ARBITRATION
DECISION NO.:
414
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Mental Health
Massillon Psychiatric Center
DATE OF
ARBITRATION:
December 11, 1991
DATE OF
DECISION:
January 25, 1992
GRIEVANT:
John Martin
OCB
GRIEVANCE NO.:
23-10-(91-07-03)-0130-01-04
ARBITRATOR:
Anna Smith
FOR THE
UNION:
Dennis Falcione
Staff
Representative
FOR THE
EMPLOYER:
Linda Thernes
Advocate
Rodney Sampson
Second Chair
KEY WORDS:
Removal
Patient Abuse
Confidentiality of Documents
ARTICLES:
Article 24-Discipline
§24.01-Standard
§24.04-Pre-Discipline
§24.05-Imposition
of Discipline
Article 25-Grievance Procedure
§25.08-Relevant
Witnesses
and Information
Article 43-Duration
§43.01-Agreement
FACTS:
The grievant, a
Therapeutic Program Worker (TPW) at the Massillon Psychiatric Center, was
removed for allegedly abusing a patient.
The incident occurred when a patient, with known aggressive behavior,
became upset and had to be placed in physical restraints. While the restraints were being applied, the
patient spit in the grievant's face.
The grievant then hit the patient or covered his mouth (the testimony is
conflicting). The patient later
complained of pain in his mouth and, upon examination by a doctor, a small
swelling and mild scratch inside the mouth was found. The grievant was removed from employment for Patient Abuse. He had a prior 70-day suspension for such
behavior. During the grievance process,
the union requested several documents from the employer which related to the
employer's investigation of the incident.
The employer refused to give up these documents citing patient
confidentiality.
EMPLOYER'S
POSITION:
The employer
stated that it eventually supplied the union with the pre-disciplinary report
and recommendations but the Unusual Incident Report or progress notes cannot be
disclosed because of ORC 5122.31 which protects patient confidentiality. As for the merits, the employer produced two
witnesses who testified to the patient abuse by the grievant. This conduct is not acceptable according to
the employer and merits a removal in light of the grievant's prior 70-day
suspension for abuse.
UNION'S
POSITION:
The union
contended that the grievant did not abuse the patient but only held his mouth
closed. The union points out that
criminal charges against the grievant were dropped because of lack of
evidence. The union contends that the
employer has not met the standard of abuse under the Ohio Revised Code. Further, the union argues that the
employer's refusal to supply important documents to the union constitutes a due
process violation to the grievant.
ARBITRATOR'S
OPINION:
The arbitrator
agreed that the employer engaged in several procedural errors by not providing
the documentation requested by the union.
The arbitrator found that the incident report and progress report could
not be withheld from the union on the basis of patient confidentiality. However, the arbitrator did not find these
procedural violations sufficient enough to warrant the overturning of the
discipline. The arbitrator found the
employer's witnesses to be convincing in their testimony against the grievant. These witness had nothing to gain by their
testimony. The grievant's testimony
that he only covered the patient's mouth after being spit upon is not credible
given the extent of the patient's injuries.
Further, the Contract reserves to the employer the right to determine
whether an instance of abuse is serious enough to warrant removal.
AWARD:
The grievance is
denied in its entirety.
TEXT OF
THE OPINION:
In the Matter of Arbitration
Between
STATE OF OHIO,
DEPARTMENT OF MENTAL HEALTH
and
OHIO CIVIL SERVICE EMPLOYEES
ASSOCIATION, LOCAL 11,
A.F.S.C.M.E., AFL/CIO
OPINION and AWARD
Anna D.
Smith, Arbitrator
Case 23-10-910703-0130-01-04
John
Martin, Grievant
Discharge
Appearances
For the State of Ohio:
Linda
Thernes; Labor Relations Officer; Advocate
Rodney
Sampson; Assistant Chief of Arbitration Services,
Ohio
Office of Collective Bargaining; Second Chair
Mick W.
Musselman; Labor Relations Officer,
Massillon
Psychiatric Center; Witness
Beth A.
Runser, R.N.; Staff Nurse, Massillon
Psychiatric
Center; Witness by Subpoena
Kristin
Hutton, L.P.N.; Staff Nurse, Massillon Psychiatric
Center;
Witness by Subpoena
Dr. Joseph
Kim; Staff Physician, Massillon Psychiatric
Center;
Witness by Subpoena
Georgean
Gibbons; Training Officer, Massillon Psychiatric
Center;
Witness by Subpoena
Michele
Ward; Observer
For OCSEA Local 11, AFSCME:
Dennis
Falcione; Staff Representative, OCSEA Local 11,
AFSCME,
AFL-CIO; Advocate
John
Martin; Grievant
Clarence
Goodson; Chapter President,
OCSEA
Local 11, AFSCME, AFL-CIO
Hearing
Pursuant to the
procedures of the parties a hearing was held at 9:20 a.m. on December 11, 1991
at the Massillon Psychiatric Center, Massillon, Ohio before Anna D. Smith,
Arbitrator. The parties were given a
full opportunity to present written evidence and documentation, to examine and
cross-examine witnesses, who were sworn and excluded, and to argue their
respective positions. The record was
closed upon conclusion of oral argument at 1:40 p.m., December 11, 1991. This opinion and award is based solely on
the record as described herein.
Issue
By
agreement of the parties, the issue to be decided by the Arbitrator is:
Was the
grievant discharged for just cause?
If not,
what shall the remedy be?
Joint Exhibits and Stipulations of Fact
Joint
Exhibits
1. 1989-91 Collective
Bargaining Agreement
2. Grievance Trail
3. Discipline Package
4. Evaluations of
Grievant's Performance, 1988, 1989 and 1990.
5. Call-In Log,
September 8, 1990
6. Union request for
documents and Employer response
7. Dismissal of
Criminal Charges and Release of Liability
8. Grievant's
Training Record (THART), March, 1991
9. §2903.33 O.R.C.
10. §2901.01 O.R.C.
Stipulations
of Fact
1. Grievant had four
years of employment at Massillon Psychiatric Center prior to his removal.
2. Grievance is
properly before the Arbitrator.
Relevant Contract Provisions
Article 24
Discipline
§24.01 -
Standard
Disciplinary
action shall not be imposed upon an employee except for just cause. The Employer has the burden of proof to
establish just cause for any disciplinary action. In cases involving termination, if the arbitrator finds that
there has been an abuse of a patient or another in the care or custody of the
State of Ohio, the arbitrator does not have authority to modify the termination
of an employee committing such abuse.
§24.04 -
Pre-Discipline
An employee shall
be entitled to the presence of a union steward at an investigatory interview
upon request if he/she has reasonable grounds to believe that the interview may
be used to support disciplinary action against him/her.
An employee has
the right to a meeting prior to the imposition of a suspension or
termination. The employee may waive
this meeting, which shall be scheduled no earlier than three (3) days following
the notification to the employee. Prior
to the meeting the employee and his/her representative shall be informed in
writing of the reasons for the contemplated discipline and the possible form of
discipline. When the pre-disciplinary
notice is sent, the Employer will provide a list of witnesses to the event or
act known of at that time and documents known of at that time used to support
the possible disciplinary action. If
the Employer becomes aware of additional witnesses or documents that will be
relied upon in imposing discipline, they shall also be provided to the Union
and the employee....
§24.05 -
Imposition of Discipline
. . .
An employee may
be placed on administrative leave or reassigned while an investigation is being
conducted, except in cases of alleged abuse of patients or others in the care
or custody of the State of Ohio the employee may be reassigned only if he/she
agrees to the reassignment.
Article 25
Grievance Procedure
§25.08 -
Relevant Witnesses and Information
The Union may
request specific documents, books, papers or witnesses reasonably available
from the Employer and relevant to the grievance under consideration. Such request shall not be unreasonably
denied.
Article 43
- Duration
§43.01 -
Agreement
To the extent
that this Agreement addresses matters covered by conflicting State statutes,
administrative rules, regulations or directives in effect at the time of the
signing of this Agreement, except for Ohio Revised Code Chapter 4117, this
Agreement shall take precedence and supersede all conflicting State laws.
Case History
The Grievant in
this case, John Martin, was a 4-1/2 year employee at the Massillon Psychiatric
Center, Massillon, Ohio, which is a state hospital for the mentally ill who are
unable to care for or control themselves.
At the time of his removal in June 1991, the Grievant was a Therapeutic
Program Worker (TPW) assigned to a ward for aggressive patients. As such, he assisted patients in their daily
living and with their therapeutic plan.
His 19881990 performance evaluations (Joint Ex. 4) were good, but he had
a 70-day suspension on his record for "Patient Abuse, Incompetence and
Neglect of Duty." He had received
the Agency's basic Therapeutic Handling of Aggressive Residents Technique
(THART) training upon his employment (State Ex. 7), and an update as recently
as March 1991 (Joint Ex. 7). He was
informed on hospital policies and procedures (State Ex. 5), more particularly
Massillon Psychiatric Center Policy 4.08 regarding patient Personal Dignity and
Humane Treatment (State Ex. 3) and the Department's Administrative Rules
regarding patient abuse and neglect which identifies dismissal as a possible
consequence of such conduct (State Ex. 4).
The incident that
gave rise to Mr. Martin's removal involved a 5’8", over-200-pound male
patient on Martin's ward, whose behavior during the incident was not
uncharacteristic of him and who was generally reputed to be a biter. This patient became upset on the evening of
April 26, 1991, after his demand for a behavioral treat was denied. Low level intervention techniques were
ineffective in preventing his behavior from escalating to curses, threats and
an assault on Nurse Runser. It was
decided to seclude the patient, place him in physical restraints, and
administer medication for his own protection and that of others. Staff had no difficulty getting him to the
seclusion room, but while Nurse Runser, TPW Hogan and the Grievant were
applying physical restraints, the patient became combative, passing flatus,
defecating, spitting and attempting to hit Nurse Runser. He then turned his head to face the
Grievant, who was engaged in restraining the patient's right arm, and noisily
collected an amount of sputum to spit in the Grievant's face. Thereupon the Grievant either slapped the
patient on the left cheek (according to Nurses Runser and Hutton, the latter of
whom observed from the door) or covered the patient's mouth with his right hand
to block the spit (according to the Grievant).
Ms. Hutton testified that the Grievant said, "Let's see if you spit
at me again," to which the patient replied, "Let's see if you hit at
me again." The Grievant does not
recall this dialogue, but testified he may have said, "Don't spit on me
again." The patient complained of
pain and the nurses saw that his left cheek was reddened and that there was a
small laceration at the inside, left corner of his mouth. With the patient secure, the nurses began to
document the incident and the staff physician was summoned. Dr. Kim found a small swelling and mild
scratch inside the mouth lip at the left side, and ordered a cold compress,
which the patient refused.
An investigation
was launched during which witness statements were taken. Labor Relations Officer Musselman testified
he thought the Grievant was reassigned.
A predisciplinary conference notice was issued May 30, 1991, charging
the Grievant with "Patient Abuse/Neglect, Incompetence, Neglect of Duty
and Failure of Good Behavior" (Joint Ex. 3). Said conference was held June 6, 1991, with the result that Mr.
Martin was removed from his position and State service effective June 27, 1991
(Joint Ex. 3). Criminal charges were
also filed, but the case was later dismissed without prejudice on a nolle
prosequi based on witness hardship.
A grievance
alleging violations of Article 24.01 (discipline standard), 24.02
(prediscipline), 25.08 (discovery) and seniority and benefits provisions of the
Contract was timely filed and a Step 3 hearing held. On the discovery allegation, the Employer took the position that
the documents sought by the Union were not used to support discipline and were
therefore not discoverable (Joint Ex. 2).
The grievance remaining unresolved, it was appealed to arbitration. In preparation thereof, the Union requested
all relevant documents, specifying particularly the incident report, progress
notes on the patient, and the physician's report. The statements of the third witness (TPW Hogan) and the doctor
were supplied, as well as the predisciplinary conference report, but the others
were denied on the basis of patient confidentiality and lack of
reliance on them in issuing discipline (Joint Ex. 5). Being fully processed without resolution, the grievance is
properly before the Arbitrator for final and binding decision.
Arguments of the Parties
Argument
of the Employer
The Employer
first addresses the Union's procedural objections. It acknowledges that it did not immediately supply the
predisciplinary report and recommendations, but did finally do so six days
prior to arbitration. It also
acknowledges that it never supplied the Unusual Incident Report or progress
notes on the patient and is prevented from doing so by the Ohio Revised Code
(§5122.31) which protects patient confidentiality. It argues that withholding these documents from the Union did not
prejudice the Grievant's case since they were not used to support the
disciplinary action.
With respect to
the merits of the case, the Employer contends that it did show abuse. Two witnesses testified they saw the
slap. These witnesses had nothing to
gain and much to lose in reporting what they saw, for the informal code of the
institution is not to see or report such incidents. The Grievant's story, claims the Employer, does not ring
true. He knew the procedures, patient's
history of biting, and the risk of putting a hand over his mouth. He could have ducked or turned his face away
to avoid the spit.
The Employer goes
on to argue that the extent of the patient's injury is not important. No abuse is acceptable and the institution's
employees need to know that. The
Employer implores the Arbitrator to consider whether such conduct
would be acceptable to her if her relative were the victim.
The Employer
further states that Article 24.01's limitation on the Arbitrator's authority is
clear: if abuse is found, the removal
must be upheld. But if the Grievant is
found guilty of a lesser offense, removal is still the appropriate penalty
under the progressive discipline provision because of the prior 70-day
suspension.
The Employer
accordingly asks that the grievance be denied in its entirety.
Argument
of the Union
The Union's
position is that the Grievant did not commit abuse. Reacting spontaneously to the situation and using common sense,
he merely placed his hand over the patient's mouth to stop him from spitting. All the THART training--and the Grievant had
minimal hours--does not teach how to react in such situations. Even the training officer testified that
holding the patient’s head would be proper as a last resort. Reasonable common-sense approaches to
handling aggressive behavior has been supported by Arbitrator Cohen (OMRDD
v. OCSEA (Barbara Anderson, Grievant) , January 15, 1991). That Management, itself, did not believe the
Grievant was a threat to residents is supported by its failure to place him on
administrative leave as called for by the Contract and the Ohio Administrative
Code. The Arbitrator is referred to the
Jeffrey Moore case (Case No. 23-11-880304-0003-01-04, July 31, 1989) in
which the Employer did place the Grievant on administrative leave. The Union further points to the fact that
criminal charges were dropped.
The Union states
that the standard for abuse was set by Arbitrator Pincus in the Dunning
decision (G87-0001A) and upheld by this arbitrator in Aparacio Curry
(Case No. 24-14-890804-0186-01-04). For
the Department of Mental Health, §2903.33(B)(2) O.R.C. and §5122-3-14(C)(1)
O.A.C. apply. Accordingly, the standard
is:
"Abuse" means knowingly causing physical harm or
recklessly causing serious physical harm to a person by physical contact with
the person or by the inappropriate use of a physical or chemical restraint,
medication, or isolation on the person.
(§2903.33(B)(2)
O.R.C.)
In the instant case, the Union argues, it was the patient
who was striking out and spitting, not the Grievant. The Grievant merely acted in self-defense by placing his hand
over the patient's mouth. The patient's
minute injury was received by accident.
Thus, applying §5122-3-14(C)(1) O.A.C., which excludes self-defense and
accidental occurrences, the Grievant did not commit abuse.[1]
If the Grievant
acted recklessly, the Employer must meet the standards for serious physical
harm contained in §2901.01(E) O.R.C.:
"Serious physical harm to persons" means any of
the following:
(1) Any mental
illness or condition of such gravity as would normally require hospitalization
or prolonged psychiatric treatment;
(2) Any physical
harm which carries a substantial risk of death;
(3) Any physical
harm which involves some permanent incapacity, whether partial or total, or
which involves some temporary, substantial incapacity;
(4) Any physical
harm which involves some permanent disfigurement, or which involves some
temporary, serious disfigurement;
(5) Any physical
harm which involves acute pain of such duration as to result in substantial
suffering, or which involves any degree of prolonged or intractable pain.”
None of these conditions apply in this case, so the Employer
has not met the standard. The Union
cites Arbitrator Michael in Paul Nixon (G87-1008), who returned the
Grievant to work although he recklessly broke the arm of a youth without intent
of harm or injury. The same arbitrator
ruled in Kassandra Jefferson (G87-0366) that the injury must be serious
enough to justify termination.
The Union also
raises due process violations which, it argues, warrant sustaining the
grievance. First, the removal order
cites 124.34 of the Ohio Revised Code.
The Code holds Management to a lesser standard than does the Contract,
for it does not contain a due process guarantee. Arbitrator Pincus in the Wiley King decision (G87-2810)
returned the grievant to work due in part to the employer's citation of
124.34. Arbitrator Rivera in the T.
Turner case (Case No. 35-16-900502-003.2-01-03) ruled that the employer's
use of 124.34 is inappropriate.
Additionally, the Ohio Supreme Court ruled in Rollins v. City of
Cleveland Heights that the Code cannot be used to usurp or circumvent the
Contract.
Second, the
Employer violated §24.04 and §25.08 of the Contract by failing to supply all
relevant documents in a timely fashion.
Three witness statements were not furnished until December
3, 1991, and the predisciplinary report not until December 5, 1991. As of the date of the arbitration hearing,
no unusual incident report has been furnished.
Arbitrator Keenan in the above-cited Jeffrey Moore case held that
the Union is entitled to these documents prior to the predisciplinary hearing
and, at the latest, when the grievance is filed. This arbitrator, herself, ruled that these documents were
discoverable once the final disciplinary decision is made and the grievance
filed (Santiago Vanegas, Case No. 35-04-9008f30-0042-01-03). In the Woods decision (G86-0431)
Arbitrator Klein ruled that management must provide documents used to support
discipline at least by the time of the predisciplinary hearing. In Arbitrator Rivera’s Turner
decision cited above, she ruled that the employer's failure to provide complete
witness statements violates the specific mandate of the Contract, and set the
termination aside.
In view of all
this, the Union and Grievant ask that he be returned to work with all back pay,
seniority and benefits, and that he be made whole.
Opinion of the Arbitrator
The record of
this case is replete with contractual due process violations by the Employer,
but none of them individually or collectively serious enough to warrant voiding
the discipline without ever getting to the merits of the Employer's reason for
disciplining the Grievant. The
procedural objections raised by the Union are considered in turn.
(1) The removal order does cite the Ohio Revised
Code. As previously and consistently
held by this and other panel arbitrators, citation of the Code on the removal
order, is a technical violation and insufficient by itself for overturning the
dismissal.
(2) Three statements of two witnesses, all
available prior to the predisciplinary conference, were not supplied with the
predisciplinary packet, nor when sought at Step 3. They were, however, furnished prior to arbitration. The Employer claims these documents were not
used and therefore need not have been produced in the predisciplinary
process. In view of the fact that Kim's
statement merely supports the two nurses' statements and Hogan's is not adverse
to the Grievant, the Employer's claim is supported and I find there is no
violation of §24.04 (but cf. Vanegas,
Case No. 35-04-900830-0042-01-03, wherein statements of the principal witnesses
against the Grievant were withheld until eight days prior to arbitration). Since these documents are relevant to the
grievance, they ought to have been provided upon the Union's request, which
occurred at least as early as Step 3.
However, they were supplied when requested in writing and eight days in
advance of arbitration. The Union might
have called the one witness, but did not do so, and did have an opportunity to
cross-examine the other. There is no
indication that the Employer's delay compromised the Union's ability to defend
the Grievant and, therefore, insufficient grounds to set the removal order
aside.
(3) The predisciplinary hearing report and
recommendation is also discoverable under §25.08. Again, this document was initially denied, but ultimately
provided prior to arbitration. The
Employer is urged to furnish such documents upon proper request and to do so
promptly to facilitate early grievance adjustment.
(4) The Employer does not deny the existence of
an Unusual Incident Report, but claims not to have used it to support
discipline and further that it is prevented from providing it pursuant to
§25.08 by virtue of statutory protections of patient confidentiality. The statutory claim is misguided, for the
parties make clear in §43.01 that except for Ch. 4117 R.C., the contract
prevails over conflicting State statutes, and Ch. 4117 does not except the
section of the Code cited by the Employer.
Therefore, one must look solely to the language of §25.08, which
requires production of relevant documents reasonably available. Reports of the incident giving rise to the
discipline clearly are relevant to the grievance. Moreover, it is hard to see how an incident report would do more
damage to a patient's privacy and the Agency's ability to deliver service than
witness statements about the patient's behavior do. Failure to provide this report when requested constitutes another
violation of §25.08.
(5) The Union also states that reassignment of
the Grievant to patient care was in violation of the Contract and the
Administrative Code, and suggests that the Employer did not believe he was a
threat to patient safety. The record
does not disclose whether the Grievant was reassigned to patient care, only
that Mr. Musselman had no personal knowledge of this. The Union has not carried its burden on this
issue.
The most serious
of these infractions is the Employer's failure ever to provide the Unusual
Incident Report, but in my opinion, even taken with the several other
infractions, this did not do such damage to the Grievant's due process rights
as to justify voiding the removal without considering the merits of the
Employer's case against him. The
discussion now turns to the charge of abuse.
In order for the
Grievant's conduct to be considered abuse within the meaning of §24.01, it must
meet the definitions provided by §2901.01(E) O.R.C. and §5122-3-14(C)(1)
O.A.C. As Arbitrator Keenan observes in
the case cited above, these definitions are not fully congruent. But if the Grievant knowingly acted in a
manner inconsistent with human rights, thereby causing physical harm, his
conduct would satisfy both definitions.
I am convinced he did.
The Union would
have me find that the Grievant acted recklessly and that the harm done was too
minor to justify discharge. The
validity of this argument rests, in the main, upon whether the Grievant's
contact with the patient was a slap on the cheek or a covering of the mouth. Two witnesses, who had nothing to gain by
false testimony, saw contact with the left cheek. Injuries received by the patient--reported also by Dr.
Kim--corroborate both the facial region involved and the force of the
contact. Additionally, all witnesses
described the patient as having his head turned to face the Grievant. It is hard to see how <PAGE NAME="15">the two nurses could
have mistaken a hand covering the mouth (turned to the side) for a hand on the
cheek (turned up).
Against this is
the Grievant's testimony and statement, which are self-serving, uncorroborated
by any witness to the incident, and of doubtful logic. (His statement says the
patient tried to bite him, so he applied pressure and immediately removed his
hand. His testimony indicated a
movement too rapid for this course of events.)
I conclude that the Grievant struck the patient.
It is further
apparent that the Grievant acted knowingly, not recklessly. There is not the slightest indication that
he did not know what he was doing: he was in command of his faculties and the
contact did not occur accidentally.
Moreover, the slap was of sufficient force to leave a red handprint on
the patient's cheek and a minor injury inside his mouth. The Grievant says if he had hit the patient,
rather than merely covering his mouth, the injuries would have been greater. I disagree, for these injuries are
consistent with a slap intended to stop irritating behavior without causing
more than minor pain and injury. The
fact that the patient was about to spit on the Grievant does not justify the
slap as self-defense, something the Grievant well knows.
I fully agree
with the Union's suggestion that many people would not consider this conduct
and its consequence serious enough to justify discharge. However, the Contract reserves to the
Employer the right to determine whether an instance of abuse is serious enough
to warrant removal.
Award
The grievance is
denied in its entirety.
Anna D. Smith, Ph.D.
Arbitrator
January 25, 1992
Shaker Heights, Ohio