Arbitrator Reinstates UFCW Local 1459 CNAs Who Were Terminated For Violating Unpublicized Rule

Attorney David Rome successfully persuaded an arbitrator that an employer could not discipline, let alone terminate, employees for violating a rule that the employer never told them about and never enforced. The Arbitrator ordered the employer to reinstate two Certified Nurse Assistants (CNA's), including one with 25 years of experience, and pay them wages lost as a result of the termination, minus interim earnings and unemployment compensation.

The employer Chapter Center, a long-term care facility, has a policy restricting the use of restraints on patients. This policy is in accord with state and federal regulations and designed to minimize the the use of force on patients. Despite the importance of this policy, Chapin Center never distributed it to CNAs represented by UFCW Local 1459 or trained them on proper use of gait belts. Fellow CNA's and supervisors testified that the use of gait belts was fairly common. In fact, Chapin Center publicized the rule on restraints only after the incident underlying this arbitration arose. Given Chapin Center's s failure to notify employees about a policy regulating use of restraints or the purpose of this policy, the arbitrator ruled that the two CNA's could not be faulted for violating the policy when they helped a supervisor apply gait belts.