The desire of Carney Hospital to fix what it deemed to be a dysfunctional and unsafe pediatric psychiatry unit by replacing all current personnel failed to meet the contractual requirement of just cause for six of those terminated employees, according to an award by Arbitrator Phillip Dunn.
After a number of incidents occurred in the unit within a short period of time, the hospital conducted an investigation of the unit, and arranged for an investigation by outside counsel. The outside investigation concluded that "...we agree with several of those interviewed that the only way to reform the unit was to 'blow it up and start anew....' The investigation determined that there was a culture in the unit that promoted mediocrity, and that there was a "code of silence" existing among the staff. The outside investigation recommended that the hospital replace all current personnel in the unit.
Following receipt of the report, the hospital dismissed 13 RNs and all of the mental health counsellors assigned to the unit. Grievances were filed on behalf of all of the RNs, and six of those cases were consolidated before Arbitrator Dunn.
The hospital argued that the case was one involving "collective guilt and responsibility." It maintained that a culture of mediocrity had developed in the unit which would have been impossible for any of the staff to ignore. It further noted that because of a culture of silence, while "there may not be detailed evidence of particular incidents of misconduct by any of the six grievants" beyond their claimed failure to address the inadequate care, the hospital had just cause to terminate the six grievants because of their "collective culpability."
The Massachusetts Nurses Association asserted that there was no evidence of any misconduct on the part of the grievants warranting termination, that they had been denied due process by the hospital's failure to notify them of their alleged deficiencies, and that, in any event, any misconduct should have been subject to progressive discipline.
Granting the Union's request for a directed verdict at the end of the hospital's case, Arbitrator Dunn agreed with MNA, and sustained the grievances. In doing so he noted:
I agree with the Union that the concept of collective guilt and responsibility does not suffice to establish just cause to terminate any particular member of the group, at least in the absence of convincing proof that the individual member personally committed the alleged misconduct for which accusations were leveled at the group as a collective body. It is wrong, and inherently and fundamentally inconsistent with the contractual standard of just cause, to terminate the innocent along with others who may be guilty, even if enough of the guilty members in the group may have committed misdeeds with such regularity such that the overall performance of the group is remarkably deficient. The burden of proof that an employer must meet in a just cause case carries with it a presumption of innocence, which is only defeated by a convincing showing that the presumptively innocent employee in fact has personally committed misconduct justifying disciplinary action.
Arbitrator Dunn further found the lack of due process in this case "stunning", and determined that this lack of due process added support to the conclusion that the terminations were without just cause.
He ordered the hospital to reinstate (with back pay) the grievants to their former positions in the pediatric psych unit, but allowed the hospital to stagger their return so they could be blended with the replacement staff.
The hospital has filed a complaint seeking to vacate the award as contrary to public policy.
The Dorchester Reporter reports on the dispute Carney sues to block arbitrator's ruling it rehire six nurses in once troubled adolescent-psych unit, and links to Arbitrator Dunn's award here and the hospital's complaint here.