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Title: Saint James Health Care and Teamsters Local No. 2
Date: December 26, 2005
Arbitrator: David Gaba
Citation: 2005 NAC 124

Federal Mediation & Conciliation Service

 
In the Matter of a Controversy,

Between,

SAINT JAMES HEALTH CARE,

                        Employer,

            and,

TEAMSTERS LOCAL NO. 2,

                        Union.

(Grievant:  RUTH ELLIOTT)

 

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Arbitrator’s Decision and Award

FMCS #050126-52834-7

I.  INTRODUCTION

This arbitration arises pursuant to a Collective Bargaining Agreement (hereinafter the CONTRACT or CBA) between the TEAMSTERS LOCAL NO. 2, (hereinafter the UNION), on behalf of Ruth Elliott, and SAINT JAMES HEALTH CARE (hereinafter HOSPITAL or the EMPLOYER), under which DAVID GABA was selected to serve as Arbitrator from a Panel provided by the Federal Mediation and Conciliation Service and under which his Award shall be final and binding among the parties.

A hearing was held before Arbitrator Gaba on October 13, 2005 in Butte, Montana.  The parties had the opportunity to examine and cross-examine witnesses, introduce exhibits, and fully argue all of the issues in dispute.  A transcript of the proceedings was not provided.  Both parties filed post-hearing briefs on December 19, 2005. 

APPEARANCES:

On behalf of the Union:

D. Patrick McKittrick
McKittrick Law Firm, P.C.
P.O. Box 1184
Great Falls, Montana 59403

On behalf of the Employer:

Tina Morin
MORIN LAW FIRM
125 W. Granite 
Butte, Montana 59701

II.  ISSUES

The parties stipulated to the following issue:

Did the Employer, St. James Hospital, have just cause to terminate the employment of the Grievant, Ruth Elliott? If not, what is the remedy?[1]

RELEVANT PROVISIONS

Employer’s exhibit O which reads in part: 

          “Falsifying or forgery of hospital records, including time records (time sheets, cards, etc.) or other hospital records, including employment   application.”

The Progressive Disciplinary Policy provides the following steps:

          1. Verbal Warning;

          2. Written Warning;

          3. Suspension;

          4. Discharge

Montana Administrative Rule 8.32.413(1)(g) and (h) provides in pertinent part as follows:

(1)  Professional conduct for nurses is behavior including acts, knowledge, and practices, which through professional experience, has become established by practicing nurses as conduct which is reasonably necessary for the protection of the public interest.

(g)  altering and/or manipulating drug supplies, narcotics, or patients’ records;

(h)  falsifying patients’ records or intentionally charting incorrectly, failing to chart;

A copy of this administrative rule was provided to Arbitrator David Gaba as Employer’s Exhibit X.

FACTS

The Grievant, Ruth Elliott was employed by Saint James Health Care as a Licensed Practical Nurse (LPN). Ms. Elliott graduated from Butte Vo-Tech as an LPN in 1981. Ms. Elliott has been an LPN at St. James Hospital for over 23 1/2 years and was a union steward for approximately 20 years. Ms. Elliot has been previously disciplined for serious misconduct.

On the date in question, August 25, 2004, Ms. Elliott worked the 5:30 AM to 2:00 PM shift.  Sometime prior to 6:58 AM on August 25, a patient entered the dialysis unit at St. James Healthcare for dialysis treatment.  Orders had been issued by the patient’s doctor indicating that the pump speed on the dialysis unit should be set no higher than 450. Ms. Elliot took the patient's parameters, including taking his weight, his blood pressure, testing the patient and assessing his extremities and placed him on the machine at 6:58 AM.

When Ms. Elliot placed the patient on the dialysis machine she set the pump speed at 420. Ms. Elliot had begun placing this information on the patients chart (Treatment Flow Sheet) when the patient requested ice and oxygen. Ms. Elliot interrupted her charting to obtain the ice and oxygen for the patient.  At that time, Ms. Elliott failed to complete the charting that is required when first placing a patient on dialysis. 

Several other patients then needed Ms. Elliot's services, and she attended to their care. At approximately 7:15 a.m. Ms. Elliott realized that her log was not complete, so she went back to complete the documentation of the services rendered to the patient. Ms. Elliott found that her co-worker, Ms. Eubanks RN, had "charted around" Ms. Elliot's documentation, and erroneously charted that at 6:58 AM the pump was set at 400 rather than the 420 pump speed that had been initiated by Ms. Elliot. Ms. Eubanks had incorrectly charted that the pump speed at 6:58 a.m. was 400. At this time (approximately 7:11 AM) Ms. Eubanks also took the patients blood pressure and entered it under the 6:58 AM chart line. Ms. Eubanks did not record on the treatment flow sheet under the section entitled "nursing notes" what she had done. She did all of these actions at approximately 7:11 AM when she changed the pump speed on the patient's unit.

Ms. Elliot felt that this was simply an oversight on Ms. Eubanks's part, so she corrected the "pump speed" on the chart to accurately reflect that at 6:58 a.m. she (Ms. Elliot) initiated the pump speed at 420. Neither Nurse charted any activity occurring at 7:11 AM.  Neither Ms. Elliot nor Ms. Eubanks's mentioned the charting to one another during the shift and the chart was not corrected.[2]

Ms. Elliot testified that in changing Eubanks's erroneous documentation i.e., that at 6:58 AM the pump speed was at 400 when it was not, she thought she was simply correcting an error made by Ms. Eubanks. On the chart line for 6:58 AM Ms. Elliot simply wrote over the entry with the correct pump speed at the time she initiated the dialysis treatment.[3] In looking at the Flow Control Sheet one can readily ascertain that one Nurse had overwritten the chart notes of the other.  Ms. Elliot made no effort to obliterate the previous charting or to blend her writing into the previous data.

The record demonstrates that the shift in question was uneventful and there was no improper treatment given the patient.  At the time that the charting in question occurred, Alicia Drakos was the charge nurse/nurse manager of the dialysis department; Judy Williams was the overall supervisor, and there were three other employees on duty: the Grievant, Ruth Elliott, LPN, Julie Eubanks, RN, and another employee. While Ms. Eubanks is a temporary charge nurse who undertakes supervisory duties when Ms. Drakos is not in the department, on this date, she was working as a staff nurse.

When Ms. Eubanks later in the day discovered the charting error and brought it to the attention of the coordinator of that unit, Judy Ann Williams, Ms. Elliott was immediately relieved of her duties and suspended pending an investigation.  Ultimately her employment was terminated with St. James Healthcare for falsifying the patient’s medical record.  Ms. Elliott’s employment was terminated for her violation of nursing practice standards as well as her violation of St. James Healthcare’s policy that prohibits the falsification of a medical record. 

St. James Healthcare subsequently contacted the Montana board of Nursing who initiated an investigation of the matter.[4] Documents were received by the Department of Nursing and a closed meeting was held, pursuant to the complaint process. On December 21, 2004 the Montana Board of Nursing issued a decision stating, “On October 19, 2004, the Screening Panel of the Board of Nursing reviewed the above referenced complaint. Based upon the information provided the panel voted to dismiss with prejudice and close the complaint.”[5] Ms. Elliott also applied for and was granted Unemployment Insurance after a Hearing Examiner determined that she had not engaged in “deliberate misconduct.” At the Unemployment Insurance hearing Hospital Administrator, Pat Dudley, Judy Williams, and Candice Torrens testified. Ms. Elliott through her union, Teamster Union Local #2, grieved the termination.  St. James Healthcare upheld the termination of Ms. Elliott’s employment and she therefore appealed that decision pursuant to the collective bargaining agreement between the parties. 

           

 POSITION OF THE UNION

The Union argues that the Employer is bound both by due process principles and the just cause principles and that neither was applied in the instant case.  Additionally, the Union believes that the arbitrator is collaterally estopped from not adopting the findings of the Montana Board of Nursing and the findings of the Unemployment Insurance Hearing Examiner. As stated by the Union:

Thus, at the point of the Arbitration hearing held in Butte, Montana on October 13, 2005, the issue which is presented to the Arbitrator has been adjudicated by two different quasi judicial agencies, to-wit: the Healthcare License Bureau, Department of Labor and Industry, State of Montana, and the Hearings Bureau, Department of Labor and Industry, State of Montana Unemployment Insurance Division.[6] 

The Union also believes that the Employer is guilty of Disparate Treatment in this case and that St. James did not treat Ms. Elliot and Ms. Eubanks equally.  In short, the Union believes that progressive discipline was invoked for Ms. Eubanks, but not for Ms. Elliot.   As stated in its brief; “Ruth is fired because she attempted to correct an error.  Eubanks is counseled for a grievous and flagrant violation of the Employer’s policies.” 

The Union is also of the opinion that the Employer subjected Ms. Elliot to double jeopardy, believing the Employer disciplined Ruth twice for her alleged infraction. Specifically, on August 30, 2004, the Employer gave Ms. Elliot an “Employee Warning Notice” that also terminated her employment.

Since this case involves the most serious industrial penalty, termination, the Union submits that the highest degree of proof is required so the Arbitrator is certain in his own mind that the alleged conduct occurred and the penalty was warranted.  The Union believes that the quantum of proof necessary to sustain an accusation of falsification or forgery of records is that the proof offered must be beyond a reasonable doubt.

POSITION OF THE EMPLOYER

In its brief the employer primarily argues that the facts adduced at the hearing support its position and notes that St. James Healthcare had just cause to terminate the employment of Ruth Elliott for numerous reasons.  The Employer believes that Ms. Elliott violated accepted nursing practice standards when she intentionally altered a patient’s medical records and did so in a way that calls into question her own “fidelity and veracity.”  The Employer is of the opinion that medical records are occasionally corrected in the hospital setting but appropriate procedures need to be followed otherwise alterations can put a patient’s safety in jeopardy.

          The Employer also believes that Ms. Elliott violated hospital policy by altering the patient’s medical record.  Again this alteration put into jeopardy the patient’s safety and also denied her colleague the opportunity to correct her own mistake.  The Employer is concerned that Ms. Elliott’s inappropriate alteration of the medical record placed the hospital in jeopardy for future liability and also jeopardized the hospital’s accreditation. 

          Finally the employer believes that public policy supports the discharge of Ms. Elliot and that the Federal and Montana Courts would require that the discharge be upheld as a matter of public policy.

 DECISION

The Applicable Standard is Just Cause.

          Where there is no contractual definition, it is reasonably implied that the parties intended application of the generally accepted meaning that has evolved in labor-management jurisprudence:  that the “just cause” or “for cause” standard is a broad and elastic concept, involving a balance of interests and notions of fundamental fairness.

Described in very general terms, the applicable standard is one of reasonableness:

…whether a reasonable (person) taking into account all relevant circumstances would find sufficient justification in the conduct of the employee to warrant discharge (or discipline.)[7]

As traditionally applied in labor arbitrations, the just cause standard of review requires consideration of whether an accused employee is in fact guilty of misconduct.  An employer’s good faith but mistaken belief that misconduct occurred will not suffice to sustain disciplinary action.  If misconduct is proven, another consideration, unless contractually precluded, is whether the severity of disciplinary action is reasonably related to the seriousness of the proven offense and the employee’s prior record.  It is by now axiomatic that the burden of proof on both issues resides with the Employer.[8]

          The just cause standard has been seminally defined by Arbitrator Carroll Daugherty to contain seven elements or “tests:”

1.    Did the company give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?

2.    Was the company’s rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company’s business and (b) the performance that the company might properly expect of the employee?

3.    Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management?

4.    Was the company’s investigation conducted fairly and objectively?

5.    At the investigation, did the “judge” obtain substantial evidence or proof that the employee was guilty as charged?

6.    Has the company applied its rules, orders, and penalties evenhandedly and without discrimination to all employees?

7.    Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the proven offense and (b) the record of the employee in his service with the company?[9]

If one or more of these questions is answered in the negative, then normally the just cause requirement has not been satisfied.[10] 

The concept of just cause encompasses not only consideration of whether the wrongdoing occurred, but also consideration of the penalty imposed.  As Arbitrator Burton B. Turkus explained:

In applying the test of “just cause” the arbitrator is generally required to determine two factors:

(a) has the commission of the misconduct, offense or dereliction of duty, upon which the discipline administered was grounded, and adequately established by the proof; and

(b) if proven, or admitted, the reasonableness of the disciplinary penalty imposed in light of the nature, character, and gravity thereof—for as frequently as not the reasonableness of the penalty (as well as the actual commission of the misconduct itself) is questioned or challenged in arbitration.

The arbitrator, by virtue of his authority and duty to fairly and finally settle and adjust (decide) the dispute before him, has the inherent power to determine the sufficiency of the cause and the reasonableness of the penalty imposed.[11]  The just cause test mandates that the punishment assessed be reasonable in light of all the circumstances.[12] 

Has the Just Cause Standard Been Met?

Yes.  An employer has the right to promulgate reasonable rules and procedures to govern the direction of its workforce.  This is especially critical in the acute care hospital setting where employees have life or death control over patients. As stated in a previous decision in which I upheld the termination of a long-time employee:

Due to ….. blasé attitude towards the health and safety of her fellow employees it would be irresponsible to place her back on a shop floor where employees must rely on each other to maintain an adequate level of safety.[13]

In the instant case, the conduct of the grievant would more than support the level of discipline she received if she had knowingly violated the employer’s rules regarding charting or knowingly engaged in any activity that presented the risk of significant injury or death to patients.

          Employees who shirk their employer’s rules are usually motivated by laziness, sloth, greed, or the desire to cover up some other misdeed. In the hospital setting an employee who intentionally falsifies patient records for the above listed reasons would normally be subject to termination absent some exigent circumstance. The case at hand is of course distinguishable because Ms. Elliot made a mistake while trying to correct another nurses error.  The evidence at the hearing clearly indicated that Ms. Elliot was trying to enter a correct chart note, and that the charting she engaged in was factually correct.  In this respect the actions of Ms. Elliot were far different than Ms. Eubanks whose sloppy charting created the problem and was also factually incorrect.  In fact it appears that Ms. Eubanks did exactly what the Employer accuses Ms. Elliot of; deliberately falsifying a chart note.

          It is a given that nurses sometimes make mistakes.  As stated by counsel for the employer in her opening: “Nurses make mistakes, there has never been a perfect shift.” Why then did Ms. Elliot’s actions subject her to termination?  As stated by Ms. Drakos at the hearing, “Ruth’s actions were illegal,” and “she was trying to be deceitful, cover something up.”  However, an objective look at the facts does not support Ms. Drakos’ opinion.  If Ms. Elliot was trying to “cover something up,” she certainly did a poor job of it.  The chart in question[14] clearly shows that the information on it had been corrected and one can still see the underlying information.  To any impartial observer looking at the document, it would appear that Ms. Elliot was simply trying to correct Ms. Eubanks’ error, and that in fact is what Ms. Elliot did.  Now, in correcting Ms. Eubanks’ error, Ms. Elliot did fail to follow the Employer’s charting protocol.  However, Ms. Elliot did not do anything “illegal,” “falsify a patient record,” or “falsify or forge” patient records.

Did The Employee Know of The Rule?

For an employer to discipline an employee it is incumbent on the employer to communicate the rules to the employees unless it is one that a reasonable employee could infer using common sense. As stated by Arbitrator William M. Hepburn and quoted by Elkouri:

Just cause requires that employees be informed or a rule, infraction of which may result in suspension or discharge, unless conduct is so clearly wrong that specific reference is not necessary.[15]

Further, when an employer’s application of rules is predicated on the unfounded assumption of willful dishonesty, it does not meet the standard of just cause.[16]  Again, as stated by Elkouri:

It has been reported, on a basis of examining over 1000 discharge cases, that one of the two most commonly recognized principles in arbitration of such cases is that there must be reasonable rules or standards, consistently applied and enforced and widely disseminated.[17] 

In the instant case I believe that the facts clearly show that the Grievant was unaware of the rule as it applied to her unique situation of correcting an erroneous change to a chart note she was in the process of making.

 Employees who shirk their employer’s rules are usually motivated by laziness or sloth, while the employee in this case would appear to have been motivated by a desire to have a correct chart. If Ms. Elliot had been lazy, she could have simply let Ms. Eubanks chart note stand and this episode would never have occurred.  The Employer believes that:

Elliott also violated nursing practice standards.  Under Montana Administrative Rule 8.32.413 (1)(g) and (h) it is a violation of nursing practice standards to alter or manipulate a patient’s records or to falsify a patient’s record by intentionally charting incorrectly or failing to chart.[18] 

While the Employer is entitled to their opinion, it was the opinion of the Montana Board of Nursing that the Grievant did not violate Montana Administrative Rule 8.32.413 (1)(g) and (h).[19]  In matters of nursing practice this arbitrator will not substitute his judgment for that of a State Board of Nursing. The employer argues that even though the Montana Board of Nursing chose to take no action, the lack of action doesn’t mean that Ms. Elliot did nothing wrong.  As stated by the Employer:

That letter from Lori Ballinger, Department Counsel for the Montana Board of Nursing, corrected the impression that Ms. Elliott tried to leave with not only the hospital but with this Arbitrator that she had done nothing wrong.  In fact, Exhibit Z indicates in the third paragraph “One cannot properly infer from the fact the Screening Panel chose to take no action that the complaint was without merit.  Not all violations of the act of are prosecuted by the board.  There are many reasons why the Board may choose to close a complaint but closing a complaint does not suggest, in any way, that the complaint was frivolous or without merit.[20]

 

The Employer is correct that Ms. Elliot did do something wrong, what is probative of the Board of Nursing review is that what she did was so minor as to not warrant action.

Unfortunately, the test in this case is not a subjective one based on the thinking of the grievant, but an objective one based on what a reasonable employee should have known. In order to prevail in a discipline case it is incumbent on the Employer to show by a preponderance of the evidence that the fact to be proven is more probable than not. Ms. Elliot was trained in the proper way to document patient care through St. James Healthcare’s Nursing Education and Charting Competency Training. The Employer has clearly shown that the Grievant was trained in how to correctly chart,[21] and it is clear that St. James Hospital can use discipline as a corrective tool to improve Ms. Elliot’s charting practices.

The Penalty

In the instant case the Employer has chosen to terminate Ms. Elliot. As stated by Elkouri:

Where the Agreement fails to deal with the matter, the right of the arbitrator to change or modify penalties found to be improper or too severe may be deemed to be inherent in the arbitrator’s power to decide the sufficiency of cause, as elaborated by Arbitrator Harry H. Platt:

In many disciplinary cases, the reasonableness of the penalty imposed on an employee rather than the existence of proper cause for disciplining him is the question an arbitrator must decide…. In disciplinary cases generally, therefore, most arbitrators exercise the right to change or modify a penalty if it is found to be improper or too severe, under all the circumstances of the situation.  This right is deemed to be inherent in the arbitrator’s power to discipline and in his authority to finally settle and adjust the dispute before him. [22]         

The Supreme Court has long agreed with statement of Elkouri above. As stated in Paperworkers v. Misco:

Normally, an arbitrator is authorized to disagree with the sanction imposed for employee misconduct. In Enterprise Wheel, for example, the arbitrator reduced the discipline from discharge to a 10-day suspension. The Court of Appeals refused to enforce the award, but we reversed, explaining that though the arbitrator’s decision must draw its essence from the agreement, he "is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies." 363 U.S., at 597 (emphasis added by the court).[23]

Where an employer seeks to impose a penalty against an employee, the penalty must be consistent with other penalties imposed for similar offenses, under similar circumstances.  Where an employer imposes different disciplinary treatment for similar offenses, the arbitrator must examine whether the employer had a valid reason for treating the employees differently.  Where disciplinary distinctions cannot be accounted for, just cause is lacking.[24]    In this case there is no question that St. James Healthcare has chosen to treat Ms. Elliot and Ms. Eubanks in decidedly different ways.  Ms. Eubanks made a decision to incorrectly chart a patient that led to a false chart note.  Ms. Elliot corrected the note, but in a sloppy and incorrect manner. Ms. Eubanks was given a verbal warning for what appears to be a greater offence while Ms. Elliot was terminated.  Why?

One could surmise that disparity in punishment is due to Ms. Eubanks being a good employee while one can conclude that Ms. Elliot is a poor employee.  In the past Ms. Elliot had been suspended for activities for which this arbitrator would have upheld her discharge.  However, at that time the Employer did not choose to separate Ms. Elliot for her actions.  Now when two nurses engage in essentially the same conduct and one is terminated while the other is given a verbal reprimand, the issue of disparate treatment is bound to arise.       

Further, the principle of progressive discipline is one of the most important aspects of Just Cause.  It requires the employer to provide discipline to employees in increasing degrees of severity, based "on the premise that both employers and employees benefit when an employee can be rehabilitated and retained as a productive member of the workforce."[25] Moreover, arbitrators “are likely to set aside or reduce penalties when the employee had not previously been reprimanded and warned that his or her conduct would trigger the discipline.”[26] 

In its brief the Employer posits:

Ms. Eubanks’ employment was not terminated because her charting error, unlike Ms. Elliott’s alteration was, in fact, a mistake and was not viewed by St. James Healthcare as a deliberate alteration of a medical record.

In many ways the quote above clarifies the issue.  The Employer believes that Ms. Elliot was engaged in deliberate misconduct, while others believe that the preponderance of evidence indicates that she simply mad a mistake.        

Karen Kirkpatrick, an RN employed by the hospital, testified that in all of her years of experience, only one person who was accused of actual documented forgery was disciplined with discharge. That case is clearly distinguishable from Ms. Elliot’s. There, hospital records were forged to cover up the inappropriate use and theft of hospital drugs. In the case of a nurse forging records to procure drugs or any intentional forging of hospital records this arbitrator would uphold termination.  This however is not a case of forgery, but rather a case of poor charting.  Accordingly, Ms. Elliot should be treated in the same manner as her co-worker. However, given Ms. Elliot’s disciplinary history it would be appropriate to memorialize her discipline in a written reprimand rather than the verbal warning given to Ms. Eubanks.

Public Policy

The Employer believes that the arbitrator in this case should rule in their favor because:

In Federal Packaging v United Paperworkers, a plaintiff employer successfully sought review of an arbitrator’s award concerning the dismissal of an employee.  In that case the Court recognized an employer’s right to discharge for cause in the employer’s management right clause.  The Court held that an arbitrator could not ignore or override the employer’s right just to implement the arbitrator’s own brand of justice. 940 F Supp at 1160.  The Federal Packaging Court admonished the arbitrator for ignoring the employee’s violation of the mandatory language in the employer’s drug policy.  Likewise, in the present case, Petitioner Elliott violated St. James Healthcare’s policy regarding altering a medical record and therefore the termination of her employment was for cause and therefore justified under the Collective Bargaining Agreement.[27]

However, the Court in Federal Packaging actually stated:

In the absence of an explicit provision prohibiting the arbitrator from reviewing the measures enacted by the company, this Court is required to defer to the arbitrator's view of which provisions of the CBA are important or controlling, and which are not worthy of discussion.[28]

As the above language indicates, the United Paperworkers were granted summery Judgment against the employer in the case. In the case at issue the Employer’s management rights prerogatives are limited by the terms of the Collective Bargaining Agreement, including the concept that the Employer must have just cause to terminate an employee’s employment.  Additionally, Article 3, Management Rights, paragraph A, specifically states that management rights are abridged by the Collective Bargaining Agreement.[29]

Rest assured that this arbitrator would never impose “his own brand of justice” in deciding this case, but rather would rely on long standing precedent and a careful weighing of the facts.  For instance, In Carbide Corporation, the arbitrator stated:

In order to sustain the discharge, the Company would have to prove that the Grievant did, in fact, falsify Company records and that he intended to willfully deceive or defraud the Company. The critical element of intent to deceive or defraud must be evident since it is the key to determining the severity of discipline to be imposed.[30]

In American Steel Foundries the arbitrator noted:

The element of the offense that makes deliberate falsification of Company records dischargeable is the dishonest intent to deceive by doing so.  If that element is lacking, as might be the case when an employee turns in a false record by reason of having made a mistake or error, the offense is not so seriously regarded.[31]

While the Employer believes that Ms. Elliot lacks “fidelity and veracity,” the record could be construed to show that she simply made an error in charting, an error less egregious than mistakes made by her coworker. Reiterating that the public policy exception is narrow, the Misco Court held that a court may vacate an arbitrator's award in two instances: (1) when the specific terms of the collective bargaining agreement violate public policy and (2) when the award creates an explicit conflict with other "laws and legal principles.”[32] In the instant case the Montana Board of Nursing has determined that Ms. Elliot does not pose a threat to the public and there appears to be no conflict with the “laws and legal principles” of the State of Montana.

CONCLUSION

          The burden is on the Employer to show by clear and convincing evidence that just cause existed to discharge Ruth Elliot.  While the Employer provided substantial evidence to support the discharge, I find that the Employer has not met its burden of proof, and the grievance is upheld.  While a remedy of back-pay in this situation is harsh given the closeness of this case, it is required by arbitral precedent

AWARD

The grievance is sustained.  The Employer will reduce Grievant’s discharge to a written warning and reimburse her for all lost pay and benefits. All fees and expenses charged by the Arbitrator shall be divided equally between the parties, as provided in Article 20, Section 2 of the parties Collective Bargaining Agreement.

                                                          ___________________________

                                                          David Gaba, Arbitrator
                                                          December 26, 2005
                                                          Seattle, Washington



[1] The parties also stipulated that “the Arbitrator has jurisdiction to resolve this case on its merits and that he is also to retain jurisdiction in this matter for thirty (30) days after the award is issued to resolve any questions concerning the implementation of the award."

[2] The facts of the time and manner by which the pump levels were changed is not in dispute since the dialysis equipment produces a computer printout verifying the pump values for the relevant times.  See Employer's Exhibit I, page 4.  

[3] Employer's Exhibit I, page 2

[4] Complaint # NUR-2005-18.

[5] Union Exhibit 2.

[6] Union brief at 10.

[7] RCA Communications, Inc. 29 LA 567, 571 (Harris, 1961). See also Riley Stoker Corp., 7 LA 764, 767 (Platt, 1947).

[8] Vista Chemical Co. & Oil, 104 LA 818 (Nicholas, Jr., 1995); Campbell, Wygant & Cannon Foundry Co., 1 LA 254 (Platt, 1945). 

[9] Enterprise Wire Co., 46 LA 359, 363-4 (1966).

[10] Enterprise Wire Co., 46 LA 359, 362 (1966).

[11] See Schoonhoven, R.J., Editor, Fairweather’s Practice and Procedure in Labor Arbitration, 3rd ed. (BNA Books 1991 page 327).

[12] City of Portland, 77 LA 820, 826 (1981). 

[13] Mission Foods, 118 LA 1608 (Gaba, 2003).

[14] Employer Exhibit I.

[15] Lockheed Aircraft Corp., 28 LA 829, 831 (1957).  See also, Federal Aviation Admin., Denver Air Route Traffic Control Ctr., 99 LA 929 (Corbett, 1922); Bayshore Concrete Prods. Co., 92 LA 311, 316 (Hart, 1989); Fairmont Gen. Hosp., 91 LA 930, 932 (Hunter, 1988).

[16] Hanford Environmental Health, 115 LA 97 (Gaba, 2000)

[17] Elkouri & Elkouri, How Arbitration Works (6th Ed., 2003), see also, Arbitration Awards in Discharge Cases, 28 LA 930, 931032 (1957).

[18] Employer brief at 4.

[19] Union Exhibit 2.

[20] Employer brief at 15.

[21] See Employer Exhibit S.

[22] Elkouri & Elkouri, How Arbitration Works (6th Ed., 2003), See also, Arbitrator Kossoff in 76 LA 300, 308; Volz in 50 LA 600, 603; Gilbert in 45 LA 580, 584; Dworkin in 36 LA 124, 128.  Also see Amoco Oil. V. Oil, Chem. & Atomic Workers Local 7-1, 548 F.2d 1288, 94 LRRM 2518, 2521, 2524-25 (7th Cir., 1977).  For discussion of other court cases on this aspect, see Fogel, “Court Review of Discharge Arbitration Awards,” 37 Arb. J. No. 2, pp. 22, 32 (1982). 

[23] Paperworkers v. Misco Inc., 484 U.S. 29 (1987)

[24] Alan Wood Steel Co., 21 LA 843, 849 (Short, 1954) (discharge for fighting not appropriate where other employees guilty of fighting received only suspensions).  See also B-Line Sys., 94 LA 1047 (Fowler, 1990).

[25] Discipline and Discharge in Arbitration, N. Brand, Ed., p. 57 (BNA, 1998). 

[26] Elkouri & Elkouri, How Arbitration Works (6th Ed., 2003).

[27] Employer brief at 11.

[28]Federal Packaging v. United Paperworkers Union, 940 F.Supp.1155 (N.D.Ohio 1996).

[29] For the past forty years since the decisions in the Steelworkers Trilogy the Supreme Court has held that “the federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.” Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596(1960). As long as the arbitrator's award "draws its essence from the collective bargaining agreement," and is not merely "his own brand of industrial justice," the award is legitimate. Id., at 597. "The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim." Steelworkers v. American Mfg. Co., 363 U.S. 564, 567-568 (1960).  “Normally, an arbitrator is authorized to disagree with the sanction imposed for employee misconduct. In Enterprise Wheel, for example, the arbitrator reduced the discipline from discharge to a 10-day suspension. The Court of Appeals refused to enforce the award, but we reversed, explaining that though the arbitrator's decision must draw its essence from the agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies." 363 U.S., at 597 (emphasis in the original).

[30] Carbide Corporation, 100 LA 763 (1993). See also, Culinary Foods and United Food and Commercial Workers, local 100a, 106 LA 801, (1996).

[31] American Steel Foundries, 81-1 ARB 3624 (Roberts, 1981).

[32] United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987).

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