## Facts

- On August 15, 1983, an orderly and a nursing assistant bathed an elderly patient at Ambassador Convalescent Center, Inc.
- After the bath, the patient’s sister visited and observed that the patient’s eye was red and watering.
- The patient told his sister that an orderly hit him in the eye because the patient had defecated during the bath.
- An on-duty nurse brought the orderly to the patient’s room, and the patient pointed to the orderly and said the orderly was the person who hit him.
- Later that day, a friend visited the patient, and the patient repeated the accusation and provided a physical description matching the orderly.
- Two nursing supervisors visited the patient the same day, and the patient again identified the orderly as the person who struck him.
- The facility terminated the orderly for patient abuse, citing workplace rules and legal prohibitions against abusing patients.
- By the time of the grievance hearing, the patient had died and could not testify.
- The sister, friend, and supervisors testified about the patient’s out-of-court statements identifying the orderly and describing the incident.
- The orderly denied hitting the patient; the nursing assistant supported the denial.
- The parties stipulated that the arbitrator would decide whether the termination was for “just and sufficient cause.”

## Issues

1. Whether the facility had just and sufficient cause to discharge the orderly for patient abuse when the main proof consisted of hearsay statements from a patient who died before the hearing.
2. What weight an arbitrator may give repeated and consistent hearsay identifications, compared with the live testimony of the grievant and a co-worker.

## Decision

- The arbitrator treated hearsay as admissible in labor arbitration and focused on its reliability and weight rather than courtroom exclusion rules.
- The arbitrator found the patient’s multiple, consistent identifications—made to several people on the same day—supported by the observed eye condition, were reliable enough to prove misconduct.
- The arbitrator gave reduced weight to the grievant’s denial because of the grievant’s personal interest in the outcome, and also viewed the supporting co-worker testimony with caution due to the co-worker’s relationship to the grievant.
- The arbitrator concluded the facility met its burden of proof and that the discharge was for just and sufficient cause.
- The grievance was denied, and the discharge was upheld.

## Legal Principles

- Labor arbitrators commonly receive hearsay evidence; the deciding question is the degree of reliability and the weight it deserves in the full record.
- Repetition alone does not automatically prove truth, but multiple consistent statements, close in time to the event, combined with identification and observable physical condition, can support a finding of reliability.
- In a just-cause discharge, the employer bears the burden to prove misconduct; that burden may be met through hearsay when direct testimony is unavailable and the hearsay is supported by surrounding facts.
- Credibility determinations may take account of a witness’s stake in the outcome and workplace relationships, and an arbitrator may assign less weight to testimony on that basis when compared with stronger corroborated evidence.
- Allegations of patient abuse in a health-care setting may justify discharge when the proof shows the conduct occurred and violates law or employer policy.

## Conclusion

*Ambassador Convalescent Center* is cited for the proposition that, in labor arbitration, consistent and corroborated hearsay from an unavailable declarant may carry decisive weight in a just-cause discharge case, and that an arbitrator may reasonably give less weight to a grievant’s and a co-worker’s denials when other evidence is more reliable; applying those principles, the arbitrator upheld discharge for patient abuse.


Ambassador Convalescent Center, 83 Lab. Arb. Rep. 44 (1984)