A. The employer may establish and publish reasonable rules and regulations governing the conduct of employees, as are necessary for the proper operation of the facilities and the proper care of residents.

1. Any discipline imposed for infractions of these rules and regulations will be corrective and progressive in nature with the objective of helping the employee improve....

D. Should it be determined by the Home, or by the arbitrator appointed in accordance with the arbitration procedure, that the employee has been suspended or discharged unjustly, the Home shall reinstate the employee and pay full compensation at the regular rate of pay for the time lost.

Facts
The employer is a nursing home in the state of Minnesota. The state of Minnesota has implemented a policy for the return of unused Schedule III medications from nursing homes to pharmacies, a protocol to ensure the integrity of the drug being returned. When drugs for one reason or another are left over at the end of a one-week cycle at the employer’s nursing home, they are returned to the dispensing pharmacies in accordance with that protocol.

During the Thursday to Friday night shift, the four drug carts, one from each wing of the nursing home, are collected by the charge nurse and (at least until recently, with the assistance of a Trained Medication Aide) the drug trays are then sorted and the amounts being returned recorded and then placed in large blue canvas transfer bags for return to the dispensing pharmacies. Prior to their return to the pharmacies, the bags are stored in the 400-wing “med room.” The room contains a locked drug cabinet for storing Schedule II medications and also has a lock on the door to the room. The nursing home stores the unlocked bags for pickup in the locked med room.

It came to the attention of the employer that there was a discrepancy in the records concerning how much medication had been returned to the pharmacies from one of the grievant’s shifts. The grievant was a charge nurse on the graveyard shift. An investigation was initiated. Witnesses were questioned regarding access to keys to the meds room. Testimony indicated that the investigation concluded that each Licensed Professional Nurse charge nurse had a key, as did the four LPNs on the day shift and the Registered Nurses and DK, the nurse secretary; there was no inventory of the total number of keys, nor was there any sort of “sign-in/ sign-out” system for the keys. No other conclusion regarding the missing medication was reached. The grievant received a letter from her employer indicating that she was being terminated “due to discrepancy in the amount of medication returned to the pharmacies after the exchange done on the nights you were charge nurse. Records indicate that the number of individual pills documented for return is less than the amount received by the pharmacy.” The grievant appealed her termination.

Issue
Can the “just cause” standard, which governs discipline and discharge of employees in the bargaining unit, be satisfied without proving fault on the part of the grievant?

Position of the Parties
The employer contended it had just cause to dismiss the grievant. It did not contend that the grievant took the missing medications or knows who did. Rather, it contends that as charge nurse she had the responsibility to correctly account for and return unused medications, and her failure to do so or to supervise others to do so properly put the nursing home’s license at risk. The employer pointed to the grievant’s job description, which requires her to be licensed and to function under the standards of the nursing profession and in compliance with all the nursing home’s rules and regulations. The employer held the grievant to a “strict liability” theory; that is, if there were discrepancies in the tallies, no matter what the explanation might be for such discrepancies, the grievant was responsible.

The union’s position was that the employer did not have just cause to discharge the grievant. Although the grievant acknowledged that as the nurse in charge of the building at night she had a duty to try to explain any discrepancies in the drug tallies, she testified that it had not been her understanding that her failure to be able to explain the discrepancies was grounds for termination. The discrepancies in the drug count could have been caused by any number of things not under the control of the grievant. There is no meaningful difference between “for cause,” “just cause,” “discharged unjustly,” and similar such phrases. “Just cause” references and provisions have evolved in the workplace and in arbitration decisions over time to the point of having certain characteristics and requirements in common, which are generally applicable to all grievance disputes. As a general proposition, expressions in contracts referring to “just cause” exclude discipline and discharge for mere whim or caprice. They are, obviously, intended to include those things for which employees have traditionally been fired. The employer in this case has disciplined the grievant for something that occurred—discrepancy in drug count—without proving that the grievant did anything wrong. The grievant should be returned to her position.

Questions
As arbitrator, what would be your award and opinion in this arbitration?

Identify the key, relevant section(s), phrases, or words of the collective bargaining agreement (CBA), and explain why they were critical in making your decision.

What actions might the employer or the union have taken to avoid this conflict?

Answer rating: 100% (QA)

As an arbitrator I would award the following 1 Reinstatement of the grievant to her position with fu... View the full answer