BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
THE ASSOCIATION OF MENTAL HEALTH
(Raymer and Crawford Suspensions)
Mr. John S. Williamson, Jr., Attorney at Law, 103 West
College Avenue, Suite 1203, Appleton, Wisconsin 54911, appeared on behalf of the
Mr. Eugene R. Dumas, Deputy Corporation Counsel, Rock
County, 51 South Main Street, Janesville, Wisconsin 53545, appeared on behalf of the
On September 9, 2001, Rock County and the Association of Mental Health
a request with the Wisconsin Employment Relations Commission requesting the Commission
William C. Houlihan, a member of its staff, to hear and decide a grievance pending between
parties. A hearing was conducted on February 12, 2002 in the Rock County Courthouse,
Wisconsin. A transcript of the proceedings was made and distributed on February 22, 2002.
Post-hearing briefs and a reply brief were submitted and exchanged by April 30, 2002.
This Award addresses the suspensions of Registered Nurses Kathleen Crawford and
BACKGROUND AND FACTS
Rock County operates the Rock County Health Care Center, located in Janesville,
The County is a signatory to a collective bargaining agreement with the Association of
Specialists, a group of professional health care employees employed at the Health Care
two grievants, both registered nurses, are employed at the Health Care Center. The Health
Center has two physicians on staff; Dr. Rao, an internist and Dr. Frachette, a psychiatrist.
In March of 2001, patient "K" was a resident of the Health Care Center. Dr. Rao
"K"'s primary physician. Dr. Frachette had been called in to attend to patient "K"'s
needs. Each physician had prescribed certain medications for patient "K".
Dr. Frachette had
prescribed Serentil and Klonopin. Each was being administered 5-6 times per day.
Patient "K" had only recently been transferred to the Health Care Center. He had
been a patient at Rock Haven, another Rock County facility. While at Rock Haven, "K" had
under the treatment of the two physicians, and was undergoing the same medication
Nurses Crawford and Raymer both worked on the unit where "K" was a patient.
provided nursing care for patient "K". A portion of that care included the administration of
prescribed medications, which were being administered through a tube. Patient "K" would
place a portion of this tube in his underwear, forcing the nurses to retrieve it.
On Sunday, April 1, 2002, nurses Crawford and Raymer accompanied Dr. Rao on
Raymer raised the possibility of altering the medication regime for patient "K" with respect
Klonopin and Serentil. Raymer explained "K"'s behavior, and indicated that if the
administered three times a day it would be easier on nursing staff. Rao indicated there was
medical reason the medications could not be given in less frequent doses. He did express a
that there may be some reason the patient was receiving more frequent doses, but ultimately
it was acceptable to modify the frequency of administration. Raymer wrote up the change,
signed it. Crawford subsequently charted the changed medication regimen. In making the
modification, Raymer indicated all medications should be administered three times per day.
her intent that this be applicable to the Klonopin and Serentil only.
The modified medication schedule was administered for two days. Only the Serentil
Klonopin were administered three times a day. All other medications were administered as
been previously. There was no incident or missed dosage. It appears that the various
members understood the intent of the modification.
On April 4, the pharmacy called the floor, concerned about how the new medication
was written. Dr. Frachette, who was unaware of the modified medication schedule, took the
call. It was at this time that he discovered that his medication order had been modified.
had a conversation with the pharmacist, with Raymer standing approximately 15 feet away.
his testimony that he directed in a loud voice that the original dosage be reinstated. He said
so in a manner that Raymer must have heard. Raymer testified that while she was aware that
Frachette was on the phone, she did not hear his conversation, and she left the area while the
conversation was ongoing. By the time she returned, Frachette had departed. Upon her
the unit, Raymer saw that Frachette had changed the medication order. She was concerned
the change and called Pam Hendrickson, the nurse practitioner, who was on call to cover for
Raymer testified that she did not search out Frachette because he had left the area. Raymer
to Hendrickson that the order had been changed, that she was concerned that Frachette had
change without being fully aware of all of the facts, and further indicated that she was
about the transition dosage level in that "K" had already received two doses at the higher
day. Given those concerns, she asked Hendrickson if it would be acceptable to not
Frachette's modification until she had time to talk to Frachette. Hendrickson indicated that
go ahead, and do so.
Hendrickson testified that she felt caught in the middle of something she did not fully
understand, and she immediately called Dr. Frachette. Frachette indicated that it was not
to him to leave Rao's order in effect. Hendrickson thereafter called the floor and got Nancy
the Head Nurse, and indicated to Stone that Frachette's order was to be implemented. Stone
Raymer at the elevator as Raymer returned to the unit, and advised her to stop trying to
Frachette's order. Raymer did so.
On April 6, 2001, an investigative session was conducted by Lucille Vickerman,
Administrator, into the conduct of Raymer and Crawford. Various witnesses were
a consequence of this interview, Raymer was given a 30 calendar-day suspension without pay
directed to complete an education and observation period. Crawford was given a 5 working
suspension, and was also required to complete an education and observation period.
disciplinary letter, dated April 26, 2001, provides as follows:
Dear Ms. Raymer:
Effective April 27, 2001, you are
reprimanded and suspended for thirty (30) calendar days
without pay. This action is being taken due to the violation of the Nurse Practice Act
6.03 and Chapter 7 7.03. Further, negligence as defined in the Nurse Practice Act
same standard as negligence referenced in HFS 132 and Conditions of Participation Title
1. On or about April 1, 2001, you violated Chapter
N6 6.03 when you failed to meet the basic
requirements of Professional Nurse Practice. You did not conduct a necessary nursing
assessment prior to approaching a staff physician seeking an order change for a long
established regimen for the administration of the medications Klonopin and Serentil to
2. On or about April 1, 2001,
you documented in the clinical record of resident #14-158 as
having received an order from Dr. R.R. The order you documented was not the order
It was dangerously misleading and lacks the specificity to be safely implemented by any
registered nurse. The order you documented requires that resident #14-158 have all
medications being received be changed to a new administration sequence. In your
of this order, however, you modified only Klonpin and Serentil. This is a violation of
3. On or about April 4, 2001, you were negligent in
your professional performance when you
failed to accept and implement a medication order without sufficiently compelling clinical
justification for finding it inappropriate. Dr. P.F.'s legitimate order restoring the
administration of Klonopin and Serentil to resident #14-158. was not performed. This is in
violation of Nurse Practice Act Chapter 7 7.03(d).
4. On or about April 4, 2001,
you were negligent in your professional performance when you
acted to seek advise from Nurse Practitioner P.H. requesting to have Dr. P.F.'s order
rescinded. This is in violation of Nurse Practice Act Chapter 7 7.03(e).
As a result of the above-referenced events,
you are considered negligent in the performance of
your professional duties as a Registered Nurse. Both your omission and co-mission of
acts indicates a form of conduct by heedlessness or carelessness and which constitutes a
from the standard of ordinary care.
Future instances of conduct as referenced
above will result in additional disciplinary action up
to and including discharge.
. . .
In addition to your reprimand and
suspension, you are required to complete an education and
observation period that will commence Tuesday, May 29, 2001. You are to report at 8 am
29th. A that time you are to report to Mrs. Lucy Vickerman,
Associate Administrator Nursing
Services, who will provide you with the program context and schedule for observation of
On May 7, 2001, the following disciplinary notice was issued to employee Kathleen
The above disciplinary action was taken against you today for:
(check one or more)
__ tardiness __ leaving post without
__ absenteeism __ slow
down, or refusal to work
__ assault or fighting __ loafing
or laxness on job; failure to
__ drinking on job
perform assigned tasks
__ insubordination __
inability to perform job
__ use of profane or
abusive language __ poor
__ violation of work
damage to or loss of property
xx Other (state reason) Violation of Nurse Practice
Act, Chapter 6
. . .
On or about April 1, 2001, you violated Chapter NB 6.03 when
you failed to meet the basic
requirements of Professional Nurse Practice Act. You and a co-worker approached a staff
to change the administration schedule of Klonopin and Serentil for resident #14-158. You
implemented a new schedule that would reduce the number of times these medications would
administered during a 24-hour period. Your statement, "I agreed with Jill that 6 x/day
necessary if we could condense it rather than wake him up at night. It was in his best
interest not to
be disturbed 6 x/day." And these actions were taken without conducting a nursing
In accordance with Article II 2.01 of the current AMHS labor
agreement, you are reprimanded
and suspended without pay for five (5) working days. The suspension dates are as follows:
May 29, 2001, Wednesday, May 30, 2001, Thursday, May 31, 2001, Sunday, June 3,
Monday, June 4, 2001. You are to return to work at 8 am on Tuesday, June 5, 2001.
Future instances as listed above will result
in additional discipline up to and including discharge.
In addition to your reprimand and
suspension, you are required to complete an education and
observation period that will commence June 5, 2001. On your return to work on at 8 am on
you are to report to Nancy Stone, RN, Nursing Supervisor, who will provide you with the
context and schedule for observation of your practice.
. . .
The suspensions were served. Raymer testified that her two-day in-service consisted
writing essay questions and a letter on what she learned from her experience. Crawford
her in-service consisted of an eight-hour day of writing essays on the Nurse Practice Act.
Raymer filed a grievance on May 3, 2001. Ms. Crawford filed a grievance on May 11,
On July 3, 2001, Ms. Vickerman sent the following letter to the Department of
and Licensing Board of Nursing:
To Whom It May Concern:
Enclosed is an investigative report, with
attachments, in regard to nursing acts performed by
Jill Raymer, RN.
These acts would appear to violate Chapter N6, Standards of
Practice for Registered Nurses
and Licensed Practical Nurses, and Chapter N7, Rules of Conduct. Thus, these materials are
forwarded for the Board's review.
Contact me if you have questions or
otherwise wish discussion.
The same basic letter was sent relative to Kathleen Crawford.
The enclosure referenced in Ms. Vickerman's letter to the Department of Regulation
Licensing mirrored the substantive text of the disciplinary notices sent to Crawford and
Raymer. They were the respective internal documents forwarded from Vickerman to
Ron Link, the
Associate Administrator of the Home charged with discipline. The text of the Raymer
reads as follows:
TO: Ron Link
FROM: Lucy Vickerman
DATE: April 10, 2001
SUBJECT: Request for Review for
Possible Disciplinary Action
Re: Jill Raymer, RN
Please see the attached summary of investigative findings, with
attachments, in regard to the
matter of allegations being brought against Jill Raymer, RN by Dr. Paul Frechette,
and Nancy Stone, Head Nurse.
Your review for possible disciplinary action
is requested. In my opinion, the findings of
investigation support the following conclusions:
1. Ms. Raymer failed to meet a
basic requirement of professional nursing practice, as defined in
State Statute, Chapter N6, when she failed to conduct a nursing assessment prior to
approaching Dr. Rao on 4/01/01 seeking an order changing a long-established regimen for
the administration of Klonopin and Serentil to Resident #14-158.
2. The order Ms. Raymer
documented in the clinical record of Resident #14-158 as having been
received from Dr. Rao on 4/01/01 is dangerously misleading and lacks the specificity to be
safely implemented by anyone. This should have been readily apparent to her.
3. Ms. Raymer moved outside
the ordinary scope of professional nursing practice when she
designated and implemented the doses of Klonopin and Serentil to be administered to
#14-158 at 8A, 12N, and 8P as a result of implementing the order obtained from Dr. Rao on
4. Ms. Raymer was negligent in failing to accept and
implement, without sufficiently compelling
clinical justification for finding it inappropriate, Dr. Frechette's legitimate order restoring the
regimen for administration of Klonopin and Serentil to #14-158 that existed prior to 4/01/01
and moving, instead, to the Nurse Practitioner seeking to have Dr. Frechette's order
5. Ms. Raymer was negligent
in failing to accept and implement, without sufficiently compelling
clinical justification for belief that doing so would harm or present the likelihood of harm to
#14-158, Dr. Frechette's legitimate order restoring the regimen for administration of
Klonopin and Serentil to #14-158 that existed prior to 4/01/01 and moving, instead, to the
Nurse Practitioner seeking to have Dr. Frechette's order rescinded.
6. Knowing full well that
behavioral issues might arise as a consequence, Ms. Raymer moved
outside the established HCC-3 Team process by approaching Dr. Rao independently to seek
revision of the medication administration regimen for #14-158.
The attachment to Ms. Vickerman's Department of Regulation and Licensing letter
to Ms. Crawford reads as follows:
TO: Ron Link, Associate Administrator
FROM: Lucy Vickerman, Associate
DATE: April 20, 2001
SUBJECT: Request for Review for
Possible Disciplinary Action
Kathy Crawford, RN
Please see the attached Report of an investigation conducted to
determine the extent to which
Kathy Crawford, RN played a role in an incident which occurred on HCC-3 on 4/01/01 in
Rao was approached to change the administration schedule of Klonopin and Serentil to
Resident #14-158 from the schedule which had existed from 10/24/01 to tid.
Your review for possible disciplinary action
is requested. In my opinion the findings of
investigation support the following conclusions:
1. Ms. Crawford failed to meet a
basic requirement of professional nursing practice, as defined
in State Statute, Chapter N6, when she failed to conduct a nursing assessment prior to
that a long-established regimen for the administration of Klonopin and Serentil to Resident
was unnecessary. (i.e. "I agreed with Jill that 6 x/day wasn't necessary if we could
condense it rather
than wake him up at night. It was in his best interest not to be disturbed 6 x/day."
2. Ms. Crawford did not seek
clarification of an order that directed a tid schedule for all
medications being administered to #14-158 when she knew that the intent was to modify the
administration schedule to tid for only Klonopin and Serentil. Though she recognized it as
she allowed the order to stand and, at the same time, partially implemented it by modifying
administration of Klonopin and Serentil to the tid schedule she believed intended.
On September 14, 2001, the Department of Regulation and Licensing responded to
Raymer and Crawford by identical letter. Those letters provides as follows:
The purpose of this letter is to inform you of the results of the
review of a complaint we received
The details of the complaint, including
information which may have been obtained by us, were
reviewed and discussed by a screening panel. Screening panels generally include legal staff,
investigative staff, and members of the relevant profession.
Based on the screening panel's review and
evaluation of the complaint, a decision has been made
not to proceed any further with this complaint. However, the complaint will be retained on
file in the
Division of Enforcement for future reference.
The parties stipulated to two issues:
1) Did the discipline imposed upon Ms. Raymer
violate the collective bargaining agreement?
If so, what is the appropriate remedy?
2) Did the discipline imposed
upon Ms. Crawford violate the collective bargaining agreement?
If so, what is the appropriate remedy?
The Union advances two additional issues. The County contends that these matters
properly before the arbitrator.
3) Whether the decision of the State Board of
Regulation and Licensing dismissing all the
charges that Jill Raymer, RN and Kathleen Crawford, RN violated standards of practice for
registered nurses is res judicata for
arbitration purposes. If so, should all the charges that Jill
Raymer, RN and Kathleen Crawford, RN engaged in conduct that violated the State Board's
standards of practices registered nurses, be dismissed?
4) Whether the County had the
authority under the collective agreement to impose discipline in
addition to the reprimands and suspensions imposed on Jill Raymer and Kathleen Crawford?
If not, what should the remedy be?
RELEVANT PROVISIONS OF THE COLLECTIVE
ARTICLE 2 MANAGEMENT RIGHTS
2.01 Except as otherwise specifically
provided herein, the management of the County of
Rock and the direction of the workforce is vested exclusively in the County, including, but
to the right to hire, the right to promote, demote, the right to discipline or discharge for
the right to transfer or layoff because of lack of work, discontinuance of services, or other
reasons. . .
. . .
ARTICLE 3 HEALTH AND SAFETY
3.01 It is the intention of the parties to
maintain the conditions of employment in a safe
manner. Should any employee become aware or conditions he/she believes to be unhealthy
dangerous to the safety of employees or patients, such employee shall report the condition
immediately to his/her supervisor. All unsafe or unhealthy conditions shall be remedied as
ARTCLE 10 LEAVES OF
. . .
10.07 Leaves of absence with pay
. . .
D. In-Service Training
It is agreed that it is to the mutual benefit
of the County and the employees within the
bargaining unit for such employees to receive such in-service education as will assist them in
the delivery of County services and is financially feasible. While attending such training or
conference programs during the regular workweek, employees shall receive no more than
his/her regular pay, and is not eligible for overtime compensation. In addition, employees
assigned by appropriate management personnel to attend training programs during hours
other than their regularly-scheduled work week, shall be compensated at their regular straight
time hourly rate for hours in excess of forty hours per week. The County may require any
employee to attend any in-service educational functions, but shall continue to pay such
employee his/her regular rate of pay during any absence necessitated by such attendance, and
shall further reimburse such employee for actual and necessary personal automobile mileage,
by the most direct route, at the rate of $.32/mile, meal and lodging expenses including tips,
provided that such expense be verified by suitable vouchers, registration fees and parking
In the event a common carrier is used instead of an employee's personal automobile, the
employee shall be reimbursed the cost of traveling by common carrier.
. . .
RELEVANT PROVISIONS OF THE WISCONSIN
N6.03 Standards of practice
for registered nurses.
(1) General Nursing Procedures. An NR shall utilize the
nursing process in the execution
of general nursing procedures in the maintenance of health, prevention of illness or care of
The nursing process consists of the steps of assessment, planning, intervention and
standard is met through performance of each of the following steps of the nursing process:
(a) Assessment. Assessment is the systematic
and continual collection and analysis of
data about the health status of a patient culminating in the formulation of a nursing
(b) Planning. Planning
is developing a nursing plan of care for a patient which includes
goals and priorities derived from the nursing diagnosis.
Intervention is the nursing action to implement the plan of care by
directly administering care or by directing and supervising nursing acts delegated to
LPN's or less skilled assistance.
Evaluation is the determination of a patient's progress or lack of
progress toward goal achievement which may lead to modification of the nursing
. . .
Chapter N 7 RULES OF CONDUCT
. . .
N 7.03 Negligence, abuse of alcohol or other
drugs or mental incompetency.
(1) As used in s.
441.07(1)(c), Stats., "negligence" means a substantial departure from
the standard of care ordinarily exercised by a competent licensee. "Negligence" includes but
limited to the following conduct:
(a) Violating any of the standards of
practice set forth in ch. N6;
(b) An act or omission demonstrating a
failure to maintain competency in practice and
methods of nursing care;
. . .
(d) Failing to execute a medical order unless the order is
inappropriate and licensee
reports the inappropriate order to a nursing supervisor or other appropriate person;
(e) Executing an order which the
licensee knew or should have known would harm or
present the likelihood of harm to a patient;
. . .
POSITIONS OF THE PARTIES
In the view of the Employer, both grievants knew that both
head nurse Stone and
Dr. Frachette had dealt with patient "K" for months before his arrival at the Health
Care Center. The
County argues that there appears to have been almost a conscious attempt not to involve
Nurse Stone or Dr. Frachette in the effort to change the medication regimen for this patient.
In the Employer's view, the Management Rights clause of the collective bargaining
requires deference, in the absence of a substantial reason to act to the contrary, to the expert
professional opinion of the Director of Nursing in interpreting the standards of acceptable
performance governing bargaining unit employees subject to the Nurse Practice Act. This is
particularly so where no witnesses offered a contrary professional opinion.
It is the Employer's view that the collective bargaining agreement, and the practices
parties, established the Nurse Practice Act as a standard for acceptable performance and
enforceable by discipline, up to and including termination.
The County points to the testimony of Dr. Frachette and to that of Director of
Vickerman in support of its claim that the grievant's actions were inconsistent with the way
and nursing are practiced at the Health Care Center and that the team meeting was an
necessary vehicle for any nursing assessment.
It is the Employer's view that the state authorities (Wisconsin Department of
Licensing) charged with enforcing the Nurse Practice Act, along with a number of other
codes regulated by the State of Wisconsin, must exercise great restraint in determining which
many cases which come to its attention each year warrant the dedication of the limited
available to it. The County contends that it is consistent with its position that the State in
decided not to pursue further formal proceedings against the grievants, but to advise each
that "However, the complaint will be retained on file in the Division of Enforcement for
The Employer argues that there is no basis in the record to conclude that the grievant
treated disproportionately than have other employees who have engaged in similar conduct.
the educational component, the Employer contends that the object of the
educational component was work-related and reasonably designed to assist the grievants
lapses in judgment which led to their violations of the Nurse Practice Act. The Employer
Article 10.07 D, which permits the County to require employees to attend in-service
It is the Employer's position that the interpretation of the Nurse Practice Act by the
of Nursing has in the past, and continues to be, a reasonable basis for the imposition of
registered nurses employed at the Rock County Health Care Center, bargaining unit members
This is subject to the ability of the County to satisfy an arbitrator that there is a factual and
basis for the Director of Nursing's conclusion that a violation of the Nurse Practice Act has
The Employer contends that it has followed the classic model of progressive
attempting to conform the conduct of the grievants to the requirements of the Nurse Practice
The Employer notes that each of the grievants had an opportunity to be heard prior to the
of discipline. On each occasion, the grievant's own testimony insofar as credible support the
conclusion that there had been a failure to conform to the precepts of the Nurse Practice Act.
of the grievants failed to conduct any adequate form of nursing assessment prior to taking the
professional actions at issue. It was this failure of the grievants to discharge their own
as nurses, not the possibly perceived failure to obey Drs. Frachette or Rao, that
formed the basis for
Ms. Vickerman's conclusion that there were violations of the Nurse Practice Act, and
recommendations for discipline.
It is the position of the Association that this arbitrator should treat the Wisconsin
of Regulation and Licensing's decision "not to proceed any further" on the County's
res judicata and, on that basis alone, set aside the
discipline of Raymer and Crawford. The County
has based its discipline solely on its claim that Raymer and Crawford violated professional
practice regulations Chapters 6 and 7. It then filed these charges with the state agency
administer, enforce, and interpret the regulations. The agency decided that Raymer and
had not violated them by refusing to proceed any further with the complaint. This decision
The Association points to RL 2.035(3)(4). If the disciplinary authority concludes the
is not trivial, and the matter alleged would be, if true, a violation of any statute, rule or
practice, then a settlement conference or a disciplinary proceeding will commence. The
reviewed and no settlement conference or disciplinary proceeding were initiated. The
entrusted the Department of Regulation and Licensing to make determinations as to
violations of the nursing regulations. In the view of the Association, even the ablest
be expected to bring the same level of expertise and competence to bear upon those
Therefore, the Arbitrator should defer to their expert judgment, and rule for Raymer and
on the merits.
The Association addresses each of the charges leveled against Raymer and Crawford,
disputes the validity of each charge. Raymer was charged with four violations of the
Nurse Practice Act. The first was that she failed to conduct a necessary nursing assessment.
Association contends that the charge entirely misses the mark. Raymer's request to Dr. Rao
based upon an assessment. It focused on the patient's inappropriate behavior. It was Dr.
made the necessary medical assessment that the number of times the medicine is administered
be reduced without adverse effects to patient "K".
The second charge was that Raymer's draft of Dr. Rao's order was allegedly
misleading. The Association points out that neither Dr. Rao nor Dr. Frachette nor the
staff members who administered medicines to "K" found the order misleading, much less
misleading. The Association contends that not every alleged error a nurse makes rises to the
cited by the Employer. Nurses are not required to be infallible.
The third charge against Raymer is that she failed to accept and implement
legitimate order. The Association contends that there is no evidence to support this charge,
rather the evidence establishes that she did accept and implement the order. What Ms.
was to seek out the appropriate person, Hendrickson, acting for Dr. Rao, to determine
order should go into effect that day. When Hendrickson determined that it should, Raymer
and implemented Dr. Frachette's order.
The fourth charge was that Raymer's request to Hendrickson to rescind Frachette's
violated Sec. 7.03(E). Even if Raymer should not have made the request, she clearly did not
an order that would cause harm or present the likelihood of harm to a patient.
With respect to the charges against nurse Crawford, the Association contends that
Ms. Crawford's sin was that she was physically present when Raymer asked
Dr. Rao about making
a change. All other arguments, particularly with respect to the nursing assessment, are made
behalf of nurse Crawford.
It is the position of the Association that the County had no authority to subject
Crawford to specific supervision by Vickerman and Stone and compel them to write essays.
purpose of this supervision was to degrade and demean them. Raymer was also subjected to
insults as Vickerman's observation that she was a "brat", that she deserved a spanking, and
implication, she should not have become a nurse. No adult should be subject to such
The first matter presented for consideration is the impact of the Department of
Licensing decision not to proceed against either Raymer or Crawford. The Employer invites
disregard the non-action of the administrative agency. In its brief, the Employer implies that
of resources explains the decision not to proceed. The Employer further contends that the
inaction is compatible with its decision to discipline, in that the agency retains the complaints
There is nothing in the record to support the Employer's contention in this regard. To the
the agency's inaction in the face of what is alleged to be life-threatening and egregious
would be inconsistent with its mandate. The Association contends that I should treat the
the Department of Regulation and Licensing not to proceed further as
res judicata in this proceeding.
The doctrine of res judicata typically operates to
preclude the litigation of a matter already adjudged,
decided, or settled by judgment. Nothing in the form letter from the Department of
Licensing indicates that this matter was ever adjudicated. There is no indication that this
ever litigated between these parties.
The record is silent as to why the Department of Regulation and Licensing chose not
proceed. The charges submitted to that board are detailed, use accusatory terms (i.e.
misleading", "negligent", "failed to conduct a nursing assessment"), and are submitted over a
letter that concludes that violations of the code have occurred. While I am not prepared to
doctrine of res judicata to the inaction of the
Department of Regulation and Licensing, I do regard
the inaction of that body as inconsistent with the Employer's view as to the severity of the
The County contends that this matter should have been brought to the team. The
supports that contention. Team meetings appear to be an appropriate forum for discussion of
non-urgent matters. The County also contends that there appears to have been a conscious
avoid Head Nurse Stone and Dr. Frachette. At least as regards Dr. Frachette, that
also appears to
be the case. Dr. Frachette's testimony may shed insight into why that is. Dr. Frachette
". . .I did raise the question to Jill Raymer that if she had a
question about my order, why wasn't
I called? Because she's had no problem in the past calling me about any order I've written.
she done that, we would not be here today."
Frachette's testimony continued as follows:
"Also, we have a team meeting, which all of the members of the
third floor who are involved in
treating patients occurs once a week, and if there was concern about the particular patient
medications in a certain way, that's where it should have been addressed."
On cross-examination, Dr. Frachette testified further:
"If she had called me and related her concerns and I also
stated that she's never had a problem
doing that before. So why now? If she had called me and related her concerns, we would
discussed it. My answer would have been then and my answer is the same now, I would
her that we are going to continue the order the way I have rewritten it. And that Dr. Rao
and I would
discuss it further, and if necessary, we would discuss it at the team meeting, and then we
at a decision."
Dr. Frachette's testimony makes it clear he would not have been receptive to the
in medication schedule.
While I agree that the matter should have been brought to the team, the real question
presented is how serious a transgression it is to fail to do so? Dr. Rao signed the change
without any indication that the team was the appropriate forum for discussion of this matter.
signing the order, he indicated that he might talk with Frachette. Frachette's testimony
he would not have been receptive to the change, that he would have talked to Dr. Rao,
necessary, we would discuss it at the team meeting." His testimony implies that there may
no need for a team meeting following his discussion with Rao. Frachette further testified
Raymer come to him, this discipline would not have occurred. This discipline did not arise
Raymer failed to bring the matter to a team meeting. It occurred because Raymer went to
instead of Frachette, and persisted after Frachette resinstated his original medication
The Employer contends that violations of the Nurse Practice Act may constitute a
the imposition of discipline. The Act establishes many of the bases of professional conduct
nursing profession. If violated, they may well form the basis for discipline, subject to the
of the contractual just cause standard. The County further argues that under the Management
clause, I should defer to the opinion of the Director of Nursing as to the interpretation of
standards. I disagree. The Department of Regulation and Licensing is also an expert body.
not defer to the Director of Nursing Vickerman, at least with respect to her conclusions that
violations had occurred, and that discipline should be imposed. Moreover, the collective
agreement authorizes arbitrators to interpret its terms. The contract directs arbitrators not to
any of its provisions. This directive must include Article 2 and its just cause provision. The
of this Employer argument is that I
should defer to Director of Nursing Vickerman on the propriety of the discipline. The
not permit that.
The Employer has levied four charges against nurse Raymer. The first is a failure to
a nursing assessment. It is unclear to me what assessment was lacking. The medication
change was sought for the convenience of staff, and to eliminate waking the patient at night.
respect to the second charge, Raymer did make an error on the order. As the Association
appears that floor staff understood what the order was intended to convey. However, the
was confused by the order. That confusion led to the phone call.
With respect to the third charge, Raymer did attempt to have Frachette's reinstated
up or delayed. It was her testimony that she wanted an opportunity to explain to Frachette
of the original change, and to assure that dosage administered was correct since the patient
already been given two of the larger dosages that day. She never refused to administer the
dose. She contacted Hendrickson, who initially agreed with her concerns. In the overall
what transpired, Raymer's behavior is troublesome. Raymer was the catalyst in having the
regimen changed. She knew that she had caused Frachette's initial order to be modified. It
appear that she made any effort to speak with Frachette. Similarly, there is no indication
made any effort to inquire as to how to transition "K" back on to Frachette's schedule.
efforts were directed at staying Frachette's new order. When told to administer Frachette's
she did so.
There is nothing in this record that suggests that Raymer knew or reasonably believed
there was a likelihood of harm to "K". All testimony indicates that her actions included a
with respect to the impact of the medication schedule on patient "K".
As to the discipline of nurse Crawford, the discipline ignores the fact that Dr. Rao
of the change.
It appears that much of the discipline in this proceeding has been couched in terms of
and phrases used in the nursing code. This conformity to code phrases has resulted in
mischaracterizations and exaggerations of the behaviors of the individuals involved.
The Employer contends that it has disciplined severely for violations of the Nurse
in the past. Evidence to that effect was placed in the record. This is not a disparate
As to the educational component of the discipline, I find the essay writing to have
disciplinary in nature. The Employer is entitled to require attendance at in-service functions
legitimate educational needs of its workforce. However, writing an essay on "what I
learned from my experience" can only be construed as punitive and disciplinary in
remarks attributed to Ms. Vickerman that she wanted to "spank" Raymer and that Raymer is
are professionally inappropriate in a disciplinary setting involving what this Employer has
characterized as serious misconduct.
The Employer contends that it followed progressive discipline. I disagree. The
notes that it provided an opportunity for hearing, representation, and discipline based upon
record. All the foregoing suggests that Raymer and Crawford's due process rights were
However, the foregoing ignores the nature of progressive discipline. There is no indication
of these nurses have been subjected to prior discipline. The concept of progressive discipline
predicated upon increasingly more severe discipline applied under similar circumstances.
disciplines meted out here are enormous, without indication that they have been preceded by
severe disciplinary measures.
Several questions were presented in this proceeding. The first question, "Did the
imposed on Ms. Raymer violate the collective bargaining agreement?" Thirty days is a gross
overreaction to what Raymer did. She did enter the wrong medication dosage, and she did
in gamesmanship in avoiding Dr. Frachette relative to the mediation of patient "K". Her
not rise to the very serious levels charged. The Employer is free to issue Ms. Raymer a
warning in these two areas. It is not free to issue time off suspensions.
2. "Did the discipline imposed upon Ms. Crawford violate the collective
Ms. Crawford's role was essentially as an observer in the discussion involving
Dr. Rao. Five
days is a substantial time off suspension. The Employer contends this is a very serious
yet Dr. Rao signed off on it. Rao and Raymer were the active participants. The record is
to the discipline imposed upon Rao. I find no basis upon which to discipline Crawford.
Questions 3 and 4 have been discussed in the
DISCUSSION section of this Award.
The Employer is directed to remove the references to suspensions from both files and
both employees whole for lost wages and benefits suffered as a consequence of their
The Employer is free to enter a written warning relative to Raymer as noted above.
Dated at Madison, Wisconsin, this 15th day of November, 2002.