of Oregon, Eastern Oregon Training Center and Oregon
Public Employees Union, Local 503, SEIU
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.
On behalf of the Union:
Lynn-Marie Crider, Esquire, 4828 SE Hawthorne Boulevard, Portland, OR
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
Was the discipline for just cause under Article 20 of the Agreement; and,
if not, what is the appropriate remedy?
RELEVANT SECTIONS OF AGREEMENT
20--DISCIPLINE AND DISCHARGE
RELEVANT ADMINISTRATIVE RULES
Patient and Resident Rights
OAR 309-116-000 through OAR 309-116-025
309-116-005 As used in these
(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.
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
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
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
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.
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
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,
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.
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
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
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.
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,
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.
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
[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 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
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,
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
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
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
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
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
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.
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.
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.
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.
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
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.
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
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.
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.
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
The Arbitrator retains jurisdiction over the remedy portion of this Award
and any dispute arising therefrom.
/s/ Luella E. Nelson
LUELLA E. NELSON - Arbitrator
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.
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.
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.
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.
Allen considers "stunned" to indicate that the person is
temporarily incapacitated or unable to act.
Enterprise Wire Co.,
46 LA 359 (1966).
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
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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