BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SERVICE EMPLOYEES INTERNATIONAL UNION
LOCAL 150, AFL-CIO, CLC
EXTENDICARE HEALTH FACILITIES, INC.,
d/b/a MONROE MANOR NURSING AND
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., Attorneys at
Law, 1555 North
Rivercenter Drive, Suite 202, P. O. Box 12993, Milwaukee, Wisconsin 53212, by
R. Robbins, for the labor organization.
C. William Isaacson, Senior Labor Counsel, Extendicare
Homes, Inc., d/b/a Monroe Manor Nursing
and Rehabilitation Center, 111 West Michigan Street, Milwaukee, Wisconsin 53203, for the
The Service Employees International Union Local 150,
AFL-CIO, CLC and Extendicare
Health Facilities, Inc., d/b/a Monroe Manor Nursing and Rehabilitation Center are parties to
collective bargaining agreement which provides for final and binding arbitration of disputes
thereunder. The union made a request, in which the employer concurred, for the Wisconsin
Employment Relations Commission to appoint a member of its staff to hear and decide a
relating to discipline and discharge. The Commission designated Stuart D. Levitan to serve
independent arbitrator. Hearing in the matter was held in Monroe Wisconsin on October 20,
it was not transcribed. The employer and union filed written arguments on November 9 and
November 24, respectively, and mutually waived reply briefs.
The parties stipulated to the issue as, "was there just cause to discharge the grievant,
Salathe, on March 31, 2000? If not, what is the remedy?"
ARTICLE 10 SUSPENSION, DISCHARGE,
Section 10.1 The Employer may discipline an employee
for just cause, but in respect to
discharge shall give a warning of the complaint against such employee in writing, and a copy
same to the Union, except that no warning notice needs to be given to an employee if the
the discharge is for such reason as:
b. drinking or possession of
illegal drugs or being under the influence if illegal drugs or
alcohol while on company property
c. recklessness that could result
in an accident to a patient.
d. abuse of a patient, verbal or
e. sleeping on the job
f. leaving patients unattended
g. disclosing privileged
h. the second time an employee
does not report unavailability for work at least one (1) hour
before starting time. However, no such action shall be taken if the employee can show to
the reasonable satisfaction of the Employer that s/he was physically prevented from
coming to the nursing home due to illness or other emergency.
The Union will be notified in writing within three (3) working
days after an employee is
Section 10.2 Should the Union wish
to contest a discharge, suspension, or termination, written
notiece thereof shall be given to the Employer within fifteen (15) calendar days, in which
issue thereafter shall be submitted to, and determined, under the grievance procedure
Article III, Section 3.1, commencing Step 2 of this Agreement. Failure to give this notice
Union and the employee from further action.
. . .
This grievance concerns the termination on March 31, 2000 of Patricia Salathe from
position as a certified nursing assistant (CNA) at Monroe Manor, a nursing and rehabilitation
in Monroe, Wisconsin. Salathe had worked for the facility since October 1994, and was
for purportedly being physically unable to perform the essential duties of her position,
On November 3, 1998, while moving a resident from the bathroom to a shower
heard something "pop" in her left shoulder. On November 6, she was diagnosed as having
a "shoulder strain," and assigned to sedentary duty as part of a transitional duty program.
On November 11, the diagnosis was given as "frozen shoulder," and Salathe was
return to work immediately, performing light and medium duty, with the further restrictions
reaching above her left shoulder, and no lifting of weights greater than 20 pounds with her
On November 18, Salathe was directed to undergo physical therapy one to three
for six to eight weeks. She was cleared to continue transitional, light duty.
On December 15, the light duty restriction remained, with the reminder of the further
restriction against raising the left arm above the shoulder. On the Physician Report of the
Capacity, a question mark appears alongside the Medium Duty task of "getting resident out
into wheelchair or gerichair using lift and assistance."
The Physician Report on February 15, 1999 assigns the ailment the more formal
Abrasive Capsulitis (frozen shoulder), continues Salathe on transitional sedentary and light
reaffirms the restriction on raising her left arm above the shoulder or lifting more than 20
The report of May 19, 1999 was essentially the same. A report on May 26, 1999 reaffirmed
reaching above shoulders/L" and "not to lift over 20 pounds." These restrictions were
a report dated July 27, when Salathe was continued on transitional sedentary and light duty
On September 30, 1999, the "no reaching above shoulders/L" and "not to lift over 20
limitations were determined by her health care provider to be permanent. Salathe was
continue at work performing all sedentary, light and medium duty assignments except for
resident out of bed into wheelchair or gerichair using lift and assistance."
The parties stipulated that, "to the best of the employer's knowledge, from December
to March 31, 2000, the grievant performed the duties of a CNA like any other CNA." The
stipulated that Salathe's limitations on raising her left arm above her shoulder or lifting more
pounds with her left arm are permanent.
On March 31, 2000, the employer's insurance carrier, Argonaut Insurance Company,
to Salathe as follows:
Pleased be advised that Nolan Segal, M.D. has determined that as
of June 25, 1999 you have
reached maximum medical improvement. You are entitled to permanent partial disability
10% disability for your left shoulder.
Your weekly permanent partial disability
rate is $179.00 weekly, which at 10% totals fifty (50)
weeks, totaling $8,950.00. This will be paid out bi-weekly from June 25, 1999 through and
June 8, 2000.
Enclosed you will find a check in the
amount of $7,160.00 for the period June 25, 1999 through
March 31, 2000 totaling 40 weeks of permanent partial disability. Leaving 10 remaining
be paid out on a bi-weekly ($358.00) basis.
Please call should you have any questions.
Upon receipt of this report, the employer terminated Salathe. As explained by the
on the Employee Separation Report, the reason for the discharge was "no position avail(able)
perm(anent) l(ight)t duty."
Salathe grieved the discharge on April 4, 2000, asserting that the termination did not
just cause standard reflected in the collective bargaining agreement. On April 6, by Laurice
Hillman, the employer replied as follows:
Ms. Patricia Salathe's employment with Monroe Manor was
terminated because she was unable
to do the essential job functions listed in the job description. We do not have permanent
duty. The termination was just.
Since at least 1995, the position of CNA as reported to the Unit Nurse
part of the Nursing Service department, with the following Job Description in place at all
TITLE: Certified Nursing
REPORTS TO: Unit Nurse
I. SUMMARY OF
Performs resident care activities and related
nursing services necessary in caring for the personal
needs, safety and comfort of residents as assigned. Assists in providing a physical, social
psychological environment which will allow the resident to achieve the highest level of
Performs duties in accordance with established nursing objectives, standards, facility policies
procedures, and residents rights.
II. MAJOR RESPONSIBILITIES:
CNA's, in providing daily care to residents, are constantly on
their feet and regularly engage in
lifting (some residents may weigh up to 300 pounds), bending stooping, twisting, pushing
Tasks marked with an asterisk (*) are those that regularly require these physical activities,
because resident may need care and assistance at any time, CNA's may be unexpectedly be
to do these physical activities at any time.
A. Essential Functions
1. Personal Care
*a. Bathe residents in bed, shower or
tub. Must be able to operate whirlpools or
other types of specialty tubs. Clean tubs after each use.
residents' hair in bed, shower or tub. Groom residents' hair as
resident desires and assist with makeup as needed.
residents as needed.
*d. Brush teeth or
dentures of residents at least daily.
*e. Clean and cut
fingernails and toenails as necessary.
residents in clean and appropriate clothing.
2. Admission, Discharge, Transfer
a. Assist in the implementation of
admission, discharge and transfer of
residents according to facility procedure.
3. Resident Rights
a. Know the residents' rights. Help
the residents exercise and/or protect their
residents' complaints to the nurse manager.
confidentiality of resident information.
4. Resident Independence
*a. Assist and encourage residents to
achieve their highest level of independence
in activities of daily living.
resident mobility through proper transfer techniques to/from bed,
*c. Assist with
daily range of motion and promote exercises. Assist with
ambulation as needed.
*d. Assist with
daily ADL retraining and rehabilitation programs as indicated.
*e. Maintain good
body alignment and proper positioning of residents.
*f. Assist and
encourage bed residents to change position at least every two
5. Nutritional Need
*a. Assist and/or prepare residents for
meals. Assist to dining room as necessary.
*b. Distribute and
*c. Feed, assist,
and encourage residents to achieve their highest level of
residents in use of self-help devices.
residents for difficulties in chewing or swallowing while eating.
f. Report and
document nutritional and fluid intake.
h. Keep fresh
drinking water at bedside and encourage fluid intake as instructed.
6. Elimination (Monitor elimination status of residents.)
*a. Offer and remove bedpans and
residents in use of commode.
c. Assist with
bowel and bladder training program.
change and clean incontinent residents.
*e. Give enemas
f. Document and
report bowel and bladder patterns.
*g. Collect urine
and stool specimens as requested.
*h. Give catheter
care; measure and record intake and output.
7. Vital Signs
*a. Take, record and prepare vital signs and weights.
8. Infection Control
a. Practice proper hand washing
universal precautions procedures: use required personal protective
9. Safety - Assure a safe, clean, and
comfortable environment for the resident, staff, and
a. Place call
lights within reach of residents and answer call lights promptly.
*b. Follow procedures for the restraint
*c. Know and
implement facility safety rules.
proper use of equipment. Report equipment needs or repairs.
equipment and utility areas as assigned.
adherence to smoking policies.
g. Report any
incidents or accidents of residents, staff, or visitors to the
*h. Keep the
resident living area neat and orderly; personal care items stored
properly; clothing hung in closets or placed in soiled bins as appropriate.
residents' bed, including changing linens as necessary.
Plan (Perform duties, which may include transporting residents,
as assigned in Facility Disaster Plan)
11. Observations and
a. Attend shift
report at beginning and end of each tour of duty.
b. Perform and
document resident care activities according to written and
verbal instruction from the charge nurse.
care needs with resident activities.
changes in behavior or condition to supervisor.
12. Care Plans
Assist in development and
implementation of resident care plans.
Maintain a friendly, helpful attitude
toward residents, their families, staff, volunteers
14. Orientation and Inservice
Participate in required orientation
and inservice programs and attend staff meetings
*Provide assistance to other staff as
16. Participate in
Continuous Quality Improvement teams as requested.
B. Marginal Duties
1. Report residents' needs for personal
belongings to appropriate persons.
2. Assist and encourage
residents to participate in activity programs and special
therapies as directed by the nurse manager and prescribed by the physician.
*3. Care for and apply
prosthetic devices as instructed.
4. Complete ancillary
charge tickets for nursing supplies used.
5. Perform other duties
as assigned and consistent with level of preparation and
Assist in the implementation of
admission, discharge and transfer of residents
according to facility procedure.
7. Ability to relate
positively, effectively and appropriately with residents, families,
community members, volunteers and other facility personnel. Possess special interest
in, and a positive attitude about, working with long-term care residents and the
1. Meet all health requirements
imposed by law.
1. Completion of a nursing
certification program or proof of valid certification.
1. Long-term care experience desired.
KNOWLEDGE, SKILLS, &
1. Ability to read, write, speak and
The designation of "essential" and
"marginal" functions is for purposes of compliance with the
Americans with Disabilities Act. Employees holding this position will be required to
perform all job
duties, consistent with this law.
POSITIONS OF THE PARTIES
In support of its position that the discharge was with just cause, the employer asserts
avers as follows:
The grievant was terminated because of a permanent restriction
not to lift over 20 pounds or raise
her arm above her shoulder, limitations which precluded her getting a resident out of bed
wheelchair or gerichair using life and assistance. She was terminated because of her
physician-mandated permanent restrictions, in that she could not perform the essentials of the
Management has the right to terminate
employees whose physical condition renders them unable
or unfit to perform their jobs, or employees whose condition renders them unduly hazardous
themselves or others. Both instances would apply here particularly with the 20
Assistance could not properly and safely be rendered to a falling or fallen resident an
to the job of nursing assistant. This meets the requirement of just cause.
The union is not claiming the medical
restrictions are not correct. They are a given in the
situation. An individual with these restrictions cannot be allowed to work as a nursing
because the individual cannot be relied upon to protect the patients or themselves from harm.
The employer seriously erred in allowing
the grievant to work for the months that she did
following her injury. It is crucial to understand that because no harm resulted, this fact
a rationale to continue such a risk. The fact that during the timeframe she worked either by
disregarding the restrictions
or not testing them does not change the
restrictions and their potential harm to her or the
resident. To allow her to resume the normal duties of a nursing assistant would constitute a
present danger potentially leading to heightened responsibility if a mishap occurred other or
patient because of it.
There are several compelling reasons why
allowing an individual to return to a position whereby
the only medical evidence available clearly shows the person cannot fully handle the position,
their present restrictions cannot be allowed.
This would produce an element of massive
uncertainty if a clear medical restriction cannot be
considered as a necessary guideline; it would take away the protection that is afforded
patients in not
having them attended by caregivers fully able to furnish the necessary physical help in an
it would improperly modify the contract by requiring the company to create a modified
position where one does not currently exist; the presence of an employee working despite a
restriction, which later resulted in a bad outcome, would create a foundation for litigation
nursing home under the current onslaught of plaintiff's litigation against nursing homes.
While it is tragic that the grievant's
limitation prevents her from holding a job, it would be more
tragic if a caregiver's restrictions led to harm or failure to help a patient. A nursing home's
responsibility is to its residents, and the needs of the patient must take priority over those of
caregiver in this setting. If by some miracle the grievant would not have the limiting
could resume her employment. But now, the existing restriction prevents her from
essentials of the job, and to allow an exception would create a totally unacceptable risk to the
geriatric and weakened patients.
Accordingly, the grievance must be denied.
In support of its position that the grievance should be sustained, the union asserts and
The evidence illustrates a complete failure by the employer to
meet its burden of proving just
cause for discharge. The employer's assertion that the employee's work restrictions
from performing the duties of the job is contradicted by the fact that the grievant performed
duties from November
1998 until her discharge in March 2000. There is absolutely no
evidence that she did not safely
perform her job duties. In fact, the parties stipulated to the opposite.
It appears from the record that the sole
motive for the discharge was retaliation for an award of
worker's compensation benefits to the grievant. But there was no evidence presented that the
grievant was unable to perform the duties of her job over a prolonged period of time after
or that there was a safety hazard.
The medical reports are consistent as to the
nature of the restrictions, but there is no showing that
the restrictions prevented her from performing her duties as a certified nursing assistant.
prolonged period of time 20 months -- in which the grievant performed all of her job
incident, the grievance should be sustained. There is simply no evidence to support a just
finding for the discharge.
The hornbook analysis of this issue, which the employer has
submitted to assist my research,
accurately summarizes the conflict before me: "There are many cases upholding
to terminate employees whose physical condition renders them unable or unfit to perform
the text informs. "On the other hand, there are many cases in which the arbitrator required
management to return an employee to work where the evidence indicated that the employee
so affected or disabled as to be unable to perform the job satisfactorily or safely."
Works: Elkouri and Elkouri, 5th Edition, ABA Section of
Labor and Employment Law, pps. 792-793.
Of all the cases cited, Metropolitan Sports Facilities Commission, 90 LA 868
(Bognanno, 1988) seems particularly apt. In that case, a general maintenance worker who
sustained two serious work-related injuries was able to perform mostly stationary duties
five years following the injuries. In the fall of 1986, the employer was informed that the
reached the maximum medical recovery and that he would not be able to perform the full set
responsibilities associated with his position classification. Yet the employer took no action
discharged the grievant the following summer. In sustaining the grievance and overturning
termination, the arbitrator explained as follows:
The difficulty with the Employer's position
rests in the timing of the Grievant's medical
evaluations and the manner in which he was terminated. The Employer did not adequately
the delay between the last medical evidence dated
September 1986 and the date of the
discharge July 23, 1987. The undersigned is altogether
unclear why the Employer waited until the date of discharge in the face of the medical
it relies so heavily on in this case. The record strongly suggests, however, that the decision
without careful consideration of the actual limitation imposed on the Grievant and his
performance. 90 LA at 870.
The parallels between this case and the one before me are
obvious. The record before me
shows that the employer was aware on or about September 30, 1999 that Salathe's physical
limitations no lifting the left arm above the shoulder, no lifting more than 20 pounds
with that arm
- were permanent. As of that date, the employer was also alerted that Salathe would
face difficulty moving residents from bed to wheelchair.
Yet despite this clear medical advice, the employer took no action, waiting until the
31 correspondence from its insurance carrier. The employer seeks to address this issue by
it "seriously erred" in allowing Salathe to remain at work, and urges that "this fact cannot
rationale to continue such a risk."
But in making this argument, the employer has a further problem there is
nothing in the
record to indicate that the purported risk is as it says it is. Indeed, the record suggests just
opposite, by the parties' stipulation that Salathe worked from December 1998 to the day she
discharged "and performed the duties of CNA as any other CNA." As
a distinguished arbitrator
wrote in a similar case,
There exists in this instance an
actual history of many months during which the Grievant actually
demonstrated on the job that not only could he perform satisfactorily but that he was
If, as the saying goes, "the proof of the pudding is in the eating," this would seem to be it!
in original). Vulcan Mold & Iron Co., 42 LA 734 (Sembower, 1964)
There is no question that an employer may, under certain
circumstances, terminate an
employee who is physically unable to perform the necessary duties of her or his position.
But in order
to prevail in such an action, the employer must demonstrate that the employe, is indeed
unfit to perform. In the case before me, the employer neither conducted an independent
to assess the grievant's fitness for duty, nor presented evidence at hearing on that point. The
existence of the restrictions themselves, even unchallenged as they are, do not, by
establish the necessary link to an inability to perform the necessary tasks of the position.
I appreciate the concern the employer raises about our increasingly litigious society.
my function is not to weigh prospective tort liability matters, but to interpret and apply the
the existing collective bargaining agreement. That agreement provides that the employer
cause to discharge a post-probationary employe such as Salathe. The employer has failed to
its burden in this regard.
Accordingly, on the basis of the collective bargaining agreement, the record evidence
arguments of the parties, it is my
That the grievance is sustained. The employer shall rescind the discharge, remove
to the discharge from the grievant's personnel file, and make the grievant whole for lost
benefits, minus appropriate offsets. To resolve any disputes that may arise over the
of this remedy, I shall retain jurisdiction until the parties jointly release me.
Dated at Madison, Wisconsin this 19th day of December, 2000.