FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 08-02075

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 96,
Union,

and

DEPT OF VETERANS AFFAIRS

MEDICAL CENTER, ST LOUIS, MO,
Agency.
_________________________________/

OPINION OF THE ARBITRATOR

January 21, 2009

After a Hearing Held November 18, 2008

In the Engineering Conference Room of Building 18
At 1 Jefferson Barracks Drive, St. Louis, Missouri 63125-4194

For the Union: For the Agency

Evan S. Greenstein Elizabeth J. Martin

Legal Rights Attorney Agency Attorney
AFGE, AFL-CIO VA Medical Center
80 F Street NW 1 Jefferson Barracks Drive
Washington, DC 20001 St. Louis, MO 63125
 I. Background

Under Standard Operating Procedure No. 118-9 (AX 1) at the

Department of Veterans Affairs Medical Center in St. Louis, Missouri,

patients in the mental health wards are to be accounted for every 30 minutes.

SOP 118-9 provides in pertinent part:

1. Purpose. To establish accountability for the observation and

awareness of each patient’s whereabouts and general condition.
2. Policy. The Nurse Manager or his/her designee is responsible for
knowing the whereabouts of all patients on the unit.
3. Delegation of Authority.
a. The Associate Director for Patient/Nursing Services has overall
program responsibility for assuring adherence to this policy.
b. The Associate Chief(s) Nursing Service, Nurse Manager(s) and
Supervisor(s) are responsible for implementation of this policy.
d. All nursing staff is responsible for compliance with this policy.
4. Procedure.
b. Written assignments for each patient will be made at the
beginning of each tour of duty by the Nurse Manager/designee.
c. At the change of shift the on-coming staff and the off-going
staff on all wards/units will make walking rounds with a
member of the off-going staff to ensure that all patients are
accounted for at the beginning of each tour of duty.
d. Additionally, periodic walking rounds are to be conducted
during each tour of duty to account for the presence of each
patient. The Mental Health wards/units will make rounds every
30 minutes, as well as a bedtime patient check at approximately
9:00 p.m.
e. Any discrepancy from the previous check or inability to verify a
patient’s whereabouts is to be reported immediately to the
Nurse Manager/designee, Nursing Supervisor, Associate Chiefs
Nursing Service and Associate Director of Patient/Nursing
Services. An initial search is initiated and actions as outlined in
Medical Center Memorandum 00-71 … are to be instituted
immediately.
(Emphasis in original.)

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 Mental health ward 51W is a locked psychiatric ward. The patient

assignments called for in paragraph 4.b of SOP 118-9 are made on

assignment sheets kept at the nurses’ station. The patient checks called for in

paragraph 4.d are recorded on forms called “sleep charts” (AX 4). Each

patient is listed on the chart. For every hour of the day, there is a square in

which the patient’s status is recorded. Each square is divided diagonally into

two triangles, the upper one for recording the patient’s status during the

check made at the beginning of the hour, and the lower triangle for recording

the patient’s status during the check made on the half hour.

A patient’s status is indicated by entering one of the following status

codes in the appropriate triangle:

S for sleeping
Sc for sleeping in a chair
A for awake
U for up and awake
Ow for off ward

The staff member who makes the patient check initials the sheet at the

bottom in a triangle that indicates the time at which the member made the

check.

On October 10, 2007, during the 3:30 pm to midnight shift, nursing

assistant LDS was scheduled to make patient checks from 4:00 through 7:30,

per the assignment sheet (AX 8). Instead, Grievant, herself a nursing

3
assistant, made the checks at 4:00, 4:30, 5:00, and 5:30, and reported that all

patients were accounted for. Grievant was scheduled to escort patients on

their fresh air break1 at 5:30, in an outside area rectangular in shape, which

has the appearance of an enclosed yard. From the perspective of a person

standing in the doorway leading from the building into the break area, the

area is enclosed to the left and right by the building itself and by a 5’-high,

chain-link fence on the outer two sides.

Both Grievant and LDS accompanied 10 patients on their break,

which lasted 20-30 minutes. When LDS and Grievant came in from the

patients’ break, LDS had to attend three incontinent patients. Grievant

offered to assist him. The two nursing assistants were with the incontinent

patients for an hour or more.

According to the assignment sheet (AX 8), certified nursing assistant

FCI was scheduled to make the patient checks from 8:00 pm through

midnight, but he began at 7:00. The sleep chart indicated that all patients

were present and accounted for through 6:30. The chart bore Grievant’s

initials for the 6:00 and 6:30 checks, as well as the earlier ones.

During FCI’s 7:00 check, he discovered that patient 9137, who had a

substance abuse problem, was missing. FCI reported the fact to the charge

1
“Fresh air” is the phrase printed on the assignment sheet, but staff members tend to use “smoke break”.

4
nurse LMH. The staff was alerted and the VA Police were called. A search

failed to locate the missing patient. At least two patients stated that 9137 had

“jumped the fence” during the break.

The patient’s mother was called, but initially did not know her son’s

whereabouts. She called back shortly and reported that she had been in touch

with him. She reported that her son “told her he was fine and was checking

into a rehabilitation facility due to the fact the VA was ‘going to discharge

him on 10-11-07’.” AX 7. The police determined that the patient was not

restricted to the VA Medical Center and took no further action.

In a letter dated November 6, 2007 (JX 2), from the associate chief

nurse ELD, Grievant was charged with the following misconduct, for which

a 3-day suspension was proposed:

On October 10, 2007, you were performing the visual head

count/sleep chart from 4:00 p.m. to 7:30 p.m. and initialing the chart.
At approximately 7:00 p.m. it was discovered that a patient was not on
the ward. RN [registered nurse] [LMH] asked you if you had seen the
patient, you replied “I don’t know” or words to that effect. When
asked why you had marked the head count/sleep chart with a “U” at
7:00 p.m. and 7:30 p.m., you replied “I checked the room. He was not
in his room so I marked him “up” or words to that effect. You did not
visually account for the patient at 6:00 p.m., 6:30 p.m., 7:00 p.m. head
count. You are charged with failure to perform your duties and
falsifying an official document. (Emphasis in original.)

Grievant did not respond and, in a letter dated December 6, 2007 (JX 3),

from the associate director of patient/nursing services MEB, Grievant was

5
given a 3-day suspension.2

The Union filed a grievance (JX 4 & 5) under the terms of the Master

Agreement between the Department of Veterans Affairs and the American

Federation of Government Employees and the Supplemental Agreement

between the Department of Veterans Affairs Medical Center, St. Louis, MO,

and the American Federation of Government Employees, Local #96 (JX 1).

The bargaining unit is described in the latter:

The bargaining unit is defined as all nonsupervisory, nonprofessional

and Canteen Service employees and police officers at the VA Medical
Center, St. Louis, MO. Excluded are all professional employees,
supervisors, management officials, personnel engaged in personnel
work in other than a purely clerical capacity, confidential employees
and temporary employees.

When the Agency denied the grievance (JX 4 & 5), the Union demanded

arbitration (JX 6).

A lengthy hearing was held in the engineering conference room at the

VA Medical Center in St. Louis on November 18, 2008. Both the Union and

the Agency were represented by counsel. The hearing included a tour of

mental health ward 51W and the outside break area. Briefs were filed on or

about January 12, 2009.3 The arbitrator’s findings of fact and conclusions of

2
A duplicate letter was sent on January 16, 2008 (part of JX 3), presumably because the Union requested
that the suspension not be served until the grievance procedure had been exhausted (JX 4 & 5).
3
The Agency timely filed its brief on January 12, 2009, and emailed an electronic copy to the arbitrator
and the Union. Following receipt of the Agency’s email, Union counsel requested permission to file a late
brief, which request the arbitrator granted over Agency counsel’s vigorous objection. In the interest of
fairness, the arbitrator authorized the Agency to file a reply brief, but that proved unnecessary.

6
law are spread throughout this opinion, although not expressly denominated

as such.

II. Contemporaneous Documentation of the Incident

The house supervisor DJB on duty at the time of the incident asked

staff members to write reports about the events. At 8:02 on the evening of

October 10, 2007, Grievant began entering the following Psychiatry Note

(AX 9) into patient 9137’s medical record:

pt went off ward with staff for smoke at 530pm. pt must have jump
the fence and left. family state they talk with pt and he is alright.
/s/

Grievant signed the note at 8:05 and left work for the day.

At 9:13 that same evening, the charge nurse LMH began a Discharge

– Transfer Summary (UX 1) for patient 9137, in which she indicated four (4)

different times that the “pt left ama”. The acronym “ama” means that the

patient left the facility against medical advice. The charge nurse signed the

Discharge Summary at 9:42.

At 11:30 pm on October 10, the house supervisor DJB sent an email

(AX 11) to the nurse manager MAH, informing her:

On 10-10-7, a patient was found missing from 51W1. Ms [Grievant]

had been assigned to do the head checks / count. She had recorded the
missing patient as being “up”. She explained that she assumed, since
he was out of his room, that he was up in the TV room. But – she did
not do a real head count to determine where each patient was. I

7
 explained the purpose of the flow sheet was to identify each patient
was on the unit, as well as thier activity.

The nurse manager was not on duty at the time, as her shift had ended at

4:00 that afternoon.

Other reports dated October 10 were prepared without any indication

of the time at which they were prepared. The charge nurse LMH completed

a Report of Contact form (AX 6), which she dated 10-10-07 and on which

she wrote:

Around 1900 [FCI] CAN [certified nursing assistant] approached this

RN & stated that he could not find … (E9137). Ward was searched.
VA Police called, nursing supervisor called. VA Police & nursing
supervisor on ward. Ward & surrounding areas were completely
searched. This RN called NOK [next of kin] – [JE], mother, at
[telephone number]. [JE] stated that she dropped off clothes for him
today. Stated that she spoke t him “recently” (would not give time
frame) – & that he is with a friend. That he left VA because VA was
not helping him. States that he is going to another facility. Officer
[MEB] (VA Police) then spoke t [JE] for his report

Certified nursing assistant FCI completed an Adverse Event Reporting

Form (AX 3), which he dated 10-10-07 and on which he wrote:

While on bed check about 7 pm I noticed that PT wasn’t in his bed, so

I walked around the ward (51 west) looking in every spot, locked
areas, other PT rooms and noticed he wasn’t on the ward so I advised
charge nurse immediately, notified at 7:04 pm /s/

The charge nurse LMH further drafted a 1½-page memo (AX 5)

addressed “To whom it may concern”, which she dated 10-10-07 as well.

Although she may have begun the memo on the 10th, she obviously did not

8
complete it until after midnight, as she reports at the end, “Sleep chart was

discovered missing at 0010 on 10-11-07.” Due to its length, the memo is set

forth only in part:

On 10-10-07 at 1900 [FCI] informed me that one of the patients was

missing. I informed staff to look for missing patient. [FCI], [licensed
practical nurse KRH] and I immediately started searching the ward.
[LDS] and [Grievant] were in a patient’s room doing patient care
together. I asked [LDS] and [Grievant] if they had seen the patient
recently – [LDS] was assigned to head count/sleep chart from the
times of 1600 till 1930, however, [Grievant] had been doing the head
count/sleep chart. [Grievant] stated “I don’t know” when I questioned
her if she had seen the missing patient. I showed her the chart which
she had marked with a “U” (which means up on ward), at 1900 and
1930. [Grievant] stated “I checked the room. He was not in his room
so I marked him ‘up’.” I asked her if she visually saw the patient. She
stated “No, if the patients are not in their room, I mark them with a U,
because they are up.” I asked her again if she had seen the patient –
showing her where she had marked “U”. She again repeated “no, I did
not see him. He was not in his room so I marked him with a u for
being up.” I asked her if she had seen him on the ward-her reply was
“no”. I asked her when she saw the patient last-her reply was that she
saw the missing patient outside smoking for the 1730 smoke break.
***
Enclosed is assignment sheet for the 10-10-07 evening shift.
Sleep chart was discovered missing at 0010 on 10-11-07.
/s/

The next day, VA police officer MEB completed a Uniform Offense

Report (AX 7) in which he reported in part:

[LMH] next checked the notes on the computer records again for any
further possible information due to the fact that Dr. [C] still had not
returned her page and discovered the notes from the doctor had [9137]
as an African / American male, which according to [LMH] is not the
case.
***

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 At the time of this report, there was still no answer from Dr. [C].
Since [9137] had privileges to come and go from the ward as he
pleased, there is sufficient evidence to support he is competent and not
a danger to himself and others. No further action taken by VA Police.

Licensed practical nurse KRH wrote a half-page memo dated

10/11/07 and addressed “To Whom It May Concern” (AX 10), in which she

stated:

On 10/10/07 @ 1900 [FCI] informed charge nurse that a pt on 51W

was missing; [FCI] had assumed responsibility of the sleep chart @
1900. … The sleep chart had been documented by Mr. [LDS] and Ms.
[Grievant] that the pt had been up on the ward throughout the eve up
to 1800. I asked both if they had physically seen the pt, neither could
describe the pt but stated “they checked the bed and he was not in it so
they considered him to be up on ward”. Both [LDS] and [Grievant]
stated he had gone out for 1730 smoke break, but did not know what
may have happened after that. Charge nurse called family member
who stated he left the ward but did not know how he left, family
member stated “he was going to a new rehab unit not sure where.”
Two pt’s stated “they saw pt jump the fence”
***
/s/

In opening statement, Union counsel described the evidence as

“conflicting”, to which description the arbitrator adds “confusing”. Although

the arbitrator has striven to discern order out of the conflict and confusion,

he may not have succeeded entirely. Times specified may be approximate.

Because of the disorder, the arbitrator gives great weight to the

contemporaneous reports, as they were prepared near the time of the events

described in them, in order to documents the facts, and so were not prepared

10
in anticipation of a grievance dispute. Elkouri & Elkouri, How Arbitration

Works (ABA/BNA 6th ed 2003) @ 369.

III. Pertinent Provisions of the Collective Bargaining Agreement

Pertinent parts of the collective bargaining agreement may be

summarized as follows:

ARTICLE 13—DISCIPLINE AND ADVERSE ACTION

Section 1 - General

The Department and the Union recognize that the public interest requires the
maintenance of high standards of conduct. No bargaining unit employees
will be subject to disciplinary action except for just and sufficient cause.
Disciplinary actions will be taken only for such cause as will promote the
efficiency of the service.

Section 5 - Alternative and Progressive Discipline

The parties agree to a concept of alternative discipline which shall be a

subject for local negotiations. The parties also agree to the concept of
progressive discipline, which is discipline designed primarily to correct and
improve employee behavior, rather than punish.

Section 6 - Fairness and Timeliness

Disciplinary actions must be consistent with applicable laws, regulations,

policy, and accepted practice within the Department. Discipline will be
applied fairly and equitably and will not be used to harass employees.
Disciplinary actions will be timely based upon the circumstances and
complexity of each case.

Section 8 - Processing Suspensions, Adverse Actions, and Major Adverse

Actions

A. An employee against whom a suspension, adverse action, or major

adverse action is proposed is entitled to thirty (30) days advance written

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notice, except when the crime provisions have been invoked. The notice will
state specific reasons for the proposed action. Management agrees that the
employee shall be given the opportunity to use up to eight (8) hours of time
to review the evidence on which the notice is based and that is being relied
on to support the proposed action. Additional time may be granted on a case-
by-case basis. Upon request, one copy of any document(s) in the evidence
file will be provided to the employee and their designated representative.

B. The employee and/or representative may respond orally and/or in writing

as soon as practical but no later than fourteen (14) calendar days from
receipt of the proposed action notice. The response may include written
statements of the persons having relevant information and/or other
appropriate evidence. Management has the right to restrict the response time
to seven (7) days when invoking the crime provision.

C. Extensions for replying to proposed adverse actions and suspensions may

be granted when good cause is shown. The appropriate management official
will issue a written decision at least five (5) days prior to the effective date.
The written decision shall include the reason for the disciplinary action and a
statement of findings and conclusions as to each charge.

Section 9 - Notice of Disciplinary Actions

A. Notice of a final decision to take disciplinary action shall be in writing

and shall inform the employee of appeal and grievance rights and their right
to representation. The employee will be given two (2) copies of the notice;
one (1) copy may be furnished to the Union by the employee. Management
will inform the Union when it takes a disciplinary action against a unit
employee.

B. Notices shall explain in detail the reasons for the action taken and all
evidence relied upon to support the decision. The notice will also advise the
employee how long the action will be maintained in their file. The
supervisor shall discuss the notice with the employee. If the employee elects
to have a union representative present, the discussion will be delayed until
the Union has an opportunity to furnish a representative.

IV. Grievant’s Defenses

The Union’s position is set forth in its brief @ 4:

12
 The Agency’s three day suspension of [Grievant] was not for just and
sufficient cause. The suspension violated Article 13, Sections 1, 7 and
8 of the agreement because the Agency failed to allow the Grievant,
“to review the evidence on which the notice of disciplinary action is
based and that is being relied on to support the proposed action.”
Specifically, Grievant is charged with falsifying an official document,
but the Agency was unable to produce the document which was
allegedly falsified. The inability/unwillingness of the Agency to
produce the alleged falsified document is a violation of the
aforementioned contractual language. Therefore, this charge cannot
stand. Further, the Agency failed to show by a preponderance of the
evidence that [Grievant] failed to perform her duties, or how the
suspension promoted the efficiency of the service.

The Union’s rendition of the facts depends heavily upon the testimony of

Grievant and LDS. Union brief @ 2, 9, 10, 12.

Among the Union’s arguments are these:

(1) “[T]ere is simply no proof … that the document [i.e., the sleep chart]

was falsified by the grievant.” Union brief @ 9.

(2) “Since the grievant was not responsible for filling out the sleep chart

…, she cannot possibly be held accountable for falsifying an official

document.” Union brief @ 10.

(3) Grievant “was scapegoated.” Union brief @ 13.

V. Analysis

This case presents several difficulties for the arbitrator:

(A) In the Agency’s letter of November 6, 2007 (JX 2), Grievant was
charged with misconduct allegedly related to the 6:00, 6:30, 7:00, and
7:30 patient checks, in the evening of October 10, 2007. However, the

13
 evidence presented to the arbitrator does not support the misconduct
alleged to have occurred with respect to the 7:00 and 7:30 checks.

(B) The evidence presented to the arbitrator suggests that management

could have done more to prevent the events in dispute.

(C) ELD, the acting associate chief nurse at the time of these events,
testified that greater discipline was imposed upon one or more other
employees besides Grievant, but did not identify any other employee
who was disciplined. As a result, the arbitrator cannot tell if any
member of management was disciplined.4

These difficulties are addressed seriatim.

V.A. The Four Patient Checks

There is unanimity among the 10 witnesses at the arbitration hearing,

including Grievant herself, that patient 9137 most probably eloped5 during

the 5:30 break, and that is the arbitrator’s finding. Thus, the issue presented

is why he was marked U for up and awake, allegedly at 6:00, 6:30, 7:00, and

7:30. The letter informing Grievant of the charges against her (JX 2) was

drafted by the acting associate chief nurse ELD, who was not present at the

time of the events in dispute and who conceded at the arbitration hearing that

she had no personal knowledge of them.

In opening statement, Agency counsel mentioned only the 6:00 and

4
The Agency, in its brief @ 15 & 18, states that LDS was given a 7-day suspension. Evidence to that
effect was not presented at the hearing and will not be considered. Elkouri & Elkouri, How Arbitration
Works (ABA/BNA 6th ed 2003) @ 412; IBEW Local 2356 and Okonite Company, 01-2 ARB ¶ 3830, 28
LAIS 3805 (Arb 2001). Moreover, even if that were true, it would not answer the question with respect to
managers.
5
“Elope” is the term used at the Medical Center. While it is correct semantically, “escape” is the more
common word.

14
6:30 patient checks, according to the arbitrator’s notes. Here is what two of

the key witnesses recalled:

FCI, the certified nursing assistant—who, while he himself was doing

the 7:00 patient check, discovered that patient 9137 was missing—
testified that he had the missing sleep chart in his hands and that it
was filled out through the 6:30 check. The chart indicated that
Grievant had marked the missing patient as U at 6:00 and 6:30.

KRH, the licensed practical nurse on duty at the time, testified that she
saw the chart and it showed that Grievant had marked the missing
patient as U at 6:00 and 6:30.

Thus, there is direct evidence of Grievant’s culpability with respect to the

two earlier times, contrary to the Union’s argument, IV (1) above.

The confusion over times appears to have arisen with the charge

nurse’s contemporaneous memo (AX 5), in which she recorded the times as

“1900 and 1930”, which, of course, translate into 7:00 pm and 7:30 pm,

respectively.6 It does not seem possible that Grievant could have filled in the

sleep chart at those times, because FCI had taken over that duty by 7:00 and

kept it for the rest of the evening. At the arbitration hearing, the charge nurse

testified that she had the chart in her hands and it revealed that Grievant had

marked the missing patient as up at 6:00 and 6:30. The arbitrator finds that

the charge nurse made a mistake in her memo and that it was error for the

Agency to have charged Grievant with misconduct at 7:00 and 7:30.

6
Staff members use 12-hour-clock times and 24-hour-clock times interchangeably and in confusing
combinations, e.g., on the assignment sheets (AX 8). That bad habit could have led to the error described.

15
 As to 6:00 and 6:30, the evidence fully supports the Agency’s action.

Grievant’s testimony was that she had nothing to do with the sleep chart

after 5:30 and that her coworkers are lying. There is, however, evidence of

her consciousness of guilt. She testified that she wrote the Psychiatric Note

(AX 9) “to cover herself”.7 The nurse manager MAH testified that Grievant

came to her a few days or perhaps a week later, concerned about the patient

incident. Grievant did not respond to the charges in JX 2, as was her right.

This failure was noted in the suspension letter (JX 3) and is noted by the

arbitrator, as Grievant was and is a Union steward, who should know how to

respond appropriately, particularly to charges she deems unwarranted.

The Union’s argument, IV (2) above, is undermined by its brief @ 9,

where the Union concedes that employees switch duties “all the time”.

Therefore it is immaterial that the charting duties were assigned to LDS; it

was Grievant who, for whatever reasons, undertook those duties and marked

the patient as present and accounted for at 6:00 and 6:30, when in fact he

had eloped during the 5:30 break.

In opening statement, Union counsel pointed out that there is no

document proving Grievant’s guilt, as the key sleep chart is missing. He

reiterated the point in his cross-examination of Agency witnesses. In a

7
“In an effort to cover her own tracks … .” Union brief @ 14.

16
memorandum denying the 3rd step grievance (JX 5), the Medical Center’s

assistant director recited the Union argument that “the document referred to

in the proposed action could not be used to support charge because it was

missing.” This theme recurs throughout the Union’s brief @ 8, 11, 15.

While the fact that the sleep chart is missing is undisputed,8 the

absence of the document is a two-edged sword, which cuts both ways. The

sleep chart is not available to prove the Union’s contention as to how it was

filled out; Grievant and LDS testified that it was not filled out at 6:00 or

6:30.9 In addition, Grievant and LDS testified that the second assignment

sheet for October 10, introduced as part of AX 8, is not the sheet which was

actually posted that day,10 yet the Union failed to produce the original they

claim they saw. Just as a corpse is unnecessary for a murder conviction,11 the

production of a document is unnecessary to prove its falsification.

There are other reasons to doubt the defense. Grievant testified that, 5-

10 minutes into the 5:30 break during which the patient eloped, charge nurse

LMH asked her to come in and attend to patient Miss P. Grievant stated that

8
It “has now been lost.” Union brief @ 8. There are suspicions that it was stolen, but the arbitrator will not
speculate. The important point is that there is no evidence that the Agency is at fault.
9
By way of explanation as to why the chart might not have been filled out, LDS opined that patient care
supersedes charting. Union brief @ 9. While he may be correct, the proper course of action is for him to
notify the charge nurse so that she can assign charting to someone else.
10
Union brief @ 10.
11
“No body? Missing victim no problem in nearly 300 murder prosecutions”, Macomb (MI) Daily,
November 23, 2008, @ 7A.

17
she was with the patient for 25-30 minutes.12 However, Grievant made no

entry documenting this treatment in Miss P’s chart. LMH did admit to going

out into the break area but insisted that she did so to speak with a “frequent

flyer”13 and did not ask Grievant to come in and help with Miss P. Most

significantly, licensed practical nurse KRH testified that she saw Grievant

and LDS go out into the break area together at the beginning of the break

and return together at the end of the break. KRH’s testimony was credible,

and the arbitrator accepts it as true.

In other cases in which an employer has charged an employee with

multiple offenses and proved that the employee was guilty of some but not

all of them, the arbitrator has reduced the penalty imposed by the employer,

depending upon the number and severity of the offenses. United Catering,

Restaurant, Bar & Hotel Workers, Local 1064 and Greyhound Food

Management, Inc, 105 LRP 55070 (Arb 1986); AFGE Local 1629 and VA

Medical Center, Battle Creek, MI, 87 FLRR 2-1190, LAIRS 17778 (Arb

1987) (cited in Union brief @ 18); Office of the Sheriff, 107 LA 972, 24 LAIS

3328 (Arb 1996); IBEW Local 723 and City of Ft. Wayne, 105 LAIS 50248

(Arb 2002); NTEU Chapter 208 and US Nuclear Regulatory Comm, 103

FLRR 2-59, 103 LRP 790 (Arb 2003).

12
Union brief @ 2, 12. Grievant apparently told this same story to the nurse manager MAH during their
meeting.
13
Hospital slang for a patient who is admitted and discharged frequently.

18
 There are two sound reasons not to mitigate Grievant’s suspension in

this case. First, the Union does address the time discrepancies previously

discussed. Second, none of the cases cited involved misconduct as serious as

that proved in this case, marking a mental patient as present and accounted for

when in fact he had eloped. The explanation offered, that he was not in bed so

he must have been alive and well somewhere on the premises, utterly defies

common sense, especially when offered by someone with 18 years’ experience

in a psychiatric ward. Fortunately for everyone involved, no harm resulted to

the patient or the public in this particular instance.

Nevertheless, the no-harm-no-foul rule does not apply, and the Union’s

assertion that the Agency failed to prove that Grievant’s suspension promoted

the efficiency of the service, cannot be accepted. Patients so severely disturbed

that they are confined to a locked psychiatric ward can, when not confined, be

a danger to themselves and to the public. SOP 118-9 has as its obvious purpose

to prevent foreseeable harm. The words which witnesses used to describe

employees’ reactions when they learned that a patient was missing evince just

how serious violation of those procedures is considered to be: “excited”,

“panicked”, “upset”, “very serious”, “emergency”, “chaotic”, “lot of emotion”,

“frantic”.

Under SOP 118-9, Grievant was required “to account for the presence

19
of each patient.” Every member of the nursing staff, of which Grievant was

and is one, “is responsible for compliance with this policy.” Grievant violated

the policy at least twice, at 6:00 and 6:30 pm on October 10, 2007. She

therefore is guilty of failing to perform her duty. To discipline an employee for

failing to follow procedures designed to protect patient and public most

assuredly promotes the efficiency of the service.14

For the reasons stated, the arbitrator is not inclined to reduce the penalty

imposed by the Agency. In AFGE Local No. 1770 and Dept of the Army, XVIII

Airborne Corps and Fort Bragg, 103 FLRR-2 33, 102 LRP 34100 (Arb 2002);

exceptions denied, 58 FLRA 156, 103 FLRR-2 81, 103 LRP 812 (2002), he

upheld a 7-day suspension of a nurse for failing to timely update patients’

charts. If the penalty in the instant case were left to the arbitrator, Grievant

might serve a suspension longer than 3 days.

The arbitrator’s refusal to mitigate the discipline imposed by the

Agency is fully supported by Williams v Dept of the Army, 2006 MSPB 150,

102 MSPR 280, 106 LRP 34576, citing Burroughs v Dept of the Army, 918

F2d 170, 172 (Fed Cir 1990), for the proposition that “when more than one

event or factual specification supports a single charge, proof of one or more,

but not all, of the supporting specifications is sufficient to sustain the

14
See report of licensed practical nurse KRH, AX 10, expressing concern for patient safety.

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charge,” in turn citing Fiorillo v US Dep’t of Justice, Bureau of Prisons, 795

F2d 1544 (Fed Cir 1986) (review of arbitral award). Agency brief @ 11.

Both parties cite Douglas v VA, 5 MSPB 313, 5 MSPR 280 (1981), for

its criteria of disciplinary action, to which the Agency gave some

consideration. Agency brief @ 9-11; Union brief @ 6, 15-18. In a proper

case, the Douglas factors may be weighed in some detail; see, for example,

XVIII Airborne Corps and Fort Bragg, supra. In this case, it matters not

whether the Douglas factors are used as guidelines or the test established by

arbitrator Carroll Daugherty in Whirlpool Corp, 58 LA 421 (1972),15 is

employed, the decision maker is led to the ineluctable conclusion that

discipline is necessary to enforce compliance with the Agency’s policy laid

down in SOP 118-9. Under all the circumstances, a 3-day suspension seems

quite lenient.

V.B. Management Could Have Done More To Prevent the Incident

The charge nurse LMH testified that Grievant and LDS were known to

fill out sleep charts in advance. She has watched them do it and has brought it

to their attention. Their response has been, “We’ve always done it that way.”

As the court in Dennard v Richards Group, Inc, 681 F2d 306, 318; 3 EBC

1769, 1779 (CA 5, 1982), so aptly stated, “[B]eing consistently wrong can

15
Cited in Ex parte Wilson, 984 So 2d 1161, 1168-1169 (Ala 2007).

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hardly be sanctioned as right.” The charge nurse opined that, with respect to

the times in dispute, Grievant filled in the 6:00 and 6:30 slots on the sleep

chart when Grievant had been marking it earlier in the afternoon of October

10. Since Grievant received a previous warning about sleep chart procedures, a

3-day suspension is well within the range of progressive discipline.

Licensed practical nurse KRH seemed to corroborate, without naming

names, the fact that there were known problems in complying with sleep chart

procedures, as she wrote in her contemporaneous report (AX 10):

I am very concerned as a staff nurse on this unit that certain staff

members are erroneously documenting on pt’s activity, but do not
visually identify that the pt is on the ward.
I am also concerned for the safety of the pt’s and also feel that this
behavior directly jeopardizes my license as an LPN.

If these problems were known, the question arises as to why corrective action

was not taken before a patient eloped.

Certified nursing assistant FCI testified that patients openly talked about

“jumping the fence” in the break area,16 and that he has reported their talk to

the charge nurse. Thus, elopement was a known risk, yet bushes obscuring the

view of the fence were not cut, nor trees having the same effect removed, nor

outside lights installed in the break area until after patient 9137 actually made

it over the fence.

16
Unless the patient is an Olympic athlete, “jumping” is pure hyperbole. Patient 9137, 48 years old and
only 5’2” tall, undoubtedly simply climbed over the fence.

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 Even as the events at issue were unfolding, charge nurse LMH testified

that she saw Grievant and LDS engaged in animated conversation at close

quarters when she went into the break area to speak with the frequent flyer and

could tell that they were not watching the patients, some of whom were

walking along the fence at the time. Grievant and LDS were still conversing

when the charge nurse walked right between them on her way back into the

building, but the “boss” said nothing. The charge nurse stated that she “stays

out of issues.”

An arbitrator always looks for mitigating circumstances, and one of

them is the relative fault of the parties. Elkouri & Elkouri, How Arbitration

Works (ABA/BNA 6th ed 2003) @ 1000-1002, 2008 Supplement @ 363. In

the end, Grievant was not disciplined because the patient eloped but because

she marked him as up without verifying his whereabouts. It is clear, though,

that it took an actual elopement for the Agency to address some serious issues

about accounting for patients in ward 51W at the Medical Center.

V.C. Evenhandedness of Discipline

Another factor in mitigation of discipline is unequal or discriminatory

treatment of employees. Elkouri & Elkouri, How Arbitration Works

(ABA/BNA 6th ed 2003) @ 995-999, 2008 Supplement @ 362-363. In this

case, the disparity in treatment may be between labor and management.

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Union brief @ 13-15. The Agency charged Grievant with falsifying a sleep

chart. The evidence supports that charge with respect to the 6:00 and 6:30

patient checks, but it also supports a finding that the charge nurse falsified

patient 9137’s Discharge Summary (UX 1), by indicating that he “left ama”.

Union brief @ 13-14.

The testimony of the charge nurse herself and of the house supervisor

was emphatic that ama is used when a patient requests discharge from the

facility, is examined by a doctor who advises the patient against leaving, but

leaves anyway against the doctor’s advice. It is undisputed and indisputable

that this did not happen in the case of patient 9137—instead, he eloped. This

appears to be a classic case of the pot calling the kettle black.17

The charge nurse LMH admitted that she thought about reporting an

elopement on the Discharge Summary but was advised by the house

supervisor DJB to classify the patient’s leaving as ama; otherwise LMH

might be “opening herself up” to liability. The charge nurse explained that

she wanted “to protect the patients and staff.” DJB said the she doesn’t

believe LMH. The associate director of patient/nursing services MEB sought

17
For the meaning and origin of this phrase, see http://www.phrases.org.uk/meanings/287950.html,
copyright © Gary Martin.

24
to defend the ama explanation for discharge and suggested that the LMH’s

supervisor probably told her to put ama, as it’s “not good” to specify an

elopement.

As the arbitrator stated previously, he does not know who else was

disciplined or the extent of other discipline, but if he knew that nothing was

done about the falsification of the Discharge Summary (UX 1), he might be

far more inclined to mitigate Grievant’s suspension. Indeed, in AFGE Local

3509 and Social Security Administration, 06-2 ARB ¶ 3576, 106 LRP 31150

(Arb 2006), he refused to uphold a 14-day suspension of a government

employee when a more culpable employee allied with management was not

disciplined. His lead was followed in SSA and AFGE, Local 2505, 107 LRP

2297 (Bankston Arb 2007).

In the case now before the arbitrator, even though 10 witnesses,

including MEB who made the final decision regarding Grievant’s discipline,

were called to testify at the hearing which began early and ended late, not a

single one was asked whether any supervisor or other manager was

disciplined for the events in dispute and, if not, why not. If suspicion were

evidence,18 then the arbitrator might agree with the Union, IV (3) above, that

18
I know not if’t be true;
But I, for mere suspicion in that kind,
Will do as if for surety. Othello, Act I, Scene III.

25
Grievant “was scapegoated.” However, suspicion provides no basis for fact

finding, and the arbitrator, having no solid evidence before him, declines to

speculate.

VI. Award

For all the foregoing reasons, the grievance is sustained in part and

denied in part as to the four specific instances of misconduct charged, and

the discipline of a 3-day suspension is upheld.

Dated January 21, 2009 _____________________________

E. Frank Cornelius, Arbitrator

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