The Union and the County are parties to a collective bargaining agreement which was
at all times relevant to this proceeding and which provides for the final and binding
certain disputes. The parties jointly requested that the Wisconsin Employment Relations
appoint an Arbitrator to resolve a grievance filed on behalf of Irene Seefeldt. The
appointed Richard B. McLaughlin, a member of its staff. Hearing on the matter was held on
December 18, 2001, in Green Bay, Wisconsin. A transcript of the hearing was filed with
on January 24, 2002. The parties filed briefs by February 26, 2002.
Unless otherwise herein provided, the management of the work
and the direction of the working
forces, including the right to . . . discharge for proper cause . . . is vested exclusively in the
If any action taken by the Employer is proven not to be justified, the employee shall receive
and benefits due him/her for such period of time involved in the matter.
. . .
ARTICLE 26. GRIEVANCE PROCEDURE DISCIPLINARY
. . .
DISMISSAL: No employee shall be discharged except for just
cause . . . If the cause for
discharge is dishonesty, intoxication on the job or drinking or use of illicit drugs on duty,
an employee is convicted in the illicit sale of drugs or pushing drugs, the individual may be
immediately from employment with no warning notice necessary.
DISCIPLINARY PROCEDURE: The
progression of disciplinary action normally is, 1) oral, 2)
written, 3) suspension, 4) dismissal. However, this should not be interpreted that this
necessary in all cases, as the type of discipline will depend on the severity of the offense.
warnings shall be maintained in effect for six (6) months, written warnings for (12) months
disciplinary suspensions for eighteen (18) months during which time a repetition of an
result in a more serious disciplinary action.
. . .
The grievance challenges the Grievant's discharge on June 19, 2001 (references to
to 2001, unless otherwise noted). Earlene Ronk, the Hospital and Nursing Home
the County Mental Health Center, issued the letter of termination, which states:
Incident of March 10, 2001 when a client
was found hanging in an attempted suicide on Unit 7
and patient complaints.
The following facts were brought
out as a result of the investigation:
A client was found hanging in an attempted
suicide on March 10, 2001. You responded to the
client's room but did not follow the procedure on Code Emergency (ER) or call Code ER or
directed by the RN. A staff person at the desk called 911. The staff person who called 911
know what to report to the 911 dispatcher because they did not witness the emergency. The
person then asked you to report to the dispatcher. You told 911 dispatcher that there was an
attempted suicide at BCMHC. After you hung up the phone you proceeded to the ambulance
entrance as assigned by another staff person since you were aware of the location and the
was called. When you got to the ambulance entrance you opened the door and stated to the
outside that "some bitch tried to hang herself", and then went back inside the building.
are in violation of:
Mental Health Center'spolicy and procedure "Code Emergency",
"Any staff member discovering a medical emergency should dial 4880 to activate the phone
(PA System) and announce in a loud, clear, and controlled voice: "Code ER on Unit ____"
times over the PA system.
Mental Health Center's policy on Abuse, Neglect or Mistreatment of Clients
"Neglect includes such actions as failing to follow standard procedures and treating in
with instructions of a physician, nurse or supervisor".
Mental Health Center's policy on Courtesy, "Conduct yourself in a
professional manner by exemplifying the standards and ethics attributed to your occupation or
Work Rules/Code of Conduct "discourteous treatment of patients or the
use of profanity or threatening language".
Discipline "unsatisfactory conduct", "insubordination or failure to
comply with a proper order from your supervisor".
of Ordinances 4.94 Grounds for Discipline (11) Failure to adequately
perform assigned job duties. (12) "Failure to follow duly established work rules, policies and
procedures" and (13) Professional unethical conduct or behavior."
You admit and it is substantiated that you
have been trained in the Brown County Mental Health
Center's procedure on Code Emergency. . . . You said that you did not initiate the Code
because no one told you directly. It is substantiated by a staff RN that you were directly told
On May 11, 2001 you stated that you didn't
witness the medical emergency, but that you knew
there was a medical emergency but didn't know what kind of medical emergency. You
admitted on April 26, 2001 that you responded to the call for help and saw the client on the
then heard someone say "call911". You admitted that you were on
the phone with the 911 dispatch
after they had been called by another staff member and that you told 911 dispatch
thatthere was an
attempted suicide at MHC. Your response of May 11th was dishonest.
You admit that you went to the ambulance
entrance and saw staff but deny saying "some bitch
tied to hang herself". It has been substantiated that four staff witnessed you saying, "some
to bang herself" at the ambulance entrance. Your denial of the statement was dishonest
A number of client complaints were
received regarding rude behavior. These complaints are
dated September 21, 1999, two on April 22, 2000, January 30, 2001, February 6, 2001,
February 5, 2001, February 7, 2001, and February 13, 2001. Mr. Jones met with you on
20, 2001, in attempts to correct this behavior. Additional client complaints were received on
March 12, 2001, April 14, 2001, April 16, 2001, and April 17.2001.
The following facts were brought out as a result of this
In February 2001 MHC received several
client complaints regarding your rude behavior and
inappropriate remarks. Bill Jones, Deputy Director talked to you and recommended that a
member work with you in a supportive coaching role to observe and point out situations
behavior could be perceived as rude. You were agreeable to this suggestion and said you
Cheryl Metoxen, RN.
In March and April 2001 MHC received
several more client complaints regarding your rude
behavior and inappropriate remarks. All client complaints were consistent in so far as you're
displaying rude behavior. In April Bill Jones investigated these complaints and found that
not take the opportunity to use Cheryl Metoxen in a supportive coaching role that was agreed
in February. When Mr. Jones asked you if you had been in contact with Ms. Metoxen you
dishonest. You stated you sought Ms. Metoxen's feedback "half a dozen times". Ms.
confirmed that you never solicited her feedback.
. . .
When Bill Jones . . . investigated
complaints you agreed with Mr. Jones . . . that you would use
Cheryl Metoxen in a supportive coaching role. When you met with Mr. Jones on April 25,
regarding additional patient complaints you stated that you sought Ms. Metoxen's feedback
dozen times". Ms. Metoxen confirmed that you had never solicited her advice. Your
Mr. Jones regarding soliciting feedback from Ms. Metoxen was dishonest. you admit that
rude to Ms. Metoxen during your statement on May 11th because she is on
the phone a lot and
sometimes you need an immediate answer.
You were hired
01/25/00 Oral Warning Did not attend Education Day
2/22/00 Written Summary to submit overtime cards
04/14/00 Written Summary Used U1 as a thoroughfare
05/02/00 Written Warning Failed to show proof of CPR Recertification
06/08/00 Oral Warning Tardy
Written Summary rude and disrespectful to clients
06/22/00 Written Summary refused mandatory overtime
07/20/00 Written Warning Rude and disrespectful toward client on 4/28
authoritative and loud with client.
This investigation leads to the conclusion
that continued violations and disregard for the clients'
rights and the clients' mental and emotional needs. You used poor judgment and decision
by failing to respond appropriately to an emergency situation. You were dishonest and do
responsibility or take accountability for your actions. You were rude and disrespectful to
Because of these continued violations, the
County must terminate your employment effective
today, June 19, 2001.
The parties dispute significant portions of the substance of this
letter. Thus, the background will start
with that part of the factual background that is not in dispute.
The Grievant worked as a Nursing Assistant for the County from April 8, 1998 until
She worked as a part-time employee throughout her tenure, starting work on the Center's
unit, then posting into a position on Unit 7. The posted position afforded her sixteen hours
but she picked up hours beyond those posted, sometimes working forty hours per week.
There is no dispute that the "Employment History" section of the June 19 letter is
The Grievant did not grieve any of the cited disciplines. The "Written Summary" entries are
of progressive discipline. Rather, a written summary is an informal counseling notice to an
of a work rule infraction. An employee can respond to a written summary, but the summary
response are considered informal responses to workplace issues rather than part of
The "client complaints" listed in the "Circumstances" section of the June 19 letter are
substantially in dispute, and are addressed in greater detail below.
The events of Saturday, March 10 are disputed. The Grievant was working on the
at Unit 7 that evening. Teresa Traas and Ida Tiske were the Registered Nurses for Unit 7
shift. Jancie LaBelle is a Licensed Practical Nurse who worked on Unit 7 for that shift. A
patient within the Grievant's caseload attempted suicide by hanging herself in
her room. Steve Shefchik found the patient while doing a "fifteen minute" check of
the room. The
County does not claim that the Grievant was negligent in monitoring the patient. Shefchik
patient up and called for help. Eric Gilles, Tiske and Traas, among others, responded.
Gilles and Traas pulled the patient down. Word was relayed to the nurses' desk to phone
LaBelle was at the desk, awaiting instructions, when word came to her that an emergency
was necessary, and that she should call 911. LaBelle did so, but had no knowledge of the
circumstances prompting the call, and handed the phone to the Grievant to advise the 911
of the circumstances. The Grievant spoke with the dispatcher, then, sometime later, went to
entrance through which the emergency personnel would enter. Emergency personnel
the call, and transported the patient from the Center to a hospital. The intervention proved,
unsuccessful and the patient died.
Shirley Gruender is County's Nursing Services Administrator for the Acute Hospital.
the supervisor of Unit 7. The Center is regulated by federal and by state law, and
include the investigation of patient injury or death as well as incidents implicating the impact
employee conduct on patients' rights. She is responsible for the initial phase of investigating
patient's death as a personnel matter and as a regulatory matter.
Gruender did not learn of the events of March 10 until March 12. Traas and others
Gruender to voice concerns with the events of that evening. From March 12 through late
interviewed individual employees, including the Grievant, who were direct participants in the
of March 10. Some of the interviews were informal, and others were reduced to writing.
Gruender turned her investigation records to Sue Gladh, a Human Resources Analyst,
April or early May. On May 11, Gladh, Gruender, the Grievant, and Mike Ratachic, a
Steward, met concerning the status of the investigation. Gladh read a statement to the
covered the results of the County's investigation concerning the Grievant's role in the events
March 10, as well as the County's investigation concerning the Grievant's conduct toward
prior to and following March 10. The statement included a recitation of a series of
Center work rules and County policies. Gladh read the statement, then asked the Grievant
she had "any other information that you . . . would like to be considered" before the County
determined "any appropriate action" to take regarding its investigation. The Grievant
some detail, as noted below. The County suspended the Grievant with pay on May 11,
further investigation. Ultimately Gruender and Gladh turned the results of their investigation
over to their supervisors. Ronk and James Kalny, the County's Human Resources Director,
the decision to terminate the Grievant.
Gruender also is responsible for investigating patient complaints at the Center.
complaints have a County personnel and a state regulatory dimension. Roughly speaking, the
personnel interest is triggered by any informal complaint, and concerns the County's interest
quality of patient care services. The state regulatory interest flows from state mandates
patient rights. That complaint process demands the filing of a formal complaint. William
Jones is the
County's Deputy Director of Human Services. He is responsible for responding to patient
as a regulatory matter. He shares responsibilty with Gruender regarding patient complaints
informal, County personnel matter. On the filing of a formal complaint, Jones transmits it to
employee's immediate supervisor for investigation and consultation with the patient and
Some complaints are informally resolved at this point. If no resolution is possible, Jones
a formal investigation. As a matter of County administrative hierarchy, Jones reports to the
Director of Human Services, Mark Quall. Gruender reports to Ronk.
The "Circumstances" portion of the June 19 letter states fourteen complaints. Of
fourteen, the following were formal complaints: September 21, 1999; February 6; each of
on February 5; March 12; April 14; and April 16. After a formal investigation, Jones found
rights violation on only the September 21, 1999 complaint. The February 6 complaint did
Jones' view, reflect sufficient evidence for the finding of a client's rights violation, but
the Grievant be counseled concerning the matter. In response to the three complaints of
5, Jones discussed patients' perceptions of the Grievant with the Grievant and with Cheryl
an RN. The Grievant agreed to use Metoxen as a mentor on patient care issues. This
was informal. Jones did not require any specific contacts between Metoxen and the
did not require that any contacts be documented. The April 14 and 16 complaints did not
a finding of a client right's violation, but prompted Jones to write a memo to Ronk dated
The balance of the background to the grievance is best set forth as an overview of
Ronk's role in the decision to discharge was based on the investigation efforts of
Gruender and Jones. She never spoke to the Grievant concerning the discharge investigation
decision. The discharge decision, in her view, rested on a number of bases. Her concern
Grievant's dishonesty is rooted on three fundamental factors: (1) the Grievant's statement to
that she had used Metoxen as a mentor on a number of occasions; (2) her denial of referring
suicide victim as a bitch; and (3) her denial of being directed to call 911 on March 10.
Ronk viewed the Grievant's work history to manifest a continued pattern of rude and
conduct toward patients. The decision to discharge reflected to her the failure of progressive
discipline and the egregiousness of the Grievant's conduct on March 10.
Traas testified that on March 10, she was on the phone in a back office, when she
someone shouting for help. She came out of the office, and saw the Grievant leaving the
which the patient had attempted suicide. The Grievant and Traas approached each other, and
Grievant asked Traas to call 911, then said "No. you'd better go in" (Tr. at 45). Traas then
the Grievant to call 911 and a Code ER. Traas then proceeded into the patient's room.
entered, Shefchik and Tiske were there. Traas attended to the patient until emergency
her from the Center.
On March 23, Gruender formally interviewed Traas. Gruender's written summary of
interview reads thus:
I am requesting that you answer my questions completely and
honestly. I also request that you
do not discuss this interview until our investigation is completed.
1. Describe the procedures, which
staff should follow during a Code ER.
I expected staff to remove the clients from
the area and keep them occupied. Instead, (the
Grievant) kept popping in and out of the room.
2. Was CPR performed?
Describe this procedure.
I know that (the Grievant) saw the client
hanging before I did. All staff should know to call
a Code ER and 911 immediately. I had to tell (the Grievant) to do so.
. . .
4. Describe (the Grievant's) behavior.
She was running back and forth with her
arms and hands waving. She was not helpful.
5. What did she say?
She complained loudly at one point. "I
don't know what's taking so long, they don't have
her tubed yet." Rescue and police heard this, also.
6. What did she do?
Nothing useful as far as I know.
7. Where were you?
In the client's room until she left.
8. Did you say anything to her?
As she did not call the Code ER, I said,
"you must not have heard me when I asked you to
call the Code ER." I also asked what she told the 911 dispatcher, as Rescue did not know
she was "down."
9. What was her response?
I can't remember exactly, but she claimed
that the dispatcher asked her questions that she did
not feel needed to be answered.
. . .
Traas' answers to Questions 8 and 9 reflect a discussion she had with the Grievant on
March 11. She
signed Gruender's written summary of the interview on April 12. She testified that she
and the Grievant were "within arms' reach" (Tr. at 61) when she directed the Grievant to
and call a Code ER. She acknowledged that it was possible that the Grievant did not hear
Niemi was, on March 10, a Nursing Assistant assigned to Unit 8. Niemi, Anne
Darcy Zienert, and Christine Kelly were taking a smoke break outside of the Center, in the
through which ambulances enter.
As Niemi approached the door to the Center, (the Grievant) opened the door and said
bitch hung herself." Niemi confirmed the statement in a formal interview with Gruender on
She testified that the Grievant was within roughly ten feet of her when the Grievant made the
statement. The Grievant appeared to be "upset and shaky" to Niemi, but did not ask anyone
anything. Niemi acknowledged that staff use the term "bitch" in workplace conversations.
signed Gruender's summary of the April 23 interview on April 27.
Zienert is a Nursing Assistant, and was taking a smoke break with Niemi, Betts and
when she heard a supervisor being paged to Unit 7. In her interview with Gruender, she
thus to the question "How was (the Grievant) involved?
(The Grievant) came down from Unit 7. Opened the door and
said, "some or the bitch tried to
hang herself" then went inside to get the elevator. Ron McIntosh then came and said,
needed on Unit 7."
Zienert testified that she heard the Grievant use the term "bitch tried to hang herself"
but was unsure
what preceded the words. She estimated they were five feet apart when the Grievant made
statement. Gruender interviewed her on March 20, and Zienert signed Gruender's written
of the interview on March 28.
Jones has served in his present position since 1998, but has served the County in
positions involving the care of mentally ill patients since 1969. He suggested mentoring to
Grievant in February in response to the complaints noted above. The Grievant suggested
would be suitable, and Metoxen agreed. In April, while investigating another complaint,
interviewed the Grievant. He asked if she had used Metoxen as a mentor. The Grievant
that she had approached her on at least six occasions. Jones then contacted Metoxen, who
him that the Grievant had not contacted her as a mentor, but that Metoxen had counseled the
Grievant on one occasion that she had behaved toward Metoxen in an insubordinate fashion.
Jones' May 1 memo to Ronk states:
Although no violations were found, I do have concerns over (the
Grievant's) attitude and
perception of clients. . . .
There is a consistent reaction among clients
interviewed that (the Grievant) comes across as
angry, controlling and frustrated. . . .
I believe that . . . (the Grievant) does come
across in a negative way and reacts to clients when
they become hostile. In addition she appears to lack an understanding of mental health issues
need for a supportive approach in dealing with clients.
Her approach and attitude toward clients has
been an ongoing issue and I believe that clients'
right to be treated with dignity may be compromised.
Jones did not issue a copy of this memo to the Grievant, and was not aware what, if
any, action it
Gladh stated that she interviewed the Grievant in late April and again on May 11.
recorded the May 11 interview and had a typed summary prepared. That summary states the
Grievant made the following responses to Gladh's statement:
. . .
You state a client was found hanging. I didn't know she was
hanging, I didn't see her in her
room. I heard another staff member yell for help . . . Nobody ever, ever, and I never heard
say, call Code E.R. Never. And I was the person on the phone with 911. And I didn't
emergency. All I know is we had a medical emergency; of what kind I have no idea . . .
And I didn't hang up the phone and proceed to the ambulance
entrance. I hung up the phone and
went down to where another staff person was standing on a one to one and I sent this male
person to help only because he was a male staff person, bigger, stronger, and I could watch
person that was sleeping. They might need a male down there. So I didn't go the
entrance immediately, I went and stood in the hallway with the one to one. And I never,
some bitch is trying to hang herself . . . And I talked to Cheryl Metoxen all the time, why
I'm not using her as a sounding board, I have no idea. I did not lie to Bill Jones,
dishonesty, I talked
to Miss Metoxen a lot, ask her. Now if Miss Metoxen said I was rude, I have to agree with
because she is on the phone a lot and sometimes I need an instant answer . . .
Gladh did not participate directly in the decision to discharge the Grievant.
Gruender noted that the Grievant's July 20 written warning rests on informal
by patients on April 28 and on July 10. The warning states the "Circumstances" thus:
On April 28, 2000, (the Grievant) performed two room checks on
a Unit 1 client. The checks
were not requested or approved by the RN. An investigation . . . revealed that the checks
without consulting with the RN. The procedure for room checks was not followed as the
belongings were "thrown on the floor" with some items torn by (the Grievant). The client
that (the Grievant) was, "rude and disrespectful" toward her.
On July 10, 2000, (the Grievant) was observed to be authoritative
and loud with a client on Unit
1. Her manner toward this client caused the client to become more disturbed and defiant.
became angry with the client and was displeased when the client was reassigned to another
These were informal complaints, and Jones played no role in them. Gruender
estimated that she
receives perhaps five to six patient complaints per day. She testified that in her twenty-eight
of experience no nursing assistant had ever received as many complaints as the Grievant did
her tenure at the Center.
Gruender's investigation of the events of March 10 did not indicate that any patient
could have heard any remark made by the Grievant to employees in the smoking area. She
her investigation took a considerable amount of time, in part because of the difficulty of
the investigation with the working hours of the various participants.
On March 10, Betts served as RN on Unit 8. She noted that while on break, Ron
came from Unit 8 to summon her to the emergency. At roughly the same time, the Grievant
the door to the ambulance area and said "some bitch tried to hang herself" and then returned
building. Betts arrived at Unit 7 before any personnel responding to the 911 call. She has
employees use the term "bitch." Gruender interviewed Betts on March 20, and Betts signed
written summary on March 22.
LaBelle was at the Nurses' Desk on March 10, awaiting directives from an RN. She
someone shout from outside of the patient's room to call 911. LaBelle did so, then gave the
to the Grievant because "I was not sure what had happened . . . (the Grievant) was there and
that she give them the information." She testified that she could not answer the questions the
dispatcher was asking her, and thus gave the phone to the Grievant who "had come from that
the hall" (Tr. at 154). She could not recall what the Grievant said to the 911 dispatcher,
heard any directives issued by an RN.
Metoxen testified that Jones approached her sometime in February concerning patient
complaints about the Grievant. Metoxen was unfamiliar with the circumstances of the
so informed him. Jones subsequently asked her if she would be willing to serve as a mentor
Grievant and she agreed. Jones confirmed the understanding with Metoxen and the Grievant.
Sometime during this period, Metoxen counseled the Grievant that the Grievant had behaved
insubordinately toward her on two occasions. Several weeks after setting up the mentoring
arrangement, Jones again approached Metoxen, seeking to determine if the Grievant had used
a mentor. Metoxen stated that the Grievant had not done so. This answer, however,
Metoxen, no more than that no patient-care issues had arisen during that period. She
she and the Grievant spoke often during the period, but Metoxen did not regard those
counseling or mentoring.
Kelly worked as a Nursing Assistant on Unit 8 on March 10. Gruender interviewed
April 23. Kelly stated during the interview that the Grievant came out of the building into
ambulance area, but did not ask anyone to respond to the emergency. Kelly informed
the Grievant said something to the effect that "Someone hung herself or the bitch hung
Kelly could not recall the specific statement. The Grievant appeared "lost and not knowing
do." She signed Gruender's written summary on April 24.
Shefchik discovered the suicide attempt, held the patient and called for help. A
his call down the hallway. He looked up at one point and briefly saw the Grievant in the
of the patient's room.
Gilles testified that just before he entered the patient's room, the Grievant left it.
Shefchik were in the room when he entered. Traas arrived sometime later. On March 10,
worked on Unit 4, but responded to Unit 7 on the direction of the House Manager.
The Grievant denied the accuracy of any testimony that she observed the patient's
attempt at any time. She also denied ever referring to the patient as a bitch. She stated that
spoke regularly with Metoxen, asking general questions about patient care.
On March 10, she responded to the call for help by following some nurses toward the
patient's room, but never got far enough down the hallway to observe it. She did not hear
tell her to call a Code ER, but did hear someone say that someone should call 911. She
Traas directed her to do so, testifying that "She never said that" (Tr. at 204). At some point
speaking with the 911 dispatcher, someone told her to go down to the ambulance area "and
sure the elevator and the doors were unlocked and ready for the ambulance personnel when
there" (Tr. at 205). She could not recall who directed her to do so.
She acknowledged that she had received complaints from patients, and that Jones
to them. She did not, however, perceive that Jones regarded the complaints as serious or
worthy of serious consideration until he discussed her use of Metoxen as a mentor. She
Metoxen regularly after that. The contacts were, however, casual conversations about work
than patient complaints. She has heard employees use the
term "bitch" to refer to patients, and acknowledged the impropriety of the reference.
She did not use
the term on March 10. She summarized her response on that evening thus:
I responded to the emergency to the best of my capability. I gave
dispatch all the knowledge that
I had at the time. I got the doors and the elevator open and operating, because the elevator
wasn't operating that night. Had to make a special call to maintenance to get them there
needed the elevator for the gurney. I sat with one-to-one clients while someone else was
in the hanging client's room. I soothed patients' nerves. I tried to keep the halls clear of
any and all
debris left over from emergencies like there are caps and whatnot lying around. I tried to
away from everyone that was working on the emergency as best I could. I stayed calm
entire thing and did my job to the best of my ability (Tr. at 213).
She acknowledged that she knew Code ER procedures, but denied that she had any
could prompt her to call the code or 911.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The County's Brief
After a review of the evidence, the County argues that the record establishes just
the Grievant's discharge. The labor agreement provides that "(m)isconduct of a serious
constitutes just cause for discharge." The Grievant's remarks, including referring to a dying
as a "bitch," are "so inappropriate and so disrespectful to the patient that they constituted just
Beyond this, the Grievant's failure to promptly respond to Traas' direction to call a
violates established policy to a degree constituting "gross incompetence," which standing
warrants discharge. The Grievant's failure to respond honestly to County personnel about
of March 10 further establish cause for discharge. The Grievant denied referring to the
patient as a
"bitch," denied witnessing the emergency, and denied being directed to call a Code ER. The
of false statements itself establishes cause to discharge.
Further considerations support this conclusion. The Grievant misrepresented her
with Metoxen in an attempt "to mislead Jones into believing that she was, in fact, attempting
improve her behavior with clients." Jones sought, in February of 2001, to have Metoxen
Grievant to address the Grievant's rudeness with patients. The Grievant failed to follow this
suggestion, and incurred four complaints in March and April. Prior discipline failed to have
corrective impact on the Grievant's behavior.
Nor does the record establish any mitigating factors concerning the Grievant. She
for roughly three years as a part-time employee, and her "short employment history is replete
disciplines." To tolerate the Grievant's use of profanity and disrespect of patients would
"patients' right to respectful treatment." The severity of the conduct of March 10,
the ineffectiveness of prior discipline and the Grievant's "dishonesty and lying" underscore
the absence of mitigating factors, but the presence of "aggravating factors supporting . . .
in this case."
Viewed as a whole, the Grievant's inability to take responsibility for her actions
the necessity of discharge. That the labor agreement recognizes "dishonesty" as grounds for
"immediate dismissal" underscores this. Arbitral authority further establishes the propriety
County's discipline. The County concludes that the "grievance should be denied and award
for the employer."
The Union's Brief
After a review of the evidence, the Union argues that the County has failed to
cause for the discharge. Ronk based the termination decision "upon dishonesty and 'a
pattern of rude and disrespectful behavior towards patients.'" The incident prompting the
occurred on March 10, and the evidence on the circumstances of that evening falls short of
establishing dishonesty. That the discharge letter fails to cite dishonesty as a work rule
warrants disregarding the allegation.
Even ignoring this, the evidence fails to establish that the Grievant was directed to
call a Code
ER. Traas was not sure whether the Grievant heard her directive. Other testimony fails to
demonstrate a clear directive for the Grievant to call a Code ER.
Beyond this, the County inexcusably delayed taking action on the events of March
Patient complaints following the events of March 10 demonstrate that the County was
enough offenses to effectuate the discharge." That Jones made a suggestion to the Grievant
use Metoxen as a mentor fails to establish a clear directive to actively pursue mentoring. In
event, the Grievant's alleged lying concerning mentoring contact falls short of conduct that
independently warrants discharge. Similarly, the reference to a patient as a "bitch," although
inappropriate, cannot be considered so egregious that it warrants summary termination. The
was made "outside of the institution where patients could not hear the remark."
Arbitral precedent establishes that "(t)imeliness of discipline is an element of 'just
To establish just cause, the County must demonstrate it acted "within a reasonable amount of
after it had convincing knowledge of an infraction." Even though what constitutes a
time" can be subject to doubt, the County's actions manifest an amount of delay that makes
termination double jeopardy.
Beyond this, "it is crystal clear that the Employer embellished the disciplinary record
Grievant in order to justify discharge." Ronk testified that she viewed the Grievant's
record as a significant factor in the termination decision. That record, however, includes
beyond contractual time limits as well as unsubstantiated claims. Thus, the personnel record
"Just cause" establishes "a concept of due process, fair investigation, timely
much more." The County's untimely action dooms a conclusion that the termination reflects
cause. No extraordinary circumstances justify the delay. That the Grievant may not be
cannot obscure that she is entitled to the benefit of just cause for the County's actions against
Since the "purpose of discipline is correction" and since progressive discipline "was never
attempted," it follows that the County has failed to justify its discharge decision. Complaints
and disrespectful behavior is a performance issue subject to progressive discipline" and the
disciplinary history includes only "one written warning prior to the decision to discharge." It
that the grievance should be sustained.
The stipulated issue questions whether just cause exists for the Grievant's discharge.
opinion, when the parties do not stipulate the standards defining just cause, two elements
First, the employer must establish conduct by the Grievant in which it has a disciplinary
Second, the employer must establish that the discipline imposed reasonably reflects its
does not state a definitive analysis to be imposed on contracting parties. It does state a
outline of the elements to be addressed, relying on the parties' arguments to flesh out that
The first element demands the definition of the conduct the County asserts a
interest in. The discharge letter is four pages, and thus the conduct needs to be isolated.
of March 10 constitute the core of the County's disciplinary interest. The June 19 letter also
patient complaints and dishonesty.
The citation of patient complaints reflects less the existence of conduct with
disciplinary significance than the presence of aggravating factors concerning the level of
This falls under the second element of the cause analysis.
The allegation of dishonesty in the June 19 letter should be read as another
rather than an independent basis for discipline. Dishonesty, under Article 26, can be the
immediate discharge. The County's conduct does not manifest a summary termination for
It is unclear from the termination letter when the County became convinced of the Grievant's
dishonesty. Presumably this came sometime after May 11, when the County suspended the
pending further investigation. The June 19 discharge was arguably
"immediate" under Article 26 since no warning notice preceded it. However, it was
immediate in relation to the events prompting it.
Under either party's arguments, this allegation is best addressed under the second
The Union argues that even if dishonesty is considered proven, the County's delay in
discipline undercuts it. This argument focuses less on the existence of dishonesty than on
it warrants discharge. County arguments highlight dishonesty, but it is difficult to address
contention as anything other than a part of what sanction to apply. The June 19 letter
dishonesty not as conduct warranting discharge, but as a subordinate part of other conduct.
asserted dishonesty concerning mentoring contact with Metoxen focuses less on whether the
Grievant's conduct warranted immediate action than on whether she could respond
complaints. The asserted dishonesty concerning March 10 is subordinate to events that
patient neglect or abuse. Whether she heard Traas direct her to call 911 or a Code ER
a charge of dishonesty, but does not address the County's disciplinary interest in the quality
In sum, ongoing patient care issues and the Grievant's response to the events of
form the core of the County's disciplinary interest under the first element of the cause
There is little dispute on the existence or substance of the series of patient complaints
the Grievant. Nor can there be a serious dispute that the County has a disciplinary interest
conduct underlying the complaints or in the Grievant's ability to address them. Their role in
discharge remains to be addressed under the second element.
Thus, the core of the dispute on the first element focuses on the events of March 10.
parties' arguments focus on whether the Grievant improperly failed to call a Code ER or
she said to the emergency dispatcher; whether she opened the door onto the ambulance
told four Center employees that some "bitch" tried to hang herself; and whether her overall
was in any way effective.
The first area of conduct pits Traas' testimony that she informed the Grievant to call
a Code ER against the Grievant's testimony that she either did not receive such a directive or
hear it. The conflict between Traas' and the Grievant's testimony is more fully addressed
Even on the Grievant's testimony, her response to the emergency was dubious. Under her
she followed some nurses down the hall, then walked back up the hall, where LaBelle
handed her the
phone to speak with the emergency dispatcher. The Grievant stated at one point that she did
Traas direct her to call 911, then at another point insisted Traas never gave such a direction.
insistence that Traas never gave the directive is inconsistent with the assertion the Grievant
heard it. In any event, she does not dispute that she received Code ER training, and does
she independently considered calling it. This begs the issue whether she saw the suicide
whether a Nursing Assistant should be
expected to show initiative in an emergency response beyond awaiting orders. In any
testimony on this issue affords little support for the quality of the Grievant's response, and
more troublesome issues concerning the reliability of her account of it.
What she said to the emergency dispatcher is troublesome and poses broader issues.
had not seen the suicide attempt, and handed the phone to the Grievant so that someone with
knowledge of the incident could speak to the dispatcher. LaBelle did not hear what the
to the Dispatcher. Traas testified that the emergency response team did not know the full
the injuries sustained by the patient, thus indicating the Grievant said little of any value. As
the Grievant's testimony affords little support for a conclusion that the County lacks a
disciplinary interest in her conduct. Presumably, LaBelle handed the Grievant the phone
the Grievant had information to impart to the dispatcher. Even assuming LaBelle was
this point cannot account for why the Grievant took the phone from her. Crediting the
account demands concluding she took the phone from LaBelle to inform the dispatcher that,
LaBelle, she had nothing she could say. Unlike LaBelle, the Grievant took no steps to locate
who could speak to the dispatcher. At a minimum, this negligence is conduct the County has
disciplinary interest in.
However, the weakness of the Grievant's account stands in marked contrast to other
testimony. Traas testified that she saw the Grievant leave the patient's room. This accounts
Traas' attempt to have the Grievant call a Code ER and 911. Her testimony thus explains
conduct, unlike the Grievant's. The Grievant's testimony cannot account for why she took
Significantly, Shefchik's and Gilles' testimony corroborates Traas. Shefchik testified
the Grievant in the doorway, while Gilles testified he saw the Grievant in the patient's room.
discrepancy is insignificant. That Shefchik would have less than a precise awareness of the
presence is understandable, considering that he discovered the attempt and stood, supporting
suicide victim, while he called for and awaited help. The discrepancy between his and
testimony is, in any event, of little significance given the emergency presented. The
attention of each
witness focused on something other than the Grievant.
In any event, their testimony stands in stark contrast to the Grievant's claim that she
never close enough to the room to see any indication of a suicide attempt. This is difficult to
with the fact that the patient was within the Grievant's caseload. At a minimum, her lack of
even curiosity, is significant. More to the point, her testimony is impossible to square with
Traas, Shefchik and Gilles. There is no evident relationship between these witnesses and no
to believe they could or would manufacture a common, yet untruthful, account. Minor
between their accounts enhance their veracity. The Grievant's testimony that she never saw
indication of the suicide attempt is singularly unpersuasive when contrasted to the testimony
The unpersuasiveness of the Grievant's account is highlighted by the testimony
her comments to the four employees at the ambulance entrance. The Grievant claims she
any comment to the effect that "some bitch tried to hang herself." This claim is unreliable in
the evidence. The Grievant's account affords little, if any, reason for her presence in the
area. At most, the Grievant's testimony establishes that someone directed her to the
source or goal of the direction is notably unclear in her testimony. That Niemi, Zienert,
Kelly fabricated the Grievant's appearance in the smoking area defies belief. Kelly, unlike
three witnesses, was unsure whether the Grievant used the term "bitch" to refer to the
discrepancy is of little significance, and lends credence to her credibility as a witness. More
point, the Grievant's testimony cannot account for why these four Center employees
perceived her. Nor can it account for their common perception of her anger and confusion
incident. The perceived confusion is a consistent theme among the witnesses who observed
Grievant that evening. In sum, the evidence demonstrates that the Grievant appeared in the
area, failed to summon assistance, and obscenely referred to the patient.
Little remains to be said of the final area of conduct highlighted by the County. Only
Grievant's testimony affords any reason to believe she behaved effectively during the events
10. That testimony is internally inconsistent, and stands in stark contrast to that of other
On balance, the evidence manifests a common thread. That common thread involves the
confusion throughout the evening of March 10. She failed to call a Code ER. She failed to
911, and when asked to speak to a dispatcher, failed to impart meaningful information or to
action to secure meaningful information. She appeared in the ambulance area for no evident
then referred to the suicide victim in a derogatory fashion. The County has established a
interest in the Grievant's conduct on March 10.
The second element questions whether discharge reasonably reflects the County's
disciplinary interest. The Union has made a number of forceful arguments concerning due
aspects of the discipline. More specifically, the Union contends that there was excessive
between the events of March 10 and the June 19 discharge. The Union also contends the
stockpiled patient complaints against the Grievant to support the discharge.
The force of the Union's arguments must be noted. The allegation of dishonesty is
to the extent it is argued as a basis of conduct that independently warrants discipline. The
failure to credibly account for her actions on March 10 constitutes proof that she acted as the
alleges. To isolate that dishonesty as a separate offense brings concepts of double jeopardy
Beyond this, circumstances surrounding the complaints following March 10 grant at least the
appearance that the County sought to stockpile offenses to create a case for discharge. The
complaints and discipline cited in the June 19 letter include oral and written warnings
effective dates specified in Article 26. Similarly, the June 19 letter includes references to
Summaries that are not disciplinary, and to complaints that
did not result in a finding of a violation of patient rights. Gruender's testimony
establishes that she
receives five to six patient complaints per day. These circumstances can be viewed to create
the appearance that the County stockpiled complaints to strengthen its case for discharge.
That appearance, however, lacks a sufficiently solid evidentiary basis to undercut the
discharge. The force of the Union's arguments must, however, be acknowledged. More
those arguments establish that it is unpersuasive to consider the alleged dishonesty an
basis warranting the discharge. Similarly, the patient complaints and disciplinary history are
insufficient to establish discharge is warranted as the final step of the progressive discipline
However, the evidence supports discharge as a contractually and factually appropriate
sanction for the Grievant's conduct. As a matter of contract, Article 26 does not mandate
progressive discipline "in all cases." Rather, it states that "the type of discipline will depend
severity of the offense."
The Union's due process concerns are more compelling as a matter of argument than
The delay in the investigation is troubling, but Gruender had to coordinate a wide variety of
part-time schedules. The time between her interview and the employee's execution of the
underscores the time consumed in doing this. Beyond this, the delay did more than hold the
in suspense. It created a period of time for the County to evaluate and for the Grievant to
demonstrate the potential effectiveness of progressive discipline.
The evidence fails to establish that the Union's due process concerns are sufficiently
established to undercut the discharge. That patient complaints do not demand discharge as a
of progressive discipline cannot obscure that they reflect poorly on her performance as an
It is undisputed that the Grievant generated a disproportionately high number of patient
in her relatively brief tenure as a part-time Center employee. Nor does the evidence indicate
reason to believe she acted meaningfully to address this. The Union's arguments establish
impossibility of labeling the Grievant's description of her mentoring contacts with Metoxen
"dishonest." However, this fails to demonstrate any significant effort on her part to address
complaints. More significantly, her testimony establishes that she treated her conversation
as lightly as she did the asserted contacts with Metoxen. That testimony reflects no reason to
she took patient complaints seriously, or meaningfully assumed responsibility for them.
This sets the troublesome background to an assessment of her conduct on March 10.
disregarding the conflict in testimony, the Grievant's account of the evening fails to establish
acceptable conduct. Review of the credible testimony of the remaining witnesses establishes
egregious conduct on her part. That she failed to meaningfully assist Traas is troublesome in
The balance of the evening's events exacerbates this. Whether patients
heard her reference to "bitch" or whether employees use "bitch" in day-to-day
obscure the obscenity of the term in reference to March 10. Nor can it obscure that she
accomplish anything meaningful with the contact. Betts had to be summoned to the
The Union's assertion that the discharge was unduly delayed has force. To accept
assertion without reference to the evidence, however, would fault deliberate action on the
part. On this record, the Union's arguments set the stage for a defense that the Grievant's
failed to bring about. Her testimony stands in stark contrast to that of other employees. The
manifests her unwillingness to accept responsibility for the events of March 10. That
underlies her account of mentoring contacts with Metoxen. It is evident the Grievant treated
contact, however casual, as a mentoring contact. This attitude is impossible to square with
personnel record. Her conduct on March 10 was egregious. Her unwillingness to accept
responsibility for it lends credence to the County's assertion that progressive discipline
purpose. That conclusion is reasonable in light of the evidence, and thus the County has
each element of just cause.
The Employer did have just cause to discharge the Grievant.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 19th day of March, 2002.
Richard B. McLaughlin, Arbitrator