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Title: State of Oregon, Oregon State Hospital and Oregon Public Employees Union, Local 503, SEIU
Date: March 4, 1994 
Arbitrator: Luella E. Nelson 
Citation: 1994 NAC 110

 

In the matter of arbitration between:


Oregon Public Employees Union, Local 503, SEIU

                           and

State of Oregon, Oregon State Hospital

RE:      Grievance of Don Holman, 

             #GS08093, AAA Case No. 75 390 221 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, Oregon State Hospital ("State," "Hospital," or "OSH"), 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 December 21 and 22, 1993, in Salem, 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 February 4, 1994.

APPEARANCES:

            On behalf of the Union:

                        Lynn-Marie Crider, Esquire, 5829 SE Salmon Street, Portland, OR  97215.

            On behalf of the State:

                        Stephen D. Krohn, Assistant Attorney General (Theodore R. Kulongoski, Attorney General, on brief), Department of Justice, 100 Justice Building, 1162 Court Street, NE, Salem, OR   97310.

ISSUE

                        Was the demotion of the Grievant consistent with Article 20 of the collective bargaining 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.  ....

                ARTICLE 21--GRIEVANCE AND ARBITRATION PROCEDURE

                ..

                Section 6.  Arbitration Selection and Authority

                ...

                (e)        Fees and expenses of the arbitrator shall be borne entirely as designated by the arbitrator with the arbitrator assigning such expense to the losing party.  If, in the opinion of the arbitrator, neither party can be considered the losing party, then such expenses shall be apportioned as in the arbitrator's judgment is equitable. ....

RELEVANT HOSPITAL POLICIES

ADMINISTRATIVE MEMORANDUM 4.001 - HANDLING PATIENTS' FUNDS

                ...

                Policy:

                ...

                3.          All monies received from patients, their relatives, or interested parties shall be appropriately accounted for in the manner prescribed by Oregon Law.

                ...

                Procedures:

                ...

                2.          Handling funds:

                             ...

                             f.           Any money received on the ward shall be taken immediately to the Business Office or, after hours, weekends, and holidays, shall be taken immediately to Communications Center with the pink copy.  Communications Center will verify amount received.

                ADMINISTRATIVE MEMORANDUM 3.003 - SOMATIC MEDICAL AND SURGICAL CARE OF PATIENTS

                ...

                Policy:

                When a patient requires medical and/or surgical treatment or consultation, [OSH] shall either provide or insure the provision of that service that is necessary for the care of the patient. ...

                Procedures:

                ...

                3.          Other emergencies that do not require hospitalization at Salem Hospital are to be brought to the attention of the ward physician or O.D. at the discretion of the nurse on duty.  ....

                ADMINISTRATIVE MEMORANDUM 4.002 - HANDLING PERSONAL PROPERTY AND VALUABLES

                ...

                Definitions:

                1.          Valuables include negotiable and non-negotiable items (other than cash and endorsed checks); valuable papers and cards; personal effects such as bonds, jewelry, watches, rings, "keepsake" coins, foreign coins and currency; cameras; and binoculars.

                2.          Funds include all domestic currency and coins (except keepsake coins and endorsed checks), cashiers checks, money orders, travelers checks, checks drawn on the Treasurer of the United States, personal checks, or other negotiable instruments.  (See Administrative Memorandum 4.001.)

                3.          Prohibited items include, but are not limited to, ... knives, ....

                ...

                Policy:

                ...

                1.          All patients shall have the right to retain and use on each ward a reasonable amount of personal property other than:

                             a.          Prohibited items.

                             b.          Funds (other than amount established by program directors up to amount set forth in Administrative Memorandum 4.001, 3(e).)

                             ...

                5.          All personal property that a patient brings into the hospital at time of admission shall be itemized in writing on hospital forms, regardless of where the items are stored.

                ...

                9.          Staff are prohibited from borrowing, selling or purchasing personal property from patients.

                10.        Patients are discouraged from exchanging their personal property with other patients.  Should two patients transfer property, the transaction must be documented on the patient's property record and signed by both patients.

                Procedures:

                1.          At admission, the personal property brought by the patient is reviewed to determine which items cannot remain with the patient on the ward.  Of these items, valuable and small storage items will be stored at Communications Center, and clothing or larger items may be stored in the storage room.  The inventory of this property shall be confirmed by the patient, who also receives a written copy of the inventory.

                2.          The personal property that remains with the patient on the ward is also inventoried and confirmed by the patient.

                ....

                ADMINISTRATIVE MEMORANDUM 3.001 - USE OF SECLUSION AND/OR RESTRAINT

                ...

                Policies:

                1.          [OSH] has the responsibility to manage individual patients in the least restrictive manner which is consistent with humane patient care and treatment and safety for the patients, staff, and public.  Every use of seclusion, physical restraint, and personal restraint should be the result of careful deliberation by staff members who have sufficient clinical knowledge of the patient and the circumstances.

                ...

                Procedures:

                ...

                2.          Patient Rights Requirements:

                             a.          Seclusion and all forms of restraint are significant procedures requiring the authorization of the Chief Medical Officer or designee. ...

                ...

                7.          Use of Extended Time Out as Part of a Planned Treatment Program:

                             a.          Planned extended time out may be one component of a patient's comprehensive treatment plan.  This must be developed as a therapeutic intervention that is integrated into the patient's comprehensive treatment plan.  It is expected that planned extended time out will provide a therapeutic environment within which dangerous, disruptive, or violent symptomatic behavior can be safely managed, thus enabling the implementation of other components of the patient's comprehensive treatment plan. ...

                             ...

                             c.          The proposed planned extended time out program shall include the following documentation:

                                          (1)        A copy of the patient's comprehensive treatment plan which includes the planned extended time out program;

                                          ...

                                          (8)        Description of the conditions required for the planned extended time out intervention level to be reduced or increased or discontinued. ...

                             ...

                             e.          Each planned extended time out program shall be reviewed and approved by the Chief Medical Officer, the Chief of Psychology or designee, and the program director or designee.  ...

                             f.           Once approved by the IDT, Chief Medical Officer, Chief of Psychology, and program director, the planned extended time out program shall be included in the patient's treatment care plan as an addendum.

                             g.          Any approved planned extended time out program shall be sent to the Superintendent and the Seclusion and Restraint Committee for review.

                                          (1)        The plan will be reviewed by the Seclusion and Restraint Committee who may wish to consult the treating physician, psychologist, and the primary therapist.

                                          (2)        Once the Seclusion and Restraint Committee has reviewed the plan, a schedule for subsequent review by the committee shall be established.

                             h.          The treatment team shall review and designate a member to document progress on the patient's chart no less than every seven (7) days.

                             i.           Each planned extended time out program shall be reviewed monthly by the interdisciplinary treatment team for compliance with the approved plan, adequacy of documentation, evaluation of patient response as documented in the chart, and plan re-evaluation.  The IDT shall submit a monthly report to the Chief Medical Officer on the above stated aspects of patient care.

                             j.           In the event that the planned extended time out program fails to result in patient progress after 180 days, the interdisciplinary treatment team will convene a patient care monitoring meeting.  The purpose of the meeting will be to reassess and to explore alternative approaches, if any, to manage the patient's behavior.  ....

FACTS

            Grievant has worked at OSH's psychiatric hospital since 1986.  For most of that time, he has worked in the Forensics Unit, Ward 48-B.  The Forensics unit houses both patients who have been adjudged "guilty except for insanity" and other patients who pose a threat to others.  Ward 48-B is a locked ward, the most secure unit at OSH.  Its patients include the most dangerous mentally ill male offenders, as well as patients who have been transferred from less secure environments for assaultive behavior, suicidal ideation plans and actions, and other self-injurious behavior.

            OSH suspended Grievant with pay, effective February 12, 1993, and placed him in the pre-discharge process.  Effective May 10, 1993, it demoted him from a Mental Health Therapist I ("MHT-1") to the next lower rank in the series, Mental Health Therapy Technician ("MHTT"), and transferred him to the Geropsychiatric Unit.  The stated grounds for these actions are as follows:

            1.         On January 5, 1993, you were responsible for processing an endorsed check from a patient in accordance with OSH Administrative Memorandum 4.0111,2(F).  Instead of taking the check to the Communication Center, you left it unsecured in the ward office.

 

            2.         On approximately January 6, [sic] 1993, you cut the toe out of a shoe be­long­ing to a patient.  You did not have permission to do this and there was no order or direction from the patient's physician that such a modification was warranted.

 

            3.         On January 17, 1993 you cut a ring off the finger of a patient being admitted to the hospital using a cutting tool.  You did not have permission or a directive to do this.  Further, the property was destroyed by your actions.  The method used to cut the ring also jeopardized the safety of the patient.

 

            4.         On January 24, 1993, a patient presented a knife to a staff member on your ward.  The knife was left in the patient's belongings.  You were the staff person re­spon­sible for searching and making an inventory of the patient's property when he was admitted to your ward on January 8, 1993.  When your supervisor asked you about the knife, you stated you did not search the toiletries bag.  The knife was in­side a box of toothpaste in that bag.  This incident jeopardized the safety of both patients and staff.

 

            5.         On January 31, 1993, you gave a patient extra time out of his room to smoke in violation of both the treatment care plan and the physician's order.

            ...

            These incidents represent a serious disregard for following hospital policies, pro­ce­dures and patient treatment plans.  You have repeatedly taken actions either without physicians order or in direct violation of a physicians order.  You have also com­pro­mised the physical security of your ward thereby creating an unsafe environment for other patients and staff.

 

            These are serious matters and show cause why you cannot remain in your current posi­tion.  Therefore, we are removing you from your current position in a maximum security environment and from our role as a primary case monitor.  Rather than pro­ceed to dismissal at this time, we have decided to move you to a position with less re­sponsibility and out of the maximum security environment.

            ....  [italics added]

            The parties largely agree that Grievant engaged in the conduct alleged in the italicized portions of Items 1, 2, 3, and 5, but disagree about the seriousness of that conduct.  The parties disagree about the truth of the factual allegations in Item 4.  The parties agree that, in any event, Grievant is not entitled to backpay after June 7, 1993.  The Union asserts that he should have received MHT-1 pay rather than MHTT pay between the date of his suspension and June 7.

GRIEVANT'S WORK HISTORY

            Grievant's performance evaluations have been positive.  They noted his ability to work with patients and on a team, his knowledge of safety and security issues, and his familiarity with hospital policies and procedures.  Early difficulties in understanding and showing compassion for patients did not recur in later evaluations.  His recent evaluations noted that he sometimes disagreed with policies and procedures, but complied with those procedures and discussed his dif­ferences of opinion in a reasonable manner.  His summer 1992 evaluation included these comments:

            [Grievant] is aware of both OSH and OFPC policy.  He is security conscious in regard to the safety of patients and staff.  [Grievant] also has a real empathy for the patients.  I feel these two areas are in conflict at times when [Grievant] handles problems or issues with the patients.  The importance of allowing the Nurse of MHTSC to make decisions on the ward has been stress [sic] to [Grievant] on several occasions.  [Grievant] was moved off of this ward for several months due to problems with this issue and the lack of cohesiveness of swing shift staff.

            Grievant received his only written discipline on November 30, 1992--a letter of reprimand for using the patient's shower after lockdown, during paid work time.  No grievance was filed over this reprimand.

            In late 1991 or early 1992, Mental Health Supervising Registered Nurse Marilyn McNulty temporarily transferred Grievant to another ward.  McNulty prepared a document entitled "rational [sic] and goals," setting forth the following expectations:

            1.         Identify therapeutic versus nontherapeutic relationships with patients.

                        A.        you are the onlu [sic] person that can help that patient

                        B.         noone [sic] else cares or "gives a damn"

                        C.         making decisions on your own, not utilizing team approach

            2.         Regognizing [sic] role of shift charge and who makes decisions regarding seclusion and seclusion [sic] and restraint, who decides when the pt. may come out of seclusion.

            3.         Follow proper chain of command ie. [sic] Nurse, Charge Aide.  How this is necessary to provide a safe, and smooth function ward mileau [sic].  Example: calling the Dr. about a patient is the role of the Nurse in charge.

            4.         Follow functional assignments, perform jobs assigned you, allow other staff to perform their assignments within a certain amount of flexibility.

            5.         Avoid "good guy" "bad guy" approach with patients.  This leads to disrespect and lack of trust in other staff.

McNulty testified this was not a work plan, nor did she consider it disciplinary.  Grievant testified he was told the move was intended to defuse tensions between him and co-worker Robert Smith.[1]

ITEM 1 - PROCESSING A PATIENT CHECK

            OSH limits the funds patients may have in their possession on the wards.  It maintains a trust account, into which it requires patients to deposit any excess funds received.  On or around January 5, 1993, a patient endorsed a Social Security check and gave it to Grievant.  Grievant testified he sealed the check in an envelope, intending to take it to the Communica­tions Center for deposit later in the shift, but forgot to do so.  The day shift MHT Coordinator, Kevin Murray, found the check on the desk, without an envelope, on January 6.  He took it to the Communications Center.

            By all accounts, it had been common for checks to be brought in late.  McNulty did her ut­most to bring employees into compliance with the policy.  She verbally reprimanded Murray and another employee for failing to take checks in promptly.  Neither had other disciplinary issues at the time.  The subject of check handling had been covered in inter-shift meetings shortly before Murray's rep­r­i­mand.  On November 23, 1992, McNulty logged a reminder to employees to take funds immedi­ately to the Communications Center when the business office was closed, and not to put them in the "frog box."  She did not believe the issue had arisen again since Grievant's transfer.

            Murray testified employees forgot to take funds in promptly about twice a month.  He was un­a­ware of any­one receiving more than a verbal reprimand.  According to Murray, staffing problems sometimes made it impossible to leave immediately to deposit funds.  Employees there­fore used their judgment on when it was safe to leave for this purpose.  Murray testi­fied checks were not to be left on the ward for the next shift or overnight.  Swing shift MHT Coordinator Jeff Dugan testified funds were to be taken in not later than the end of the shift on which they were received. 

            According to Dugan, in the latter half of 1992, every week there were occasions when staff neglected to take patient funds in during the shift.  Whenever this occurred, he reminded employees at the next inter-shift of the need to deposit funds promptly.  Dugan testified he found a patient's cash on the counter at the beginning of swing shift, shortly after Grievant's suspension.  He asked McNulty what she was going to do about it, and she replied, "Nothing."  Unit Director Terrel Rudolf was present, and volunteered to take the cash to the business office.  Dugan understood Rudolf would discuss the incident with the day shift staff.  Dugan was unaware of employees being disci­plined for failing to take checks in promptly.

            Former Charge Nurse Joan Grimble testified that funds were mishandled weekly on the day shift in Ward 48-B.  She testified she reported it to her supervisor and to Rudolf.  She recalled that the incidents were laughed off as something that happened.

ITEM 2 - MODIFYING A PATIENT'S SHOE

            On January 5, Grievant cut a hole in the toe of a new pair of tennis shoes belonging to a pa­tient ("Patient A").  Patient A has a foot deformity that causes his big toe to jut upward.  His prior shoe also had a hole cut in the toe.  Patient A's chart reveals that he had special shoes fabricated for him, but refused to wear them and returned to wearing tennis shoes.  The chart does not record modifica­tions to Patient A's tennis shoes.

            Patient A complained to Murray about the modification to his new shoe on January 6.  Murray sent the shoe for repair, but the results were unsatisfactory.  Accord­ing to both Grievant and Dugan, Patient A was happy with the shoe im­me­di­ately afterward.  Dugan would not consider it unusual for Patient A to change his mind about the shoe later.

            When Rudolf confronted Grievant about the shoe, Grievant commented that "it's not the first one they have had me cut out."  Rudolf did not ask who "they" were, and Grievant did not volunteer this information.  Grievant testified Dugan had already begun cutting the hole, and asked him to complete it.  No one from management talked to Dugan about the incident during the grievance process.  He came to Grievant's pre-disciplinary meeting, but was not allowed to attend or speak.

            Shop Steward Lorrie Walker was unsure whether she mentioned Dugan's role in the shoe cut­ting incident during the pre-disciplinary meeting.  She pointed out in the meeting that staff had made this modification for Patient A over the years.  She testified that cutting Patient A's shoe was such a routine thing that she did not realize there was an issue over who had begun the process.

            Smith was Patient A's case monitor.  He testified he did not typically cut the toes out of Patient A's shoes.  He was aware that Patient A had other shoes with a hole in the toe, but did not know how the hole occurred.  He would not cut the toe out without permission from a nurse.  He would not consider permission from a Shift Coordinator or the patient sufficient author­ization to cut a hole in Patient A's shoe.  He considered such a modification to be a medical issue.  He has cut off patient slacks to make shorts, at the patient's request, without further authorization.

            Dugan testified he began the process of cutting the hole in the shoe, at Patient A's request.  He did not recall why Grievant completed the task for him.  Dugan testified he has cut holes in Patient A's shoe before, at his request, and has seen other staff members do the same.  MHT-2 Lester Robertson worked with Patient A on another ward in the mid-1980's.  He saw a staff member there cutting a hole in Patient A's shoe.  He testified Patient A has worn shoes with a hole cut in the toe throughout his tenure at OSH.  No evidence exists that other staff members have been disciplined for cutting holes in Patient A's shoes.

ITEM 3 - CUTTING A RING OFF A PATIENT'S FINGER

            On January 17, Grievant charted the removal of a ring from a patient ("Patient B").  His notation reflects that the patient was complaining of pain and swelling, and the finger had swollen about twice its normal size.  A small amount of skin under the ring was broken and cracked, but not bleeding.  He applied hydrogen peroxide and notified the RN.  He stored the pieces of the ring, which was destroyed in the process of removal.

            Grievant testified that Patient A brought Patient B to him for assistance.  He had previously cut a ring off Patient A's finger in a much more difficult process requiring the assistance of another staff member.  He testified Patient B's ring was made of cheap "pot metal" and was cracked.  He had Patient B sign a statement confirming he had requested to have the ring cut off.  He testified that Smith stood by with a pair of pliers during the removal.  He described Patient B's finger as chafed, dry, and swollen, but not cut.

            Grievant did not seek direction from a nurse or doctor before removing the ring.  He testi­fied the swelling left only a limited area where he could get to the ring.  He believed further delay in removing the ring could make it impossible to remove it.

            McNulty testified she had not seen issues before where a patient requested removal of a ring.  She believed common sense should have caused Grievant to call a nurse before proceeding with the removal.  Anything out of the ordinary, involving a part of the body, should be brought to a nurse's attention.  Based on Grievant's charting, she would have had a doctor look at the finger and decide whether to proceed with the removal or take other action.  Rudolf testified he would consider it a medical matter to have a finger swollen that large.  He was concerned because he saw no entries showing that a nurse addressed the medical issue.

            Murray testified it was not common for MHT's to cut patient rings off.  Instead, doctors usually performed that task.  He was unaware of any MHT other than Grievant who cut off a patient ring.  Walker testified that staff in the Geropsychiatric Unit called on the Plant Operations (janitorial) staff to cut rings off patients' fingers on 6-10 occasions.  Before doing so, they determined that the rings were not valuable and that the procedure would not harm the patients.  The RN or doctor on duty made the call to Plant Operations.

ITEM 4 - PROPERTY SEARCH AND INVENTORY

            On January 8, Grievant helped bring a patient ("Patient C") to the ward from another facility.  Grievant searched Patient C's belongings and prepared a property inventory.  The property inventory lists one Colgate toothpaste.  Another staff member took Patient C for a shower and a physical search.  Grievant then issued him clothing and toiletries from the hospital supplies.

            On January 24, Patient C went to MHTT Diane Raines and requested his toothbrush and tooth­paste from his personal belongings.  Raines found a box of toothpaste and a toothbrush in the patient's belongings, and gave them to him.  A few minutes later, Patient C approached Murray and handed him a knife.[2]  He told Murray he had placed the knife in his toothpaste box to avoid cutting himself when going into the suitcase, but had forgotten it was there.  Murray confiscated the knife.

            The resulting incident report reflects that the supervisor and RN counselled Grievant and in­structed him on proper search techniques and safety issues.  That day, Grievant prepared a statement saying that he was "well aware of search procedures" and "very security minded."  His note went on to comment that "Anyone can make a mistake, if I even made it.  I did search some of his belong­ings and did not see a knife."

            Rudolf and McNulty interviewed Grievant with his shop steward.  Rudolf testified Grievant men­tioned having seen two bags of property--one clothing, one toiletries.  Grievant denied having seen a toothpaste box.  According to McNulty, Grievant said he had searched only some of the hy­giene items.  Rudolf did not recall Grievant making this admission, and Grievant denied it.

            During the spring of 1993, another patient on Ward 48-B received a package from a mail order house.  The day shift staff received the package, but left it to be searched by the swing shift.  The package was opened, but not searched, before being placed in storage.  Later, the patient re­quested the package from Rudolf and Dugan.  Before receiving the package, the patient disclosed that it contained a knife that had been a "bonus" for his order.  A search of the box revealed a knife with a two-inch blade, which was confiscated.  Rudolf did not determine who had processed the package.  He did not recall whether he examined the patient package receipts, which would have revealed who processed the package.  No one was disciplined for the incident.

ITEM 5 - EXTRA TIME OUT FOR A PATIENT

            Under a "time out" program, the patient is expected to remain in his room for a specified por­tion of each hour.  Staff can talk to a patient during periods when the patient is restricted to his room.  However, they normally do not enter the room or engage in lengthy conversation during those periods.  The intent is to motivate the patient to control his behavior during the remaining portion of the hour, and gradually increase his time out of seclusion.

            Circumstances may require staff to deviate from a time out schedule.  However, according to Rudolf, such a change would require checking with the supervisor on the shift, asking to change the program, and charting the deviation from the treatment plan.  The only instance in which Rudolf would not expect consultation with supervisors would be a life-threatening situation.

            On January 31, a patient ("Patient D") was on a time out program calling for 45 minutes in his room and 15 minutes out.  Patient D had assaulted fellow patients for refusing to give him cigarettes; he had also attacked staff members.  Smith wrote an incident report documenting that Patient D was in the "smoke room" in violation of the time out program that day.  Smith's report noted Grievant "stated that pt. was upset and that he needed a smoke."  Smith testified this violated the "smoke program."[3]  Grievant testified Patient D was not on a smoke program, as far as he knew.

            Grievant testified that earlier in the day, Patient D had notified him that another patient ("Patient E")  had attempted suicide.  Grievant investigated, and found evidence of attempted sui­cide.  After putting Patient E on a suicide precaution plan, Grievant headed for the smoke room for a cigarette.  On his way to the smoke room, he observed that Patient D was upset.  Grievant was aware that Patient D was very emotional and had "suicidal ideation."  He was concerned that Patient D would focus in­ap­pro­priately on this event.  He asked Patient D to accompany him to the smoke room for a cigarette.  After calming Patient D, he returned him to his room.

            Grievant did not chart Patient D's additional time out on January 31.  However, he testified he wrote a note to the RN on duty that day, reading as follows:

            I had [Patient D] out of T.O. at approx. 1730 hrs to have a smoke and talk with me.  [Patient D] was quite upset because a peer had reported to him he had tried to hang himself.  [Patient D] was very upset at this, so to prevent [Patient D] from further decompensation I decided to speak with him about incident.

Rudolf testified he did not see this note until the arbitration hearing.

POSITION OF STATE

            Grievant's 1992 evaluation documented problems in the exercise of sound judgment and inter­actions with patients.  His November 1992 discipline reflected poor judgment.  Over four weeks in January, he engaged in five separate incidents that legitimately required managerial review of his performance.  The State's concerns were reasonable, and its response was rational.  Grievant did not acknowledge his conduct or offer a reasonable basis to conclude he would change.  The State therefore found him a more suitable position.

            The fact that Grievant left a check unsecured means that if he did put it in an envelope, someone else opened it.  This points out the problem with not taking care of it by the end of the shift.  Even Grievant acknowledged waiting overnight was not acceptable.

            Patient A's shoes were expensive, and were his property.  There were no physician orders to modify the shoe.  Nothing in the client's record authorized Grievant's conduct.  Grievant should have known not to cut these shoes without checking further.  No evidence clearly shows that direct care staff independently made this decision on a regular basis.

            The Arbitrator should discredit Dugan's testimony regarding his role in the shoe cutting incident.  Dugan never came forward to management during the grievance process.  He attended a meeting on the ward where staff could discuss any issues.  He had a motive adverse to management, because he had been criticized about his handling of issues with a staff member on his shift.

            The issue regarding the ring is not just that Grievant cut it off; it is that he failed to advise the medical staff and seek their recommendation before proceeding.  Grievant's own chart of the pro­cedure describes potentially severe medical problems that should have been reported.  The factors described by Grievant in his testimony do not justify him in making this decision.  He did not have the expertise or experience to make this decision.  The lack of any severe side effects also does not justify the behavior.  Staff cannot take action and "hope for the best," with the result that their conduct is permissible unless there is severe harm.  No evidence exists that management knew of his earlier removal of a ring from Patient A's finger, or that it condoned such conduct.

            The knife was clearly contraband.  It was physically impossible for the patient to have re­tained the knife when he was admitted.  Only Grievant's inattention allowed the knife to get back into the patient's hands.  The presence of a knife on the maximum security ward, unbeknownst to staff, presents a grave danger.  Grievant's testimony was at odds with his contemporaneous written statement that he searched "some of" the belongings.

            Seclusion of patients is a complex matter for the hospital.  Such programs are not lightly entered into, nor can staff unilaterally implement them.  Staff cannot disregard the programs based on their personal assessment of the situation.  Grievant's conduct raised a legitimate concern over his granting favors, thus contributing to the "good guy/bad guy" perception among patients.  He did not chart the extra time out.  The date on which he prepared his note, and his reasons for doing so, are subject to interpretation.  At a minimum, it is not the kind of entry required in the client chart.

            The Arbitrator should discredit Grievant's justifications for violating the time out program.  If he wanted a cigarette while talking to Patient D, he could have smoked in the patient's room.  Patient D had not missed any time outs as a result of the incident with Patient E.  Patient D did not even ask to leave the room; Grievant took him out simply because of his own desire for a cigarette.  This is not the type of accurate assessment of situations which can reasonably be expected from him.

            OSH was not deprived of Grievant's positive attributes as a result of his demotion and trans­fer, nor was he deprived of an opportunity to exercise those attributes.  Patients in his new program are as available for staff interaction as any other place in the hospital.  Dismissal or transfer to non-patient care status would have deprived him of any such opportunities.

            Grievant's ability to establish a personal rapport with patients went to his head.  He thought he knew better how to deal with patients.  He disregarded policies, procedures, and ward practices, and ignored contacts with supervisory medical personnel on such issues.  That is not acceptable.  He also made incorrect judgment calls with long-term adverse implications.  He has never acknowledged any wrongdoing.  His arguments and self-assessment do not justify a return to his former position; they point in the opposite direction.  Grievant has been given a second chance.  He can maximize his patient relationships without jeopardizing the above factors.  The grievance should be denied, and Grievant ordered to report to his new position.

POSITION OF THE UNION

            OSH failed to abide by the principles of progressive discipline and just cause.  It demoted Grievant for violating expectations that were not clearly communicated to him or to others.  He was punished for conduct deemed acceptable in other employees.  He was punished for conduct even though it is equally likely another employee was at fault.  He was a superior employee, highly skilled in dealing with difficult patients.  His evaluations show that he was willing to take direction where expectations were clear.  He should have been given guidance and correction if he erred.  Demotion is not appropriate for an employee who does not lack the abil­ity to do his job.

            Grievant had no notice he would be disciplined for violating the policy regarding check handling.  Discipline was not meted out even-handedly for such violations.

            Grievant cut a hole in Patient A's shoe at the instruction of the person responsible for directing his work.  No hospital rule prohibits him from assisting the patient in this way.  The Arbitrator should reject the attempt to medicalize this issue.  The patient was not being treated for his foot condition, so there was no reason for a physician to concern himself with his footwear preferences.  Also, his shoes had been cut at the toe by staff for many years without a doctor's order.  Issues of basic patient care were explicitly under the purview of the shift coordinators.  It is unreasonable for OSH to insist that Grievant should have obtained medical authorization.

            Even if OSH could reasonably have made clothing modification into a medical issue, it did not do that.  Staff were never told to seek physician approval before dealing with clothing issues.  Discipline would have been unwarranted even if Grievant had acted without direction from Dugan.  It is preposterous to discipline for conduct that he told Rudolf he had been instructed to do.  Rudolf failed to follow up on Grievant's comment that "It was not the first one they have had me cut out."

            No hospital rule prohibited Grievant from assisting Patient B by cutting an inexpensive ring off his hand.  No reasonable person would consider this a medical issue.  So long as Grievant could remove the ring without risk to the patient, he had no way of knowing OSH would see this as a medical issue.  OSH may assign physicians responsibility for overseeing matters of this kind, but employees are entitled to some notice of it.  Assuming arguendo that employees should have known that ring removal was a medical issue, the record is replete with evidence of removal of rings by non-medical staff.  It was unreasonable to punish Grievant for conduct consistent with this practice.

            One cannot presume that Patient C's knife came on the ward at the time of his admission, or that Grievant failed to conduct an adequate search.  It is possible that Grievant failed to do a thorough search.  In that event, he should be held responsible for a breach of security.  The investi­ga­tion did not rule out a number of plausible alternative explanations for the appearance of the knife on the ward.  Grievant did not perform the cavity search on the patient; the knife may have entered the ward on his person.  During the two-week lapse of time, the patient may have received items by mail, including the knife.  The patient did not remove the knife from the toothpaste box in the presence of a staff person; rather, he took the box to his room and returned with a knife.  He may have used this as an opportunity to get rid of the knife without taking responsibility for bringing contraband onto the ward.  OSH did not demonstrate a breach of procedure on Grievant's part.

            In similar circumstances, Rudolf refused to hold anyone accountable because he could not be certain who was responsible, and made little inquiry into who was responsible.  Grievant did not receive the same benefit of the doubt as his fellow workers.

            Grievant took Patient D out of his room to address a crisis in a comfortable setting.  The extensive procedures for time outs are all directed to limiting the hospital's ability to take away patient freedom.  Limits on patient freedom are allowed only for therapeutic reasons.  Treatment plans should be administered in a way which recognizes circumstances in which deviation from the plan is in the patient's best interests.  The policies do not address this problem.  Therefore, Grievant had no guidance on how to handle Patient D.  Grimble agreed with Grievant's judgment.  Manage­ment would have preferred that Grievant first consult with a nurse or physician.  However, Grievant had mobilized the RN and physician staff to deal with the suicidal patient.  He chose to deal with a less at-risk patient on his own.  His judgment was reasonable given the lack of instruction and the nature of the circumstances.  No discipline was warranted.

            Assuming arguendo that discipline was warranted for the issues raised, the penalty was ex­ces­sive and inappropriate.  Discipline must fit the offense.  Demotion is not legitimate unless an employee's conduct demonstrates he is unable to perform the job.  Carelessness or disobedience should be dealt with via warnings or even suspensions, not demotions.

            Grievant's evaluations and the hearing testimony suggest he did his job quite well.  He made an error in processing a check, and may have performed an inadequate search.  His only prior disci­pline was a reprimand for using patient showers.  Given his skill and experience, these problems do not suggest he was unable to handle the job.  Demotion to a position requiring lesser skills, with a patient population with which Grievant had no experience, was unjustified and purely punitive.  It did not serve OSH's interests because it removed Grievant from the work in which his skill was proven.  It served no corrective purpose.

            Given Grievant's years of service and record of care in matters of security and procedure, a verbal warning not to become inattentive to these matters would have been the appropriate level of discipline.  The period of time during which Grievant has been unable to work on Ward 48-B has been more than sufficient punishment.  No formal discipline should be permitted.  He should be reinstated to his former position without change in shift and schedule, and made whole for the difference between the wages for a MHT-1 and a MHTT.

OPINION

PRELIMINARY MATTERS

            The Arbitrator has authority only to decide the issue presented for decision.  The parties explicitly presented the propriety of Grievant's demotion.  However, the statement of the issue does not, explicitly or implicitly, raise the appropriateness of his transfer.  Accordingly, the Arbitrator will address only the issue of the demotion.

            The State bears the burden of establishing, by clear and convincing evidence, that just cause existed for the discipline imposed.  Just cause requires, inter alia, notice of the standards of conduct in the workplace.  It is the actual standards of this workplace that must be applied, even if another standard might be considered a more desirable one.  The line between permissible and impermissi­ble conduct must be consistent and predictable to allow employees to conform their behavior to the rules.  Before employees can be held to a new or newly-enforced standard of conduct, they must receive notice of the standard.  Finally, the rules of conduct must be applied even-handedly to similarly-situated employees.

            A lapse in judgment is, in essence, a performance concern.  Discipline for such concerns must be tailored to motivate the employee to bring his/her level of performance up to the standards expected in the workplace.  Much like discipline for misconduct, such discipline requires notice of the deficiency and an opportunity to improve.

THE MERITS

            No single charge raised here, even if viewed in the most critical light, would have prompted a demotion.  The State justifies that discipline through the cumulative effect of five closely-spaced events.  The events of the month must withstand scrutiny both as discreet items and as parts of the larger picture.

            Grievant received no reprimand at the time the patient check was discovered or for several weeks thereafter.  He demonstrated forgetfulness on this occasion, and breached the written rule.  No reason appears why his conduct was any more serious, or merited any greater concern on OSH's part, than that of other ward staff who made the same mistake both before and after this incident.

            Rudolf's notes document Grievant's claim that his modification of Patient A's shoes was consistent with past staff practice.  Further, Walker credibly testified that she pointed out the history of cutting holes in Patient A's shoes during the grievance meeting.  The Arbitrator therefore cannot agree with the characterization of this defense as an afterthought.

            Although Patient A's foot deformities were not under active treatment, OSH could have considered modifications to his shoes a medical issue.  OSH can require consultation with medical staff in the future.  However, at the time he acted, Grievant had no clear notice that OSH considered shoe-cutting to be a medical issue.  On the contrary, the evidence is persuasive that this was viewed in the same light as any other modification of patient clothing.

            Numerous staff observed holes in the toes of Patient A's shoes over the years, and some either saw the holes cut or did the cutting themselves.  Since patients do not have cutting tools, the only logical conclusion is that staff made these modifications.  However, no medical order or charting reflected them.  If it was a medical issue, one would expect the medical staff or Patient A's case monitor, Smith, to inquire into the genesis of the holes.  One would also expect staff to have charted the change each time it occurred.  The absence of such entries demonstrates that cutting a hole in his shoe had not been considered a medical issue.  Thus, Grievant's conduct was consistent with the practice on the ward.  Contrary to the charge against him, he had Patient A's permission to cut a hole in the shoe.  Accordingly, his modification of Patient A's shoe demonstrated neither a failure of judgment nor a breach of established rules.

            The removal of Patient B's ring is a closer matter.  Some of the charges surrounding this incident have no support in the record.  Thus, he secured Patient B's permission to remove the ring, and no evidence exists that the method used to remove the ring was unsafe.  Other factors provide mixed support for OSH's concern.  It is undisputed that Smith assisted in the process, yet received no admonishment.  On the other hand, other staff on this unit and in Walker's unit rely on medical staff to decide how to proceed in similar circumstances.

            The issue is not whether medical staff should have removed the ring.  Instead, it is whether medical staff should have made the initial decision to remove the ring,[4] and, if so, the manner in which it should be removed.  Grievant precluded any such initial review by removing the ring before bringing the swollen finger to the nurse's attention.  Although his conduct did not breach a clear rule, it reflected less cautious judgment than that of some of his peers.  The lack of any censure at the time--or at any time, for Smith--demonstrates that his conduct was not far from the staff norm.

            No question exists that Grievant performed the intake search of Patient C's property.  It is substantially likely that the property included a box of toothpaste, that the knife was in the box, and that Grievant did not look inside the box.  Thus, the inventory lists one toothpaste, and Raines found a box of toothpaste among Patient C's belongings only two weeks after his admis­sion.  On a secure locked ward, Patient C had little opportunity to bring in contraband.  Grievant's testi­mony about the search is at odds with his contemporaneous written statement.  Thus, if he searched all of the property, it is inexplicable why he would write at the time that he had searched "some of" it.  The Arbitrator therefore concludes that he neglected to check the contents of the toothpaste box.

            The conclusion that Grievant performed an incomplete search answers only part of the ques­tion.  His prior evaluations noted that he was security conscious.  No evidence exists that he has had other lapses in security.  In a similar instance, OSH did not take the steps necessary to identify the person responsible for allowing a knife on the ward, much less punish the employee.  The counseling Grievant received at the time adequately addressed his conduct.

            The unscheduled time out stands out from the earlier incidents.  The treating team had decided on the appropriate re­stric­tions on Patient D's freedom.  The limits on OSH's authority to set such limits did not grant Grievant authority to decrease the restrictions at will.  Grievant himself did not seek to justify the extra time out on the grounds that the restrictions were too harsh.  In any event, if that was his opinion, his duty was to seek a modification in the formal treatment plan, not to change it unilaterally.  His failure to adhere to the treatment plan violated the established policies regarding seclusion.

            Grievant's note to the RN was not an adequate substitute for charting the extra time out.  The chart omission left other staff unaware of this deviation and the reasons for it.  This presented the potential for inconsistent handling of Patient D and insufficient attention to any con­tinuing distress over Patient E's suicide attempt.  It also gave Patient D a potential tool for playing staff against one another.  This directly implicated the earlier reminder not to set up a "good guy bad guy" perception.  Grievant's therapeutic intentions did not excuse him from following the proper pro­cedures.

            The time out incident demonstrated that Grievant did not appreciate the need to follow the treatment plan and chart properly.  In a non-disciplinary setting, he had already been reminded, inter alia, to adhere to seclusion plans, use a team approach, and avoid "good guy bad guy" perceptions.  He had also received recent counseling about following proper search procedures.  Under the progressive discipline system required by the Agreement, a written warning would have been sufficient response to this more serious time out incident.

            This record does not depict an employee with no regard for hospital policy.  Grievant made mistakes similar to those made by others on the ward.  Other than the time out incident, his conduct warranted and received little or no corrective action at the time.  After the time out incident, OSH looked at the earlier incidents with a more critical eye.  Even if each incident had been as worthy of censure as OSH now argues, there was still substantial hope of improvement.  Grievant received no notice or opportunity to improve before his demotion.  Thus, the demotion was premature.

            For all the above reasons, the demotion shall be reduced to a written warning for the time out incident.  Grievant shall be reinstated to his former rank of MHT-1, and shall be made whole for any losses occasioned by his payment as a MHTT rather than a MHT-1 between the date of his suspension and June 7, 1993.

AWARD

            1.         The demotion of the Grievant was not consistent with Article 20 of the collective bargaining agreement.  However, a written warning for the time out incident was consistent with Article 20.

            2.         As a remedy, the State shall convert the demotion to a written warning for the time out incident.  Grievant shall be reinstated to his former rank of MHT-1, and shall be made whole for any losses occasioned by his payment as a MHTT rather than a MHT-1 between the date of his suspension and June 7, 1993.

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

            4.         Under Article 21 of the collective bargaining agreement, neither party was wholly the losing party.  The State prevailed in assessing some discipline; the Union prevailed in reducing the amount of discipline.  The Arbitrator therefore assigns her fees and expenses equally between the parties.  

DATED:  March 4, 1994

                                                                                                              /s/ Luella E. Nelson               

                                                 LUELLA E. NELSON - Arbitrator

 


[1]           Smith and Grievant quarrelled over the room assignment for a violent patient.  Smith testified Grievant threatened him; Grievant denied doing so.

[2]           The knife appeared to be a table or butter knife, sharpened along its cutting edge.  Rudolf testified that even an unsharpened knife would have been prohibited.

[3]           A "smoke program" addresses patients who continually borrow cigarettes or give cigarettes away.  Under that program, the patient's cigarettes are kept in the office, and the patient is limited to a certain number of cigarettes each hour.  Staff generally accompany patients on a "smoke program" to the smoke room to make sure they do not borrow from other patients.  Except while in a smoke program, patients are allowed to have cigarettes in their room.

[4]           Rudolf's additional claim of concern over the lack of medical review is at odds with the charting.  Grievant charted notification of the RN.

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