BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
FEDERATION OF NURSES AND HEALTH
LOCAL 5001, AFT, AFL-CIO
ST. FRANCIS HOSPITAL, INC.
Ms. Carol Beckerleg, Field Representative, Federation of
Nurses and Health Professionals, Local 5001, AFT, AFL-CIO, representing the Union.
Michael, Best & Friedrich, LLP, by Attorneys Thomas W.
Scrivner and David A. Dixon, representing the Hospital.
The Federation of Nurses and Health Professionals, Local 5001, AFT, AFL-CIO,
Union, and St. Francis Hospital, Inc., herein the Hospital, requested the Wisconsin
Relations Commission to designate the undersigned as an arbitrator to hear and to decide a
between the parties. The undersigned was designated as the arbitrator. Hearing was held in
Milwaukee, Wisconsin, on June 22, 1999. A copy of a stenographic transcript of the
received on August 9, 1999. Post-hearing briefs were exchanged on October 12, 1999.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties stipulated to the following issues:
Was Section 14.03 of the 1997-2000 Registered Nurse
violated when the grievant was low censused on July 31, 1998? Specifically, was the
censused out of turn within her department? If so, what is the remedy?
The Hospital provides a full range of medical services, including both inpatient and
surgery. The Hospital is organized around a system of separate, but cooperating, sub-units,
which performs certain functions. Three of those sub-units are involved in this proceeding,
Surgery (SDS), Post-Anesthesia Care Unit (PACU) and Pre-Admission Testing (PAT).
Lorence has been the manager of those three sub-units since she was hired by the Hospital in
September of 1996. SDS and PACU are located adjacent to each other in the Hospital and
nurse's station. PACU and SDS both provide immediate post-operative care. PAT is
located in a
separate building about two blocks from the Hospital.
PAT develops a data base, i.e., histories, on patients having outpatient surgery. In
PAT nurses educate patients regarding all aspects of pre- and post-operative care, such as
restrictions, rehabilitation planning and additional assistance at home after surgery.
SDS primarily is concerned with surgeries that will occur during the same day as the
which the patient arrives at the surgery center. SDS nurses complete any missing
information in SDS
patient databases, complete pre-operative checklists, prepare the patient for surgery, which
include administering medications and starting intravenous solutions, and deliver patients to
the pre-operative holding area. SDS and PACU nurses both oversee the post-operative care
SDS is open from 5:30 a.m. to 9:30 p.m. and the need for coverage by nurses during
hours results in a variety of start times for the nurses. The number of nurses scheduled for
is based on a pre-determined grid developed by the nurse manager and the schedulers.
Tuesdays, Wednesdays and Thursdays, three nurses work from 5:30 a.m. to 2:00 p.m., one
works from 6:30 a.m. to 3:00 p.m., one nurse works from 7:00 a.m. to 3:30 p.m., one
from 8:00 a.m. to 4:30 p.m., one nurse from either 8:30 a.m. to 5:00 p.m. or 9:00 a.m. to
and, one nurse from 1:00 p.m. to 9:30 p.m. The 8:30/9:00 a.m. shift is referred to as the
and the nurse working this shift is required to stay beyond eight hours if the late shift nurse
because of the number and/or complexity of the patients in post-operative care. Usually on
and Fridays the 6:30 a.m. shift is eliminated due to historically lighter patient loads on those
schedule is posted for a four-week period. The schedule is reviewed each day and start
times for the
following day can be adjusted based on the patient load. Nurses affected by such changes
informed of the changes.
In the instant case, the grievant was scheduled to begin work at 6:00 a.m. on July 31,
but she actually began work at 5:30 a.m. as she had agreed to do when requested, on July
30, to make
that change to accommodate the patient census. Three other nurses also began work at 5:30
SDS on July 31. A fifth nurse, B Beaumont, began a dotted shift at 8:30 a.m. on July 31.
anticipated morning rush of patients, the Charge Nurse, Grace Halenka, determined that two
needed to be low censused. One of the nurses who started at 5:30 a.m. volunteered to be
censused. After failing to find a second volunteer among the four early nurses, Halenka
SDS low census log and learned that the other three early nurses had been low censused
recently than the grievant, who had been low censused last on May 1. The grievant had
censused more recently than Beaumont. However, Halenka decided not to low census
the dotted shift nurse, since that would have reduced the staff to one nurse after 2:00 p.m.,
early shift nurse was required to remain in overtime status until it was safe to leave the late
alone with the remaining patients. At approximately 9:30 a.m. the grievant was notified that
low censused and the grievant left work shortly thereafter.
1/ Unless otherwise specified, all other dates
herein refer to 1998.
The grievant had been oriented in PAT on two dates in 1996. Additionally, PAT
frequently are brought over to SDS for the nurses to complete and the grievant had worked
charts. A pool nurse, Terri Lampe, worked in PAT on July 31. Lampe worked in PAT at
a week in 1997. Prior to July 31, Lampe had worked over 500 hours in PAT in 1998.
POSITION OF THE UNION
Of the individuals working on July 31, the nurse working the 8:30 a.m. dotted shift
most distant instance of low census and should have been sent home rather than the grievant.
Halenka knew on July 30 that it probably would be necessary to send nurses home on the
It would have been possible to let the grievant start at 8:30 a.m. and move that nurse to a
The department schedule anticipates overtime. The dotted shift can be required to
overtime each and every day, if necessary. Thus the Hospital's alleged fear of incurring
the grievant had been allowed to stay is a faulty argument. It should not matter which shift
In addition, the grievant was cross-trained in the PAT area and should have replaced
nurse who was working in PAT on July 31, which action would have been consistent with
14.03 of the contract. The grievant has been oriented to PAT on two prior occasions.
nurses perform many of the duties performed by the PAT nurses. In fact, PAT charts have
to SDS nurses, including the grievant, for them to complete. A document produced by the
in September of 1997 lists the grievant as being qualified to work in PAT. The cross
committee developed a list of areas with similar duties and the length of time it would take
employe to learn the new area. That document indicated that employes in SDS could be
work in PAT in five, or less, days due to the similar skills and type of patients. Lorence did
if any total joint patients were scheduled for July 31, but, even if there had been, there were
in PAT, other than the pool nurse, who could have handled those patients.
The Union requests the arbitrator to award the grievant four hours of back pay for
home early on July 31.
POSITION OF THE HOSPITAL
The contract does not address low census rotation within individual departments.
Halenka appropriately exercised the Hospital's management rights when she decided to low
the grievant, rather then Beaumont, to provide quality patient care. The Union failed to
the informal low census rotation method used in SDS constituted anything more than an
guide for determining who should be low censused.
If Halenka had low censused Beaumont rather than the grievant, there would have
been a gap
in patient care coverage from 2:00 p.m. to 5:00 p.m., which would have compromised
The gap could not have been covered by requiring one of the early shift nurses to remain on
beyond 2:00 p.m. because both the Union and the employes are generally opposed to
overtime. In fact, Beaumont remained at work until 8:30 p.m. on July 31. If one of
the early nurses
had been required to remain instead of Beaumont, then said nurse would have worked a
shift. Although most low census situations are resolved voluntarily, there were at least three
occasions in 1998 when the dotted shift nurse was not low censused, even though that nurse
on the informal low census rotation log.
The grievant admitted that she was not cross-trained in PAT. Although she had some
knowledge of PAT functions, she clearly was not cross-trained. She had worked only two
PAT in the fall of 1996, prior to Lorence's restructuring and broadening of the PAT nursing
The grievant did not work in PAT between her two occasions in 1996 and July 31. The
time required to maintain competencies must be greater than the zero amount worked by the
since 1996. Section 14.03 does not limit the skill and ability
standard to voluntary low census cases. The word "grant" connotes the authority of
to apply the skill and ability standard to any low census situation, whether voluntary or
Lorence was hired to modernize the PAT program. Most of the changes
Lorence began to take effect during 1997-1998, during which time Hall did not work in
Lampe, a pool nurse who worked in PAT on July 31, did have both the necessary skill and
the continuing experience to perform the PAT tasks.
The Hospital argues that it has never contested the fact that some similar database
development tasks, including reviewing lab results, etc., are performed in both PAT and
Indeed, it agrees that pre-selected "easy" PAT files are sent to SDS for processing. Such
SDS assistance to PAT typically occurs only when PAT gets backlogged with relatively easy
and SDS has extra resources available. The workload in PAT on July 31 was not
easy database development.
The Union relies on a document containing a grid illustrating the cross-training
recommendations. The document was composed before the changes introduced by Lorence
outdated. Further, the document contains recommendations which were never incorporated
The Hospital contends that it acted within its authority and the grievance should be
. . .
. . . the Hospital's management rights
include: the right to manage the Hospital and determine
the work to be done; the time and manner in which the work will be done; the right to
working hours; the right to direct the working forces, . . . the establishment, modification
enforcement of standards of care; the assignment of employees from one task to another, or
unit/ department to another, or from one location to another, or from one shift to another, to
the needs of the Hospital from time to time; . . .
. . .
Layoff, Recall, and Low
. . .
(a) Low census will be done on a
house-wide basis when mandatory and on a by unit basis when
voluntary. Ability to grant low census will be based on skill and ability, regardless of
is pool in house. Low census will be determined not more than 16 hours prior to the shift.
periods of low census/volume, employees will be requested to voluntarily use vacation time
personal days. Employees will be encouraged to take low census days (unpaid time off) in
equal to and/or less than 8 hours per shift. During such period, employees who voluntarily
shall not lose continuity of employee benefits or accrual of benefits. Voluntary low census
taken even if there is a pool person within the house (after consideration of house-wide
of care and workload). With the approval of the Department Manager, an employee may
voluntary unpaid leave for a period of five working days at a time to be renewed to a
four weeks. It is the responsibility of the employee to remain available for recall within one
notification and to personally contact the Department Head or designee at the end of each
period to determine if s/he should return to work or request additional time. The Hospital
very (sic) effort to utilize full time (sic) and part-time staff Registered Nurses wherever
a voluntary basis (e.g. surgical nurses/recovery room nurses in areas such as Day Surgery,
nurse in an area where the nurse meets qualifications of available department work as
the Hospital), before releasing such a nurse from work on a low census/volume mode. If
remedy is required, Administration and Department Heads will institute mandatory low
or shorten work weeks wherever feasible. Mandatory low census/ activity scheduling will
be based upon reduction in 8-hour increments.
However, mandatory low census may also
be allowed in increments greater than four hours and
less than eight hours. Mandatory low census will not occur for only the first four hours of
hour shift; however, employees may remain available voluntarily. Cancellation will not
occur in four
(4) hour increments in the middle of a twelve (12) hour shift. An employee on low census
appropriate, be offered call or replace current on call employees. An employee will not
mandatory low census if pool RN is working in an area where that employee is cross-trained.
Employees may take vacation time or personal days when mandatory low census/activity
made and will receive credit or rotation if the time is taken paid or unpaid.
(b) Employees who wish to volunteer to take low census time
should fill out a low census request
form available from their Department Heads. Such forms may be turned in no more than
week prior to the date(s) the employee is volunteering to take low census time. Telephone
will be honored if received at least four (4) hours prior to the start of the shift. Where more
requests are submitted than can be accommodated, volunteers will be selected in order of
on a rotating basis. Rotation shall begin anew each year beginning each January
(c) Whenever possible, the Hospital shall
notify nursing units in advance of unit closure or
anticipated unit closure.
. . .
Apparently, each department keeps a list to track low census occurrences and, when
necessary to institute a mandatory low census, the list is used to determine which employe
most distant instance of low census. Based on that list, the Union believes that the employe
the dotted shift, which started at 8:30 a.m., should have been sent home rather than the
sole reference to rotation in Section 14.03 (a) is found in the last sentence of that Section.
that language does not specify how the rotation is to occur. When the contractual language
with respect to how a provision is to be administered, then the party alleging the existence of
practice of administering the provision must be able to substantiate the alleged practice with
of such administration. The Union failed to provide such substantiation. The record does
any prior instances in which the nurse, who was scheduled to work the dotted shift, was
an earlier shift, while the nurse scheduled to work that earlier shift then moved to the dotted
because it was that turn of the employe originally scheduled to work the dotted shift to be
censused. Neither does the record contain any examples in which the employe working the
shift was low censused, rather than a nurse on an earlier shift, because it was the turn of the
shift nurse to be low censused. Conversely, the Hospital identified two other occasions in
to July 31, on which a mandatory low census of an early nurse occurred, even though said
previously had been low censused more recently than the nurse working the dotted shift on
Thus, while it appears that the Hospital does follow a method of rotating mandatory low
occasions among the early nurses in SDS, the record does not support a finding that the
nurse has been included in the rotation with the early nurses.
The record fails to establish that the grievant was sufficiently cross-trained in the
she should have replaced a pool nurse who was working in PAT, rather than being sent home
four hours on July 31. The grievant had been sent to PAT for orientation on two
occasions in the fall of 1996, but had not worked in PAT since 1996. Even if one
assumed that she
was cross-trained after two days in 1996, she did not work in PAT after that time so as to
her knowledge of, and competency in, the procedures. The need to stay current is especially
important in light of the changes in the PAT program which Lorence has been instituting.
grievant had neither performed, nor been trained in, all of the duties which PAT nurses are
to be able to perform. Although she has worked on PAT charts since 1996, such activity
only a part of the duties performed by PAT nurses. Those duties had changed during the
approximately two years since she had actually worked in PAT. On the other hand, Lampe
worked in PAT on a regular basis in 1997 and in 1998, prior to July 31. While the grievant
have performed some of the PAT duties on July 31, she had not been cross-trained in all of
The 1997 document, which listed her as being able to work in PAT, appears to show the
some familiarity with PAT functions and could be used to perform some of the duties of
But, the record does not demonstrate that said document means the Hospital considers the
to be fully cross-trained in PAT duties. While the Hospital might choose to use the grievant
perform some PAT duties, it was not obligated to replace Lampe with the grievant and then
duties among the other PAT nurses, so that the grievant could be given only those duties she
capable of performing.
The undersigned concurs with the Hospital's position that the skill and ability
Section 14.03 applies to all low census instances, both mandatory and voluntary. The
14.03 does not support drawing a distinction between mandatory and voluntary low census
The use of the word "grant" clearly reserves to the Hospital the ability to decide both
whether to use
the low census process and, if used, whether the affected employe meets the skill and ability
Based on the foregoing and the record as a whole, the undersigned enters the
That the Hospital did not violate Section 14.03 of the 1997-2000 Registered Nurse
bargaining agreement when the grievant was low censused on July 31, 1998; that the grievant
not low censused out of turn within her department; and, that the grievance is denied and
Dated at Madison, Wisconsin, this 30th day of December, 1999.
Douglas V. Knudson, Arbitrator