BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 1667, AFSCME, AFL-CIO
Mr. Daniel R. Pfeifer, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. Mark B. Hazelbaker, Attorney at Law, appearing on behalf
of the Employer.
The Union and Employer named above are parties to a 2000-2002 collective
agreement that provides for final and binding arbitration of certain disputes. The parties
requested the Wisconsin Employment Relations Commission to appoint the undersigned to
grievance of Dawn Ortiz. A hearing was held on October 25, 2002, in Viroqua, Wisconsin,
time the parties were given the opportunity to present their evidence and arguments. The
completed filing briefs by December 18, 2002.
The parties ask:
Did the Employer, Vernon County, have just cause to
Dawn Ortiz on April 29,
2002? If not, what is the appropriate remedy?
The Grievant is Dawn Ortiz, a certified nursing assistant for two years at Vernon
before her employment was terminated for an incident on April 27, 2002. The incident
allegation of verbal abuse to a resident called "Kenneth" in this award.
Sally Haynes has been a certified nursing assistant for one year at Vernon Manor.
27, 2002, Haynes was working with Kenneth, a resident who is hard to handle at times and
out at employees. Haynes testified that the procedure to handle residents who strike out is
nursing assistant is supposed to back away and call another nursing assistant to intervene. It
acceptable to hit back, as that would be abuse. It is not permissible to yell at a resident or
him or her.
After supper on April 27, 2002, Haynes was trying to take care of Kenneth when he
out at her. Haynes backed away and called the Grievant into the room for help. Haynes
Kenneth might settle down with a different approach. The Grievant had worked with
and employees on the unit were aware that he could strike out at them. When the Grievant
the room and she told him, "You don't hit women." Haynes said he was not mad, but he
at the Grievant again and hit her, and the Grievant told him, "Go ahead and hit me, I will hit
and I don't care if I lose my job over this." Haynes said that the Grievant was pointing her
Kenneth's face, and made the same statement when another nursing assistant, Jennifer Engh,
into the room. Haynes testified that the Grievant was very close to Kenneth's face when she
her finger at him. The Grievant did not back off or away from him but did not strike
Haynes left the room.
The Grievant testified that Kenneth did not hit her on April 27th but
that he had hit her in the
past. She found that one would have to be a little verbal with him at times to settle him
Grievant was in the next room when Haynes asked for help. She heard Haynes say that he
and the Grievant told Kenneth "You don't hit women." The Grievant said that he did not
or her or hit her. She said to Kenneth, "Do not slap anybody or I will slap." The Grievant
slap or hit him. The Grievant stated that she left the room, and that Haynes was working
Grievant in the room. The Grievant was not aware of Jennifer Engh being in the room. The
denied that she said, "I don't care if I lose my job," but she admitted saying "Go ahead and
She was not sure of how loud she spoke to Kenneth.
The Grievant said that sometimes she has to get a little aggressive with Kenneth when
The Grievant was previously disciplined for verbal abuse in July of 2001. She was
three-day suspension and was reassigned from nights to p.m. shifts. She did not file a
The Grievant was given a written warning on April 16, 2002, shortly before the
question, for failure to perform duties properly. The employee violation report states that
Grievant called Haynes "a bitch" when she gave her suggestions of what she should do. The
said she called Haynes a "bitch" but that they were joking around all night long, and Haynes
calling her a "bitch" too, and that it was not that the Grievant disliked Haynes.
Haynes reported the incident with Kenneth to Violet Arneson, a registered nurse on
Arneson's report states that:
CNA Sally Haynes called Dawn Ortiz into resident room for
assistance as he was being
combative. Dawn said to resident, "You don't hit woman, go ahead and pop me. I'll pop
I don't care if I lose my job." This was said twice, the second time it was said Jennifer
entered the room to help and heard Dawn say this.
Haynes testified that she probably reported that the Grievant said "pop" instead of
reporting the incident to Arneson.
Carrie Baumgartner, a social worker at the Manor, investigated the matter, and her
regarding her talk with Haynes states:
She reported that she was doing cares with a male resident in
Room 424, he was acting as if he
would be combative by raising his hands to hit or slap at her, so Sally Haynes asked for
from Dawn Ortiz. Dawn Ortiz entered the room and said to the resident "You don't hit
Don't think about hitting me or I'll hit you back, I don't care if I lose my job." According
Haynes, Dawn Ortiz used a very threatening voice and was pointing her finger at him as she
threatening him. At this point Jennifer Engh came to assist in the room and Dawn Ortiz
threatened the resident as reported above.
Jennifer Engh was no longer employed by the County at the time of the arbitration
and the Employer had no knowledge of her whereabouts.
The Administrator of Vernon Manor, Nancy Witthoft, did not report this incident to
State's Bureau of Quality Assurance. Witthoft decides whether to report cases of neglect,
misuse of funds. Witthoft had previously submitted a report on the Grievant, and the Bureau
insufficient evidence against her. When this incident arose, there was no injury or
and Witthoft thought she would get the same letter from the State. Therefore, she decided to
with the Grievant on the facility's own internal process. Witthoft decided that the Grievant's
record warranted a termination. The Grievant received a verbal warning on February 12,
complaints by co-workers for refusing to care for difficult residents and leaving rooms in a
received a written warning on April 16, 2002, for reports from co-workers regarding safety
She also received a written warning on the same date for abuse of sick leave. And she had a
three-day suspension on July 16, 2001, for suspected abuse of two residents for verbal abuse
physical abuse of one of them.
THE PARTIES' POSITIONS
The County asserts that it had just cause to discharge the Grievance for substantial
abuse on a resident. The discharge capped an unhappy work history which included
discipline on prior occasions for verbal abuse of residents, together with serious questions
Grievant's dependability, honesty, and attention to detail. The Grievant admitted saying to a
"You don't hit women. Go ahead and pop me and I'll pop you back. I don't care if I lose
Additionally, Haynes credibly testified that the Grievant shook her finger at the resident and
at him. Even under the Grievant's version, the conduct was abusive and warranted
proper way to deal with the situation is to step back and defuse it. The confrontation was
physical and constituted an assault on the resident, which under the legal standard, means
another person in imminent fear of offensive bodily contact.
The Employer contends that while abuse of residents justifies termination on the first
this was not the Grievant's first offense. She was given a three-day suspension for verbal
residents in 2001, plus a three-day suspension for abuse of sick leave in 2000. In 2002, she
written warnings for inattention to safety procedures and duties, abuse of sick leave, and
The Employer believes the Arbitrator should address issues such as unemployment
compensation benefits and decisions by the Wisconsin Bureau of Quality Assurance to give
guidance in future cases. Unemployment compensation determinations are based on whether
a discharge meets the standard of misconduct, an intentional undermining of the interests of
employer. The standard for proving misconduct is higher than the just cause standard.
parties bargained for a just cause standard in their labor contract. Evidence of the
the Department of Workforce Development is irrelevant and probably prejudicial.
The same is true of the State's determination as to whether or not an incident of
abuse occurred. The parties did not negotiate to have the Bureau of Quality Assurance make
determinations. The BQA's findings are made without any confrontation rights, first-hand
observation of facts and circumstances. It would seem incongruous to give weight in this
to a determination with none of the procedural safeguards associated with arbitration or a fair
hearing. Moreover, the parties have no control over what the legislature, administrative
individual practices of administrative law judges. Over the last 20 years, obtaining a finding
misconduct has gone from being nearly impossible to almost a matter of course. The parties
not be at the mercy of the drift of an administrative agency.
The Union asserts that there is conflicting in the testimony of Haynes and the
Haynes testified that the resident struck the Grievant, while the Grievant testified that he did
her. They also disagreed on how often the Grievant made the alleged statements. It is clear
incident occurred, but the question remains as to whether the Grievant's actions constituted
The Grievant was discharged for verbal abuse. The Wisconsin Administrative Code
abuse as "willful and wanton disregard of a client's physical and mental needs and interests
as is found
in deliberate violations or disregard of clients rights, or in carelessness or negligence of such
or frequency as to manifest equal culpability, wrongful intent or evil design, or to show an
and substantial disregard of the aide's duties and obligations to the client. Mere inefficiency,
unsatisfactory conduct, failure in good performance as the result of inability or incapacity,
inadvertency or ordinary negligence in isolated instances, or good faith errors in judgment or
discretion are not deemed to be abuse. Abuse includes neglect and mistreatment."
The Union believes that the Arbitrator should consider the State's definition of abuse.
Witthoft did not even submit this incident to the State for investigation because she did not
the State, with its definition of abuse, would have found the Grievant guilty of abuse.
The Union argues that this case involves a judgment call in a volatile situation. The
did not have much time to respond to the situation, and she may have appeared angry as that
be a natural reaction to the threat of being hit. If she were guilty of anything, it would be an
in judgment for making the statements she made. She did not hit the resident and had no
him. The State says that good faith errors in judgment are not abuse, and the Grievant's
should not be deemed abuse.
While the Union has offered to make Engh available, it is unnecessary to have her
The Grievant admitted making the statements that she is accused of making. She testified at
point that she did not remember saying, "Go ahead and hit me," but that she could have said
it. I find
her own testimony and Haynes' testimony sufficient to find that she made the statements to
resident that she is accused of making. It is a harder matter to discern whether she made
statements in a threatening manner or was yelling and pointing her finger at the resident.
Nonetheless, the Grievant's statements to the resident are sufficient to warrant discipline.
Threatening to hit a resident is obviously verbal abuse, whether or not the resident
anyone else. The Union asks the Arbitrator to adopt the State's definition of "abuse" and
Witthoft did not even submit this incident to the State because she did not think
the State would find the Grievant guilty of abuse under its standards. I find it
unnecessary to use only
the State's definition of "abuse" because the facility also has its own standards which are to
respected. It is possible for the Employer to find that the Grievant verbally abused the
the State would not make such a finding. The consequences differ if the State found
Grievant could not work again as an aide. However, even if the County discharged the
would still be able to work in another facility as an aide.
The parties bargained for a common "just cause" standard and no other standard.
the Arbitrator will confine her decision to the usual considerations in a just cause standard.
that standard includes a consideration of whether the punishment fits the crime.
An arbitrator should not second-guess every disciplinary action taken by an employer.
arbitrators were to always impose their own idea of the appropriate discipline when discipline
fact warranted, unions would take every disciplinary case to arbitration, hoping to get a
penalty. The discipline should stand, unless it is clearly excessive, unreasonable, or
abused its discretion.
In this case, discipline is clearly warranted. The Grievant used an improper
procedure by her
assertiveness in dealing with the resident who was striking out at aides. However, the capital
punishment of termination is clearly excessive and unreasonable in light of the conduct and
Management has a right to be concerned that this employee has another disciplinary action on
record for suspected abuse of two residents. Moreover, the Grievant is not a long-term
but has quickly accumulated various warnings as well as a three-day suspension for the
incident in July of 2001. The Grievant is developing a bad track record for an employee of
However, the Employer has jumped quickly to a termination, perhaps not just for
but for absenteeism and other unsatisfactory reports, such as leaving rooms in a mess and
concerns with her job performance. The Grievant was also receiving numerous complaints
job performance from her co-workers. This all tends to show that this Grievant may not
long-term employee at the rate she is collecting disciplinary notices. But I cannot find that
termination is reasonable under the facts of this case. It is simply excessive for the violation,
including her prior record. The Grievant believed she was handled the resident in a manner
would calm him down. Whether it was effective or not, it was the improper method. The
should have known better, since Haynes knew the proper procedure and she had not worked
Manor as long as the Grievant. Nonetheless, the Grievant was trying to help Haynes calm
resident who was out of control. Her method was wrong, even if it worked on that resident.
Employer determines what procedures may or may not be used with difficult situations. The
Grievant's belief that one has to be more aggressive or verbal in those situations conflicts
Employer's procedure, and the Grievant must adhere to the Employer's rules and procedures.
A suspension of 30 days is more appropriate than a termination, under all the
It puts the Grievant on notice that this is perhaps a last chance and another similar offense
her her job. The Employer should also consider some re-training of this Grievant, who
believes it is
appropriate to become "aggressive" with "Kenneth" when he is aggressive.
The Employer has also asked that the Arbitrator review the issue of evidence that the
was granted unemployment compensation benefits. The Arbitrator, consistent with her
rejected such evidence at hearing, agreeing with the Employer in this case that such evidence
irrelevant and potentially prejudicial. The Arbitrator has never considered evidence of
compensation benefits in any termination case and continues to believe that the parties should
submit such evidence. The exception is for impeachment purposes, when people have
testified at one
hearing contrary to their testimony at the arbitration hearing.
The grievance is sustained in part. The County did not have
just cause to discharge Dawn
Ortiz on April 29, 2002. It did have just cause to discipline her and the appropriate
be a 30-day suspension. As a remedy, the County is ordered to offer Dawn Ortiz immediate
reinstatement to her position or a substantially equivalent position and to pay her a sum of
including all benefits, that she otherwise would have earned from the time of her termination,
the 30-day suspension, to the present, less any amount of money she has earned elsewhere.
The Arbitrator will retain jurisdiction over
this matter until March 1, 2003, solely for the
purpose of resolving any disputes over the scope and application of the remedy ordered.
Dated at Elkhorn, Wisconsin, this 10th day of January, 2003.
Karen J. Mawhinney, Arbitrator