ARBITRATION
DECISION NO.:
424
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Mental Health
Pauline Warfield Lewis Center
DATE OF
ARBITRATION:
January 28, 1992
DATE OF
DECISION:
March 3, 1992
GRIEVANT:
Anita Robinson
OCB
GRIEVANCE NO.:
23-13-(91-08-29)-0474-01-04
ARBITRATOR:
Anna Smith
FOR THE
UNION:
Penny Lewis
Staff Representative
FOR THE
EMPLOYER:
George R. Nash
Advocate
Lou Kitchen
Second Chair
KEY WORDS:
Removal
Insubordination
ARTICLES:
Article 24-Discipline
§24.01-Standard
FACTS:
The grievant was a Licensed
Practical Nurse at the Pauline Warfield Lewis Center, a state hospital for
chronically mentally ill adults. She
was removed from employment on August 21, 1991 for insubordination. The grievant had been disciplined on four
prior occasions for neglect of duty and dishonesty.
On April 4, 1991, grievant was
attacked by a patient while working in Unit K-West; the grievant was given time
off and returned to work on May 6, 1991, and the patient was subsequently
discharged. On June 9, 1991 it became
necessary to reassign the grievant from duty on Unit 6 to Unit K-West. The grievant was properly selected by the
Hospital Aide Supervisor on the basis of seniority to be reassigned.
The grievant objected to the
reassignment testifying that she had flashbacks to the April 4 incident, heart
palpitations, and other emotional symptoms.
The grievant's steward arranged to have another employee switch work
assignments with her; however, the employee that the grievant was supposed to
switch assignments with was already working overtime. Consequently, the grievant's supervisor found the arrangement to
be inappropriate. Testimony conflicts
as to whether the arrangement was ultimately approved by the Nurse
Manager. The Manager denied the
existence of any conversation between herself and the steward and stated that
she repeatedly told the grievant that she must either report to K-West or go
home; in fact the grievant did elect to go home.
The grievant was subsequently
removed for insubordination. Evidence,
undisclosed to Management at the time of the removal, indicated that grievant
sought advice from an agency psychiatrist in April 1991 and treatment for
post-traumatic stress in July and August 1991.
This information was neither made available to Management at the
pre-disciplinary meeting nor more than three weeks prior to the arbitration.
EMPLOYER'S
POSITION:
Evidence clearly establishes that
grievant was insubordinate in refusing her ward assignment, and repeatedly and
willfully disobeying direct orders. The
grievant's behavior undermined the authority of her supervisors, the employer's
exclusive right to manage the workplace and the employee's obligation to take
direction. The proper means of redress
would have been to comply with the direction, then file a grievance concerning
directions believed to be violative of the bargaining
agreement. Only orders which unusually
jeopardize an employee's health or safety justify deviance from the established
procedure. Further, the patient
responsible for the assault was no longer assigned to Unit K-West; therefore,
grievant's alleged illness was a mere pretense to avoid the assignment. This belief is supported by the fact that no
mention of grievant's treatment for post-traumatic stress or counseling was
made until Step 3. Based upon the
grievant's disciplinary history the removal was progressive and within the
bounds of reasonableness.
UNION'S
POSITION:
Management failed to establish
grievant's insubordination; the grievant was given a choice to either switch
assignments if necessary, work K-West or go home; the grievant chose the latter
option. The grievant's behavior was not
demeaning to supervisors. Institutional
Directive A-22 supports the position that the grievant's behavior was not a
major offense because it had no detrimental effect on hospital operations;
therefore, removal is too harsh a penalty.
The employee involved-received disparate treatment in that the employee
she was to switch assignments with and the steward were not disciplined.
ARBITRATOR'S
OPINION:
Despite conflicting testimony, the
Arbitrator found that the grievant received at least one direct order to work
K-West after learning that the patient who had previously assaulted the
grievant had been discharged. That
finding is evidenced by the grievant's decision to go home sick and to seek the
steward's intervention. The grievant
erred in failing to follow the established "work now, grieve later"
policy. In the alternative, the
grievant should have taken sick leave, then grieved the employer's
assignment. The Arbitrator found that
the grievant's behavior undermined the employer's authority to direct the
employees, activity in the workplace.
The Arbitrator upheld the
reasonableness of the removal despite the Union's argument that the grievant
had never previously refused an assignment, primarily because of the grievant's
prior disciplinary record. Further, the
Union presented insufficient evidence to establish that the grievant was
treated inequitably. Consequently, the
Arbitrator found that grievant's removal from State service was not a violation
of Article 24.
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
23-13-910829-0474-01-04
Anita
Robinson, Grievant
Removal
Appearances
For the State of Ohio:
George R.
Nash; Advocate
Lou
Kitchen; Assistant Chief of Contract Compliance,
Ohio
Office of Collective Bargaining; Second Chair
Rita
Surber; Personnel Manager, Pauline Warfield Lewis Center
Brenda
Parchman; Hospital Aide Supervisor, Pauline Warfield
Lewis
Center; Witness
Diana
Leasure, R.N.; Acting Director of Nursing,
Pauline
Warfield Lewis Center; Witness
JeMargarice
Jamerson, R.N.; Nurse Manager,
Pauline
Warfield Lewis Center; Witness
For OSCEA Local 11, AFSCME:
Penny
Lewis; Staff Representative,
OCSEA
Local 11, AFSCME, AFL-CIO; Advocate
Anita
Robinson, L.P.N.; Grievant
Laura
Turner, L.P.N.; Witness
Vernell M.
Little; Former Union Steward, OCSEA Local 11,
AFSCME;
Witness
Hearing
Pursuant to the
procedures of the parties a hearing was held at 9:15 a.m. on January 28, 1992,
at the offices of the Ohio Office of Collective Bargaining, Columbus, 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 5:15
p.m., January 28, 1992. This opinion
and award is based solely on the record as described herein.
Issue
The parties stipulated that the issue to be decided by the
Arbitrator is:
Was Article 24 violated when Ms. Anita Robinson
was terminated from State service?
If so, what shall the remedy be?
Joint Exhibits and Stipulations
Joint
Exhibits
1. 1989-91 Collective
Bargaining Agreement
2. Discipline Trail
A. Notice of
Investigation, June 25, 1991
B. Request for Disciplinary Action, July
6, 1991
C. Notice of Pre-Disciplinary Meeting,
July 12, 1991
D. Statement of Brenda Parchman, Hospital
Aide Supervisor
E. Statement of Anita Robinson, LPN,
Grievant
F. Statement of Marian Russ, Psychiatric
Nurse Supervisor II
G. Statement from Ms. Jamerson to Ms.
Wamsley, July 10, 1991
H. Statement of JeMargarice Jamerson,
Psychiatric Nurse Supervisor II, June 9, 1991
I. Statement of Vernell Little,
Custodial Worker, OCSEA Steward
J. Statement of doctor, June 10, 1991
K. Notification of
Request for Action as Result of Pre-Disciplinary Meeting, August 5, 1991
L. Director's Order of Removal, August
14, 1991
M. CEO's Effective Date of Removal,
August 16, 1991
N. Record of Prior Discipline
3. Grievance Trail
A. Cover Sheet, Step 3
Request, August 29, 1991
B. Grievance #23-13-910829-0474-01-04
C. Step 3 Assignment Sheet, September 3,
1991
D. Notice of Step 3 Meeting, September
11, 1991
E. Step 3 Answer, October 18, 1991
F. Request for Arbitration
4. Policies
A. Work Assignments
for All Nursing Staff, April 22, 1991
B. Institutional Directive A-22, Rules of
Conduct and Disciplinary Action, January 3, 1989
5. First Shift Work
Sheet, June 9, 1991
6. Statement of Lani
Eberlein, January 21, 1992
7. Statement of
Counselor concerning Anita Robinson, January 11, 1992
8. Statement of
Kazell Nelson
9. Statement of Dr.
Harris, January 27, 1992 1991
10. Assignment Canvass
Memo, February 22, 1989
11. May, June &
July 1991 Work Sheets
12. September 1991 Work
Sheets
Joint
Stipulations of Fact
1 . Ms. Anita Robinson
began State employment February 2, 1987.
2. At the time of
this incident Ms. Robinson was a Licensed Practical Nurse (LPN) at the Pauline
Warfield Lewis Center.
3. Ms. Robinson was
assigned to Unit 6 and worked the first shift, 6:30 a.m. - 3:00 p.m.
4. Reassignments are
permissible in accordance with Article 13.05.
5. Overtime has been
hired to work ward K-West.
6. This case is
properly before the Arbitrator.
Relevant Contract Provisions
Case History
As stipulations
establish, the Grievant, Anita Robinson, was an LPN on the first shift at the
Pauline Warfield Lewis Center at the time of her removal from State service on
August 21, 1991. This
institution is a State hospital for about four hundred acute and chronic
mentally adults. Ms. Robinson had been
in State employment for over four years and had two written reprimands (neglect
of duty), a two-day suspension (neglect of duty), and two six-day suspensions
(dishonest and neglect of duty, respectively) on her record when this case came
to arbitration.
The incident that gave rise to Ms.
Robinson's removal had its genesis in an event that occurred on April 4,
1991. On that date the Grievant was
assaulted by a patient while she was working on Unit K-West. As a result of this attack, Ms. Robinson was
off from work until May 6, 1991, when she returned without restriction. A little over a month later, on the morning
of June 9, the LPNs assigned to K-West were off, so reassignments were
necessary. The Hospital Aide
Supervisor, Brenda Parchman, did not canvass for volunteers, but assigned the
least senior LPN from the unit most able to provide the coverage. It is the Center's practice not have
overtime worked on this particular unit so as not to jeopardize the unit's
Medicare certification. It therefore
avoids placing overtime staff on this ward unit except in emergency
situations. Ms. Robinson, who was
originally scheduled to work Unit 6 and was not working overtime that day, was
one of those LPNs reassigned to K-West.
When Ms. Robinson arrived for work and discovered she was to work on the
ward where she had been attacked, she became upset. In written statements and oral testimony she said she had a
flashback to the assault, was overwhelmed by her feelings, experienced heart
palpitations, shortness of breath, and the like. JeMargarice Jamerson, the Nurse Manager coming on
duty and the Grievant's supervisor, checked with staff on K-West and learned
the patient who assaulted the Grievant had been discharged. Ms. Jamerson so informed the Grievant and
told her her assignment was K-West, but the Grievant still said she could not
work there because she felt claustrophobic.
She would go home, she said. Ms.
Jamerson said this was alright and the Grievant left the staffing office. Ms. Jamerson then pulled an LPN from another
unit to work K-West. Instead of going
home, the Grievant called her Union Steward, Vernell Little. The Steward was familiar with employees
switching assignments under another supervisor, and so when she was unable to
work something out with Parchman, went in search of someone willing to switch
with the Grievant. A. Charleston, who
was working overtime on Unit BE-1 was agreeable. The Steward called Ms. Parchman and told her about the
arrangement, but Parchman indicated this was inappropriate.
At this point, the various versions
of the events that morning diverge.
Union witnesses say that the Steward and Grievant went to the staffing
office where Jamerson told them overtime could be worked on K-West only if
necessary. The Steward testified that
she replied it was "absolutely necessary," and that that ended the
matter. Ms. Jamerson denies this
exchange took place, testifying that she learned the switch had actually taken
place sometime later from the Steward.
Upon learning this, she called Unit BE-1, confirmed that Robinson was
there and told her that if she was staying at work, her assignment was
K-West. The Grievant again allegedly
said she was going home. All accounts
agree that at approximately 7:45 a.m., the Grievant called from Unit BE-1 to
report an injured patient needing an R.N.'s assessment. Ms. Jamerson went to the unit, took care of
the patient, and yet again told the Grievant her assignment was K-West (the
Grievant testified she was told she had to go home if she was not going to
K-West). At this point, the Grievant
did turn over her keys and signed out at 8:25 a.m. A doctor's return-to-work slip indicates she was treated on June
9, 1991, and fit for work on June 10, 1991.
Ms. Charleston was reported to the
other Nurse Manager on duty and Ms. Little was written up, but neither was
disciplined. Ms. Robinson, however, was
charged with and ultimately terminated for insubordination. There is evidence she was in treatment for
post-traumatic stress disorder in July and August 1991 (Joint Ex. 7) and, in
fact, sought advice from an Agency staff psychiatrist in April following the
patient's assault on her (Joint Ex. 9).
These facts were not brought out at the pre-disciplinary meeting nor was
supportive documentation obtained until three weeks before arbitration. The grievance that was filed protesting the
removal remained unresolved and so was moved to arbitration, where it presently
resides for final and binding decision.
Arguments of the Parties
Argument
of the Employer
The State
contends it has shown that the Grievant was insubordinate in that she refused
her ward assignment, repeatedly and willfully disobeying direct orders. This undermined the <PAGE NAME="7">authority of the
supervisors. It points out that the
right to manage the workplace is vested in the employer and that it is the
obligation of the employee to take direction, then later grieve orders believed
to be in violation of the agreement.
The orders given the Grievant did not place her health or safety in
unusual or abnormal jeopardy such as would excuse her failure to follow the
"work now, grieve later" principle.
The patient who had assaulted her was not even on the unit to which the
Grievant was assigned.
The State disputes any Union
contention that it treated this employee differently from other employees in
ordering her to work on a ward where there had been a problem with a
patient. In other cases, the employee
was not moved off the ward. Either the
patient was moved or dealt with through the treatment team, with the employee
returning to the unit within days.
Moreover, the cases brought out by the Union were more seriously
threatening to the employee involved.
This arbitrator is referred to a decision by Arbitrator Rivera
discussing disparate treatment (Case No. G23-06(891113)-01-21-01-03).
The State disputes the Grievant's
claim that she was ill, because she continued to work. Instead, it believes she was merely avoiding
an assignment she did not like. The
State further points out that no mention of post-traumatic stress disorder,
counseling or EAP was made until Step 3.
The only thing mentioned the morning of the incident was the Grievant's
fear of a patient. If the Grievant
really was in treatment at the time, why did she not bring it up then, or at
the pre-disciplinary hearing? The Employer
contends
the Grievant only went into EAP when her job was in jeopardy and argues that
Management cannot be faulted for making its disciplinary decision based on
facts known of at the time.
The Grievant's disciplinary record
shows Management to have shown tolerance, the State claims, and the Grievant to
have shown a disregard for work rules and an inability to correct her behavior.
The Employer asserts the removal was
progressive, despite the violation being of a different rule from the ones
previously broken by this employee, and cites Arbitrator Rivera in Case No.
31-11890330-16-01-06.
In sum, the State claims the penalty
for the established violation was within the bounds of reasonableness and
believes that it should not be disturbed.
It asks that the Arbitrator find just cause for the removal and deny the
grievance in its entirety.
Argument
of the Union
The
Union contends the State has not shown the Grievant was insubordinate for the
Grievant never received a direct order.
Instead, she was given a choice: switch assignments only if necessary,
work K-West, or go home. The Grievant
chose the latter. Indeed, the Union
states, Ms. Robinson has been reassigned to almost all units at the facility
and has not refused one reassignment.
The Grievant was also not demeaning to her supervisors.
Regarding Management's claim that
the Grievant's reassignment would not place her in a position of abnormal risk
of health or safety because the patient was not on the ward,
the Union argues that each employee is affected differently. This employee's psychological well-being was
threatened. Even Management witnesses
said the Grievant looked bad that day.
Moreover, assignment changes have been made to accommodate smoking
preferences. What is more important,
the Union asks, smoking or psychological stability?
Institutional Directive A-22 says
that a major offense is one affecting "the safety or the security of the
staff or patients, or which have a seriously detrimental effect on the
efficient operation of the hospital."
On June 9, 1991, both LPNs were doing their jobs, the only difference
being that they were on different units.
Thus, the Union claims, there was no detrimental effect on hospital
operations. This is supported by the
fact that Ms. Charleston worked overtime on K-West many times.
The Union also points out that the
other two employees involved--Charleston and Little--were not disciplined. It argues in any case that removal is too
harsh a penalty and asks that the discipline be overturned, or at least
modified, and that the Grievant be made whole, granted back pay, benefits and
seniority.
Opinion of the Arbitrator
Whether
the Grievant is guilty of insubordination turns on whether she knew, or ought
to have known, that Ms. Parchman's and later Ms. Jamerson's words constituted
an order for which there were disciplinary consequences if she did not obey. At the outset, I must say that this case
represents an extraordinarily difficult problem of credibility and factual
determination. It essentially boils
down to the word of a supervisor against that of the aggrieved, and there are
corroborating witnesses for only some of the conversations that allegedly took
place the morning of June 9. As a
result, my opinion as to what occurred has thin spots of belief. Nevertheless, I am able to conclude with a
high degree of certainty that the Grievant did receive at least one direct
order to work K-West, and that it was given after she learned the patient she
feared had been discharged. Two
witnesses attested to this, and the Grievant's own testimony indicated she knew
she was to go to K-West. That she knew
there were consequences for not going is established by her decision to go home
sick. If her anxiety was purely
associated with K-West (a conclusion argued by the Union), then it would not
have been aroused had she thought she had a choice of assignments. Since it was aroused, she must therefore
have known she had no choice and was under a direct order. This conclusion is also supported by her
decision to get her steward to intervene in her behalf, something that would
have been unnecessary if the Grievant thought she was free at that time to
choose her ward without fear of discipline.
I also believe that the Grievant
came to the erroneous understanding from the Steward that it was acceptable to
switch with Ms. Charleston. How the
Steward came to this understanding herself cannot be readily ascertained, for
accounts differ. The Steward, however,
is the only witness who states that there was a meeting of all three--Jamerson,
Little and the Grievant--in which Jamerson allegedly said "only if
necessary." (Ms. Jamerson denies
hearing of the switch until later and the Grievant stated that the Steward
informed her of the arrangement.) At
this point the Grievant made a mistake: being under a direct order and knowing
she was subject to discipline if she disobeyed, the prudent thing to do was to
verify that the order had been rescinded by Management. As it was, she went to BE-1 under direct
contravention of her supervisors' orders and hospital policy to avoid overtime
on the Medicare-certified unit. This is
not to say that the Steward deliberately led the Grievant astray. More likely invalid assumptions were made or
misunderstandings arose in the confusion that morning with so many people
involved. This only underscores the
necessity for a clear chain of command.
To permit a non-supervisor's beliefs to countermand a manager's direct
order would be to undermine the negotiated authority of the workplace and
create confusion as to who has the right of direction. This is to the detriment of all--management,
employees, and patients. Management was
within its rights to discipline here.
At this point some comment on the
practice of switching assignments and method of making temporary reassignments
is in order since so much testimony was devoted to these topics. It is clear that there is much disagreement
as to the meaning of portions of the Contract's provision on reassignments,
§13.05. Since this issue is not before
this Arbitrator for resolution, no opinion if offered. What is relevant to the discipline of this
Grievant, however, is whether her behavior was appropriate if she believed that
Management made the assignment improperly or unfairly denied her request to
change it. Clearly the answer to this
must be no. If she thought the
assignment improper, the correct thing to do was to work the ward, then grieve
the propriety of the assignment. If the
thought of going on this ward made her so emotionally distraught that she
became ill and felt unable to fulfill the assignment, then she should have gone
off sick and then used the grievance procedure. In no event was working a different assignment than the one given
justified without the expressed consent of the supervisor.
It is unfortunate for the Grievant
that this violation comes after a history of progressive discipline. Following several suspensions, discharge is
within reason. While the Arbitrator
notes that the Grievant has not previously refused a reassignment and that the
refusal here was motivated by seemingly uncontrollable situational anxiety, the
prior opportunities to conform her behavior cannot be overlooked, nor can her
disregard for the legitimate alternative remedies of sick leave and the
grievance procedure.
The Union also raises an issue of
disparate treatment in that the other two employees were not disciplined. Insufficient evidence was presented to show
how these two--who were not under direct orders--were similarly situated to the
Grievant here. The claim of disparate
treatment is therefore unsupported.
In sum, Article 24 was not violated
when the Grievant was removed from State service.
Award
The
grievance is denied in its entirety.
Anna D. Smith, Ph.D.
Arbitrator
March 3, 1992
Shaker Heights, Ohio
ODMH145