BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SHEBOYGAN COUNTY HEALTH CARE FACILITIES
LOCAL 2427, AFSCME, AFL-CIO
Ms. Helen M. Isferding, District Representative, Wisconsin
Council 40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Ms. Louella Conway, Personnel Director, Sheboygan County,
appearing on behalf of the County.
Sheboygan County Health Care Facilities Employees, Local 2427, AFSCME,
hereinafter referred to as the Union, and Sheboygan County, hereinafter referred to as the
are parties to a collective bargaining agreement which provides for the final and binding
of disputes arising thereunder. The Union made a request, with the concurrence of the
the Wisconsin Employment Relations Commission designate a member of its staff to act as
arbitrator to hear and decide a grievance over a discharge. The undersigned was so
Hearing was held on May 17, 2000, in Sheboygan, Wisconsin. The hearing was not
the parties filed post-hearing briefs and reply briefs, the last of which were exchanged on
July 5, 2000.
The Grievant was hired in May, 1996, by the County and worked in Dietary as a
service worker at the Rocky Knoll Health Care Facility. The Grievant became a
Certified Nursing Assistant in April or May, 1999, and thereafter worked as a
part-time CNA at
Rocky Knoll. On December 16, 1999, the Grievant was terminated for resident abuse.
reasons for her termination were that she allegedly slapped an elderly woman resident,
while transferring her into bed at about 8:00 p.m. on November 25, 1999, and for tilting a
resident, resident Y, in a wheelchair from an upright position to nearly lying on his back
in succession on December 6, 1999. (Ex.-3) These incidents were first reported on
1999. (Ex.-19) The Grievant denied slapping any resident and could not recall repeatedly
resident in a wheelchair. (Ex.-20, 21) The discharge was grieved and appealed to the
The parties were unable to agree on a statement of the issue. The County stated the
Did the County violate the collective bargaining agreement
it disciplined the Grievant
on December 16, 1999?
If so, what is the appropriate remedy?
The Union stated the issue as follows:
Did the County have just cause to discipline and discharge the
If not, what is the appropriate remedy?
The undersigned frames the issue as follows:
Did the County have proper cause to discharge the Grievant
December 16, 1999?
If not, what is the appropriate remedy?
Unless otherwise herein provided, the
management of the work and the direction of the working
forces, including the right to hire, promote, transfer, demote or
suspend, or otherwise discharge for proper cause, and the right to
relieve employees from duty
because of lack of work or other legitimate reason is vested exclusively in the Employer. If
action taken by the Employer is proven not to be justified, the employee shall receive all
benefits due to him/her for such period of time involved in the matter.
The County contends that its witnesses, Celine Schmidt and Lauri Ford, are credible
and the Grievant's credibility is questionable. It points out that the evidence failed to
animosity between either Schmidt and the Grievant or Ford and the Grievant and the Union's
to show personal animosity does not reflect what truly happened. It argues that the Grievant
inconsistent statements about work on Schmidt's district and the wheelchair incident does not
with Ford's testimony. It asserts that the testimony of Lee Ann Bastion is questionable in
two or three times that she worked at Rocky Knoll fails to prove she ever worked with
terms this is a ploy to create animosity where none exists and the testimony must be
The County points out its legal responsibility in operating a nursing facility as set
forth in the
Wisconsin Statutes and Wisconsin Administrative Code HSS-132, which requires it to
for its residents. It notes the law also provides for resident rights. It observes that HSS-132
abuse and the behavior of the Grievant in hitting a resident with an open hand constitutes
is an intolerable infraction which cannot be allowed to occur ever again.
The County observes that in an abuse situation, the facility is required to report the
abuse and an investigation is then conducted by the State of Wisconsin. It states that such a
was made in this case and the State investigated and concluded there was insufficient
prove the Grievant's conduct met the definition of abuse; however, the County has an
investigate and terminate any employe for any resident abuse. It notes that the Personnel
offered the Grievant reinstatement with a suspension and a last chance agreement.
The County asserts that it has published Personnel Policies which all employes
(Ex.-11) including the Grievant as she signed that she read and understood them (Ex.-12) and
received ongoing training with regard to resident rights. (Exs.13, 14, 15 and 16)
according to the County, did not follow her training but struck a resident with an open hand
behavior cannot be tolerated.
The County claims the appropriate discipline for the Grievant's conduct in striking a
is termination. It argues that the penalty imposed should not be disturbed by the Arbitrator
rights of the residents must be protected and the County has to be vigilant to insure incidents
as this do not occur. It insists that it acted properly in discharging the Grievant.
In conclusion, the County maintains that the credible evidence is clear that the
a resident which is so serious it cannot be tolerated. It claims the Grievant was aware that
mistreatment of residents was prohibited and the County had no alternative, and after
the situation, acted fairly in disciplining the Grievant. It requests that the grievance be
The Union contends that it will prove the unjust termination of the Grievant by
to the seven tests of just cause. With respect to the forewarning of the consequences of the
misconduct and whether the rule or order was reasonable, the Union argues that the answer
as the Grievant had never been disciplined before and the lack of a "resident abuse"
than the statutory definition, under which she was found not guilty. It concludes that a rule
resident abuse is reasonable but it needs to be made known to employes.
As to conducting a fair investigation, the Union states that the answer is a definite
submits that the County did not give sufficient information about the incidents to the Grievant
order for her to be able to adequately respond. It claims that the County had Schmidt and
their statements and did not share these with the Grievant nor did the County talk to all the
It states that the Chief Investigator was the Director of Nurses, Charlene Baumgartner, who
biased because she opined that it made no difference how long one can wait to turn people in
abuse, yet the County's policy requires immediate reporting and neither Schmidt nor Ford
punished for not immediately reporting the alleged abuse. It concludes that the County did
a good faith effort to investigate the matter before disciplining the Grievant.
With respect to proof that the Grievant was guilty as charged, the Union notes that
County has the burden of proving that the discharge was proper. It observes that the State
evidence of patient abuse, yet the County reached a different conclusion. It challenges the
of Schmidt because of her failure to report it promptly and certain negative incidents that
relationship with the Grievant. It insists the delay in reporting the alleged incident does not
and it insists that friction between Schmidt and the Grievant motivated the report. It submits
Grievant said something to Schmidt about carrying her own work and this was the motive for
Schmidt to report the Grievant. As to Ford's motivation, the Union again points to Schmidt
confided in Ford and they decided to go to Baumgartner together. It notes that Ford did not
complain about the wheelchair incident first but made a general complaint that the Grievant
friendly with the male residents. The Union suggests that this allegation was not believed by
County as there is no further mention of it.
The Union challenges Schmidt's credibility on the following grounds:
She couldn't remember when she reported the Grievant to
Instead of Thanksgiving, she wrote "the last time I worked with . . ."
She originally put forth an accusation she never supported such as
verbal abuse of the
resident. It also notes the absence of testimony that Schmidt raised any objection to the
alleged abuse when it supposedly occurred.
The differences in Schmidt's two written statements.
The differences in time in the two written statements.
The error in the second statement as she could not have been on the
resident's right side.
Schmidt never saw a slap but states she heard it.
Schmidt made unsupported allegations that the Grievant was rough with
Schmidt makes a mountain out of molehill on the "nail cutting" work
The Union also claims that Ford's statements and testimony do not support resident
Ford testified that tipping the wheelchair was at arm's length and there was no verbal
response to this
by her or the resident and she expressed no concern to the Grievant. It observes that
incident was stated to have occurred on December 8, 1999, later changed to December 6.
points out that Ford did not think what she saw was resident abuse. It also noted that Ford
that it could happen that wheelchairs get caught in the lift apparatus and must be tilted back
them. It concludes that there are too many inconsistencies in the statements, conflicting
and unsupported demonstrations to the accusations to support resident abuse. It insists the
failed in its burden of proof.
As to equal treatment, the Union notes that neither Schmidt nor Ford reported
abuse immediately, so why didn't they receive a discipline?
As to the penalty, the Union maintains that where the allegation is unfounded, the
will be reinstated with back pay. It submits the termination is unfounded. The Union's final
conclusion is that there are enough inconsistencies to make a case of resident abuse
asks that the grievance be sustained and the Grievant made whole.
The County contends that the Union's brief makes several points that are totally
One of these, according to the County, is that the Grievant was not made aware of
the discipline for resident abuse. The County refers to Ex.-12 which bears the
acknowledging that she read and understood the policies and a copy outlining "Resident
she was aware of the policies and level of discipline for resident abuse.
The County disputes the assertion that Schmidt and Ford redid their statements after
Grievant's discharge as the record establishes that they were done by December 13 and the
was not terminated until December 16, 1999. The County claims that the Union brought in
testimony of Bastian to confuse the issues and to attempt to create a belief of animosity
Schmidt and the Grievant. It submits that Bastian's testimony is not credible and nothing
a conclusion that there was any animosity between the Grievant and Schmidt.
The County denies that Ford's statement on inappropriate behavior by the Grievant
deemed false as Baumgartner counseled the Grievant on these issues and as it was difficult to
up this charge because the residents could not verify them, so no further discipline was
County maintains that Baumgartner was not the accuser as stated by the Union and she acted
capacity as Director of Nurses to investigate all reports of improper conduct.
It labels as absurd the Union's assertion that because the demonstration did not
"slap," it never happened because that would be an admission on the Grievant's part, yet in
Grievant's testimony, she admitted putting her hand to the resident's face and said, Whoa X,
calm down. It points to Schmidt's testimony that she saw and heard the slap. It claims that
did not make up this story and the Union is simply attempting to cover the true facts of the
The County insists that the State did not clear the Grievant and stated that their
not address any work rule violations or standards of behavior that may be determined by the
The County re-emphasized that it had proper cause to discipline the Grievant and it
standards of just cause. It submits that the wheelchair incident occurred as described by
the slapping incident also occurred. The County asserts that the Personnel Committee's
justified and proper and were not arbitrary or capricious. It contends that the facts support
County's actions and the grievance must be denied.
The Union had the following concerns about the County's brief:
It disputes whether Schmidt saw a slap as this is not stated in the written statements
testimony was that she was bending over lifting the resident's legs into bed when it allegedly
happened, so she couldn't see.
It does not recall any testimony by Schmidt of any concern about the Grievant.
The Union disputes the County's assertion that during Baumgartner's investigation the
Grievant was given a summary of the complaints, as it was only after the Union steward
pried did the
County give the Grievant any particulars and never gave her a summary of the statements
Grievant wrote her reports.
The Union notes that a second meeting was held with the Personnel Committee but
state the new evidence which the Union questions was even considered.
The Union disputes whether Schmidt decided to report the incident before she talked
rather the Union understood that Schmidt and Ford made the decision together to go to
Contrary to the County's assertion, the Union never questioned the working
between Ford and the Grievant.
The Union disputes the County's version of whether Bastian saw Schmidt or not.
The Union questions why the County cited a different statute than Sec. 149.151 for
definition of resident abuse as Sec. 149.151 appears in the Personnel Policies Manual which
received by the employes.
The Union questions the County's statement that the Personnel Committee addressed
violation using the same approach as the State because different conclusions were reached by
Committee and the State.
The Union reiterates that if Ford and Schmidt knew the policy and reported the
did they not do so immediately as the policy says?
The Union also disputes the County's version of who was responsible for the resident
noted that the word "smack" was never used in the testimony.
The Union points to the lack of any evidence that residents' nails were cut to
nor was this allegation mentioned in the discharge letter.
The Union admits that the Grievant was allegedly counseled for talking about call
a resident in front of residents but that was a different scenario that talking about "nail
peers at the desk.
The Union asks that this objection be considered as well as the arguments in the
brief and the grievance be sustained.
The issues in this case are whether the Grievant slapped resident X on November 25,
and whether on December 6, 1999, she tilted resident Y several times from an upright
position in a
wheelchair to nearly lying on his back. These are the only bases set forth in the termination
The basis for the slapping charge is the testimony and statements of Celine Schmidt.
Grievant denied ever slapping any resident. Did the Grievant slap the resident? The case is
credibility. If Schmidt is believed, then it is obvious that the Grievant assaulted an elderly
and this would constitute resident abuse for which termination would be appropriate. On the
hand, if the Grievant is believed, then nothing happened and discharge would be
inappropriate as no
abuse occurred. Despite arguments to the contrary, the evidence failed to establish any
between the Grievant and Schmidt. Based on the demeanor of the witnesses, both appeared
and truthful. Obviously, the Grievant has an interest in retaining her job and reputation and
any misconduct would protect her interest. There seems to be no reason for Schmidt to
make up the
slapping incident. What is troubling to the undersigned is the delay in reporting this. The
Personnel Policies at page 2 under Section B provides:
TREATMENT OF RESIDENTS
Per Wisconsin Statutes 149.151 unreported
witnessed mistreatment or misappropriation of
property can be deemed as liable for the same allegation. Any witnessed mistreatment of a
or misappropriation of property shall be discreetly reported to the Supervisor immediately or
be considered an accomplice to the act.
By not reporting the incident immediately, the resident could not
be examined for injuries or bruising
or marks, which would verify a slap. A delay from November 25, 1999, to
December 10, 1999, to
report the slapping of a resident certainly lessens the credibility of Schmidt. Additionally,
never said anything at the time the alleged slap occurred. She never said, "Don't do that."
did you do that?" or "What happened?" Simply nothing was said. There was no expression
no showing of upset, just no reaction whatsoever. Again, this passivity for a more seasoned
is hard to understand and calls into question her credibility. The delay in reporting and the
any response when the alleged incident occurred leads the undersigned to question the
In a discharge case, the County has the burden of proving its case. Here, the
Grievant is just
as credible in denying the incident as Schmidt is in making it. Any stake in the outcome by
Grievant is certainly offset by Schmidt's delay in reporting the incident and her inaction and
to it. As there were only two persons present with opposite stories, neither of which is more
than the other, it must be concluded that the County has failed to carry its burden of proving
Grievant slapped resident X.
With respect to the wheelchair incident, the evidence established that the wheelchair
be tilted to properly move the patient from the lift to the wheelchair. Additionally, Ford
the front wheels of the wheelchair can get hung up on the lift and only by tilting it back can
the lift. Ford felt that this might be unsafe and made her nervous. The movement of the
in this case has not been established to be abuse of a resident.
The conclusion reached by the undersigned is that the preponderance of the evidence
case fails to prove that any resident abuse occurred, and therefore, the discharge was not
Based on the above and foregoing, the record as a whole and the arguments of
undersigned makes the following
The County did not have proper cause to discharge the Grievant on December 16,
County shall immediately reinstate the Grievant to her prior position and make her whole for
pay and benefits less any interim earnings or unemployment compensation received, if any.
Grievant received Unemployment Compensation, which is offset from back wages, the
reimburse the Department of Workforce Development the amount offset. The letter of
shall be expunged from the Grievant's file. 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 31st day of July, 2000.
Lionel L. Crowley, Arbitrator