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Title: State of Oregon, Eastern Oregon Training Center and Oregon Public Employees Union, Local 503, SEIU
Date: April 29, 1994 
Arbitrator: Luella E. Nelson 
Citation: 1994 NAC 109

 

In the matter of arbitration between:


Oregon Public Employees Union, Local 503, SEIU

                           and

State of Oregon, Eastern Oregon Training Center

RE:       Grievance of Michael Martin

Cases GX 02193; AAA Case No. 75 390 236 93

 

LUELLA E. NELSON, Arbitrator

 

                                                                                            


ARBITRATOR'S
OPINION AND AWARD

           This Arbitration arises pursuant to Agreement between Oregon Public Employees Union, Local 503, SEIU ("Union"), and State of Oregon ("Employer"), Eastern Oregon Training Center ("EOTC"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.

            Hearing was held on February 17, 1994, in Pendleton, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute.  Both parties filed post-hearing briefs on or about March 30, 1994.

APPEARANCES:

            On behalf of the Union:

                        Lynn-Marie Crider, Esquire, 4828 SE Hawthorne Boulevard, Portland, OR  97215

            On behalf of the Employer:

                        Stephen Krohn, Esquire, Assistant Attorney General (Theodore R. Kulongoski, Attorney General, on brief), Department of Justice, 100 Justice Building, Salem, OR   97310

ISSUE

                        Was the discipline for just cause under Article 20 of the Agreement; and, if not, what is the appropriate remedy?

RELEVANT SECTIONS OF AGREEMENT

ARTICLE 20--DISCIPLINE AND DISCHARGE
Section 1.
  The principles of progressive discipline shall be used when appropriate.  Discipline shall include, but not be limited to:  written reprimands; denial of an annual performance pay increase; reduction in pay; demotion; suspension and dismissal.  Discipline shall be imposed only for just cause.  ....

RELEVANT ADMINISTRATIVE RULES

Patient and Resident Rights

OAR 309-116-000 through OAR 309-116-025

                ...

                Definitions

                                309-116-005  As used in these rules:

                                (1)  "Abuse" means any act ... inconsistent with prescribed patient or resident treatment and care that violates the wellbeing or dignity of the patient or resident, in­clud­ing, but not limited to:  physical assault, (hitting, kicking, scratching, pinching, choking, or pushing; etc.), ....  "Abuse" does not include acts of self-defense or defense of a patient, res­i­dent, or other person in response to the use or imminent use of unlawful physical force, pro­vided that the state institution employe [sic] or volunteer uses only the degree of force rea­son­ably necessary to protect the patient or resident, self, or the other person from further violence.

FACTS

            The EOTC is operated by the Mental Health and Developmental Disability Services Division ("MHDDSD").  Grievant has worked at the EOTC since August 1991.  In April 1993, he held the position of Habilitative Training Technician 2 ("HTT-2").  He was assigned to the Work/Activity Center ("WAC") in the "Hill Building," two miles from the main campus.

            On April 13, 1993, Grievant was involved in an incident with a patient, "CK."  As a result of this incident, the Employer reduced his pay by one step for one month, effective May 9, 1993, through June 8, 1993.  The stated basis for this action is as follows:

            You have failed to follow prescribed behavior prescriptions to ensure a safe and therapeutic environment for clients in your care, you have violated the [MHDDSD] rule on client abuse and you have violated the [EOTC] policy and procedure on client abuse.  For example:

               -        On or about Tuesday, April 13, 1993, at approximately 1:40 p.m. you were assigned to the off campus [WAC].  Client CK became aggressive.  CK's behavior prescription states that staff should cue CK to stop the behavior and promptly remove peers from his immediate area and that personal restraints should be avoided.

                        Although two other staff members were within 15 feet, you did not call out or ask for help.  Instead you proceded [sic] to place CK in a personal restraint, and then to 'take CK to the floor'.  CK was injured in the process, he received a cut above his right eye, a bruise on his right collarbone, a scratch on his right elbow and scratches on his left forearm.  CK was upset and crying.

 

               -        You have made a number of conflicting statement [sic] regarding this incident, including:

                           -        You stated CK hit you in the kidney area with a closed fist.  How­ever, you then described the blow as to your stomach.  CK is not known to hit with a closed fist.

                           -        You stated you were stunned and unable to cry out for help.  You stated you could not back away as you could hardly move.  Yet you also stated you made the conscious decision to first hold CK by his wrists, then to hold him from behind, then to take him to the floor.

                           -        You stated you had not seen CK's new behavior prescription.  Staff training records show you received an inservice specific to this behavior prescription on April 5, 1993.

 

            Your actions with CK cause concern.  You demonstrated failure to follow his behavior prescription, failure to follow facility policy regarding always obtaining help in dealing with aggressive clients, and failure to follow facility policy regarding the use of the least restrictive method to deal with a client's inappropriate behavior.  CK was hurt and upset as a result.  Your actions were serious, violated the rule and policy cited above and warrant the disciplinary action taken.

            ...

The grievance over this temporary demotion included the following allegations:

            ... [G]rievant was attacked by a client, CK.  This attack was stun­ning and painful and grievant followed all possible procedures in adequately re­strain­ing client without harm.  However, client is known for unpredictable behavior, even closed fist attacks ... and grievant had to take action to protect himself.  The Hill Building has a cement floor and the minor injuries were unavoidable on this type floor and with the aggress­ive, hostile client.  Other staff members that were within 15 feet did not take action to help the grievant. ... [G]rievant did follow the behavior pre­scription, did follow facility policy and did use the least restrictive method to deal with a client's inappro­priate behavior to the absolute best of his ability in this situa­tion.

THE APRIL 13 INCIDENT

            CK makes "branch spreaders," which are used in orchards.  He uses a device to insert nails in each end of a stick of wood.  His work area is at one end of a long table, near an alcove at one end of the WAC.  Some dispute exists regarding the exact placement of tables in the area.

            Around 1:20 p.m. on April 13, CK left his work area to change his shirt, then walked back toward his table.  Grievant followed him.  As CK slowed near the tables, Grievant patted him on the shoulder and praised him, then moved a little ahead of him.  CK punched Grievant in the right side twice, doubling him over.  Grievant placed CK in a "Mandt" hold (holding the patient's forearms from behind, with his arms wrapped around the patient).  CK continued to try to hit him with his elbows.  He and Grievant went to the floor, lying on their right sides.  Grievant testified he tried to lower CK as gently as possible and break his fall.

            Grievant testified another client was working in the branch spreader area, at the closest end of the nearest table, when CK hit him.  Work Activity Manager RoaLynn Pace testified the WAC's work records do not show any other clients logged in to work on the branch spreaders that day.  The Employer's policies require logging in if clients work or create product.  Two other staff members in the area were dealing with other client behavior at the time,[1] and did not realize Grievant was in trouble until after he and CK went to the floor.  He testified he did not call out for help because of the immediate risk of harm and because CK had partially knocked the wind out of him.

            According to Grievant, CK calmed down when he went to the floor.  Grievant released him and helped him up.  CK then went to his work station, crying.  Grievant noticed injuries to CK's right eye and elbow.[2]  He and Kosey administered first aid.  By then, CK was scheduled to return to the cottage.  Grievant allowed him to leave on the bus with other patients.  He prepared an incident report and made arrangements for a nurse to examine CK at the cottage.  He also reported the incident to the EOTC Program Manager, George Allen.

            Grievant testified he also notified Skills Trainer Ed Cortez of the incident.  Cortez serves as the director of CK's cottage.  Cortez had no recollection of speaking to Grievant about the matter.  Instead, he noticed that CK looked like he had been in a fight.  Upon inquiry, he learned from a staff member that it was "self-defense."  Cortez retorted that the Employer did not teach self-defense, and that he needed to follow up.  Cortez photographed CK's injuries that day.

            In his incident report, Grievant stated that CK "approached me and slugged me in stomach ...."  An investigative summary of an interview with Grievant described the blow as a blow to the kidney area.  When Grievant reported the incident to Allen, Allen noticed him holding his side in obvious pain.  In his testimony, Grievant pointed to his lower torso on the side.  Allen testified he considers that to be the kidney area.  The Arbitrator considers the kidney area to be more toward the back, and the stomach area to be more toward the front, than the identified area.

BEHAVIOR PRESCRIPTION FOR CK

            The Employer maintains a behavior prescription ("BP") for each patient.  Such BP's imple­ment procedures to discourage undesirable behaviors and encourage desirable ones.  The most recent BP for CK seeks, inter alia, to "decrease aggression to a rate of 20 or fewer times," over a 30-day period.  "Aggression" refers to "hitting, slapping, pushing, kicking, and head butting."

            CK is developmentally disabled and autistic, with a mental age between two and four years.  He is at least 5'10" tall, and is strong and unpredictable.  In late March, the Employer re-wrote CK's BP.  The new BP instructed staff to continue to follow the management procedures in the prior BP, but imple­mented two new steps--a picture schedule for each day and a "pink armband" program to be used by the staff member respon­sible for CK.  The revised BP noted that

            [CK's] aggressive behaviors are such that, occasionally, he cannot be verbally directed and requires restraint procedures.  Staff are advised that [CK] often responds to an extremely brief restraint procedure and if at all possible, avoid restraint that entails [CK] being down on the floor.

In response to aggression, the BP called for staff to verbally cue CK to stop, remove peers from his immediate area, and block acts that may place others in danger.  The BP noted that

            At times, [CK's] aggressive behavior occurs so quickly and so explosively that staff do not have time for protracted cuing or prompting to his room.  It may be necessary to implement personal restraint.  Any time such restraint is implemented, staff should recall to document its use on the appropriate forms.

It also noted that CK's size and strength made it advisable to avoid personal restraint.  It suggested initially taking hold of CK's arm to calm him.  It further noted:

            If the above form of restraint does not work, all other forms should be considered an emergency procedure and staff should follow-up with documenting and describing the type of restraint for administrative review and consideration for further pro­gram­matic development.  A second form of acceptable restraint involves the use of one or two arm Mandt restraint.  Staff employing this restraint are reminded that [CK] will kick and is very strong.  He will also head butt and staff should take precaution­ary actions to avoid injuries. ...

            The Employer maintains cards with summaries of the current BP for each patient.  The BP cards for CK advised staff to "attempt to avoid additional aggression or the use of personal restraint by reminding him that he can go and make his bed."  It also noted, "When aggression escalates to becoming dangerous to others, follow the least restrictive measures first then Mandt restraint techniques if necessary."  The BP cards did not address the issue of restraining CK on the floor.

            Grievant and Jamison attended a 10-minute in-service on CK's new BP on April 5.  Both recalled being briefed on the "pink armband" program.  The staff member who conducted the in-service, Walter Hamm, testified he concentrated on the new program components.  Hamm was un­sure whether the complete BP had been prepared at the time, or whether he simply worked from the BP cards.[3]  The new BP is the only document Jamison recalls being trained on.  Jamison testified Hamm worked from cards and did not read from the BP or give out copies.  Jamison requested a copy of the BP for the WAC after this incident.  He testified the WAC had no copy of the new BP, and he wanted to be sure staff knew the proper restraint procedure.

            Hamm testified he did not go through the section of the BP dealing with aggression word for word, because nothing had really changed on it.  Instead, he probably said nothing had changed in dealing with aggressive behaviors, but encouraged staff to read the entire BP.  Hamm testi­fied the Mandt technique was appropriate under both the old and new BP if CK put himself or others at risk.

            The Employer maintains a "Daily Restraint and Time Out Log" for each patient.  Grievant doc­u­mented briefly restraining CK with a personal hold on two earlier occasions in April.  On April 6, CK hit Grievant in the stomach with his elbow and rammed his shoulder into the wall, damaging the wall.  Grievant momentarily restrained CK, then was able to slip around him and get away from him.  He testified the April 2 incident was very similar to the April 6 incident.

            Other staff members documented brief per­sonal holds twice on March 9, 1992 [sic],[4] to stop CK from hitting staff.  Jamison testified he has taken CK to the floor more than once, and has seen cottage staff do the same.  Jamison documented a brief personal hold on CK on August 19, 1992.

            By all accounts, the preferred means of dealing with aggression are to get staff and clients away and call for help rather than confront the aggressor.  Pace testi­fied that staff was trained never to take patients to the floor.  If patients begin to fall while in a hold, staff are trained to let go of them or slide down with them to prevent injury.  Allen testified the trainer decided to delete training on take-downs from Mandt training 1½-2 years ago.  In his view, going to the floor with a patient is one of the most dangerous positions for staff.  He acknowledged that patients and staff sometimes wind up on the floor, but testified this is not authorized or pre­scribed.  He does not necessarily punish staff for going to the floor with patients, but he views it very seriously.

GRIEVANT'S WORK HISTORY

            Before these events, Grievant had never been disciplined or otherwise criticized for his treat­ment of patients.  His March 1992 performance appraisal rated him at least satisfactory on 14 items.  Of those, it ranked him "above average" in eight areas, including ability to communicate effectively verbally, judgment, and working relations with supervisors and patients/residents.  It included the following comments:

            [Grievant] is a dedicated caretaker and teacher.  He has been a good advocate for those he has worked with.  ... He shows good judgement [sic] and practices good safety awareness. ....

            Grievant received training on "preventing abuse" in October 1991 and 1992.  Both sessions ended with a short quiz that asked, inter alia, what staff should do when confronted by a disturbed or combative resident.  In 1991, Grievant responded, "A.  Call for help.  B.  Avoid incounter [sic]."  In 1992, he responded "A.  Get out of way (if possible).  B.  Call for help."  In January 1992, Grievant took a "Client Rights Annual Exam."  In describing the steps in a Client Rights Assessment Strategy, he named one step as identifying the least restrictive method of intervention.

THE EMPLOYER'S INVESTIGATION

            The Employer's Office of Client Rights investigated the incident.  The report in­cluded a comment from Pace that CK was not known to hit with his fists and from Cortez that he had never heard of CK punching at the staff.  It also included a report from Jamison that he has seen CK hit with the heel of his closed fist and a report from Grievant that CK has used a closed fist to hit him in the past.  It attached a copy of the most recent BP and the earlier version.

            The investigative report included a report from Cortez that the matter had been described to him as "self defense" and that there was "no such thing as a staff using self-defense."  Cortez commented "CK is not the type of client a staff would take down."

            The report noted that Grievant said he had heard of the new BP but had not read it.  It reported he believed placing CK on the floor was necessary because he was in danger, and he could not back away as he could hardly move.  He said he did not call for help because the incident happened so quickly and because he was stunned.  He felt he followed the proper procedure.

            Allen reviewed the investigative report and Grievant's written account of the incident.  He was concerned because there was no indication that Grievant called for help or attempted to remove himself from the situation.  He assumed Grievant could have gotten away from CK.  He testified he was una­ware of a claim of self-defense, and he did not believe Grievant acted in self-defense.  He con­cluded Grievant was not stunned,[5] because he undertook action inconsistent with being stunned.

            Allen concluded there was no significant danger to the client or others, and therefore no justification for restraint.  He found Grievant's conduct inconsistent with his training.  He was also concerned because he perceived that Grievant did not acknowledge that he had done any­thing im­proper.  Concerned that Grievant would repeat the behavior, he settled on a one-month demotion.

POSITION OF EMPLOYER

            The Employer must evaluate conduct within the degree of discretion granted to staff.   Staff was not trained in taking clients to the floor.  Grievant implicitly recognized this when he offered an explanation that sounded much like an emer­gency situation.  His description was not consistent with an emergency, and demonstrated a conscious decision to take the client down.

            A difficult patient does not justify any staff interaction.  Grievant, even after the incident, did not see he had done anything outside of policy or accepted procedures.  It is important for him to recognize the risk associated with his conduct.  His conduct was inappropriate and dangerous.  There­fore, the Employer assessed the lowest level of economic discipline possible.

            This case illustrates the inherent risk of physical interactions with developmentally disabled patients.  Human skin does not break or scrape because of gentle placement on the floor.  Grievant could not have simply brought CK down upon himself onto the floor.  It is more rele­vant what brought them to that position in the first place.  Grievant should have stepped aside or back.  He was not trapped, either physically or because of a supposed temporary physical incapacity.

            Although CK is unpredictable and aggressive, the documentation does not show a constant, daily outburst from him.  Documented physical restraints were not numerous.  This patient could be controlled as explained in the BP.  He is not a madman.  He works with potentially dangerous materials, but he has performed this task for months without incident.

            The Union has not substantiated the claim that other employees also took CK to the floor.  There is no testimony that managers condoned such incidents.  There is no evidence of who was pre­sent, what led to the incidents, and whether management was advised of them.  They are not suffi­ciently probative to exonerate Grievant.  The Union never apprised the Employer of any claim of disparate treatment.  The Arbitrator must require a full factual record on any alleged prior actions.

            The hearing process is not the place to establish a brand new set of circumstances for review by the Arbitrator.  The Employer's actions are to be judged under the just cause standard.  The Employer clearly met six of the seven recognized elements.  The real issue is whether the sanction fits the conduct.

            The Employer reasonably and carefully assessed the level of discipline.  If the Arbitrator's role is to step in and consider how to best run the facility, she would need more evidence than that offered by the Union.  If the Arbitrator's role is to assess whether just cause was established, those recognized elements were met.  Absent a demonstrated punitive effect, the Employer's decision should remain as a reasonable response to legitimate concerns.

POSITION OF THE UNION

            The pay reduction was without just cause.  Grievant's conduct was a reasonable exercise of judg­ment under EOTC policy.  He did not have fair notice that his conduct was wrong, given the fre­quency with which other staff handled CK in the same way without prior corrective action.  The investigation was inadequate, such that the factual premises of the action were false.  Finally, the immediate resort to economic discipline was inconsistent with the principles of progressive discipline.

            No one challenges the policy of using the least restrictive means to control clients.  The question is whether Grievant used the least restrictive means available on April 13.  The Employer is unrealistic in contending he should have called for help or gotten away.  The BP recognizes that some­times CK becomes aggressive so suddenly there is no time to cue him, and resort to re­straint must be taken immediately.  Grievant's conduct was consistent with the BP.  CK's aggressive behavior could not be anticipated, and it was necessary for Grievant to do his best on his own.

            The new BP was not available to Grievant.  Although it urges staff to avoid going to the floor with CK, by implication it recognizes that at times such action is necessary.  Grievant's technique calmed CK in short order and caused only minor injury.  He used the Mandt tech­nique properly.  When CK continued with violent behavior, he made a judgment call.  His conduct was within the range of options available under the BP.  Since he has exercised good judg­ment with clients in the past, he should not be disciplined for making a reasonable judgment here.

            No policy offered at the hearing establishes that staff are to obtain help in dealing with ag­gres­sion without regard to the suddenness of the conduct's onset.  No policy offered at the hearing establishes that staff may not deliberately go to the floor with a client.  Had Grievant had the chance to read the new BP, he might have chosen to endure additional blows while waiting for help.  He at least would have had a fair opportunity to consider that option.

            At the time he acted, Grievant did not know of the advice to avoid going to the floor unless "absolutely necessary."  He had worked with CK for a relatively short time, and had been attacked several times.  He had used restraint twice without involvement of other staff, and logged those inci­dents.  No one had advised him that his use of restraint was wrong.  He had not been told that, when attacked, he should have gotten away from CK or called for help instead of restraining him.  He also knew that cottage staff used restraint techniques with him.  He had no notice that by using the same technique he would violate any BP or policy.

            The investigation did not provide an accurate basis for deciding whether Grievant violated policy.  It also did not explore the subjective issues that were critical to the decision to skip lower disciplinary steps.  Grievant received no opportunity to respond to the charges against him.  No one asked him if he had ever been told clients were never to be taken to the floor.

            No one confronted Grievant with the alleged inconsistencies in his story.  Allen assumed he was lying, when it is now apparent that he was not lying.  There is no common anatomical name for the body area where he was hit.  It is not sur­pris­ing for it to be described differently by different people.  The in-service was based on the BP cards, not the full BP, and Grievant did not see the BP before the incident.  He probably received no training on the new suggestions for handling aggressive behavior, since Hamm did not perceive there to be any difference in this area.  Allen also erred in assuming that CK did not use his fists.

            Allen's failure to speak to Grievant or his supervisor directly caused him to misjudge Grievant's receptivity to instruction.  He did not know Grievant was a good employee who exercised good judgment and dealt well with clients and supervisors.  He did not know that no one had verbally reprimanded Grievant for mistreating clients.  He was unwarranted in assuming Grievant would not conform his conduct to expectations if a supervisor told him to handle CK differ­ently.

            Systems of progressive discipline do not permit employers to assume employees will not re­spond to direction.  Employees are entitled to the presumption that they will respond to correction unless they engage in serious conduct that all employees should know is contrary to the employer's expectations.  Grievant was entitled to that presumption.  He was a very good employee.  He not only filed the required reports, but spoke to numerous employees who would be dealing with the client.  He did not deserve to be hit over the head with a baseball bat.  He was eager for feedback.

            An employee with a clean record deserves notice of an error in judgment and a chance to conform his conduct to the employer's desires.  The failure to give Grievant fair warning before taking punitive action was inconsistent with Article 20.  The discipline should be rescinded, and Grievant should be awarded backpay.

OPINION

PRELIMINARY MATTERS

            In this discipline case, the Employer bears the burden of establishing that Grievant engaged in conduct warranting discipline, and that the level of discipline administered was appropriate under the circumstances.  The most frequently used standard, and the one referred to in the Employer's closing brief, is the "seven tests" articulated by Arbitrator Carroll R. Daugherty.

            The seven tests require (1) notice of the consequences of the employee's conduct; (2) a reasonable rule or managerial order; (3) a timely, thorough investigation of the conduct; (4) a fair and objective investigation; (5) presence of substantial evidence or proof that the employee engaged in the conduct; (6) even-handed and non-discriminatory application of the rules to all employees; and (7) discipline proportionate to the seriousness of the proven offense and the employee's record.[6]

            An employer may establish notice in at least three ways.  It may show that its rules and policies prohibited the conduct in any circumstances; that its rules and policies prohibited the conduct in similar circumstances; or that the conduct, while not expressly covered by any rules and policies, was so egregious that any employee should have known that it was prohibited.

            A proper investigation may be conducted by the decision-maker, or by delegation.  To be both thorough and fair, the investigation must inform the employee of the charges and present the opportunity to present his/her side of the story.  Where the investigation uncovers contra­dictory evidence, the best course is for the Employer to attempt to resolve the discrepancy.  Such an investigation permits the decision-maker to rely on facts rather than assumptions and speculation.

            Identification of the specific charges against an employee is a foundational matter, without which just cause cannot be shown.  Allegations of such matters as disparate treatment and self defense are on a dif­fer­ent footing.  It is common for unions to present such allegations during grievance processing.  However, until the employer has sustained its burden of presenting a prima facie case of just cause, the union need not "reserve its rights" to present an affirmative defense of this nature.  The Union bears the burden of persuasion on such affirmative defenses.

            Discipline is to be corrective, not merely punitive.  This Agreement requires pro­gress­ive disci­pline "when appro­pri­ate."  Having explicitly agreed to apply progressive discipline, the Employer must show cir­cum­stances warranting a departure from the progression.  If such circumstances exist, the Arbitrator has a limited role in reviewing the level of discipline imposed.  So long as the disci­pline is within the range of reasonable responses, there is no basis for reducing it simply because the Arbitrator would have chosen a different level of discipline.

THE MERITS

            On this record, the Employer conducted an incomplete investigation of the allegedly conflict­ing statements re­ferred to in the disci­plin­ary letter.  No evidence exists that the Employer investi­gated the location of the tables and the participants sufficiently to determine whether Grievant was phys­ically restricted.  It is unclear whether Employer disbelieved Jamison's comment that CK some­times used the heel of his closed fist, or whether it simply overlooked that information.  No evidence exists that the Employer in­quired into the materials that were handed out or the subject matter that was covered in Grievant's in-service on the new BP.

            Further, at least two of the alleged discrepancies appear to arise from a simple difference in terminology.[7]  The lack of a full investigation on these alleged discrepancies makes them an insufficient basis for discipline in and of themselves.  The question remains whether just cause has been established for the remaining charges.

            Grievant is charged with three offenses:  (1) "failure to follow [CK's] [BP]"; (2) "failure to follow facility policy regarding always obtaining help in dealing with aggressive clients;" and (3) "failure to follow facility policy regarding the use of the least restrictive method to deal with a client's inappropriate behavior."  No dispute exists that the "least restrictive means" policy is reasonable.  Grievant knew of this policy.  The parties disagree on the details of the policy, the notice Grievant received of those details, and the extent of his compliance.

            The Employer has not established that it flatly prohibited staff from taking clients to the floor.  Although Pace testified to this effect, Allen's testimony directly contradicts her.  By his account, Mandt training removed take-downs from the curriculum relatively recently.  No evidence exists that employees who were trained earlier have since been told of a change in policy.  On the contrary, Allen is aware that staff sometimes take patients to the floor without penalty.

            Other aspects of the record also establish that take-downs are merely discouraged.  Cortez' statement to the investigator, that "CK is not the type of client a staff would take down," implies there are types of clients a staff would take down.  Similarly, the BP for CK advises avoiding restraint that entails having CK on the floor "if at all possible."  This admonition implicitly recognizes it may not be possible to avoid this step.  This recognition is consistent with the evidence that other staff members have taken CK to the floor in the past.[8]  Thus, neither the gen­eral policy nor the BP gave Grievant notice that he should never take CK to the floor.

            Even assuming arguendo that the BP was intended to prohibit take-downs outright, it is more likely than not that Grievant did not receive notice of this prohibition.  On this record, Hamm did not hand out copies of the BP at the in-service.  No evidence exists that Grievant received a copy before the incident or had one available to read at the WAC.  The summary cards available to him did not address the issue of placing CK on the floor.  Hamm credibly testified that he did not specif­ically cover this subject.  Having examined the ten-page BP, the Arbitrator is satisfied its complete contents could not have been covered in ten minutes.  The two new components alone--the picture board and the "pink armband" program--cover almost four single-spaced pages.

            We are thus left with the question of whether Grievant violated the more general admoni­tions to use the least restrictive means and seek assistance in dealing with aggressive clients.  Nothing in the BP or the Employer's "least restrictive means" policy required Grievant to continue to take blows from CK.  Both called for backing away where possible and seeking help.  The question of whether it was possible to do either is a close one.

            This incident was much like the April 6 incident, insofar as CK continued to struggle even after Grievant restrained him.  It occurred in a relatively confined space, but no more so than the April 6 incident.  This incident ended differently because Grievant continued to restrain CK instead of slipping away from him.  Grievant's primary defense rests on the speed of events and the physical effects of the blows to his torso.

            Certainly, a hard blow to the torso can temporarily disable and silence the target of the attack.  However, the Arbitrator is not convinced that Grievant could not have called for help before taking CK to the floor.  It is highly likely that CK would have continued his aggression had Grievant released him.  However, Grievant should have called for help in curbing that aggression.  In hind­sight, it is possible that neither Jamison nor Kosey would have been in a position to come to his aid at that moment.  However, Grievant did not know at the time whether either could help, and could not simply assume that aid was not available.  Some discipline was in order for acting unilaterally.

            On this record, the decision to skip earlier disciplinary steps rested, in large part, on assumptions about Grievant's "conflicting statements."  Those assumptions led the Employer to con­clude that Grievant was unresponsive to policy and instructions.  Some of those assump­tions have now been shown to be incorrect.  The Employer thus has not shown circumstances warranting a departure from the progressive disciplinary procedure in Article 20.  The initial level of discipline under that provision is a written warning.  Grievant's demotion shall be reduced to a written warning, and he shall be made whole for the losses occasioned by his demotion.

AWARD

            1.         The discipline was not for just cause under Article 20 of the Agreement.  However, just cause existed for a written warning for failure to follow facility policy and the behavior prescription.

            2.         As a remedy, the demotion shall be reduced to a written warning.  Grievant shall be made whole for wages and benefits lost as a result of his demotion.

            3.         The Arbitrator retains jurisdiction over the remedy portion of this Award and any dispute arising therefrom.

                                                                                  /s/ Luella E. Nelson  

                                                                   LUELLA E. NELSON - Arbitrator


[1]           HTT-3 Malvin Jamison could not recall whether he was directing the patient back to another work area within the WAC.  He recalled becoming aware of a scuffle behind him, and turning to see Grievant and CK on the floor.  HTT-3 Darla Kosey testified she was facing the other direction at the time.  She turned and saw Grievant and CK getting off the floor.

[2]           Upon his return to his cottage, a nurse examined CK more thoroughly.  She found a cut above his right eye, a scraped area on his right shoulder, a small scratch on his right elbow, a scraped and bruised area on his right knee, and two scratches in his left elbow joint crease.

[3]           Hamm conducted in-services on between 25 and 30 new BP's in two or three locations.  For some, he used the BP's themselves; for others, he simply used the BP cards.  Hamm signed CK's BP on March 25, 1993.

[4]           The log entries follow an August 1992 entry, but precede Grievant's April 1993 log entries.  Unlike the other three entries, no signature appears next to those entries.

[5]           Allen considers "stunned" to indicate that the person is temporarily incapacitated or unable to act.

[6]           Enterprise Wire Co., 46 LA 359 (1966).

[7]           No dispute exists that Grievant was hit on the right side of his lower torso.  Indeed, Allen observed Grievant holding his side and in obvious pain on the day of the incident.  It is unclear what, if any, significance the difference in terminology had for Allen.  No evidence exists that the location of the blows made it more or less possible for him to avoid placing CK in personal restraint.

                        Similarly, the disciplinary letter suggested that the decision to use the restraints Grievant employed were incon­sis­tent with being stunned, unable to cry out for help, unable to back away, and hardly able to move.  The Employer did not inquire what Grievant meant by these terms.

[8]           It is of little moment whether one views the evidence on this point as evidence of disparate treatment, or as evidence of the policy in effect.  These are two sides of the same coin.

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