BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GREEN COUNTY PLEASANT VIEW HOME
LOCAL 1162, WCCME, AFSCME, AFL-CIO
Mr. Greg Spring, Research Analyst, Wisconsin Council 40,
AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. William E. Morgan, Green County Corporation Counsel,
appearing on behalf of the County.
Green County Pleasant View Home Employees, Local 1162, WCCME, AFSCME,
hereinafter referred to as the Union, and Green County, hereinafter referred to as the
parties to a collective bargaining agreement which provides for the final and binding
disputes arising thereunder. The Union made a request, with the concurrence of the County,
Wisconsin Employment Relations Commission designate a member of its staff to act as an
to hear and decide a grievance over the meaning and application of the terms of the
undersigned was so designated. Hearing was held in Monroe, Wisconsin on April 20, 2000.
hearing was not transcribed and the parties filed post-hearing briefs which were exchanged
23, 2000. The parties reserved the right to file reply briefs but only the Union filed one,
received on June 6, 2000 and the record was then closed.
The basic facts underlying the grievance are not in dispute. The grievant was
a certified nursing assistant (CNA) at the County's Pleasant View Nursing Home. On
1998, the grievant was suspended for resident abuse. (Ex. 4). On December 9, 1998, the
was terminated. (Ex. 6). The discharge was grieved on December 14, 1998 (Ex. 2). On
22, 1998, the grievance was denied by the Administrator of Pleasant View Nursing Home
On February 26, 1999, the County's Personnel Committee denied the grievance (Ex. 8).
agreed not to proceed to arbitration pending the State's determination as to the grievant's
the CNA registry (Exs. 9, 10).
On April 26, 1999, the Bureau of Quality Assurance of the Department of Health and
Services, State of Wisconsin, informed the grievant that it had concluded that there was
cause to believe the incident did occur and the grievant's conduct met the definition of abuse
Section HFS 13.03(1)(a) of the Wis. Adm. Code (Ex. 7). The letter also notified the
grievant of her
right to appeal and the procedure for doing so. On April 29, 1999, the County considered
arbitration would not be necessary based on the April 26, 1999 letter. (Ex. 11). The
an appeal of the Bureau of Quality Assurance's finding to the Division of Hearings and
issued a decision on November 12, 1999 reversing the determination of the Bureau of
Assurance (Ex. 12). The Bureau petitioned for a rehearing and that was denied on
1999. The grievant requested to be reinstated, which was denied by the County.
The parties were unable to agree on a statement of the issue. The Union states the
Did the County violate Section 7.06 of the collective bargaining
agreement by refusing to
reinstate the grievant with back pay?
If so, what is the appropriate remedy?
The County states the issue as follows:
Is the State of Wisconsin, Department of Health and Social
Services, Bureau of Quality
Assurance, the "State" as referred to in Section 7.06 of the Agreement, such that the parties
bound by its decision?
If not, what is the appropriate remedy?
The undersigned adopts the Union's statement of the issue.
Discharge and Suspension
. . .
7.06 CNA Registry. If a grievance is filed concerning
an employee discharge which is subjected
to registry review under state or federal law, arbitration of the grievance shall be held in
abeyance pending a decision by the State. If the Employer suspends an employee during its
investigation of conduct alleged to violate registry rules, the suspension will be with pay until
the Employer makes its decision. The parties will be bound by the State's decision on
whether the employee committed abuse. If the State finds that no abuse occurred, a
discharged employee shall be reinstated with back pay.
POSITIONS OF THE PARTIES
The Union contends that the language of the agreement is clear. It asserts that under
Section 7.06 the parties agreed to be bound by the State's decision. It submits that
there is only one
decision in the record and that is of the Division of Hearings and Appeals which has not been
overturned and is the final decision of the State. The Union refers to that decision which is
grievant did not abuse the resident and this is the official position of the State including the
of Quality Assurance and the end result is the same as if the Bureau had initially determined
allegation was unsubstantiated.
It argues that the evidence establishes that there was no discussion between the parties
the identity of the "State" to mean solely the Bureau of Quality Assurance. It points out that
Bureau is only one division of the State and the Bureau determination was appealed and the
determination made by another state agency was that no abuse occurred and that decision was
by the State. It seeks what the parties bargained for, which is, if the State finds no abuse, as
here, the grievant should be reinstated with back pay.
The Union, assuming arguendo that Section 7.06 is
ambiguous, claims that the intent is clear
that the parties substituted a due process hearing before the state for the due process hearing
by the grievance procedure. It points out that no hearing is held before the
Bureau's determination and the first opportunity to present evidence and cross-examine
is at the appeal hearing and to hold that the "State"'s decision is made prior to an appeal for
would result in a harsh, nonsensical result and also would constitute a significant forfeiture.
that the Bureau's determination may be based on inaccuracies which can only be uncovered
in a due
process hearing. The Union claims that it would never agree to allow an unjust discharge to
uncorrected when the Bureau based its determination on misinformation. The Union insists
clear intent of the parties be given effect by reinstating the grievant with back pay.
It concludes that the County's refusal to reinstate the grievant violates Section 7.06
seeks an order reinstating the grievant with back pay.
The County contends that where it refers to "the State" in Section 7.06, it was the
the parties that the language be interpreted to mean the Bureau of Quality Assurance. The
acknowledges that the language in Section 7.06 is not as clear as it might otherwise be but
Union's interpretation is contrary to logic and the past interpretation of the contract by the
It submits that the language was added in 1992 as a result of the administrative rule changes
regulating the CNA Registry and there was concern how the Administrative Code would
contractual rights of the parties. It notes that the Union argues for an expansive definition of
word "State" in Section 7.06 to include judicial systems but the Bureau of Quality Assurance
charged with investigating abuse allegations and maintains the registry review.
The County states that the Bureau of Quality Assurance has expertise in the field of
conducting investigations into resident abuse and in the past, the County conducted its own
investigations. It claims that if an incident of abuse was substantiated at the County level, it
to be reported to the Bureau of Quality Assurance for its own independent investigation. It
that once the County decided on termination, it would be held in abeyance pending the
of the Bureau but not beyond the time of the initial determination and decision by the State.
maintains that it is not unusual to rely on an outside agency for its expertise.
The County contends that the title of Section 7.06, "CNA Registry" is indicative of
parties' intent. It submits that a careful reading of Section 7.06 reveals that it refers solely
Registry review process which does not entail any appellate review. It argues that if the
intended to hold any grievance in abeyance pending appellate review, they would have stated
the absence of such language is telling. It claims that any other interpretation would render
language superfluous and language should not be interpreted to render it
meaningless and any interpretation other than that urged by the County would do just
that. It points
out that if an allegation of abuse is substantiated by the CNA Registry, the individual is
from working as a CNA, so if the language means something other than the County's
it is merely stating the obvious, that the individual is no longer employable, which was not
of the language. It avers that the parties did not have significant discussions or
this language was agreed to because the impact was thought to be minimal. The County
there was no need to transfer its authority to a third party if doing so was going to drag out
decision for months or years. It argues that once the Bureau of Quality Assurance made its
the parties were bound by it. It states that if the grievant disagreed with the Bureau's
is a separate matter between the Bureau and the individual and the County has no authority to
participate before any higher appellate authority. Arguably, according to the County, if the
decision is overturned, the County could reinstate the employe if it so chose but is not
do so under Section 7.06. It alleges that further litigation only determines whether the CNA
continue to be eligible to work and not whether the County acted appropriately in its
and determination. It asks that the grievance be denied.
The Union objects to the County's attachment of exhibits to its brief which appear to
exhibits introduced at the hearing but renumbered. It points out that an exhibit referred to as
not introduced at the hearing and is irrelevant and must be disregarded.
The Union argues that the County's analysis of Section 7.06 is incorrect. It notes
County's brief correctly states that the grievance was held in abeyance pending determination
State as to the grievant's status on the CNA Registry. It refers to the Department of Health
Family Services' rules on how entries are made on the registry, particularly HFS
prevent the Bureau's decision from becoming final in case of an appeal until the Division of
and Appeals reaches a determination. It maintains that the parties in Section 7.06 agreed to
the determination of the State on discharges involving the registry, and the County does not
live up to its end of the bargain.
The Union observes that the County argues that the Union's interpretation of the
"State" is too broad and would include the U.S. Supreme Court; however, the Union has not
such an argument and it is not necessary to do so and it need not be addressed. It points out
case involves the decision as to whether the "State" determined whether the grievant was
abuse and the Division of Hearings and Appeals found the grievant was not, and no Circuit
Court of Appeals, or Supreme Court made any decision; rather, the decision was by a State
so clearly it was the "State" that determined she was not guilty of abuse.
The Union disputes the County's assertion that there is a past practice that the parties
the determination of the Bureau of Quality Assurance. It states that the evidence established
was the first case appealed to the Division of Hearings and Appeals, thus there is no past
The Union also argues that past practice is not applicable because the language of Section
clear, i.e., if the Registry prohibits an employe from working in a nursing home, the Union
process a grievance to arbitration and if the Registry does not prohibit the employe from
the facility, the County will reinstate the employe with back pay. It rejects the County's
the Division of Hearings and Appeals only gives the grievant the right to reapply for her
Section 7.06 does not require her to reapply; rather, it requires the County to reinstate the
It concludes that the County's refusal to reinstate the grievant is in violation of
and it requests that the grievant be reinstated with back pay.
Where the language of the parties' collective bargaining agreement is clear and
it must be given effect. An arbitrator cannot ignore clear cut contract language and must
terms even though the results are harsh or contrary to the original expectations of one of the
The language of Section 7.06 of the parties' agreement is clear and unambiguous. Section
provides that if a grievance is filed concerning an employe discharge which is subjected to
review under state or federal law, arbitration of the grievance shall be held in abeyance
decision by the State. Section 7.06 states that the parties will be bound by the State's
whether the employe committed abuse. It further provides that if the State finds that no
occurred, a discharged employe shall be reinstated with back pay. The County argues that
"State" means the Bureau of Quality Assurance. If the parties had intended this, they could
clearly expressed this by specifying the Bureau rather than the State. The reference to the
be used in its normal sense being the State of Wisconsin which includes the various
agencies into which the State is organized. Thus, the term "State" clearly means more than
Bureau of Quality Assurance. The reference to registry review means more than just the
determination of the Bureau of Quality Assurance but includes the appeals process set forth
Administrative Code related to the registry. See Chapter HFS-13 (Ex-16A).
The evidence established that the parties were concerned about receiving conflicting
from an arbitrator who might find no abuse and the State who would place the CNA on the
The arbitrator likely would require reinstatement, yet a CNA on the Registry cannot work in
home facility. To avoid this conflict, the parties agreed to be bound by the decision of the
evidence failed to establish that the length of the proceedings for having an abuse
appeal was a factor in crafting the language of Section 7.06. If that was intended, the
have easily stated so in Section 7.06.
In the instant case, the State did not place the grievant on the CNA registry for
State found that no abuse occurred and the County is obligated under Section 7.06 to
grievant with back pay.
Based on the above and foregoing, the record as a whole and the arguments of
undersigned issues the following
The County violated Section 7.06 of the parties' collective bargaining agreement by
to reinstate the grievant with back pay, and therefore, the County shall immediately reinstate
grievant to her former position and make her whole for all backpay and benefits less any
earnings or unemployment compensation received, if any. If the grievant received
Compensation which is offset from back wages, the County shall reimburse the Department
Workforce Development the amount offset. The undersigned will retain jurisdiction for a
thirty (30) days from the date hereof solely for the purpose of resolving any dispute with
the remedy herein.
Dated at Madison, Wisconsin this 17th day of July, 2000.
Lionel L. Crowley, Arbitrator