's job to care for and protect this vulnerable population and they must be treated with
and respect. To expect less than that from staff is destructive to the facility's mission.
The employer had just cause to discharge
the grievant and the grievance must therefore be
There is no question that under any definition of just cause, the employer is entitled
discipline on the grievant for his actions of April 13, 1999. The only question is whether
was too extreme, such that its imposition put the discipline beyond the scope of just cause.
The association seeks to have me evaluate the discipline measured against the
"seven factors" as enunciated by arbitrator Carroll Daugherty in Enterprise Wire Co., 46 LA
(1966). However, for reasons persuasively presented by John Dunsford in Arbitral
Tests of Just Cause, in Arbitration 1989, Proceedings of the 42nd
Annual Meeting, National Academy
of Arbitrators, ed. Gruenberg (BNA Books, 1990), I have serious concerns over artificially
adherence to Daugherty's technical and procedural requirements.
As I evaluate this matter, there are three elements to address. First, did the
commit the act as charged? If so, did the employer put the grievant on notice that the act was
and its commission could lead to discipline. Finally, the paramount issue was the
degree of discipline
imposed reasonably related to the seriousness of the grievant's conduct?
The first answer is easy -- the grievant committed the act as charged.
In its broadest terms, the second answer is also quickly evident -- the grievant knew,
reasonably should have known, that this act was improper and subjected him to discipline.
grievant was aware of that Resident X suffered from Alzheimer's-type dementia, and that she
appropriately housed in a locked unit that required special clearance to enter and exit. The
had provided detailed and comprehensive in-service training activities which specifically
issues as the condition of those in the special cares unit, and the importance of treating all
with dignity and respect. The grievant had attended several of these trainings, and is held to
understand their import. The employer promulgated a handbook that includes an implied
progressive discipline, but authorizing immediate suspension or termination for especially
incidents. That is, the grievant was put on notice that certain conduct could result in
to and including discharge.
Certainly, the association is correct that the facility did not publish a work rule which
explicitly stated "maintenance employes must refrain from drawing an ink tic-tac-toe grid on
of elderly Alzheimer's patients." This, however, is not a valid defense. The sensitive skin of
woman is not a writing tablet, and to use it for that purpose may lead to irritation,
possibly infection. It was wrong for North to draw an ink tic-tac-toe grid on the arm of
It is the remaining question which is the most difficult whether the
employer's decision to
terminate North was too severe, such as to take the discipline beyond the bounds of just
The testimony of Witness H is key in evaluating the employer's action. As the closest
member, she would be expected to have personal concern for Resident X's well-being. As
of power of attorney, her statements have legal consequence. Despite her importance in
proper level of discipline, Meehean did not contact her; they only spoke at Witness H's
calling for further information after the grievant's call to her.
Meehean told the grievant that, as part of his decision-making process he had
incident with the resident's family. The only such conversation in the record is with Witness
testimony as to that conversation directly refutes the employer's claim of just cause. Witness
indicated that the incident did not give her great concern, and further said nothing about the
being demeaning to Resident X. As a family member with power of attorney, Witness H's
observations and comments must be given great weight in evaluating the employer's claim
grievant's behavior was "demeaning to the resident and shows a total disregard for the
The association is improperly dismissive of the seriousness of the grievant's conduct,
dismissing the offense as "trivial." It isn't, and the grievant knows it. It is absurd for the
to assert that North's conduct "cannot be deemed serious in nature," and to claim that it is
unreasonable to believe" that North should have known he was going to be disciplined for his
conduct. Contrary to the association's legal arguments, the grievant's demeanor and
hearing evidenced a strong sense of regret, and, I believe, repentance.
The county at hearing and in its brief tries to make the case that the grievant's overall
record is inferior, and that this level of performance is relevant to the determination of just
the discharge. This argument is misplaced, however, given Meehean's testimony that he did
review North's work record until after the fact, and that it was not part of his decision to
The record establishes that the grievant had been employed at the facility for about
years; that he had never received any oral or written discipline, and that his supervisors had
evaluations which raised concerns over such issues as tardiness, absenteeism and zeal for
As the county asserts, the very fact that this incident happened during work hours
an attitude that the grievant was at times lax in his focus on work. He was in the special
to perform maintenance tasks; he was not there to create an interaction with a resident. He
neither trained nor authorized to engage a resident on the special cares unit in unstructured
I am sympathetic to his motivation he encountered a sick old woman who, as he
described it, was
"just hopelessly sitting there bored," and he tried to amuse her for a few minutes. But in so
disregarded his proper duties and acted well beyond the scope of his authority and training.
I cannot fault the employer for its aggressive attempts to protect the health and
welfare of its
residents; persons with mental disease or defect, living in the locked special care unit, are
society's most vulnerable, and it should be of comfort to the citizenry that the county has
a high premium on protecting the Pine Crest residents.
By its summary discharge of the grievant, the county has shown it would rather be
sorry. But in so doing, the county has improperly disregarded the provisions of the collective
bargaining agreement which protect the Pine Crest employes.
The employer fired the grievant for "inappropriate behavior with a resident," which
was "demeaning to the resident and shows a total disregard for the resident's dignity." The
nature of the incident, however, calls into question such a conclusory attitude.
Webster's Third New International Dictionary (1993) defines "demean," as "to lower
status, condition, reputation or character; degrade, debase." Without getting unduly
as to the nature of experience or perception, it seems to me an event can meet that definition
if there is a witness, or an act was done against someone's will, or the act was so odious that
someone could not sensibly consent to it being done to them.
The day room was empty at the time of the incident, so there was nobody around to
transpired. Had there been other residents or employes present to see North draw a
on Resident X, the act might thus have become public in such a way as to have the result the
employer charged. But that is not what happened.
Even though X and the grievant were the only two persons aware of the incident, the
could still be demeaning to X if it were done against her will. Clearly, X was incapable of
degree of informed consent necessary for a significant medical procedure or to participate in
proceedings. But the evidence does not establish that she was so unaware of her surroundings
she did understand and allow North to draw the tic-tac-toe grid on her arm.
Finally, there is the fact that a similar grid was drawn on North's arm. Although he
remember at hearing who drew it, this also lessens the impact. If Resident X drew the
it would show her to be an active participant in the event, treating North the same as he
If North drew the grid on himself, it would show that he visited upon himself the same
indignity that he wrought on Resident X. Either way, it supports a conclusion that the
not especially demeaning or disrespectful to Resident X.
It does not, however, completely refute the employer's basic contention, namely that
wrongful conduct. To say it was not so severe as to justify immediate termination is not to
say it was
proper, appropriate, or even acceptable. It wasn't.
By drawing an ink tic-tac-toe grid on Resident X's arm on April 13, 1999,
violated his responsibility to treat all residents at Pine Crest "considerately and with respect."
However, in light of North's employment history, the specifics of the event, and the
of Witness H, the employer's immediate and summary discharge of North was unreasonable,
it was done without just cause.
The determination that the discharge was without just cause, however, does
the inquiry. As stated by Arbitrator Harry H. Platt, "most arbitrators exercise the right to
modify a penalty if it is found to be improper or too severe under all the circumstances of
situation." Platt, The Arbitration Process in the Settlement of Labor
Disputes, 31 J. Am. Jud. Society
54, 58 (1947), cited with approval in How Arbitration Works Fifth Edition
(BNA Books 1997, p.
913), wherein it is stated that "the fact that most arbitrators do modify penalties found to be
evidences their general belief that authority exists."
Having found that the discharge was without just cause because it was excessive, I
I have the inherent authority to modify the penalty to one in keeping with the severity of the
and the surrounding circumstances.
A 62-year-old woman suffering from Alzheimer's-type dementia, residing in a locked
a nursing home, should be accorded a heightened degree of care and concern. Moreover, for
of health and safety, her skin is not to be used as a writing tablet.
The grievant's act was not so offensive and demeaning to justify his immediate
However, it was serious enough to justify a disciplinary suspension.
I believe a disciplinary suspension of three days constitutes a level of discipline
consistent with my understanding of just cause.
Accordingly, on the basis of the collective bargaining agreement, the record
and the arguments of the parties, it is my
That the grievance is sustained in part and denied in part, such that the
discharge is modified to an unpaid disciplinary suspension of three days. The employer shall
the grievant's personnel file accordingly and make the grievant whole as to wages and
by income the grievant earned between April 16 and the date of reinstatement. I
shall retain jurisdiction in the event the parties are unable to agree on the specific
application of this
remedy, such jurisdiction to lapse on February 15, 2000, unless prior to that time either
my further participation in a supplemental proceeding.
Dated at Madison, Wisconsin this 16th day of December, 1999.