BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
THE WISCONSIN FEDERATION OF
AND HEALTH PROFESSIONALS, LOCAL 5001, AFT,
ST. FRANCIS HOSPITAL
Mr. Jeffrey P. Sweetland, Esq., Shneidman, Hawks & Ehlke,
S.C., 700 West Michigan, Suite 500, P.O. Box 442, Milwaukee, Wisconsin 53201-0442,
appeared on behalf of the Union.
Mr. Thomas W. Scrivner, Esq., Michael, Best & Friedrich,
LLP, 100 East Wisconsin Avenue, Suite 3300, Milwaukee, Wisconsin 53202, appeared on
behalf of the Employer.
On June 6, 2002, the Wisconsin Federation of Nurses and Health Professionals,
AFT, AFL-CIO and St. Francis Hospital filed a request with the Wisconsin Employment
Commission seeking to have William C. Houlihan, a member of the Commission's staff,
decide a grievance pending between the parties. A hearing was conducted on September 6,
in Milwaukee, Wisconsin. A transcript of the proceedings was taken and distributed by
17, 2002. Post-hearing briefs were submitted and exchanged by October 28, 2002.
This dispute addresses the termination of L.S.
BACKGROUND AND FACTS
St. Francis Hospital, located in Milwaukee, Wisconsin, is affiliated with the Wheaton
Franciscan Catholic order. The facility has 260 licensed beds, of which 150-170 are
The fifth floor, where L.S. was employed, is predominantly a post-surgical unit.
receives patients following orthopedic surgery, pediatric patients, medical overflow patients,
provides post-surgical telemetry (heart monitoring).
The grievant, L.S., was hired in October of 2000 to work as a Patient Care
Care Associates are hired to assist Registered Nurses in the direct care of patients. A Patient
Associate (PCA) is responsible for the bedside custodial care of a patient. In that capacity,
responsibility for the hygiene of patients, bathing, incontinent care, oral care, and any
that go along with feeding a patient if necessary. The proper positioning, cutting up of
monitoring a patient's eating, monitoring what a patient has eaten, walking a patient,
patient from bed to chair, turning the patient at prescribed times are included in a PCA's job
assignment. PCA's empty drains, empty Foley catheters, monitor to make sure a patient
removing oxygen tubes, work with restraints, and monitor the status of hospital patients. A
Care Associate is a certified nursing assistant with additional training and responsibilities.
worked the p.m. shift (3 to 11:30 p.m.).
On February 20, 2002, Kelejo Stephenson, a PCA working on 5 South, reported that
grievant had slapped patient 12-2. Ms. Stephenson claimed to have witnessed the slap. It
Stephenson's testimony that on February 20, she and L.S. were both working on 5 South.
to Ms. Stephenson, the Grievant approached her at approximately 4 4:15 p.m.
and asked for her
help in boosting a patient. Patient 12-2 had slid down his bed with his legs pinched between
rails. Patient 12-2 was a 93-year old male suffering from hypoxia, and organic brain
had recently been admitted. His hands were restrained in order to keep him from pulling out
intravenous lines and oxygen.
Ms. Stephenson testified that the PCA's positioned themselves on each side of the
She claimed that the grievant then lifted each of Patient 12-2's legs, and dropped them, one
other. According to her testimony, the grievant never lowered the bed rail to free the
Thereafter, the PCA's untied the hand restraints which had been applied to Patient 12-2, and
the patient. When his hands were untied, the patient grabbed his diaper, held it tight, and
let go. The grievant got the patient's right hand off the diaper and re-restrained it. Ms.
could not do so. It was her testimony that the grievant reached across the bed and delivered
blow to the patient's hand which caused him to let go of his diaper. Ms. Stephenson then
re-restrained the hand. She testified to a sharp slap, and also indicated that the grievant said
that she was
losing her patience.
Upon exiting the room, Kelejo Stephenson went to Stacie Barker, another PCA, and
Barker what had happened. It is her testimony that Barker told her to tell the charge nurse.
in the day, Stephenson went to Margaret Gasiorowski, the charge nurse. Stephenson
claim to Gasiorowski.
Ms. Stephenson followed up on this matter with Bonnie Krueger, an educator.
Stephenson to draft a statement, which she did. Her statement is consistent with her report
The grievant's version of the events are markedly different. The grievant testified
asked Ms. Stephenson for help somewhere between 9 and 10 p.m. The grievant testified that
the women arrived, the patient was slouched or sliding down on the bed, with his feet caught
small space between the side rails. The grievant testified that she put the side rails down,
both of the patient's feet and swung them back onto the bed. At the time she lifted the legs,
grievant remarked that she was tired.
After the legs were placed back into the bed, the caregivers loosened the patient's
to boost him. The patient grabbed his diaper with both hands. The grievant, who was on
patient's right side, loosened the patient's finger from the diaper, and re-secured the hand.
Stephenson was struggling to loosen the patient's grip on his diaper with his left hand. It
grievant's testimony that she reached over and tried to pry the patient's left hand from the
She was unable to do so. She testified that she told him to let go. She testified that she
hand gently and told him to let go and was thereafter successful in removing his fingers from
diaper. Ms. Stephenson re-secured the left hand.
The grievant first heard of the existence of a complaint five days later, when she was
into a meeting with management. The meeting was an investigatory interview conducted by
Christopher Morris, the Human Resource Director. Present were Linda Norton, the house
supervisor, L.S., the grievant, and Mary Rolland, a respiratory therapist who was the union
The following is Ms. Norton's contemporaneous summary of the meeting, which was
her testimony at hearing:
February 27, 2002
Questioning conducted by C. Morris. At
first L. did not recall the patient and may have been
answering questions regarding the patient in bed 1, so the list of questions was regenerated to
her recollection of events as pertaining to this patient. Room 5212-2. Union representation
secured by C. Morris for the employee.
L. acknowledged that she did work with this patient, however,
she felt that the circumstances
were not on Wednesday 2./20/02 as stated in the complaint. She stated that she asked a
whose name she did not know, (Katie Sadowski was the nurse extern on duty that shift) for
with the patient. She stated that she needed help because the patient needed to be restrained
wrist restraints. She stated that the patient did not have a hold of his diaper at any time and
did not have to loosen up his hands. She stated that she may at times open a patient's fingers
them to release something they are clutching on to. She stated that she did not slap the hand
patient at any time, that she would never do that. She did remember that he was confused
have been somewhat difficult to deal with, however, she did not feel that he was difficult to
at that particular time. She acknowledged remembering that he put his legs between the
the bed, and that he needed to be boosted in bed. She denied commenting that she was
irritated with him.
Additional questions were asked regarding proper restraint usage,
that applies to all patients, with
re: to how often the restraints are loosened during a shift. General work questions were
L. was informed that this was an entirely
confidential matter and was asked to keep this issue
confidential as well. She was told that she would be dismissed at that time without pay and
investigation would take place as quickly as possible. She was informed that if the
found to be in her favor, she would be paid for the time retroactively. She asked if she
the name of the person who said she did this, and was told that at this time, all information
confidential, but that as the investigation occurred, she may be able to learn who it was.
Following the meeting, Stacie Barker was interviewed and a statement taken. On
Margaret Gasiorowski was interviewed and a statement taken. On Sunday, February 24,
Krueger was interviewed.
The grievant was called into a second meeting which occurred on March 4.
Ms. Norton, Mr.
Morris, the grievant, and Jaci Ranft, a union representative, were in attendance. Ms. Norton
that at the March 4 meeting, the grievant indicated the patient clutched his diaper, and that
to unfurl his fingers, and that she did not become annoyed with him because he was not in an
state, and that she did not slap him. At the conclusion of this meeting, the grievant was
The parties stipulate the issue to be:
Was the grievant discharged for just cause?
If not, what, if any, remedy is appropriate.
RELEVANT PROVISIONS OF THE COLLECTIVE
Hospital shall not discharge or discipline any employee except
for just cause. A grievance over a discharge or suspension must be initiated at Step 3 of the
problem-solving Procedure within eight (8) calendar days from the discharge or suspension.
. . .
POSITIONS OF THE PARTIES
The Employer contends that the credible evidence regarding the care of
establishes the grievant's misconduct. The Employer urges a credibility determination based
upon the criteria set forth by Arbitrator Coyle in Safeway Stores, 96 LA 304 (Coyle, 1990).
Arbitrator Coyle set forth the following criteria, against which to assess
1. Relative strength of (the witness')
in testimony given on the same subject at different times during the
of testimony in statements on same subject in other forums;
4. Obvious bias,
prejudice, or motive to misrepresent known facts;
5. Showing of
emotional stress or other feelings that would impair ability to respond to
questions carefully and accurately;
6. Evasiveness or refusals to respond
without acceptable reasons;
7. Quality and
reasonableness of testimony considered in its entirety in relation to other
credible testimony; and
8. Existence of
The Employer contends that witness Stephenson's
recollection of the events did not
waver. The Employer contends that the grievant's testimonial recollection was neither
consistent nor coherent. The Employer contends that the grievant's testimony changed,
wavered, and reversed itself on many material points.
The Employer contends that the grievant's testimony relative to what
Patient 12-2 on February 20 was inconsistent on many material points. The Employer notes
numerous detail inconsistencies relative to the grievant's recollection of the events of
The Employer notes that the grievant's testimony at hearing was
different from her
recollection of events as narrated at the February 26 investigation, and different yet from her
recollection of events as narrated in the March 4, 2002 investigation. The Employer
that the grievant's story increasingly acknowledges the existence of physical touching. The
Employer contends that the evolution of the grievant's story is an effort to attempt to
her testimony with that of Ms. Stephenson.
The Employer contends that the grievant has a motive to deny that she
patient. Stephenson, on the other hand, has no motive to lie. She was a probationary
employee with the hospital, who had no significant work dealing with the grievant prior to
The Employer characterized the grievant as defensive and evasive
during her cross-examination. The Employer contrasts that with its perspective on
Stephenson, who it regarded
as responsive, alert and forthcoming.
The statements of Stephenson, Barker, Gasiorowski, Norton and
Morris, and the
testimony of Norton and Morris support Stephenson's consistent report and account of
There is no corroborative support for the grievant's account.
The Union acknowledges that delivering a hard blow or slap to the
patient just to
release his grip on a diaper, coupled with roughly throwing his legs one at a time over a bed
rail, would be patient abuse and just cause for discharge. However, there is no evidence or
suggestion that one or two light taps to the patient hand, about which the grievant testified,
would be a violation of either patient rights or hospital rules. To the
evidence established that such actions were entirely proper and consistent with hospital and
professional standards. The Union contends that the burden is on the hospital to prove that
the grievant gave the patient a hard slap, rather than one or two gentle taps to get his
and cooperation. In the Union's view, this case turns entirely on the credibility of the two
individuals, the grievant and Ms. Stephenson.
The Union notes that Ms. Stephenson's account of the events diverges
grievant's in three respects. The first is their recollection of the time of the incident. The
grievant's recollection that the event occurred after supper is consistent with her having
discovered the grievant during one of her hourly checks. Ms. Stephenson's time frame
have placed it an hour after the start of the shift, a time when everyone would have been
with their own patients.
Ms. Stephenson's story about the grievant's handling of 12-2's legs is
improbable, if not physically impossible. Ms. Stephenson's description was inconsistent with
the grievant's normal practice. Moving the legs separately, especially if the patient is
combative, creates a greater risk that the patient could kick the caregiver with a free leg.
Moving both legs together is easier on the caregiver's back and legs.
The Union contends that it would have been physically impossible for
the grievant to
handle 12-2's legs in the manner described by Ms. Stephenson. If both legs were initially
wedged in the narrow space between the two side rails on the right side, the pelvis would
been turned to the right with the left leg on top. The Union contends it would have been
impossible to lift the left leg, move it and drop it onto the bed with the right leg and foot still
wedged in the rail.
The Union contends that Ms. Stephenson is one to catastrophize
situations. The Union
points to the testimony of a co-worker who recounted two occasions when she and another
caregiver were working with combative patients who were hollering. According to this
witness, Ms. Stephenson ran into the room, hysterically demanding to know what was going
on. The Union believes that Ms. Stephenson is one who lets her imagination run wild. The
Union believes that Ms. Stephenson is prone to exaggeration. The Union contends that there
is no dispute that the grievant struck 12-2's hand in order to get him to release his grip on
diaper. The crux of this case is how much force did she use. The Union attacks Ms.
Stephenson's recollection. The Union contends that she did not indicate any reaction by
patient 12-2, no grunt, or expression of pain or surprise, or even a flinch of the hand. She
not even see a mark on his hand from the alleged slap. The Union contends that Stephenson
has magnified the grievant's gentle tap on 12-2's hand into a hard slap.
The Union concludes that there is no evidence of patient abuse, and
reinstatement and full back pay.
As presented, this dispute requires a credibility determination as to
whether or not a
hard slap was delivered. The parties to this proceeding stipulate that a hard, forceful slap is
grounds for discharge. Ms. Stephenson testified unequivocally that such a slap was
The grievant unequivocally denies that to be the case.
I believe such a slap was delivered. I credit Ms. Stephenson's account
of the events.
I do so because she was a new, probationary employee with no apparent motive to lie or
fabricate the event. Upon witnessing the slap, she went to a co-worker the same day and
sought direction. When directed to report up the chain of command she did so and followed
up on the matter. She was an eyewitness to the event. The slap was delivered in her
immediate presence. As described by her, the event was enough to prompt a report. Her
account was of a dramatic and uncalled for blow. As she describes the event, it is something
to induce concern, and to raise the question of whether or not it need be
The grievant described a routine, unremarkable occurrence. Nothing
described by the
grievant would give rise to the slightest concern. It was the grievant's testimony that she
completely within the bounds of appropriate caregiving procedure. If that is so, Ms.
Stephenson's report would be entirely fabricated and malicious. Nothing in the record
suggests any basis for such a conclusion. The Union offered testimony, which at best
characterized Ms. Stephenson as alarmist, and overreactive. Assuming that to be the case, it
does not explain the disparity in the testimony between Stephenson and the grievant. Ms.
Stephenson testified that the grievant lifted the patient's legs one at a time and dropped one
leg upon another. Ms. Stephenson testified that the grievant did not lower the side rail. The
grievant testified that she did lower the side rail, and that she lifted the legs together. Their
testimony is at odds. One is not an exaggeration of the other. Ms. Stephenson testified that
the grievant delivered a hard, forceful slap, directed the patient to let go, and further
she was losing her temper. The grievant denied all of the foregoing. There is nothing in
record that would suggest that Ms. Stephenson has any motive to fabricate this
The grievant's story changed from the February 26 meeting to the
March 4 meeting to
the hearing. On February 26 the grievant could not recall the patient grabbing his diaper
his hands, the event that precipitated the alleged slap. I believe the February 26 meeting
occurred too many days after the event. The grievant was not told who her accuser was or
allegation. I am prepared to accept that she was surprised, confused, and lacked a
of the event.
However, by March 4, the grievant had served a suspension. She
knew what incident
was involved, and she had a specific recollection that the patient had grabbed his diaper.
According to the testimony and corroborative notes of management witnesses, the grievant
not then indicate that she reached across the patient. There was no indication that she tapped
the patient's hands to communicate with him the need to remove his hand from the diaper.
If, as she testified at the hearing, she reached across the patient to help her co-worker and
the patient's hands gently, it is hard to understand why she would not so advise management
at the point of her termination. Those facts would have provided an explanation in the face
of a serious accusation. I do not believe that her silence on that topic can be attributed to
surprise, confusion, or a lack of understanding as to the accusation.
I agree with the Employer that the grievant has changed certain
elements of her story
over the course of time. I also agree that those changes in detail appear to explain and/or
address the charges against her.
The second area of dispute involves how the grievant handled Patient
12-2's legs. The
testimony of Ms. Stephenson and the grievant are in direct conflict. The Union contends that
it is impossible for Ms. Stephenson's account of how the grievant handled the patient's legs
to be accurate. I agree that if the left leg was on top of the right leg, it would not be
to drop the right leg directly on top of the previously moved left leg. It is possible that the
right leg was dropped on, but an angle to the left leg already lying on the bed. I do not
this as detracting from Ms. Stephenson's testimony. The focus of the investigation and the
grievance procedure was the slap. The discharge was for the slap. I am satisfied that the
The grievance is denied.
Dated at Madison, Wisconsin, this 29th day of April, 2003.
William C. Houlihan, Arbitrator