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Title: State of Indiana and American Federation of State County and Municipal Employees
Date: January 26, 2002
Arbitrator: 
N. Eugene Brundige
Citation: 2002 NAC 137

 

OPINION AND AWARD

 

In the matter of Arbitration

Between 

The State of Indiana, Family and Social Services Administration – Evansville State Hospital

And

American Federation of State County and Municipal Employees (AFSCME) Indiana Council 62, Local 289

Regarding

Grievance Numbers 00-A-84100-138,139,146
[Nancy Rowley]

APPEARANCES:
FOR THE STATE:    FOR THE UNION:
John Wood, Advocate  George Dearing, Advocate
Beth Hatfield, State Personnel Nancy Rowley, Grievant  
Amy Hedges, State Personnel  Shirley Reed, Pres. Local 289
Ralph Nichols, Superintendent ESH David Osborne, Witness
Don Brandenburg, Witness  Lee Miller, Witness
Kim Daleiden, Witness   Tracey Harin, Witness
Melissa Williams, Witness    Cathy Crouch, Witness
Jeff A. Coombes, Witness Stacy Gilmore, Witness
Jeff Weir, Witness Sunday Thomas, Witness
Kandi Lee Rose, Witness   

            An arbitration hearing was conducted on November 22, 2001 at the Evansville State Hospital at Evansville, Indiana.  The issue before the arbitrator related to the termination of Nancy Rowley from her position at Evansville State Hospital.  Three grievances were filed on the subject.:  Even though there were sub-issues, the basic question before the arbitrator is: “Was the discipline imposed just?  If not, what shall the remedy be?”

                        Both parties were given full opportunity to examine and cross examine witnesses, pose arguments and present their respective cases.  Both advocates presented their respective cases competently and professionally.  All respective evidence, arguments and views were considered by the Arbitrator in reaching the decision stated herein..

            In that this grievance deals with a disciplinary matter, management assumed the burden of proof and presented its case first.

            One of the three grievances were filed on November 29, 2000, one on November 30, 2000 and the last on December 5, 2000.  All three grievances covered basically the same subject matter from a different perspective.  The first cites Article 26, A, and Articles 2.  The second grievance deals with the same Articles, as does the third grievance. 

                                   

MANAGEMENT’S POSITION:

            Nancy Rowley, a Psych Attendant 4, initiated a charge against a nurse of patient abuse.  Mr. Nichols, the superintendent, received a call from the second shift nursing supervisor, Donna Adams stating that she had just received a note from Mr. Weir, a psych attendant saying that a nurse had abused a patient, K.J. by taking him by the arm.

            Mr. Nichols stated that he was “very, very suspicious” about this report.  He made a decision not to follow normal circumstances and remove the nurse from direct patient care.

            He believed Ms. Rowley had initiated the charge and did so with malice based upon other recent incidents with this nurse.

            Mr. Nichols initiated an investigation to look into “my suspicions” that Ms. Rowley had improperly initiated the charge.

            Mr. Nichols then established a pre-deprivational meeting on November 10.  On November 13, 2000 Mr. Nichols sent a letter to Ms. Rowley.  On November 30, 2000 Mr. Nichols signed the Pre-Deprivation meeting report.

            Mr. Nichols stated he considered previous progressive discipline that Ms. Rowley had received:

1.    A one day suspension for insubordination.

2.    A ten day suspension for attendance related infractions

(It was noted that another incident occurred for which a pre-deprivational meeting was held and a decision issued between November 10 and November 30.  This incident resulted in a ten day suspension which was included in the 30 day suspension preceding termination.  It was agreed that the merits of this incident are not before the Arbitrator.)

            Mr. Brandenburg testified regarding the investigation he conducted.  He stated that following the interview, Mr. Weir left a written retraction of his statement with Ms. Russell.  Mr. Brandenburg testified that he did not intend to influence the statement by Mr. Weir.

Nurse Kim Daleiden testified next.  She stated that she had been second shift  charge nurse since she started in 1999.  She explained the incident which took place on September 15, 2000.

Ms. Daleiden testified that she had requested a transfer because of the difficulties she encountered with Ms. Rowley.  She stated Ms. Rowley took longer breaks than she was entitled to.  She stated that she could not manage Ms. Rowley.  She stated that she was threatened by Nancy Rowley.   “She challenged me that she would come and get me” Ms. Daleiden stated.  Further Nurse Daleiden testified that “Nancy said she would jump over the gate to get me (Ms. Daleiden).  Nurse Daleiden admitted that she did not file a complaint.

Ms. Melissa Williams had previously been a psych attendant before becoming a secretary.  She testified that she had knowledge of Nancy Rowley asking Angie Robinson to give a false statement.  This related to a patient filing a complaint against Nancy.   She had observed Ms. Rowley taking charge of situations wherein she believed someone else should have been in charge.  Ms. Williams testified that Mr. Weir told her that Nancy Rowley had asked him to make a false statement against Kim Daleiden.  She said that Mr. Weir told her that Nancy wanted him to make a statement and he did, but then he retracted it. (the statement).

            She testified that she found it uncomfortable to work with Nancy.  She testified that she had heard Nancy ask other attendants for pain medications prescribed for patients.

Mr. Coombes testimony noted that Mr. Weir called him to discuss the situation.  Mr. Coombes, to his credit, stuck by his view that the action he had seen did not constitute abuse.

UNION POSITION:

            The union contends that policy requires any suspicion of patient abuse be reported and investigated.  Mr. Weir discussed with Nancy Rowley at situation.  She did not know whether patient abuse had occurred so she delivered a statement from Mr. Weir to supervision.

            The union called numerous witnesses to testify on behalf of Nancy Rowley.  None had direct knowledge of what happened between Ms. Rowley and Mr. Weir.

DISCUSSION:

            This is a difficult case in that few of the persons involved seemed to be operating without ulterior motives.  Thus, to make sense of this case let us review what the record seems to show.

1.    There is evidence to indicate that Nancy Rowley did influence Jeff Weir to file a statement.

2.    There is no evidence that Mr. Weir was “afraid’ to file the statement himself.

3.    Mr. Weir’s weak and fluid testimony is hardly a statement on which one can rely in reaching a decision.

4.    Few people seem to be neutral on their views regarding the work record of Ms. Rowley.  Many people submitted statements of support for Ms. Rowley.  Others offered views that Ms. Rowley was not a good employee.  She took long breaks, tried to take pain medication from patients, and improperly involved herself in various hospital situations.  (None of this appears to have any relevance to the current case.)

5.    Ms. Daleiden found Ms. Rowley to be a difficult employee to manage.  Her fear of having a grievance filed has apparently kept her from properly managing the employee.

6.    Management assumed Mr. Rowley to be guilty and proceeded to prove that fact.

7.    Mr. Weir, who filed a false report, was not disciplined.

8.    The action taken by Ms. Daleiden was not, in any way, patient abuse.

9.    It is apparent to this Arbitrator, that Mr. Weir was aware that the action performed by Ms. Daleiden, was not abuse even though he denies possessing such knowledge..

            The question remaining then, is did management prove its case that the termination of Nancy Rowley was for just cause.  To make that determination, let us turn to an examination of the Seven Tests of Just Cause.

1.    Was the employee forewarned?  I find less clarity regarding this point than management would have me believe.  The rules submitted would be very clear if the writer of the false statement was charged.   Reference was made to a state statute.  If management believed this statute to have been violated then the right forum would have been criminal charges.  Likewise I was not provided a copy of the statute.  I do feel that there is an unstated understanding that an employee cannot file a false report that will negatively affect the career of another employee.  I find adequate notice was provided.

2.    Was there an investigation?  There was an investigation of sorts.  Certainly this entire situation would have a better odor if the investigators had been asked to investigate the entire situation rather than just the superintendent’s suspicion.  While this Arbitrator has no problem with the Superintendent making the decision not to temporarily remove Kim Daleiden from direct patient care,  the propriety of the entire matter would have been greatly improved if the investigators had been given the charge to assure that no abuse did occur.  Instead, the superintendent merely sent the investigators forth to secure enough evidence to prove Ms. Rowley’s guilt.  Further in this analysis I will deal with whether or not the investigation succeeded in this effort.

3.    Was the decision maker fair and impartial?  While Mr. Nichols appears to be a caring and competent Superintendent, the appearances of impropriety could have been diminished if Mr. Nichols had broadened the circle of those involved.  In essence he was the charging party, the pre-deprivation hearing officer and the ultimate decision maker.

4.    Does the penalty fit the offense?  Ordinarily the secondary act of encouraging another to file a statement that may be false would not lead to termination.  Based upon the prior disciplinary record of the employee, the next step in progressive discipline might support termination if the charge is proven.

5.    Did the employer prove its case?  Clearly a false statement was filed.  The question is Ms. Rowley’s role in the filing of that statement.  Management would apparently have the arbitrator believe that Mr. Weir was an innocent actor in this drama.  To successfully do so, I must be convinced that Ms. Rowley sought out Mr. Weir and then convinced him to prepare a report that he did not believe to be true.

Unfortunately the only witnesses to the interaction between Ms. Rowley and Mr. Weir were the two of them.  I must take into consideration the vested interest Mr. Rowley has in offering testimony which would absolve her of any wrongdoing and rather would cast her as a loyal employee trying to protect the interests of the clients.

With this consideration in mind, only Mr. Weir can possibly prove management’s case.  If he would have testified that Ms. Rowley approached him then that would buttress management’s case.  Instead he testified that “we ran into each other in the hall and I had asked (emphasis added) if she had heard anything about it.  She said no and asked if I would write a statement.”

If we are to believe Mr. Weir, he initiated the conversation.  The meeting was accidental and Nancy Rowley had no prior knowledge of the incident.

If Mr. Weir had testified that he was totally clear that no abuse had taken place, then one might conclude that Ms. Rowley inappropriately directed him to write a statement to harm the nurse.  He did not.  He stated that he was not clear regarding whether abuse had taken place.

When asked “Did anybody tell you what to write?”  Mr. Weir answered “No.”

At best Mr. Weir’s testimony would be very suspect based upon the number of times he retracted his statements. Without strong testimony from him management simply has no proof.

6.    Were other employees guilty of the same offense treated similarly?  No evidence was presented that there has ever been a same or similar offense..

7.    Is the rule fair?   False reports cannot be tolerated.  Particularly when someone’s career is in jeopardy, management must take strong action to assure that persons who file such reports are subject to significant discipline.

CONCLUSION:

            The theory put forth by management is a reasonable one.  An observer might conclude that Ms. Rowley wanted to “get” nurse Daleiden and thus improperly involved herself in the filing of this false report.

            The problem is theories are not enough.  Management must prove its case.  In this matter management has failed to do so.

            Absent the assumption of the burden of proof, an arbitrator has no choice but to grant the grievance.

            This arbitrator is acutely aware of the previous disciplinary record of this employee and shares the suspicion that Ms. Rowley improperly involved herself in the filing of a charge of patient abuse, but employees cannot be deprived their employment based upon suspicions.

            The arbitrator would note that Ms. Rowley returns to employment with a significant disciplinary record still in existence.  It would be in her best interest to return with a determination to cooperate with management and obey all work rules and policies to assure no further discipline is necessary.

AWARD:

            For the reasons herein stated, the grievance is granted.  Grievant shall be reinstated to a same or similar position at the Evansville facility.  Grievant shall be reimbursed for back pay minus interim earnings during the period of her termination.  Grievant shall also be compensated for the thirty day suspension imposed pending her termination minus the ten day suspension for another unrelated infraction.

It is so ordered.

Issued at London, Ohio this 26th. Day of January, 2002

___________________________
N. Eugene Brundige, Arbitrator

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