BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
THE AMERICAN FEDERATION OF STATE,
AND MUNCIPAL EMPLOYEES, LOCAL 2427,
Mr. Michael J. Collard, Human Resources Director, 508 New
York Avenue, Sheboygan, Wisconsin 53081, appeared on behalf of the County.
Ms. Helen Isferding, District Representative, 1207 Main
Avenue, Sheboygan, Wisconsin 53083, appeared on behalf of the Union.
On February 10, 2003, Sheboygan County and Local 2427 of the American
State, County and Municipal Employees filed a request with the Wisconsin Employment
Commission seeking to have the Commission appoint a member of its staff to hear and
grievance pending between the parties. The Commission appointed William C. Houlihan to
decide the matter. A hearing was conducted on May 3, 2003 in Sheboygan, Wisconsin. The
proceedings were not transcribed. Post-hearing briefs and reply briefs were submitted and
by July 3, 2003.
This Award addresses the termination of two employees, S.B. and S.W.
BACKGROUND AND FACTS
Sunny Ridge Nursing Home is a skilled care, residential facility located in the City of
Sheboygan, Wisconsin and operated by Sheboygan County. As of November 15, 2002, the
S.B. and S.W. were Certified Nursing Assistants at Sunny Ridge. S.B. and S.W. worked
on 3 North. Residents of 3 North suffer from Alzheimer's disease and various forms of
On November 19, 2002, Sharon Martinez, a C.N.A. reported an incident, alleged to
occurred on November 15, 2002, to nursing supervisor Beth Reseburg. Reseburg, in turn,
the matter to Marcia Adams, Director of Nursing. An investigation was conducted, a
individuals were interviewed. Based upon this investigation, the Employer concluded that
abuse had occurred, and discharged the two grievants.
The two grievants were discharged by letter dated November 22, 2002.
Employer filed a report with the Bureau of Quality Assurance, Caregiver Regulation and
section alleging that the two grievants abused residents of the facility. As of the close of the
evidentiary record in this matter, there was no disposition as to those charges. Grievances
on December 5, 2002 on behalf of each of the grievants.
There is a critical dispute of fact as to the facts underlying the discharges. Those
facts are key as to whether or not patient abuse occurred. Competing accounts of the events
November 15 are set forth below.
Sharon Martinez has been employed by Sheboygan County as a Certified Nursing
for three years prior to the incident in question. On November 15, 2002, Martinez was
3N. During the dinner hour, she was initially assigned to work with residents in a small
When she was done there, she went into the main dining room to see if she could help. It
testimony that she saw grievant S.B. take a wet napkin and throw it across the table at
hitting her in the face. According to Martinez, resident M.R. began yelling, telling S.B. to
According to Martinez, grievant S.W. took a wet napkin and threw it at resident B.H.,
hitting her in
the face. B.H. began yelling. Martinez indicated that grievant S.B. told her that they liked
residents B.H. and M.R. to argue with each other, because they thought it was funny.
Martinez, the two grievants continued to throw wet napkins at the two residents. Martinez
that M.R. began yelling, "Goddamn. You always f------ do this." The two residents began
at one another. Martinez testified that the exchange of napkins continued, that the resident
them to stop, and that they would not. She further testified that resident M.R. was very
Martinez testified that the two grievants periodically looked around to see if anyone
walking in or around to observe them. She testified that Amanda Mueller was at her side,
observed the incident. Martinez testified that she did not want to get the grievants into
so she did nothing. She subsequently talked with a co-worker on the day shift who
counseled her to
go to a supervisor.
Later in the evening on November 15, Martinez engaged the two grievants in a
relating to a bachelorette party occurring later in the evening. Martinez asked what was
and was told there was a party for another co-worker. She asked where, and was advised
that it was
in a bar. She asked if she could attend, and was told that the bar was open to anyone.
not attend the party because she did not feel welcome.
Amanda Mueller, who was been a C.N.A. employed by Sheboygan County since
2002, also testified. It was her testimony that on November 15, 2002, she was in the main
room feeding residents when the napkin-throwing incident occurred. According to
Ms. Mueller, she
was feeding a resident, facing away from the grievants' table when the incident commenced.
she heard commotion, she looked around and saw the two grievants throw wet napkins at
It was her testimony that she saw S.B. throw a napkin at M.R., and hit her in the face. She
testified as to having seen S.W. throw a wet napkin at resident B.H. and hit her in the face.
testimony was that the residents were agitated. She testified that this occurred over a period
to 15 minutes, with repeated napkin throwing. She testified that the residents were agitated
M.R. swore. She testified that the grievants were attempting to get the residents mad at one
Mueller testified that when she finished feeding her resident, she went over and stood
to Martinez, after Martinez entered the room. It was her testimony that Rochelle Pfeifer,
C.N.A., was feeding a resident at the same table with the grievants. It was Mueller's
there were no other staff in the room at that time. She testified that Brenda Unhold, another
who had been assisting in the resident's feeding, had left the room by the time the napkins
thrown. She also testified that Jeanne Anderson, the L.P.N. who was working at the nurses
had left the area to pass medications at the time of the napkin throwing.
Amanda Mueller did not know Sharon Martinez at the time of this incident. It was
and Martinez' testimony that they did not talk to one another about the incident. Mueller did
come forward to report the incident. Rather, the Employer approached her.
Rochelle Pfeifer, a C.N.A. who was seated at the table with the grievants, also
testified that the grievants threw a wet napkin at one another, but not at a resident. Pfeifer
acknowledges that resident M.R. said, "Goddamn it", and indicated that he was upset by the
grievants. She testified that no resident was hit by a napkin, but in her written statement
that "but I was not watching the whole time."
Brenda Unhold testified that she did not see Martinez come into the room, nor did
napkins thrown. Jeanne Anderson testified that she did not see Martinez come into the room
she did not see napkins thrown.
Grievant S.B. testified. It was her testimony that she saw grievant S.W. staring out
window, and threw a dry napkin at her, striking and startling her. She testified that S.W.
napkin back at her. She testified that she thereafter dunked the napkin in water, causing it to
damp and threw the napkin back and forth five to 10 times. She testified that Pfeifer sat at
of the table laughing. She testified that nurse Anderson was present throughout the
Grievant S.W. testified as to the incident. It was her testimony that the napkin was
back and forth two times. She acknowledges that resident "M" was swearing, but indicated
was mad at H.P. for pounding on the table. S.W. testified that the napkin was dry, and not
testified that she did not see Sharon Martinez in the room. She testified that Amanda Pfeifer
the events and was laughing. When called in for an investigation, she did not know what the
investigation was about. When told it involved the exchange of napkins, she was
the course of the investigation, she asked who turned her in and who was abused, and was
Both grievants testified that napkins were not thrown at, nor did they strike,
grievants indicated that residents were entertained and amused at their horseplay.
There was a good deal of testimony relative to other exchanges and incidents alleged
follow-ups to the incident in question. There was also a good deal of testimony relative to
friendships and relationships of the parties who testified and others.
The parties stipulated the following issue:
Did the County violate the collective bargaining agreement when
it terminated the employment
of S.B. and S.W.? If so, what is the appropriate remedy?
RELEVANT PROVISIONS OF THE COLLECTIVE
Unless otherwise herein provided, the management of the
and the direction of the
working forces, including the right to hire, promote, transfer, demote or suspend, or
discharge for proper cause, and the right to relieve employees from duty because of lack of
other legitimate reason is vested exclusively in the Employer. If any action taken by the
is proven not to be justified, the employee shall receive all wages and benefits due to him/her
period of time involved in the matter.
. . .
Termination reports shall be in triplicate and signed by the
Employer when an employee is
separated from the Health Care Center for any reason except sick leave, vacation or other
leave. One (1) copy shall be retained by the Employer, one (1) filed with the Union and one
to the terminated employee. Any employee leaving the Department, except for legitimate
as sickness, vacation, or granted personal leave, shall be considered a terminated employee.
. . .
This Award turns on one key fact; whether or not the grievants threw napkins at
All parties agree that if Martinez and Mueller's version of the events is true, patient abuse
and discharge is the appropriate remedy. On the other hand, if the testimony of the grievants
accepted and what occurred was harmless horseplay, which served to focus and stimulate
the behavior is not disciplinable, much less grounds for discharge.
There was record testimony submitted and argued relative to the timing of events,
position of people in the dining room, minor disparities and inconsistencies in testimony
not specifically mentioned in this Award. Similarly, there is evidence submitted with respect
relationships between and among employees at the Facility and motives for testifying that are
specifically mentioned in this Award. These matters have been considered but not
I credit the testimony of Sharon Martinez and Amanda Mueller. The two C.N.A.'s
same account of events relative to the throwing of the napkins. They did so despite
the fact that they did not know one another prior to the incident. All evidence
indicates that they did
not talk with one another subsequent to the incident. Each of their testimony at hearing was
consistent with the reports they gave at the time.
The Union attacks the credibility of each of these witnesses. With respect to
Union claims that Martinez was essentially excluded from the bachelorette party. The Union
that her testimony was the product of bruised feelings. Attributing her testimony to a social
would require an extraordinary leap of faith. In this dispute, the grievants testified that
not present. Clearly, she was present. She gave a detailed account of events. She saw
thrown and testified to the residents cursing in outrage. She saw and was seen by Amanda
Martinez gave a detailed account of the events, and thereafter was cross-examined. Much of
she described was undisputed. The real dispute in this proceeding is not whether there was a
throwing incident nor even whether residents reacted.
The Union goes on to attack Martinez' testimony on the basis that she delayed
event. I accept her testimony that she was averse to getting her co-workers in trouble. It is
worker who comes forward eagerly to accuse a co-worker of serious wrongdoing. I find her
reluctance to do so understandable. Martinez' story was confirmed in its entirety by
The Union attacks Mueller's testimony on the basis that her brother is married to a
who has a long-standing and serious grudge with S.B. Accepting that on its face, Mueller
come forward. Mueller did not know or speak with Martinez before she was interviewed by
management. Nothing in the record suggests that Mueller was prepped for her meeting with
management investigators. Yet, her story was virtually identical to Martinez'.
S.W. testified to the events as narrated above. Her testimony included her claim that
never saw Sharon in the dining room. Her testimony was inconsistent with that of
investigators and with Mueller's relative to events surrounding and subsequent to the napkin
S.B. testified as noted above. Her testimony was that nurse Anderson was present
entire period. That testimony is inconsistent with all other testimony in the record.
Ms. Pfeifer's testimony supports the grievants. Her testimony at hearing was that
not enter the large dining room. Her testimony is wrong in that regard. In her written
Pfeifer indicates that "I did not see everything due to me feeding two residents." She was
the table where this raucous, protracted, noisy event transpired. I regard her testimony as
at best. I have attributed no weight to Ms. Pfeifer's testimony.
In conclusion, I believe the napkin-throwing incident occurred as was described by
and Mueller. I believe it constituted patient abuse.
The grievance is denied.
Dated at Madison, Wisconsin, this 11th day of November, 2003.