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Title: Hawaii Health Systems Corporation, Maluhia and United Public Workers AFSCME, Local 646, AFL-CIO
Date: 
August 27, 2002
Arbitrator: 
Michael Nauyokas
Citation: 2002 NAC 154

 

BEFORE ARBITRATOR MICHAEL F. NAUYOKAS

STATE OF HAWAII

In the Matter of the Arbitration Between 

UNITED PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO

                                    Union,

            and

 HAWAII HEALTH SYSTEMS CORPORATION, MALUHIA

                                    Employer,

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          Grievance of:
          EDGAR ESPERANCILLA
          (CZ/02/06)

                       

          Arbitration Hearing:

          Date:    August 27, 2002
          Time:    9:00 a.m.

        

                                                                              

ARBITRATION DECISION AND AWARD

 

 

 

 

 

 

 

                                                                                  

Michael F. Nauyokas
Attorney, Mediator & Arbitrator
733 Bishop Street, Suite 2300
Honolulu, Hawaii 96813
Telephone: (808) 538-0553
Facsimile:   (808) 531-3860     
Email: michaelnauyokas@hawaii.rr.com
http://www.michaelnauyokas.com
http://www.acctm.org/mnauyokas/

 

 

IN THE MATTER OF THE ARBITRATION BETWEEN UNITED

PUBLIC WORKERS, AFSCME, LOCAL 646, AFL-CIO AND

HAWAII HEALTH SYSTEMS COPRORATION, MALUHIA:

THE GRIEVANCE OF EDGAR ESPERANCILLA

 

 

            This matter came on to arbitration at a hearing held on August 27, 2002.  The United Public Workers, AFSCME, Local 646, AFL-CIO (“Union”) was represented by David m. Hagino, Esq., and the Hawaii Health Systems Corporation, Maluhia (“Employer” or “HHSC” or “Hospital”) was represented by Roy A. Vitousek III, Esq. and Kristin S. Shigemura, Esq.  The Arbitrator made a full disclosure of all potential bases for conflict, and any such conflicts were specifically waived by the parties to the arbitration.  The parties stipulated to procedural and substantive arbitrability of the controversy and to the fact that the arbitration was properly set following the grievance procedure outlined in the Collective Bargaining Agreement (“CBA”) between the Employer and the union effective July 1, 1999 through and including June 20, 2003.  Pursuant to the Stipulation, the terms of the CBA govern this subject.  The arbitration was conducted pursuant to Section 15 of the CBA (“Grievance Procedure”).  The parties were fully and fairly represented at the hearing.  Pursuant to the stipulation of parties, the issues presented to the Arbitrator are:

1.         Did the Employer have just and proper cause to terminated Edgar Esperancilla (“Grievant” or “Esperancilla”) in accordance with Section 11 of the CBA?

 

2.         If the termination of Grievant was a violation of the CBA, what is the appropriate remedy?

 

 

 

 

FACTUAL BACKGROUND

            Maluhia Elderly Housing (“Maluhia”), an affiliate of the Employer, is a health care facility which provides health care services in the State of Hawaii.  Edgar Esperancilla (“Esperancilla” or “Grievant”) was employed by the Employer was an Adult Day Health Nurse Aide.

            The Grievant had been employed by Maluhia since 1996.  The Employer operates a program entitled Program of All Inclusive Care for the Elderly (“PACE”).  The average age of the participants (or “residents” or “patients”) in the PACE program is 83 years.

            The PACE program is a special adult day care program that is part of a national demonstrative project which is designated to assist families in keeping dependent elderly persons living at home in lieu of a care home by providing total nursing and medical care to participants during daytime hours.  The participants in the program are persons whose medical needs require daytime hours.  The participants in the program are persons whose medical needs require either intermediate or skilled nursing care.  Therefore, they are persons who, due to medical condition, could be placed in a long-term care facility.  Once accepted into the PACE program, the participants are participants for life.

            On August 28, 2001, Esperancilla was engaged with providing care for participants in the PACE program, including providing the participants with lunch and snacks, and assisting in toileting.  In particular, he assisted “Mr. M,” a participant.

            Ann Oneha (“Oneha”), the Adult Recreational Therapy Aide, supervises Esperancilla and Sara Sarmiento (“Sarmiento”).  Oneha called Esperancilla and asked him to take “Mr. D” to the handivan pickup.  He told her he was busy with toileting and asked if she could call someone else from upstairs to bring Mr. D up.  Oneha said no one was available, and Esperancilla responded that if he had to take Mr. D up, he would stay upstairs and finish his required charting, and then leave since his shift as almost finished.  His shift was from 6:45 a.m. to 3:15 p.m.

            Esperancilla called to Sara to see if she needed backup, and when she said that she did not, he informed her that he was not coming back.  He did not inform her that Mr. M was still on the toilet.  Esperancilla left at 3:15 p.m.

            Sarmiento began her shift at 7:45 a.m. and ended at 4:15 p.m.  Neither Oneha nor Sarmiento discovered Mr. M.  One of the housekeeping staff on duty, Simplicio Canoneo (“Canoneo”) found Mr. M unattended in the men’s restroom in the PACE Center basement.

            Upon the Employer’s interview of Esperancilla, he acknowledged that he took Mr. M to the men’s restroom and left him unattended.  He further explained that he forgot about Mr. M because he was assigned to take another participant upstairs.  Once he completed his duties upstairs, he left at the end of his shift.

            In accordance with the Employer’s policies on patient abuse and on patients’ rights, Maluhia conducted an investigation of the allegations.  According to the in-service attendance record, on August 28, 2001, Esperancilla attended an in-service training on “Preventing Abuse & Neglect.”  N the in-service quiz, Esperancilla correctly indicated that the following statement was true: “You are neglecting an elder if you leave them on the toilet for an extended period of time because you got busy or simply just forgot.”  (Employer’s Exhibit 7)

            The investigative charge against the Grievant was that the Grievant violated the Employer’s Freedom From Abuse and Retaliation policy which provides that violation of the policy subjects the employee to disciplinary action.  Specifically, the Freedom From Abuse and Retaliation policy states:

           

Any employee who abuses, neglects, or threatens a resident with imminent abuse, shall be subject to disciplinary action and removal from the unit.

 

 

(Emphasis added).  (Employer’s Exhibit 2).

 

            According to the Employer, the Grievant failed to abide by the Employer’s known policies, regulations and work rules, failed to comply with the Employer’s standards, policies and procedures, and was subject to termination pursuant to Section 11.01a of the CBA which states:

 

                        Section 11.  DISCIPLINE

                        11.01 Process.

11.01 a.  A regular Employee shall be subject to discipline by the Employer for just and proper cause.

            Further, the Employer was of the position that Esperancilla actually knew that leaving Mr. M on the toilet unattended was a prohibited act of neglect and abuse and a violation of Maluhia’s Freedom of Abuse and Retaliation Policy and HHSC’s Patient/Resident Abuse/Neglect Exploitation Reporting and Investigations policy which provides, in part:

 

 

 

***

The Division of Community Hospitals, Department of Health, State of Hawaii, is committed to providing care to patients and residents in the community hospital facilities in a manner and in an environment that promotes maintenance or enhancement of each patient’s or resident’s dignity and quality of life.

 

It is the policy of the Division of Community hospitals that all patients and residents within our facilities shall be free from verbal, sexual, physical, or mental abuse, corporal punishment, involuntary seclusion, neglect or exploitation…

 

It shall be the policy of the Division of Community Hospitals to comply with all Federal and State laws and regulations governing the care of patients and residents in our facilities.

 

 

(Emphasis Added. Employer’s Exhibit 1).

            The Maluhia Freedom From Abuse and Retaliation Policy similarly provides in pertinent part:

All residents at Maluhia shall be free from abuse and retaliation by its staff, other patients/residents and visitors.  They shall not be humiliated, harassed, injured or threatened . . . .  They shall be treated with consideration, respect, and full recognition of their dignity and their individuality…

 

***

 

Any employee who abuses, neglects, or threatens a resident with imminent abuse, shall be subject to disciplinary action and removal from the unit.

 

***

 

 

(Emphasis Added.  Employer’s Exhibit 2).

 

 

            The Employer’s policies define “abuse” and “neglect” as follows:

 

“Abuse” means actual or imminent physical injury, psychological abuse or neglect….Abuse occurs where:

 

(3) Any dependent adult is not provided in a timely manner with adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision….

 

(5) There has been a failure to exercise that degree of care toward a dependent adult which a reasonable person with the responsibility of a care-giver would exercise, including, but not limited to, failure to:

 

(a)               assist in personal hygiene;

 

(b)               provide necessary food, shelter and clothing;

 

(c)                provide necessary health care access to health care, or prescribed medication;

 

(d)               Any dependent adult appears to lack sufficient understanding or capacity to make or communicate responsible decision concerning the dependant adult’s person, and appears to be exposed to a situation or condition which poses an imminent risk of death or serious physical harm.

 

 

(Emphasis Added.  Employer’s Exhibit 1)

 

The Maluhia policy on abuse, similar to HHSC’s policy, provides:

 

“ABUSE” means actual or imminent physical injury, psychological abuse or neglect, verbal abuse, sexual abuse, financial exploitation, negligent treatment, or maltreatment by members of the facility staff against residents.

 

“NEGLECT” means the failure to provide the goods or services which are necessary to avoid harm; mental anguish or mental illness or failure of a staff member to provide such goods, or services.  It may include, but is not limited to the following:

 

- Isolating dependant residents by leaving them in their rooms or other isolated locations apart from temporary monitored separation occurring in the context of assessment and care planning.

 

Examples of PASSIVE NEGLECT (the most common form of elder abuse)

 

- Inattention and isolation either in an area alone or in social isolation unless it is by the resident’s choice.

 

(Emphasis Added.  Employer’s Exhibit 2)

 

            Consequently, the Grievant was advised that the Employer would investigate the alleged patient abuse incident.  (Employer’s Exhibit 6).

            On January 23, 2002, the Employer’s investigation was completed.  Based on its investigative findings, Maluhia’s administration imposed discipline on the Grievant in the form of termination, in accordance with Section 11 of the CBA, effective January 31, 2002.

            The Employer’s letter addressed to the Grievant, dated January 23, 2002 (Employer’s Exhibit 10), advised the Grievant as follows:

***

This letter is to inform you that you are terminated from position number 102814, Adult Day Health Nurse Aide effective January 31, 2002.

 

The reason for the termination is due to the substantiation of the allegation of patient neglect on August 28, 2001.  During the investigation, you acknowledged that you left the participant unattended in the restroom to complete another task and you completed your shift without returning to the participant.

 

This action is subject to the Grievance Procedure outlined in the Bargaining Unit 10 Agreement, Section 15.

 

***

 

(Emphasis Added.  Employer’s Exhibit 10).

 

            On January 30, 2002, a Memorandum to Robin Ching (“Ching”), Personnel Officer of Maluhia, was submitted by Audrey Suga-Nakagawa (“Suga-Nakagawa”), Director of Maluhia, which stated:

 

Dr. Clifford Chang has reviewed the attached note faxed by Dr. Erlinda Cachola, Edgar Esperancilla’s physician.  In Dr. Chang’s medical opinion, this letter does not substantiate any medical conditions that would have impaired Mr. Esperancilla’s judgment in leaving a participant on the toilet unattended.  Therefore, the decision to terminate Edgar Esperancilla should remain in effect.

 

(Emphasis Added.  Employer’s Exhibit 11).

 

            The Union initiated grievance procedures pursuant to the CBA.  On  February 11, 2002, the Union filed Step 1 grievance for the termination.  The grievance was not resolved at any of the steps provided in the Contract, and the Union filed its intent to arbitrate the grievance.  The parties stipulated that this arbitration take place as the final step in the process of review.

 

 

 

 

 

            EMPLOYER’S POSITION

            The Employer’s position is that it had just and proper cause to terminate the Grievant in accordance with Section 11 of the CBA, arguing that:

1.                  The Grievant’s actions were inconsistent with the essential purposes and goals of Maluhia’s adult day care program, the state and federal laws prohibiting elder abuse, and the penalties that can be imposed on Maluhia if it permits abuse to occur in its facility.

2.                  The success of the PACE program depends on the trust and support of the participants’ families and responsible, caring, and attentive employees to provide all aspects of nursing care to significantly dependent participants.

3.                  The allegations that the Grievant neglected and abused Mr. M was proven not only by a preponderance of the evidence, which is the standard to apply to disciplinary cases, but even by a higher standard such as by clear and convincing evidence.

4.                  The Grievant admitted during the investigation and during the arbitration hearing that he placed Mr. M on the toilet, that he did not specifically notify anyone that Mr. M was on the toilet, and that he forgot about Mr. M and then went home for the day.  Therefore, Mr. M was left unattended on the toilet for approximately one hour.

5.                  Mr. M is a severely dependent adults who suffers from Alzheimer’s disease and dementia, and whose state of dementia is so severe he is unable to even recognize that he may have need for assistance, call out or express need for assistance, or ambulate on his own.

6.                  Although Mr. M fortunately was not injured, the potential for harm was great in this case.  Mr. M was left alone in a basement bathroom in an area where no one would have reason to go into until the next morning.  He might have been left there for several hours until his family reported him missing.  In that time, many things could have happened to Mr. M, and no person would be there to assist him or ensure his health and safety.

7.                  Although the Union may imply that the Grievant believed co-workers Sarmiento or Oneha knew Mr. M was in the toilet, both Sarmiento and Oneha deny ever being advised of this fact, and moreover, the Grievant himself admitted that he did not tell them Mr. M was in the bathroom.

8.                  The Grievant had notice of the Employer’s policies as to what constituted abuse and neglect and its position that abuse and neglect of PACE participants would not be tolerated.  He admitted that he was taught both of the Maluhia policies prohibiting abuse and neglect when he was initially hired and on a yearly basis.

9.                  On the very morning of the neglect of Mr. M, August 28, 2001, the Grievant took an in-service quiz in which he answered correctly that it was a true statement that “You are neglecting an elder if you leave them on the toilet for an extended period of time because you got busy or simply just forgot.”

10.              The actions of the Grievant on August 28, 2001 were a violation of two of the Employer’s policies prohibiting patient abuse and neglect.  (Employer’s Exhibits 1 and 1).

11.              Because of the serious ramifications of patient abuse and neglect, the Employer’s policies, which were virtually identical to Hawaii laws prohibiting elder abuse, prohibit any acts constituting abuse and neglect, without reference to the intent of the alleged perpetrator.  (Employer’s Exhibit 25-37).

12.              Although the Union disputes that the employer’s policies prohibiting abuse and neglect are applicable to UPW members, the policies are per se reasonable given their correlation with state and federal laws prohibiting elder abuse.  Employer’s Exhibit 1 has been in place since the time when Maluhia was administered by the Department of Health and enforced with UPW employees for many years.  Employer’s Exhibit 1 is also virtually identical to Employer’s Exhibit 29, Hawaii Revised Statutes Section 346-222.

13.              The behavior of the Grievant was sufficiently serious in and of itself to warrant discipline notwithstanding any particular policy because the behavior was inappropriate towards a custodial participant for whom the Grievant was responsible.

14.              The lack of focus and lack of judgment exhibited by the Grievant in this event unambiguously demonstrated to the Employer that the Grievant is not suited for direct patient care with PACE participants or Maluhia residents.  Despite having knowledge and understanding of Maluhia’s policies, he is unable to conform his behavior and actions in the manner necessary to ensure participant health and safety.  The Employer should not be obligated to risk a future similar incident in which a participant could be more severely hurt due to the Grievant’s neglect and abuse, regardless if he intends the injury or not.

15.              There was just and proper cause for the termination of the Grievant because the allegations of the events of August 28, 2001 were substantiated, the Grievant clearly had notice of the policy and the prohibited actions, and his actions violated a fundamental hospital policy that is designed to ensure the safety of custodial participants and residents of the hospital.

16.              The Grievant had one other incident of patient neglect and inappropriate delivery of care.  The incident occurred on July 5, 2001, and involved the Grievant leaving an inflated blood pressure cuff on the arm of another PACE participant, while he ran out of the hospital to move his car which was being towed because it had been parked illegally.  The PACE participant suffered pain and bruising as a result of the neglect.  This prior incident only reinforces the fact that the Grievant is unable to perform his job in the manner necessary to ensure patient safety.

17.              Esperancilla received more than adequate notice of the Employer’s policies on patient abuse and on patients’ rights.

18.              The Grievant admitted that he had been given an annual in-service training on patient abuse and rights and the Employer’s abuse policy.

19.              Esperancilla’s supervisor also confirmed that he had yearly training on the abuse policy.

20.              It is clear that Eserancilla knew and understood the provisions of the Employer’s policies.  On the very morning he neglected Mr. M, Esperancilla received his annual in-service training on abuse and neglect.  The Grievant took a quiz in which he answered correctly, “true” to the following question: “You are neglecting an elder if you leave him on the toilet for an extended period of time because you got busy or simply just forgot.”

21.              The Grievant knew that leaving Mr. M on the toilet unattended was a prohibited act of neglect and abuse and a violation of Maluhia’s Freedom From Abuse and Retaliation Policy and HHSC’s Patient/Resident Abuse/Neglect Exploitation Reporting and Investigations policy.

22.              Management is authorized to make and to post reasonable rules of conduct that are not inconsistent with the CBA.  The mere fact that the Union contends that it has not accepted the Maluhia policy does not prohibit Maluhia from promulgating and enforcing that policy.  Moreover, the Grievant admitted that he was aware of these policies and the repercussions of violating them.

23.              Given the reasonableness of the abuse policy, the Employer’s promulgation and enforcement of the rule against the Grievant, who was aware of its provisions, was proper.

24.              The Employer’s sole business purpose is to provide quality care to elderly participants who cannot care for themselves or perform aspect of daily living (ADLs”).  In fact, for the majority of the participants, the PACE program will be the primary care provider for the majority of their waking hours until they pass on or move to a 24-hour care facility.  Because of their age and frail physical and mental condition, the participants require continual supervision by careful, attentive, compassionate and prudent caregivers.  Maluhia’s purposes and goals of treating its residents with respect for their individual rights and for their personal dignity are reflected in the statement of policy in the resident abuse policies.  (Employer’s Exhibit 1 and 2).

25.              The Employer reasonably expects that its Certified Nurse Aides (“CAN”) care for each participant as they would care for their won family member: they are attentive, responsible, exercise their best judgment, and take are to ensure the safety and welfare of PACE participants.  This is an essential part of their daily duties in providing care to elderly participants.  The failure of employees to meet these essential requirements leads to patient abuse and neglect, results in loss of reputation for the hospital and the PACE program, loss of trust in the community and with families, and ultimately the loss of opportunity to provide medical care to elderly in our community which is the primary business purpose of the hospital.

26.              The Employer’s abuse policy is reasonable because in addition to its commonsense expectations that are related to the basic purpose of the hospital, the Employer also faces state and federal regulations pertaining to the care of the elderly that prohibit instances of patient abuse.

27.              The hospital’s policies are consistent with the purposes of the State laws prohibiting elder abuse.

28.              Failure to comply with State or Federal law regarding prevention of abuse and neglect results in harsh penalties against a health care facility.

 

UNION’S POSITION

            It is the Union’s position that the Employer has failed to meet the burden of proof required to sustain a termination of the Grievant for just cause, noting that:

1.                  In his five-year employment, Esperancialla had only one prior discipline.

2.                  On August 28, 2001, Esperancilla had performed his work diligently throughout the entire day.  The violation arose with his unintentional omission to let Sarmiento or Oneha know about Mr. M. Oneha, who should have known the daily routine, did not likewise inquire if all participants had been toileted.

3.                  The violation in this case is unintentional and one of omission.  Discharge is too harsh a penalty.

4.                  Management has some blame for the incident.  Esperancilla was properly discharging his duties for the day.  He had been helping with the feeding, nourishment (snack), and toileting of the patients.  He took the patient to his regular toileting.  That patient often took a long time to toilet.  Esperancilla was asked by Oneha to take another day patient to the handivan.  He was willing to do so, but he also informed her that since he had to go upstairs, he would complete his charting for the day and leave work.  Oneha consented.

5.                  None of the remaining staff had discovered Mr. M.  This is important because there are a number of reasons why one staff member might have to leave his or her post: illness, emergency, et cetera.

6.                  It was only after the August 28, 2001 incident that this omission in care and tracking of geriatric patients was discovered, realized, and remedied.  The investigation report in its recommendations notes this.  In fact, the core recommendations deal with the tracking and recording systems for all staff workers.

7.                  Management had not anticipated this default in the system.  Had this system been in place, Esperancilla would not have committed the error of omission.  For example, if the paperwork had been available in the PACE basement or wherever the program is located, Esperancilla would have returned to the program area.  He would not have assumed that his care would have been taken over by Sarmiento or Oneha.

8.                  Another recommendation from the report also implies that the training in patient care might have been faulty.

9.                  The Employer’s supervisors might have been negligent in ensuring the proper level of care.

10.              The discharge should be set aside and the lesser penalty of a suspension should be applied instead.

11.              A suspension is more in the line with the policy of progressive discipline than the extreme industrial penalty of discharge.

12.              There is no dispute that Mr. M was left on the toilet by Esperancilla.  Esperancilla offered a defense of the action.  He had been asked to perform another duty.  He performed that duty, completing his charting for the day, and left when his shift ended.

13.              Esperancilla did not intentionally abuse or neglect the patient.  It is not a situation where the Grievant lost his temper or had a reason to neglect the patient.  Because of this absence of intention, the Union contends that it is logical to ask if progressive or corrective discipline should be applied.  The answer should be a resounding “yes.”

14.              Esperancilla has only one other blemish on his five-year service record.  This is the incident with the blood pressure cuff.  He left it on another patient and did not properly turn over the care of the patient to a co-worker.  In that case, he received an oral warning.

15.              it is a great leap forward to go from an oral warning to the extreme disciplinary action of discharge.  There have been no intermediate steps.  The affected worker has no further opportunity to improve or correct his behavior.  It is in effect a two strikes and out policy.  Regardless of any testimony of the Employer’s witnesses, any cited policy does not call for summary dismissal.

16.              If summary dismissal is required for a violation of any policy on abuse or neglect, then the report must conclude that after finding that the affected worker did commit this violation, that dismissal must follow as a mandatory consequence.  The team did not make such a finding.  Instead, it recommended that there be an appropriate disciplinary action.

17.              Esperancilla’s behavior is correctable.  Since he had a prior oral warning and since this infraction is sufficiently grave that a written warning might not be sufficient, a suspension is in order.  Therefore, the discharge should be set aside and a suspension imposed.  This disciplinary action in lieu of a discharge is in keeping with corrective or progressive discipline.

 

Finally, the Union contends that the Arbitrator is not bound to merely sustain the discharge or return the grieving party with or without pay for the intervening period between the effective date of the discharge and his return to work.  An appropriate remedy may be fashioned that would include a rescission of the discharge.  The Arbitrator should not feel compelled to sustain or rescind the discharge and award or restrict any back pay.

 

ESTABLISHING JUST AND PROPER CAUSE

            In this matter, pursuant to the CBA and the body of decisions governing the interpretation of just cause, the Employer must show that just and proper cause existed for the Grievant’s termination by the Employer.  “Just Cause”, as defined by Arbitrators Hill, Sinicropi, and Evenson is as follows:

 

Just Cause.  The standard by which is determined that the employer has sufficient reason to remove an individual from employment.  Basically synonymous with “reasonable,” “good,” or “proper cause.”  Perhaps the most often-quoted statement of just cause criteria used by arbitrators is in the form of a series of questions provided by Arbitrator Carroll Daugherty in enterprise Wire Co., 46 LA 359, 363-64 (1966) and Grief Brothers Cooperage Corp., 42 LA 555, 558 (1964).

 

Marvin F. Hill, Jr., Anthony V. Sinicropi, Amy L. Evenson, Winning Arbitration Advocacy (1997).

 

 

            In order to satisfy this standard, the Employer must meet the following tests required to show just cause for termination:

1.                  The employee was forewarned of the consequences of his actions.

2.                  The Employer’s rules are reasonably related to business efficiency and the performance the Employer might expect from an employee.

3.                  An effort was made before discipline to determine whether the employee was guilty as charged.

4.                  The investigation was conducted fairly and objectively.

5.                  Substantial evidence of the employee’s guilt was obtained.

6.                  The rule was applied fairly and without discrimination.

7.                  The degree of discipline was reasonably related to the seriousness of the employee’s offense and the employee’s past record.

Enterprise Wire Co., 46 Lab. Arb. (BNA) 359, 362-65 (1966) (C. Daugherty, Arb.); Koven and Smith, Just Cause The Seven Tests (2d ed. 1992); State of Hawaii, 109 Lab. Arb. (BNA) 289, 291 (7/1197) (Nauyokas, Arb.); State of Hawaii, (7/27/97) (Nauyokas, Arb.); UFCW Union Local 480, AFL-CIO and Safeway (10/30/98) (Nauyokas, Arb.); IAM and Aloha Airlines (8/23/99) (Nauyokas, Arb.); Sheraton Waikiki Hotel, 114 Lab. Arb. (BNA) 1595, 1598-99 (2000) (Nauyokas, Arb.); SHOPO and City & County of Honolulu (9/20/00) (Nauyokas, Arb.); UPW and Hawaii Health Systems Corp. (2/24/01) (Nauyokas, Arb.); HERE, Local 5 and Hyatt Regency Waikiki (11/13/01) (Nauyokas, Arb.); see also Ogden, 111 Lab. Arb. (BNA) 251, 252 (8/31/99) (Nauyokas, Arb).

 

 

ANALYSIS

Issue No. 1:  Was the Grievant forewarned of the consequences of his actions

            The testimony and the exhibits produced at the arbitration hearing clearly demonstrated that the Grievant had received in-service training regarding the Employer’s policies on abuse and neglect.  The Employer’s policy, entitled “Freedom from Abuse and Retaliation,” clearly states:

 

All residents at Maluhia shall be free from abuse and retaliation by its staff, other patients/residents and visitors.  They shall not be humiliated, harassed, injured or threatened . . . .  They shall be treated with consideration, respect, and full recognition of their dignity and their individuality…

 

 

***

 

Any employee who abuses, neglects, or threatens a resident with imminent abuse, shall be subject to disciplinary action and removal from the unit.

 

***

 

 

(Emphasis Added.  Employer’s Exhibit 2).

 

            The Employer’s policies define “abuse” and “neglect” as follows:

 

“Abuse” means actual or imminent physical injury, psychological abuse or neglect….Abuse occurs where:

 

(3) Any dependent adult is not provided in a timely manner with adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision….

 

(5) There has been a failure to exercise that degree of care toward a dependent adult which a reasonable person with the responsibility of a care-giver would exercise, including, but not limited to, failure to:

 

(a)               assist in personal hygiene;

 

(b)               provide necessary food, shelter and clothing;

 

(c)                provide necessary health care access to health care, or prescribed medication;

 

(d)               Any dependent adult appears to lack sufficient understanding or capacity to make or communicate responsible decision concerning the dependant adult’s person, and appears to be exposed to a situation or condition which poses an imminent risk of death or serious physical harm.

 

 

(Emphasis Added.  Employer’s Exhibit 1)

The Maluhia policy on abuse, similar to HHSC’s policy, provides:

 

 

“ABUSE” means actual or imminent physical injury, psychological abuse or neglect, verbal abuse, sexual abuse, financial exploitation, negligent treatment, or maltreatment by members of the facility staff against residents.

 

“NEGLECT” means the failure to provide the goods or services which are necessary to avoid harm; mental anguish or mental illness or failure of a staff member to provide such goods, or services.  It may include, but is not limited to the following:

 

- Isolating dependant residents by leaving them in their rooms or other isolated locations apart from temporary monitored separation occurring in the context of assessment and care planning.

 

Examples of PASSIVE NEGLECT (the most common form of elder abuse)

 

- Inattention and isolation either in an area alone or in social isolation unless it is by the resident’s choice.

 

 

(Emphasis Added.  Employer’s Exhibit 2)

 

            In the instant case, the Employer gave the Grievant notice of the rules prohibiting patient abuse and neglect and of the consequences for violating those rules.  Given these circumstances, the Arbitrator finds that the Grievant was or should have been aware of the fact that any action taken against the Employer’s policies could or would result in the termination of his employment.

            The Grievant’s supervisor testified and confirmed that Esperancilla had yearly training on the Employer’s abuse policy.

            In addition to the witnesses’ testimonies at the hearing, the Grievant, himself, admitted that he had received an annual in-service training on patient abuse and rights during which he learned that you are neglecting an elder if you leave him on the toilet for an extended period of time because you got busy or simply just forgot.  Moreover, he admitted that he left Mr. M on the toilet unattended.

            It is clear that the Grievant knew and understood the provisions of the Employer’s abuse and neglect policies.  As Esperancilla had just received his annual in-service training on abuse and neglect.

            This first consideration has therefore been satisfied by the Employer.

 

Issue No. 2:  Was the Employer’s rule reasonably related to business efficiency and the performance the Employer might expect from an employee?

 

 

            In the arbitrator’s analysis, the nature of the rule against patient abuse and neglect is, per se, a reasonable rule.  It is reasonable that the Employer expect its employees to abide by its patient abuse and neglect policy, as this policy ensures care to the elderly participants in a manner and in an environment that promotes maintenance or enhancement of each elderly participant’s dignity and quality of life.

            The following sections of Maluhia’s policies state the relevant rules:

 

Maluhia Administration

Freedom From Abuse and Retaliation

 

All residents at Maluhia shall be free from abuse and retaliation by its staff, other patients/residents and visitors.  They shall not be humiliated, harassed, injured, or threatened . . . .  They shall be treated with consideration, respect, and full recognition of their dignity and their individuality…

 

***

 

Any employee who abuses, neglects, or threatens a resident, with imminent abuse, shall be subject to disciplinary action and removal from the unit.

 

***

 

 

(Emphasis Added.  Employer’s Exhibit 2).

 

 

            The Employer’s policies defines “abuse” and “neglect” as follows:

 

 

“Abuse” means actual or imminent physical injury, psychological abuse or neglect….Abuse occurs where:

 

(3) Any dependent adult is not provided in a timely manner with adequate food, clothing, shelter, psychological care, physical care, medical care, or supervision….

 

(5) There has been a failure to exercise that degree of care toward a dependent adult which a reasonable person with the responsibility of a care-giver would exercise, including, but not limited to, failure to:

 

(a)               assist in personal hygiene;

 

(b)               provide necessary food, shelter and clothing;

 

(c)                provide necessary health care access to health care, or prescribed medication;


 

(d)               Any dependent adult appears to lack sufficient understanding or capacity to make or communicate responsible decision concerning the dependant adult’s person, and appears to be exposed to a situation or condition which poses an imminent risk of death or serious physical harm.

 

 

(Emphasis Added.  Employer’s Exhibit 1)

 

 

            The Maluhia policy on abuse, similar to HHSC’s policy, provides:

 

 

“ABUSE” means actual or imminent physical injury, psychological abuse or neglect, verbal abuse, sexual abuse, financial exploitation, negligent treatment, or maltreatment by members of the facility staff against residents.

 

“NEGLECT” means the failure to provide the goods or services which are necessary to avoid harm; mental anguish or mental illness or failure of a staff member to provide such goods, or services.  It may include, but is not limited to the following:

 

- Isolating dependant residents by leaving them in their rooms or other isolated locations apart from temporary monitored separation occurring in the context of assessment and care planning.

 

Examples of PASSIVE NEGLECT (the most common form of elder abuse)

 

- Inattention and isolation either in an area alone or in social isolation unless it is by the resident’s choice.

 

 

(Emphasis Added.  Employer’s Exhibit 2)

 

 

 

            The HHSC and Maluhia policy on patient abuse is that it will not be tolerated.  The obvious reason for such a strict policy is that the issue of patient abuse is a very serious issue for a health care facility such as Maluhia.  Further, because of the severity of the potential ramifications and mental and physical damage associated with patient abuse, federal laws require health care facilities to formally investigate all allegations of patient abuse.  The hospital may lose its certification and licensure if the hospital dos not make every effort to prevent patient abuse.

            Maluhia’s patient abuse policy is related to the basic, essential goals and purposes of a health care facility, which are to provide quality elderly care to is participants.  Clearly, HHSC and Maluhia’s policies on patient abuse are addressed to the health care industry’s basic humanitarian purposes and goals.  The policies embody the fundamental and inherent principles and respect for patients’ dignity that a hospital or health care facility rightfully should expect in the quality of care that is provided by its staff members.

            The second consideration has therefore been satisfied by the Employer.

 

Issue No. 3:  Was an effort made prior to the discipline of the Grievant to determine whether or not he was guilty of the offense charged?

 

            Because of the serious nature of patient abuse and the strict state and federal laws governing prevention of abuse, it is HHSC’s and Maluhia’s policy that all incidents of actual, threatened or alleged abuse must be immediately reported and investigated.  (Employer’s Exhibits 4 – 6).

            The evidence presented at the hearing showed that the Employer conducted an adequate investigation of the allegations of patient abuse. Upon receipt of Mr. M’s Event Report Form (Employer’s Exhibit 7), Jay Duquette (“Duquette”) Facility CEO/Administrator, placed the Grievant on paid administrative leave (Employer’s Exhibit 6).  Reports were made to the Department of Health, Quality Assurance and the Department of Human Services, Adult Protective Services, as required by law (Employer’s Exhibit 6).

            An investigation was conducted, and all the staff on duty during the shift were interviewed.  Esperancilla was also interviewed and given an opportunity to present his version of the events.  The investigators considered both inculpatory and exculpatory evidence.  It was their conclusion, however, that the abuse policy had been violated (Employer’s Exhibit 7).

            The investigative report was sent to Duquette who reviewed the Grievant’s employment record and in-service history and recommended that discipline should be imposed.  Duquette made the decision to terminate the Grievant based on the investigative findings.

            The Grievant was notified on January 23, 2002 that he would be terminated effective January 31, 2002.  The letter provided the Grievant with the opportunity to meet Duquette and address the specific reasons for the discipline prior to the effective date of the termination (Employer’s Exhibit 10).

            It is clear that the Grievant had the benefit of representation by his Union, and an opportunity to be advised as to the specific charges that were brought against him and to respond to such charges.  (Employer’s Exhibits 33 – 36).

            All of the necessary investigatory steps were taken before discipline was imposed on the Grievant.  The investigative report regarding the August 28, 2001 incident was submitted to Duquette on January 11, 2002 (Employer’s Exhibit 7).  After the investigation was completed, Duquette made the decision, on behalf of the Employer, to terminate the Grievant, and informed him of the Employer’s decision by letter, dated January 23, 200.  (Employer’s Exhibit 10).

            The investigation procedure was designed to make a fair determination as to whether the abuse had been substantiated prior to imposing discipline.  Therefore, the Arbitrator specifically finds that the Employer made an effort to determine whether or not the Grievant was guilty of the offense charged and that he received the process that was due under the CBA.

            The third consideration has therefore been satisfied by the Employer.

 

Issue No. 4;  Was the investigation of the incident conducted fairly and objectively?

 

            As noted in the analysis of issue No. 3, an investigation was conducted wherein the Grievant had the opportunity to tell his side of the story to higher management officials, and the management officials gave the Grievant the opportunity to state his case (Employer’s Exhibit 7).  Essentially, the investigatory steps were taken by the Employer to determine whether or not the Grievant violated the rules cited as cause for discipline.

            The detailed and extensive investigation performed by Ruby Lee (“Lee”), RN Supervisor, Monica Lee Wong (“Wong”), Chief Dietitian, and Robin Ching (“Ching”), Personnel Management Specialist (collectively “investigation team”), including the witness interviews and completion of written statements, was conducted fairly and objectively.  The investigation team interviewed all individuals who may have witnesses the events that took place on August 28, 2001.

            In performing the investigation, the investigation team concluded that Esperanciall’s neglect on August 28, 2001 was unintentional.  Nevertheless, the investigation team recommended that appropriate action be taken against Esperancilla due to the serious nature of the incident.

            The Employer was in compliance with Section 11 of the CBA by notifying the Grievant of the allegations against him, and affording him the opportunity to related his side of the events.  Furthermore, the Union presented no evidence that the investigation conducted by the investigation team as unfair or biased.

            The evidence showed that the investigation conducted by Maluhia was complete and fair in its effort to determine whether the Grievant had engaged in patient abuse and neglect.  In reviewing the evidence in the light most favorable to the Grievant, it appears that the investigation was conducted fairly and objectively.

            The fourth consideration has therefore been satisfied by the Employer.

 

Issue No. 5  Was substantial evidence of the Grievant’s guilt obtained?

 

            The Grievant’s negligent act was undisputed.  Esperancilla, by his own admission, testified that on August 28, 2001, he left his shift for the day, leaving Mr. M unattended on the toilet, arguing that this negligent action was unintentional.

            In reviewing the exhibits and the testimony of witnesses given at the arbitration hearing, including the Grievant’s own testimony and written statement, the Arbitrator finds that the investigation, in its entirety, correctly concluded that there was substantial evidence that the Grievant had neglected the patient.  The Arbitrator concurs with Duquette’s testimony during which he commented on Esperancilla’s negligent act indicating that “it could be intentional or unintentional.  Abuse is abuse.  It’ just a very basic thing.”

            The Union presented testimony that attempted to discredit the Employer’s lack of proper in-service training to its staff members which resulted in Esperancilla’s negligence.  In particular, the Union argued that the Employer’s supervisors might have been negligent in training its staff members to ensure the proper level of care to its participants.

            In particular, the Union contends that the Employer should have implemented a tracking and recording system for all staff members whereby a log would be maintained in the PACE basement area in order for the staff members to account for all participants.  This would have allowed the staff to prepare their documentation without leaving their participants.  If this were the case, Esperancilla would not have assumed that his care would have been taken over by Sarmiento or Oneha on the day of the incident.

            In the instant case, the Arbitrator finds that the Employer obtained substantial and clear and convincing evidence of the Grievant’s guilt (i.e., patient abuse and neglect) prior to his termination, and that there was insufficient evidence by the Grievant to justify his act against the Employer’s patient abuse and neglect policy.

            This fifth consideration has therefore been satisfied by the Employer.

Issue No. 6:  Was the rule applied fairly and without discrimination?

           

            In reviewing the circumstances, the testimony, the exhibits (including the Employer’s Exhibit 19), the evidence, and the demeanor of the participants in the incident, the Arbitrator finds that the Employer applied its rules and penalties pertaining to patient abuse fairly and without discrimination to its employees.  The Union presented no evidence that the Employer’s policy prohibiting patient abuse and neglect was, in any way, discriminatory against the Grievant.

            Furthermore, the Employer produced sufficient evidence that its patient abuse policy had been consistently enforced.  Therefore, the Arbitrator finds that the rule in this instance was applied fairly and without discrimination.

            The sixth consideration has therefore been satisfied by the Employer.

 

Issue No. 7:  Was the degree of discipline reasonably related to the seriousness of the offense and the Grievant’s past record with the Employer?

 

            Patient abuse and neglect is a serious offense.  Consequently, the Grievant’s act of patient abuse and neglect is not an act that can be taken lightly.  Upon the Employer’s determination that abuse had occurred, the discipline imposed (i.e., termination) was directly related to the seriousness of the offense.

            In the instant case, the Arbitrator concurs with the Employer in that it was crucial for the Employer to conclude that abuse and neglect is a serious matter which mandates discipline.  In particular, if the abuse and neglect is a serious matter which mandates discipline.  In particular, if the abuse is severe or grossly negligent, such as in this case, the abuse warrants dismissal.  Esperancilla’s abandonment of Mr. M of August 28, 2001 is not excusable under the circumstances presented, regardless of his position that his act of negligence was unintentional.

            The Employer’s position that Esperanciall’s negligence was a serious risk to the safety and welfare of the participants is understandable.  The Employer cannot afford to jeopardize its reputation and ultimate goals in providing the highest quality care to its participants and residents.  As such, it is crucial that the Employer maintain its standards.

            Duquette testified that his decision to terminate the Grievant was based on the findings of the investigative report which substantiated  the patient abuse and neglect allegation, and other business consideration that are relevant to Maluhia’s business, including Maluhia’s certification and licensure, which is required by the federal government.  He also testified that he found the investigative report to be fair and unbiased, as the investigation team considered, throughout the investigation, mitigating evidence, past employment history, and whether the Grievant had received in-service training on Maluhia’s policy on patient abuse and neglect.

            Duquette determined that the Grievant had received in-service training on patient abuse and neglect.  Because of the lack of mitigating circumstances, Duquette chose to terminate Esperancilla due to the severity of the negligent act.  Esperancilla’s neglect on August 28, 2001 was sufficient, by itself, to warrant dismissal.

            Esperancilla’s negligence was completely contrary to the basic purpose and goal of the employer which is to provide quality medical and nursing care to elderly participants and residents in an attentive manner and in a safe and comforting environment that promotes maintenance or enhancement of each participant’s dignity and quality of life.  The Grievant was fully aware of the Employer’s abuse and neglect policies.  Maluhia is subject to state and federal laws prohibiting acts of neglect policies.  Maluhia is subject to state and federal laws prohibiting acts of neglect such as that which has been substantiated in this case.

            The Arbitrator specifically finds that the nature of the offense was so serious that a termination was the suitable discipline for the offense.  Quite simply, patient abuse and neglect should not be tolerated or condoned in the workplace.

            The Union contends that discharge is too harsh a penalty in this case, as the violation in this case is unintentional and one of omission.  Further, it contends that the discharge should be set aside, and the lesser penalty of a suspension should be applied instead, as a suspension is more in line with the policy of progressive discipline than the extreme penalty of termination.

            Although termination is the ultimate form of discipline, the Arbitrator concurs with the Employer on this issue based on the seriousness of the offense.  The Grievant’s blatant forgetfulness created high risk to the safety and welfare of Mr. M, and could have resulted in an extremely critical situation had Mr. M not been discovered.

            The Union further argues that Esperancilla did not intentionally abuse or neglect Mr. M, and that it is not a situation where the Grievant lost his temper or had a reason to neglect the patient.  Due to the absence of intention, the Union contends that it is logical to ask if progressive or corrective discipline should be applied.  Furthermore, the Union is of the position that Esperancilla has only one other blemish on his five-year service record involving the incident whereby he left the blood pressure cuff on another patient and did not properly turn over the care of the patient to a co-worker.  In that case, the Employer gave Esperancilla an oral warning.  The Union argues that: 1) an oral warning to the extreme disciplinary action of discharge is too harsh of a step as there have been no intermediate steps; 2) Esperancilla has no further opportunity to improve or correct his behavior; 3) it is in effect a two strikes and out policy; and 4) regardless of any testimony of the Employer’s witnesses, any cited policy does not call for summary dismissal.  The Union concluded that Esperancilla’s behavior is correctable.  Since he had a prior oral warning and since his infraction is sufficiently grave that a written warning might not be sufficient, a suspension is in order.  Therefore, the Union argues, the discharge should be set aside and a suspension imposed.  The Union further argues that this disciplinary action in lieu of a discharge is in keeping with corrective or progressive discipline.

            On the contrary, the Arbitrator concurs with the Employer’s position that the   July 5, 2001 blood pressure cuff incident that occurred only 6 weeks prior to the August 28, 2001 incident only serves to further validate Duquette’s conclusion, based on the most recent incident, that Esperancilla is unable to conform his actions to the standard of care required and necessary to properly perform the essential duties of the job.  The two incidents, almost identical in nature, reveal Esperancilla’s lack of focus and inattentiveness to the safety and well-being of the participants.  It is prudent that the Grievant, in this capacity as an Adult Day Health Nurse Aide, provide ultimate care to such fragile participants.

            The Arbitrator specifically finds that the nature of the offense was so serious that termination, regardless of the Grievant’s lack of more incrementally progressive discipline, was not an unsuitable discipline for the offense.

            According to the Union, if summary dismissal is required for a violation of any policy on abuse or neglect, then the report must conclude that after finding that the affected worker committed this violation, that dismissal must follow as a mandatory consequence.  The investigation team did not make such a finding.  Instead, it recommended that there be an appropriate disciplinary action.

            The Employer, however, has the right to determine the appropriate discipline within the just cause standard.  The investigation team investigated the August 28, 2001 incident and left the ultimate decision with respect to the form of discipline to Duquette.  Duquette terminated Esperancilla based on the investigation team’s findings and based on the severity of the incident.

            The Arbitrator finds that patient abuse and neglect is an act that cannot be taken lightly.  The testimony at the arbitration hearing, as well as the evidence, revealed that the Grievant had been previously counseled for his negligence in the workplace.  In the instant case, the Grievant’s act of negligence as not only a serious offense against the Employer, but an act that affected the health, safety, and welfare of Mr. M.

            This seventh consideration has therefore been satisfied by the Employer.

 

DECISION AND AWARD

            For the reasons and grounds stated above, the Arbitrator finds that the termination of the Grievant was for just cause and did not violate the Collective Bargaining Agreement.  The grievance therefore is denied, and the termination is sustained as being for just cause.

                        DATED:  Honolulu, Hawaii,                                                 , 2002.

                                                                       

                                                                                                                                               

___________________________
MICHAEL F. NAUYOKAS
Arbitrator

                                                                       

STATE OF HAWAII                                      )                      
                                                                       )           SS
CITY AND COUNTY OF HONOLULU     
)

           

            On this _____ day of __________, 2002, before me personally appeared Michael F. Nauyokas, to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and will.

___________________________________
Notary Public, State of Hawaii
My Commission expires: _______________

 

  

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