BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SHEBOYGAN COUNTY HEALTH CARE FACILITIES
LOCAL 2427, AFSCME, AFL-CIO
(Dawn Ohlschmidt Termination)
Ms. Helen Isferding, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 1207 Main
Street, Sheboygan WI 53083, appearing on behalf of Local 2427.
Mr. Michael Collard, Personnel Director, Sheboygan County
Personnel Department, 508 New York
Street, Sheboygan, WI 53081, appearing on behalf of Sheboygan County.
Pursuant to the provisions of the collective bargaining agreement between the parties,
Sheboygan County Health Care Facilities Employees, Local 2427, AFSCME, AFL-CIO
referred to as the Union) and Sheboygan County (hereinafter referred to as the Employer or
requested that the Wisconsin Employment Relations Commission designate a member of its
serve as arbitrator to hear and decide a dispute concerning the termination of Dawn
her position as a Nurses Aide at the County's Sunny Ridge Nursing Home. The undersigned
designated. A hearing was held on August 5, 2003, in Sheboygan, Wisconsin, at which time
parties were afforded full opportunity to present such testimony, exhibits, other evidence and
arguments as were relevant to the dispute. The parties submitted the case on oral arguments
close of the hearing, with the understanding that the Arbitrator would issue an expedited
Now, having considered the testimony, exhibits, other evidence, contract language,
of the parties and the record as a whole, the Arbitrator makes the following Award.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties stipulated that the matter was properly before the Arbitrator. The
issues before the arbitrator are:
1. Did the County have just cause to
terminate the Grievant, Dawn Ohlschmidt?
2. If not, what is the appropriate
The collective bargaining agreement provides that Management has the right to make
enforce reasonable work rules, and to discipline employees for proper cause. Disputes over
exercise of these rights are subject to the grievance procedure and binding arbitration.
The Employer provides general governmental services to the people of Sheboygan
Wisconsin. Among these services is the operation of several health care facilities, including
Ridge Nursing Home. The Union is the exclusive bargaining representative for the
employees of the
health care facilities, including those employees in the classifications of Housekeeper, Nurses
and Licensed Practical Nurse (LPN). The Grievant, Dawn Ohlschmidt, was employed by the
from 1993 until her termination in 2003. She initially worked as a Housekeeper and in
a Certified Nursing Assistant (CNA). At the time of her discharge, she was a full-time Aide
to the first shift on unit 3 South. That unit contains a mixed population of elderly residents
The Grievant was discharged effective March 14, 2003, after it was reported that she
unnecessary force with a resident who did not wish to get up that morning. The incident was
reported to RN Sharon Brott by the Grievant, who told her that an elderly female resident,
bleeding from a skin tear. The resident was observed to have torn skin on her hands and
her upper arms. The Grievant and the part-time Aide working with her, Lori Konkel, were
suspended pending investigation. Konkel and the Grievant each provided a written statement
management as part of the investigation. Konkel's statement described events as:
I went into the room, put linens on [F's] bed, said good
morning and asked her if she was
ready to get up. [F] stated she was not. I then went to wash and dress [M]. Dawn entered
as I was finishing [M's] cares. She helped me transfer her to her wheelchair and combed her
while I began to make [M's] bed. As we worked in the room, [F] kept putting her call light
asking us to turn out the lights. It was apparent at that point that she was becoming upset. I
Dawn to give me someone else to get up. As I finished [M's] bed, Dawn went over to [F]
her it was time to get up. [F] stated that she doesn't get up 'til 7. Dawn said that it was
almost 7 so
she'd help her get up. As I finished [M's] bed, [F] began screaming "help"! I turned to see
trying to put on her ten hose as [F] screamed and flailed her arms. Dawn told me to hold
I took hold of her arms just above the wrists. She broke free and tried to scratch and grab at
and me. I held her arms again. This time I noticed blood on her right hand. We laid her
back in bed
and left the room.
The Grievant's statement described events as:
Resident was very verbal and combative while trying to provide
morning cares. She grab at me
and her clothing and dug her nails into her hands and arms. Was hitting herself. She also
screaming and then I left her laying on her bed and went and reported to the nurses, about
bleeding and her behavior.
After interviewing Konkel, the Grievant, Katherine Bagemehl,
CNA working the same unit,
and a number of other personnel who had been on duty, management determined that the
expressed a desire to be left alone and not forced to get up before 7:00 a.m., and that
had insisted that she get up, forcibly attempting to dress her. Management concluded that
resident resisted and the Grievant, assisted by Konkel, physically restrained her and struggled
her, resulting in the bruising and skin tears. Management concluded that this violated the
right to refuse treatment and that the physical confrontation constituted resident abuse.
The Grievant was terminated for resident abuse. Konkel was judged to be less
because she was a part-time Aide temporarily assigned to the unit, who was working at the
direction, and because she immediately conceded that what had happened was wrong and
regret. Konkel was assessed a five-day suspension. Management judged the Grievant more
because she was full-time on the unit, familiar with the residents, seemed to be the primary
the confrontation, and did not express any understanding that what was done was wrong.
Management judged that this, in combination with a suspension meted out a month earlier for
inappropriate remarks to a resident, indicated a high risk that the conduct could be repeated.
The instant grievance was filed protesting the discharge. It was not resolved in the
steps of the grievance procedure and was referred to arbitration. At the arbitration hearing,
addition to the facts recited above, the following testimony was taken:
CNA Lori Konkel, testified that she had been temporarily
assigned to work 3 South on
March 14th with the Grievant. Katherine Bagenehl and Sharon Martinez
were the other team of
CNA's on the unit. At approximately 6:30 a.m., she went into [F's] room and asked her if
ready to get up. [F] said no, so Konkel asked her roommate if she wanted to get up. She
was ready and Konkel helped her bath and dress herself. While she was doing this, the
in the room. [F's] call light was on and when she was asked why, [F] said it was because
them to turn out the lights in the room, because she did not want to get up.
When she finished with the roommate, Konkel asked the Grievant to assign her to
resident, but the Grievant did not reply. She made the roommate's bed and while she did so,
could hear the Grievant and [F] arguing, with [F] saying she did not want to get up before 7
the Grievant saying it was almost 7 so she would help [F] get up. [F] quieted down for a
and the Grievant got some water to bathe [F] and took out her clothes. She asked Konkel to
her dress [F]. By this time [F] was screaming for help. The Grievant told Konkel to hold
down. She grabbed [F] by the arm. [F] continued to scream and pulled free, but she was
able to get
hold of her wrist. Meanwhile, the Grievant had [F's] other arm and was trying to pull her
[F] was still screaming for help and flailing with her arms and neither Konkel nor the
having much success in restraining her. At that point, Kathy Bagemehl came in from across
and asked what was going on. When Bagemehl entered, Konkel and the Grievant abandoned
efforts to get [F] up and let her go. Konkel noticed some blood on her blouse and saw that
a skin tear on her finger. They put [F] back to bed. Konkel told the Grievant "I will never
happen again" and went to report the incident. She encountered RN Eileen Brandt in the hall
her what had happened. Within 10 minutes, she was called into the nursing supervisor's
Konkel testified that she knew that residents had the right to refuse treatments and
that she and the Grievant had been wrong to try and force [F] to get up when she did not
She felt particularly bad about the physical harm to the resident.
CNA Katherine Bagemehl testified that she was working across
the hall when she heard
someone screaming "Help me, help me!" She assumed that a resident had fallen on the
and her partner, Sharon Martinez, were in the midst of caring for a resident and transferring
resident to a wheelchair. When they finished, she went into the hall to see what was
went to the room where the screaming was coming from, opened the door and saw [F] sitting
edge of the bed, with the Grievant holding one of [F's] arms up in the air, while Konkel held
arm down with both hands. The Grievant was using her free arm to yank on [F's] pants.
struggling with the two Aides. Bagemehl asked "What is going on in here?" and the
"She doesn't want to get up she's complaining that the light is on it's time
for her to get up
The Grievant then stopped trying to pull [F's] pants on and said [F's] hand was
and Konkel released their grips and [F] sat at the edge of the bed crying. Bagemehl went
the hall to finish with her patient. The Grievant and Konkel came in and said [F's] hand was
and that they were not going to get her up. They said they were going to go tell the nurse
Bagemehl then returned to [F's] room. She saw blood on [F's] hand and it looked to
if [F] might have driven her nail into her palm. She noticed blood on [F's] arm and finger
[F] was crying and told her she did not know why they did that to her and that just because
roommate wanted to get up early did not mean she had to get up early. Bagemehl tried to
bleeding, but was not able to. She then went to get a nurse.
Bagemehl testified that she was shocked by what she saw,and that she believed it was
resident abuse. Asked why she delayed in reporting if, given that policies demand immediate
reporting by witnesses of abuse, she said that the Grievant and Konkel had said they were
report it and she delayed to see if she could stop the bleeding. She acknowledged that she
should have gone to the nurse right away, but repeated that she was shocked by what she
She estimated that [F] was screaming for about five minutes before she entered the room.
Bagemehl said she had been instructed in the past by nurses to get patients up even if
were reluctant, particularly diabetics who needed to have food, but she said she would never
with a patient who did not want to get up.
CNA Dawn Ohlschmidt testified that she entered [F's] room
after Konkel had begun getting
[M] up and dressed. She spent 10 minutes or so helping Konkel and during that time,
some comment about [F] not liking to have the light on. They finished with [M] and left to
another resident. When they returned to [F's] room, she got some water and [F's] clothes.
bathed [F] and put her hose on her legs. After [F's] hose were put on and as they started
with her pants, [F] suddenly became enraged, yelling and swinging her arms at them. She
had on leg
of her pants on, so she had to either finish putting them on completely or take them off. She
not leave her half dressed. [F] hit and grabbed the back of her shirt and Ohlschmidt tried to
fingers off. At this point, Bagemehl and her partner, Sharon Martinez, walked into the
noticed some blood on her blouse, and they laid [F] back down on the bed, with her pants
on and half off. She went to Sharon Brott to report what had happened and stopped on the
to tell Martinez and Bagemehl that the nurse had been notified.
Ohlschmidt testified that she had been repeatedly ordered by the nurses to get patients
even if they don't want to get up. This incident happened very quickly and there was very
to react. While the resident did injure herself, Ohlschmidt said there was not much she
done to prevent it. Reading over her written statement, she said that it was accurate, but not
and she noted that she had been told to write it up immediately before she left the facility.
did not have much opportunity to reflect on the incident before writing the statement.
On cross-examination, Ohlschmidt said she believed she and Konkel did a transfer of
resident in between morning cares for [M] and trying to get [F] up. She agreed, however,
Konkel was still finishing up with [M] while she started work with [F]. At that point, no
one had told
her that [F] did not want to get up and [F] had not said anything. According to Ohlschmidt,
not complain until she suddenly started screaming as her pants were put on and she was
surprise. Ohlschmidt agreed that physically forcing a resident to get up against his or her
be the wrong thing to do, but denied that that was what happened here. She repeated that
a sudden rage by [F] and that, at most, five minutes passed from her first objection to the
which they laid her back down.
In the wake of this incident, the State Department of Health and Family Services was
called in. They did not
interview the Grievant, but did speak with administrators and others and reviewed the
facility's records. Based on this
review, they concluded that abuse took place, fined the facility and ordered retraining of the
staff on the subjects of
resident abuse and the right of patients to refuse treatment, including refusing to get up if
they do not wish to. As of
the time of this hearing, no investigation of the Grievant personally had been completed, no
finding of abuse had been
entered against her and no determination had been made as to the Grievant's status with the
DHFS. Additional facts,
as necessary, are set forth below.
ARGUMENTS OF THE PARTIES
The Closing Argument of the County
The County takes the position that the Grievant was terminated for just cause and that
the grievance must be
denied. The evidence is clear-cut and leaves little room for argument. After a careful
investigation, the County
concluded that this employee was guilty of resident abuse. That conclusion is amply
supported by the evidence at the
The resident in question did not want to get up when the Grievant wanted to get her
ready for the day. It is
clear that she made known that she wished to have the light turned off and be left alone.
The Grievant claims that the
resident's objections were very sudden and that she had no warning that she was unhappy.
However, the other
witnesses testified to an extended period of screaming by the resident and Konkel testified
that she asked the Grievant
to assign her to help a different resident prepare for breakfast because it was clear that this
resident wanted to remain
in bed. The Grievant refused to leave her alone and insisted that she get dressed. This led
to a physical confrontation,
with the Grievant and Konkel restraining the resident by force, and the resident being
injured. Rather than back off
and try to calm the situation, the Grievant insisted on going ahead with dressing the resident.
This went on for five
minutes, by the Grievant's own estimation. This time frame was confirmed by Bagemehl.
Bagemehl responded from
another room to the screams. She estimated that it took five minutes for her to finish in the
other room and get across
the hall and she said that she was shocked by what she witnessed. Neither Konkel nor
Bagemehl has any motive to
lie, yet both testified that the Grievant abused this resident.
There is simply no justification for the Grievant's refusal to back down in the face of
the resident's objections.
The resident has every right to refuse to get up if she doesn't want to the fact that
this might inconvenience the Aide
is beside the point. It may be that the Grievant had no pre-conceived plan to abuse this
resident and it may be that she
did not directly inflict the physical injuries on the resident, but that, too, is beside the point.
She has been trained in
how to deal with belligerent residents and she has been trained to defuse confrontations.
This is not a case where she
was persistent in trying to persuade the resident to get up. This is a case where the resident
resisted and the Grievant
ignored her training and engaged in a physical confrontation to force this woman to get up.
The result was that the
resident was injured. That is resident abuse and the County has a zero tolerance policy
towards resident abuse.
The Closing Argument of the Union
The Union takes the position that the County did not have just cause to discharge the
Grievant and that she
must be reinstated and made whole for her losses. This is an employee with nine and a half
years of good service.
There is little question but that she did not inflict the injuries that this resident suffered. The
only question before the
Arbitrator is whether her efforts to get the resident out of bed amount to grounds for
summary discharge. Clearly, they
The practice at the facility is that Aides do not simply walk away when a resident is
reluctant to get up. The
consistent directions from the nurses are to get them up, even if they do not want to get up.
That is a practical necessity
if the facility is to function. That is what the Grievant did. Nothing more and nothing less.
The effort was initially
uneventful. The resident was cleaned and partially dressed. Her hose were put on and her
pants were halfway on when
she suddenly went berserk. As soon as the resident became agitated, the Grievant stopped,
but since the pants were
only halfway on, she could not simply leave the resident in that state. It would have been
dangerous. She either had
to have the pants all the way on or all the way off. She had no choice but to complete the
The County's reliance on a rule to the effect that residents can refuse to get up if they
wish ignores the actual
practice at the facility and ignores the fact that there is no such rule. The imposition of a
capital penalty such as
discharge requires overwhelming evidence of guilt, proof beyond a reasonable doubt and that
level of proof cannot be
satisfied in the absence of a clear rule. Here, the standards were so cloudy that the State
mandated a staff in-service
on the rules for getting patients up because this incident made it obvious that employees had
no idea what standards
should be applied. The Grievant cannot be discharged for violating a rule she knew nothing
The testimony of the other employees that they were shocked by this is refuted by the
fact that it was the
Grievant, not Konkel or Bagemehl, who went to the nurses station to report the incident.
The rules are clear that
failure to report abuse renders an employee culpable for
the abuse. Both Konkel and Bagemehl know this rule, yet neither rushed to report the
monstrous crime they had
witnessed. The fact is, of course, that neither considered it a problem until they were called
into management to
explain it and then each rewrote history to blame the Grievant. What happened here was a
routine matter, regrettable
because of the resident's unpredictable outburst, but hardly a case of resident abuse.
Rebuttal by the County
The County dismisses the Union's claim that this abuse was not reported by other
employees and thus was
not considered abuse. In fact, the abuse was reported within minutes of occurring by
multiple employees. The County
likewise disputes the Union's claim that the Grievant stopped her efforts to get the resident
up as soon as it became
apparent that it would be a problem. On the contrary, the evidence is that this incident went
on for at least five minutes
after it got out of hand. The Grievant conceded that time frame in her testimony and
Bagemehl said she heard the
screaming, finished her duties in the other room and went to the resident's room to see what
was going on, a process
that took five minutes at least. Rather clearly, the Grievant persisted well after the point at
which her training would
have dictated she back off and let things cool down.
The County stresses that proof beyond a reasonable doubt is an inappropriate standard
in a case such as this.
The County notes that the Union, the employee and the Employer all have a stake in this
case, but that the public also
has a compelling interest in protecting residents and insuring their right to a safe
environment. That interest should
not be compromised by imposing some extraordinary burden of proof.
Rebuttal by the
The Union stresses to the Arbitrator that he must not simply accept the County's
assertions of what employees
may have said in the investigation. He must give weight only to the witnesses who appeared
at the hearing and the
evidence from those witnesses is ambiguous at best. Konkel's alleged report was to a nurse
who happened to be in the
hall a nurse who did not testify at the hearing and who could not therefore confirm
Konkel's self-serving testimony
that she reported this incident. The reliable evidence is that the other employees did not
regard this as a serious
incident until the supervisors began investigating. Thus, their later claims of shock and
remorse ring hollow and
should be disregarded.
The issue in this case is whether the Grievant engaged in resident abuse. If so, she is
subject to termination
under the County's zero tolerance policy for abuse and under the general understanding in
the industry that intentional
abuse of a resident constitutes just cause. The
parties disagree, of course, over whether abuse took place and there is a threshold
question of what
standard of proof the County must meet to make its case. The Union urges that nothing less
proof beyond a reasonable doubt should be required, while the County argues that a mere
preponderance should be required.
The Appropriate Quantum of Proof
In determining the quantum of proof required to support a discharge, the principal
consideration is the factual
basis for the discharge. Where the employee is accused of conduct reflecting on her
character or honesty, the neutral
decision maker will generally require stronger evidence than he might if he was deciding a
suspension for absenteeism.
The long-term consequences for the Grievant are far more severe, encompassing not only the
loss of her job but very
likely difficulty in finding other employment in the industry. Even here, where the allegation
is not so much
intentional cruelty as it is a mixture of stubbornness and bad judgment, a conclusion that she
was guilty of patient abuse
will predictably haunt the Grievant's professional career. Having said that, "proof beyond a
reasonable doubt" is a
standard drawn from the criminal law. It is a safeguard against the power of the state to
imprison citizens, and with
the exception of a minority of arbitrators, it is not used in civil proceedings.
Articulating a standard of proof is a somewhat artificial exercise and the most honest
answer to this question
is probably to say that these charges require that, at the end of the day, the Arbitrator be
convinced of the Grievant's
guilt. To the extent that a standard can be accurately stated, I am persuaded that the
appropriate balance between the
compelling interests of the Grievant in her job and her good name and the very strong
interest of the Employer in
detecting and deterring serious misconduct is best struck by requiring that the charges be
proved by the clear and
convincing preponderance of the evidence. 1/
1/ Bornstein, et al.,
Labor and Employment Arbitration, (2d Edition, Matthew Bender),Volume 1
18, April 1998), at §506, footnote 1:
". . . it is almost
certainly the "clear and convincing evidence" standard that will be applied (either expressly
or by implication) by arbitrators in cases involving accusations of criminal conduct or moral
turpitude . . ."
The Merits of the Case
The charge against the Grievant is resident abuse, in that she is accused of engaging
physical confrontation with a resident, trying to force the resident to get up and dressed
will, resulting in injuries to the resident. While she agrees that the conduct alleged would be
she denies the conduct.
The Grievant's defense is that she was confronted by a very sudden rage from a
she could not stop dressing the resident in the face of the rage, since to do so would leave
her half-dressed and liable to trip and fall if she tried to get up. Certainly, there is a
reacting to a sudden rage and provoking that rage, and an employee must be given greater
in the former case before a particular act or course of action can be fairly characterized as
Employees are given training in how to appropriately react, but training has its limits and if
unfolded as the Grievant described, it might be argued that her conduct, though not well
was at least not so outrageous as to be abuse.
The difficulty for the Grievant's defense is that her version of events is flatly
both Konkel and Bagemehl. According to each of them, [F's] objections were quite clear
Grievant started putting her pants on. She was screaming for help for a period of time
effort started. According to Konkel, the Grievant essentially initiated the physical struggle
insisting that [F] be dressed when she resisted, and it was the Grievant who ordered Konkel
and hold [F's] arm. If Konkel and Bagemehl are to be believed, the Grievant is clearly
I cannot find any persuasive reason to discredit Konkel and Bagemehl. Certainly,
a stake in this matter, since she was also subjected to discipline and may have wished to
her job by throwing blame on the Grievant. However, her detailed statement from the same
essentially tracks her testimony and accepts her part in the matter. It is difficult to see how
statement served her self interest. She would have been better off, from a disciplinary
telling the same story as the Grievant if that was what actually happened. There is no
slanting the story to make both of them look worse.
Moreover, Bagemehl's statement regarding the timeline of the incident, when the
started and how long it went on, and her description of the Grievant's explanation of her
that [F] didn't want to get up but that it was time for her to get up are all consistent
statement and inconsistent with the Grievant's. Bagemehl's motive for lying is even less
Konkel's. She had no exposure here. She responded to a resident's cries for help, walked
in on the
incident, attempted to give care for the resident's injuries, then reported it to the nurse.
The record evidence is overwhelming that the Grievant deliberately engaged in a
confrontation with an elderly resident in an effort to make that resident get up when it was
the resident was unwilling. Certainly, she did not start with a plan to use force, but that is
point. When it became clear that [F] was intent on resisting, she had ample opportunity to
and defuse the situation. She elected instead to escalate it. I have no doubt that the Grievant
intended the resident to be injured, but that is not the point, either. 2/ The injuries were a
consequence of the element of physical coercion and the Grievant is not blameless in that
Even if [F] had come through this incident without the bleeding and bruising, the use of
her would be impossible to justify.
2/ Neither is the
argument over whether nurses tell Aides to get residents up whether they want to get up or
not really relevant to this case. It is not hard to believe that Aides are told to be persistent,
but no one suggested
that physical force was an acceptable option for making residents get up in the morning. The
resident abuse here
is not in insisting that [F] should get up before 7 a.m. At some point, that might constitute a
violation of [F's]
rights, but by itself, it would not call for summary discharge. The abuse here is in the
[F] may have been loud and disagreeable and difficult, but at
end of the day, she is a 99
year old woman who simply wanted to stay in bed awhile longer. She was entitled to do that
was entitled to do that without having to engage in a physical struggle with the staff who are
employed to look after her.
The Grievant is guilty of resident abuse. The facility presented evidence of a zero
policy towards abuse and the Grievant's conduct does not entitle her to some extraordinary
consideration with regard to penalty. While she had nine good years of service, her lead role
provoking this incident, the obvious wrongfulness of the conduct and her refusal to
there was anything wrong with her conduct persuade me that the County was within its rights
deciding that termination was the appropriate penalty. Accordingly, the grievance is denied.
On the basis of the foregoing, and the record as a whole, I have made the following
The Grievant was discharged for just cause. The grievance is denied.
Dated at Racine, Wisconsin, this 25th day of August, 2003. 3/
Daniel Nielsen, Arbitrator
3/ As a service to the
parties, this Award has been issued in draft form on August 19, 2003. This final version
contains minor corrections and formatting changes, but is substantively