ARBITRATION DECISION NO.:
644
UNION:
OCSEA, Local 11, AFSCME,
AFL-CIO
EMPLOYER:
Ohio Department of
Transportation
Region 8
DATE OF ARBITRATION:
June 17, 1997, July 1, 1997
DATE OF DECISION:
August 9, 1997
GRIEVANT:
Connie Wiley
OCB GRIEVANCE NO.:
31‑08‑(96‑06‑29)‑0012‑01‑09
ARBITRATOR:
Anna DuVal
Smith
KEY WORDS:
Abandonment
Just Cause
Pre‑Disciplinary
Hearing
Removal
Sick Leave
FOR THE UNION:
Michael
Muenchen
FOR THE EMPLOYER:
Carl C.
Best, Labor Relations Officer
Lou
Kitchen, Labor Relations Specialist
KEY WORDS:
Job
Abandonment
Just Cause
Pre‑Disciplinary
Hearing
Removal
Sick Leave
ARTICLES:
Article 24 - Discipline
§24.01
- Standard
FACTS:
The
grievant was employed as an Engineering Clerk in the construction unit of Ohio
Department of Transportation's Region 8. Work in the construction department is
seasonal, so the grievant was temporarily reassigned to the Highway Worker II
classification in Hamilton County in the Winter of 1995. It was in this
classification that the grievant suffered from two injuries which led to her
sick leave. The grievant submitted Bureau of Workers' Compensation C‑84
forms for October 1995 through March 1, 1996. After March 1, the grievant did
not return to work. The Employer attempted to contact the grievant several
times to inform her that she needed to either return to work or submit a C‑84
for the rest of the time she had missed. The grievant stated that her doctor
was responsible for submitting the forms, and that she was in between doctors
at that time. On April 9, the Employer sent correspondence to the grievant
stating that she had until April 18 to submit proper documentation covering her
absence from March I to April 12. The grievant submitted a new C‑84,
which covered March I to April 12, and stated that the grievant needed time to
find a new doctor.
At this
time, the Employer issued a pre‑disciplinary notice, alleging three or
more unauthorized absences from February 19 through April 24. At the pre‑disciplinary
hearing, the grievant submitted another C‑84 that covered September 25
through April 30, and the C‑84 had an estimated return to work date of
August 1, 1996, Also, the grievant's new doctor signed this C‑84. The pre‑disciplinary
officer nevertheless found that there was just cause to discipline the
grievant, and on June 14, Management discharged the grievant for job
abandonment.
EMPLOYER’S
POSITION:
The
Employer argued that the grievant was removed for just cause. The issue in this
case is the grievant's unauthorized absence, not her disability. The grievant
took two relatively minor injuries and used them as a reason for not coming to
work for nine months. The grievant did not timely submit the required forms;
she was difficult to reach, and she rejected help from others. The grievant is
now able to return to work, but has yet to do so. The Employer resists the
proposed solution of placing the grievant in separation/retirement. That would
enable the grievant to return to her job if released for work. This would be an
unjust result since the grievant abandoned her job,
UNION’S
POSITION:
The Union
argued that the Employer was unable to show there was just cause to remove the
grievant on either of the two grounds offered. The two grounds were (1) that
she failed to report off and (2) that she failed to provide proper medical
documentation.
With
respect to the charge of failure to report off, the Union argued that the
grievant had sufficient communication with the Employer. The Employer was
familiar with the grievant's situation. Further, documents notifying the
grievant that she needed to contact the Employer were mailed to the wrong
address.
With
respect to the issue of proper medical documentation, the Union argued that the
grievant did submit the documentation. The Union argued that the Employer
simply did not believe the grievant's documentation was credible. The Union
pointed out that the Employer is entitled to yet another doctor's opinion if
requested. Also, the Union pointed out that the grievant had the right to
change doctors, notwithstanding the Employer's objection to the change.
ARBITRATOR’S OPINION:
The
Arbitrator stated that although the grievant did not handle the situation
perfectly, she did not abandon her job; therefore, there was not just cause to
discharge her. The Arbitrator reached this conclusion for several reasons.
First, the
Arbitrator stated that the evidence indicated that the grievant's absence was
not from job abandonment, but from her stalled recovery and her search for
different treatment. Not only was the grievant seeing doctors, she had entered
a rehabilitation program.
Second,
the Employer disregarded the C‑84's which covered essentially all of the
grievant's absences. In particular, the Arbitrator objected to the Employer's
disregard of the C‑84 submitted at the pre‑disciplinary hearing as
"too little, too late." The Arbitrator found that this would
discourage the introduction of any new evidence at a pre‑disciplinary
hearing and render the procedure a hollow formality.
Third, although the grievant erred in not keeping the Employer abreast of her whereabouts, the Employer disregarded some clear signals that the grievant had not abandon her job. While the Employer may suspect the motives of the grievant and question the legitimacy of her injury, these are not appropriate bases for removal under a just cause standard.
AWARD:
The Arbitrator sustained the
grievance in its entirety. The grievant was made whole, put back in the
rehabilitation program, and allowed to transition back to work.
TEXT OF
THE OPINION: * * *
VOLUNTARY
LABOR ARBITRATION TRIBUNAL
In the
Matter of Arbitration
Between
OHIO CIVIL
SERVICE
EMPLOYEES
ASSOCIATION
LOCAL 11,
AFSCME, AFL-CIO
and
OHIO
DEPARTMENT OF
TRANSPORTATION
OPINION
AND AWARD
Anna DuVal
Smith, Arbitrator
Case No.
31‑08‑960629‑0012‑01‑09
Connie
Wiley, Grievant
Discharge
Appearances
For the
Ohio Department of Transportation:
Carl C.
Best
Labor
Relations Officer
Ohio
Department of Transportation
Lou
Kitchen
Labor
Relations Specialist
Ohio
Office of Collective Bargaining
For the
Ohio Civil Service Employees Association:
Michael
Muenchen
Ohio Civil
Service Employees Association
* * *
I.
HEARING
A hearing
on this matter was held at 9:00 a.m. on
June 17, 1997 and continued on July 1, at the District 8 offices of the Ohio
Department of Transportation (ODOT) in Lebanon, Ohio, before Anna DuVal Smith, Arbitrator, who was mutually selected
by the parties from their permanent panel, pursuant to the procedures of their
collective bargaining agreement. The parties stipulated the matter was properly
before the Arbitrator and presented one issue on the merits, which is set forth
below. They were given a full opportunity to present written evidence and
documentation, to examine and cross‑examine witnesses, who were sworn and
excluded, and to argue their respective positions. Testifying for the Employer
were James Fife (Acting Human Resources Manager), David Yacchari
(Superintendent), Diana Martin (Business and Human Services Administrator) and
Carl Best (over the objection of the Union). Also present was Ed Flynn, Labor
Relations Administrator, who examined Mr. Best. Testifying for the Union were
Dianne Padich (Rehabilitation Specialist, Bureau of Workers' Compensation),
Hugh Williams (District 6 President and TWP Committeeman, testifying by speaker
phone) and Connie Wiley, the Grievant. Also present was Doug Jansen, Steward. A
number of documents were admitted into evidence (Joint Ex. 1‑8, Employer
Ex. 1‑3, and Union Ex. 1‑4. The hearing concluded at 4:00 p.m. on
July 1, whereupon the record was closed. This opinion and award is based solely
on the record as described herein.
II. BACKGROUND
Prior to
her removal for an unauthorized absence of three or more consecutive days, the
Grievatit, Connie Wiley, was employed as an Engineering Clerk in the
construction unit **2**
of ODOT’s
Region 8. Before her successful bid for this position in 1989, she had spent
approximately
three years as a Highway Worker II. Her performance evaluations were
satisfactory
until 1994 when she received one "below expectations" rating for poor
quality work attributed to excessive personal phone calls. This rating was
upheld on appeal. No prior disciplinary actions were placed on the record.
James Fife, formerly Safety Supervisor, testified Ms. Wiley had a number of
lost‑time injuries over the years for which she filed workers'
compensation claims. Rehabilitation Specialist Dianne Paddich testified there
were eleven since 1990. Two of these injuries were the events that ultimately
led to her removal and the instant grievance.
Work in
the construction department is seasonal. During the winter, the Grievant, like
other employees in the department, is temporarily reassigned under the 1000‑hour
program agreement with the Union. For Ms. Wiley, this was to the Highway Worker
II classification in Hamilton County, a position for which she bid. On January
13, 1995, she sustained an injury to her elbow while using a hand‑held
pound post, but did not lose time for this until May. On September 25, 1995,
she injured her shoulder while removing a screw and nut from a post, going on
sick leave approved by the Bureau of Workers' Compensation (BWC) on September
29. While she was being treated by John M. Roberts V, M.D., for the shoulder injury, she reported pain from the
previous elbow injury. For this she received the diagnosis of 726.32 lateral
epicondylitis and underwent surgery. Bureau of Workers' Compensation C‑84
requests for temporary total disability compensation were submitted beginning
on October, covering her absences to an estimated return‑to‑work
date of February, 30, 1996 (later determined to be March 1, 1996). **3**
As the
estimated return‑to‑work date approached, Fife testified he began
trying to reach the Grievant to remind her a new C‑84 was needed if she
was not yet fit for work. He said he was aware of her pager and had used it,
but was not always successful in reaching her. The Personnel Department did not
have her phone number, so he called her grandmother's phone (which he had
gotten from a co‑worker) a number of times and left word. On March 5,
Fife and the Union signed off on the Grievant's participation in the Transition
to Work Program, and Fife's office faxed the forms to Dr. Roberts. However,
according to Fife, Roberts would not agree that Wiley could perform the duties
of a highway maintenance worker since he was no longer her physician, and the
Grievant was unable, unwilling and/or uninterested in the program. Hugh
Williams, TWP Committeeman, testified about the voluntary Transition to Work
Program, saying that it has had success in returning employees to permanent
employment and that he thought ODOT would have many places for an engineering
clerk to transition back to after rehabilitation.
On March
18, the Grievant was examined for BWC by Bernard B. Bacevich, M.D., an
independent medical examiner who found
that the Grievant had reached maximum medical improvement and was unable to
return to her former position (as route marker) because of limitations on
repetitive lifting, pulling, gripping and squeezing with her right arm. His
report was received by BWC on March 25, but it is not clear when ODOT became
aware of his findings.
Fife
finally talked to the Grievant on or about March 20, saying it was critical to
get a new C‑84 to cover her absence since the end of February, but,
according to Fife, the Grievant berated him, used profanity, threatened to
consult an attorney, and said she would **4**
get the C‑84
when she was ready. For her part, the Grievant testified that she was upset
Fife had disturbed her grandmother and not respected her request that she be
contacted by pager. She pointed out that she has no control over when a
doctor's office will supply needed documents. In addition, she said Fife made a
reference to "you people," which she took as a racial slur, something
Fife denies. Wiley reported the incident as harassment Diana Martin, Business
and Human Resources Manager, who spoke to Fife about it. Fife told her the
verbal abuse was all Wiley's and that he had been trying to assist her in
preventing an unauthorized absence, as he does with other employees. Martin got
back to Wiley, telling her it was the Grievant's responsibility to get the
paperwork in. During this conversation, the Grievant told Martin she was
changing doctors, but, according to Martin, did not try to report off to her,
which would have been improper anyway, nor did she request leave. Ms. Martin
said the Grievant was agitated and used profanity, but did not threaten or
rebuke her.
It was
also on March 20, that Martin learned Wiley had been on unapproved leave since
February 29 (later determined to be March 1), so she signed April 9
correspondence prepared for her by Carl Best, Labor Relations. Officer, giving
the Grievant three days from April 15 to return to work or provide proper
medical documentation for the period February 29 through April 12. This letter
was sent to a number of addresses by registered return‑receipt and
regular mail.
Another C‑84
was received by the Department on April 18 (stamp indicates "95 [sic] Apr
18"), providing an actual return to work date of April 8, 1996 and stating
"this C‑84 is being extended to afford the patient time to acquire a
new physician of record. She is
**5**
dismissed
from my care." Copies submitted in arbitration cut off the physician's
signature and date part of the form and Fife testified there was no signature,
but Dr. Roberts' name and address stamp are clear. The document states the last
examination or treatment occurred on February 13, 1996.
Despite
this C‑84, a pre‑disciplinary notice alleging violation of
Directive WR‑101, Item 17, unauthorized absence for three or more
consecutive days from February 29 through April 24 was issued April 24 and
mailed to multiple addresses by the same means as the April 9 notice.
The
Grievant telephoned the Department on May 1, the day of her scheduled predisciplinary.
hearing to say that she had transportation problems, so the hearing was
rescheduled for May 3. At this meeting, the Grievant alleged that she had
informed Supt. David Yacchari on April 4 of her absence, but he testified in
arbitration that although he had spoken to her in early April, it was in the
course of her calling the garage to speak
to a friend, and not a call‑off. She also brought with her another
C‑84, signed on April 30 by her new doctor, Bruce F. Siegel, D.O. This
covered disability dates from September 25, 1995 to April 30, 1996 and provided
an estimated return‑to‑work date of August 1, 1996. The pre‑disciplinary
hearing officer nevertheless found, on May 3, that there was just cause for discipline.
Meanwhile,
the Grievant had been referred to BWC's Rehabilitation Services. On February
22, 1996, Dianne Paddich wrote her a letter inviting her to participate, and
copied ODOT on it. Paddich called the Department on April 9 to determine
Wiley's employment status and learned the Department was requesting that she
return to work. Paddich **6**
interviewed
the Grievant on April 16. Her recommendation was to a program of pain
management reconditioning and work hardening. After Dr. Siegel saw the Grievant
on April 30, be provided the necessary prescriptions for this program, and the
referral was made May 9, 1996. The Grievant was evaluated on June 13 and entered
the program on June 24, but on June 28, Paddich was informed by the pain
management clinic that the Grievant had been discharged. Ms. Paddich testified
the delay in getting the Grievant into the program was attributable to her own
caseload, the change in doctors, and in getting the prescriptions. She could
not say the Grievant was uncooperative, but would also not say that the
Grievant was doing everything she could in her own best interests. However, she
found the Grievant to be untruthful about why she was unable to drive.
On June
14, the day after she was evaluated, the Grievant's employment was terminated.
Ms. Martin testified once she knew Bacevich's determination, she did not
consider disability separation for two reasons. One was that she did not learn
of Bacevich's findings until late in the process and they did not negate the
fact that the Grievant failed to document her absence. The other was that
Bacevich's determination related to the Grievant's temporary assignment as
highway worker, not to her regular job as clerk. She was aware that Fife and
the Union had agreed to transition the Grievant back to work, but understood
the Grievant to be uncooperative. She testified Fife talked to her about
rehabilitation before the pre‑discipline, but also that she was unaware
of the Grievant's involvement in the program until she was released from it.
As for the
Grievant, she testified she still is not able to work and now has psychiatric
problems. She claims these began before she was discharged but Carl Best, Labor
Relations **7**
Officer, testified he knew nothing
about this until the parties exchanged documents just prior to the first day of
the arbitration's oral hearing. The Grievant testified she wants to return to
work but was not given a chance to do so.
A
grievance protesting the removal was filed on June 28 by Steward Douglas
Jansen, alleging, violation of Articles 24.01 of the Collective Bargaining Agreement and requesting reinstatement,
return to work when able, and a make‑whole, back‑pay remedy as
applicable, Being unresolved at lower steps of the grievance procedure, the
case was appealed to arbitration where it presently resides for final and
binding decision, free of procedural defect.
III. STIPULATED ISSUE
Was the
Grievant terminated for just cause? If not, what shall the remedy be?
IV. PERTTNENT CONTRACT PROVISIONS
ARTICLE 24 ‑ DISCIPLINE
24.01 ‑ Standard
Disciplinary
action shall not be imposed upon an employee except for just cause. The
Employer
has the burden of proof to establish just cause for any disciplinary action....
V. ARGUMENTS OF THEPARTIES
Argument of the Employer
The
Employer argues the issue here is not the Grievant's disability, but her
unauthorized absence. It nevertheless points out that she parlayed two relatively
minor injuries into nine months of not coming to work. When her doctor did not
agree with her own assessment of her condition, she switched doctors. She took
her time about getting C84's in, resisted efforts to rehabilitate her, was
difficult to reach because of address and **8**
phone number changes, and when
Fife tried to help her, he was rebuked and threatened instead of thanked. She
is dishonest, expected the Employer to track her down, and blames others for
her predicament even though it is agreed it is the employee's responsibility to
get the paperwork in (not the employer's), and her history of eleven claims in
ten years shows she knows proper procedure. Her attempts to provide medical
documentation should be viewed with suspicion because of the seriousness of her
condition and timeliness with which it was submitted. The Employer claims it
went beyond the call of duty, whereas the Grievant’s actions show she did her
best not to return.
The
Grievant is not now able to return to work and never has been, The Union has
suggested disability separation/retirement as a just outcome. She, herself,
could file for disability retirement with PERS. The Employer resists disability
separation because it would give her recall rights if released for work, which
the Employer contends is unjust in view of the fact that she broke a rule that
is applied consistently throughout the state. She abandoned her job and to
reinstate her would be unjust.
Argument of the Union
The Union
says the Employer attempted and failed to establish just cause for terminating
the Grievant on two grounds, that she failed to report off and that she failed
to provide proper medical documentation.
With
respect to reporting off, the Union argues the Grievant had good communication
and met the Employer's expectations. They knew her situation. Fife testified he
tries to give the benefit of the doubt to the employee with the goal of
bringing injured employees back to work. He is supposed to be lenient. Instead,
he was prejudiced, **9**
could not recall if he mentioned
to Martin that the Grievant was in rehabilitation, and as
much as admitted he was tired of
doing his job. Documents putting the Grievant on notice were mailed to the
wrong address and no one looked into the independent medical examiner's
determination that she had reached maximum medical improvement and could not
return to work. In the Union's opinion, the Grievant should be disability
separated. The three‑day rule is arbitrary and .was not applied to take
into account the good communication the parties had on this case.
As for the
documentation provided, the Union says the Employer tried to make it into an
issue of credibility, although it has the right to get a third opinion if it
doubts the employee's claim of incapacity. In fact, the Grievant has the right
to change doctors and she was enrolled in a rehabilitation program. The Union
argues it is a direct violation to terminate an employee under these
circumstances. It asks that the Grievant be made whole, put back in the
rehabilitation program, and allowed to transition back to work.
VI.
OPINION OF THE ARBITRATOR
In a case
like this, it is all too easy to become sidetracked by the ills of the Grievant‑her
physical, emotional, behavioral and legal problems‑‑and the
difficulties these have caused her employer.
But as the Employer points out, this case is not about the Grievant's
disability. It is about whether she abandoned her job. And the answer to this
must be, "no." The fact of the matter is that as her March I C‑84
was expiring, the Grievant had already had her last appointment with Dr.
Roberts and was in the process of finding a new doctor. The record does not
disclose when she saw the doctor to whom Roberts referred her (Kiefhaber), but
it is evident she was no longer under the care of Roberts at the time **10**
she needed to supply a new C‑84
because Roberts would not sign the documents faxed to him on March 5 on the
basis that the Grievant was dismissed from his care. Dr. Bacevich also makes
reference to the transfer in his March 19 report. As of March 20, when the
Grievant spoke to Fife and Roberts, she was still between doctor who could
supply the necessary paperwork and she so informed them. However, given that
she was delinquent in covering her absence by over a month and had proved
difficult to reach by phone, it was
entirely reasonable for the Employer to try to get clarification of the
Grievant's intentions regarding her job through the April 9 letter that put her
on notice of job abandonment if she did not appear for work or supply medical
documentation within three days of April 15.
By the
time this deadline expired, the Department had, in fact, received Dr. Roberts'
final C‑94 covering the Grievant through April 8 and providing additional
corroboration of her transition to a different doctor. It is clear to me that
the Employer completely and arbitrarily disregarded this C‑84. Although
it does not cover the full period requested by the April 9 notice and no
signature is evident on the Arbitrator's copies (because that portion is cut off), it is plain it came
from Dr. Roberts' office, for the stamp and handwriting are identical or very
similar to those on previous C‑84s (expiring 12/6/95, 4/12196, 4/30/96).
The Employer nevertheless issued a pre‑disciplinary notice for her
absence from February 29 through April 24, including the period coveted by this
C‑84 and extending the period stated on the April 9 notice by nearly two
weeks.
Unbeknownst
to the Employer, the Grievant had also already seen her new doctor (on April
4), but a C‑84 from him was not signed until her second appointment on
April 30. She brought this and a note from Siegel with her to her pre‑disciplinary
hearing (Joint **11**
Ex. 6 and 7), but the pre‑disciplinary
report makes absolutely no reference to them, nor did Martin refer to them in
her testimony. This creates the inference that the appointing authority was not
in full possession of the facts when the removal notice was issued. At Step 3,
the Employer said bringing this C‑84 to the pre‑disciplinary
hearing was, "too little, too late." This makes the pre‑disciplinary
hearing into a hollow formality, for it implies that no documentation offered
for the first time at this hearing would have been acceptable. If the Employer
had questions concerning the authenticity of the documents or the matters
certified to therein, it had recourse. But to disregard entirely or dismiss as
"too little" the April 8 C‑84 because it fell short by four days (despite the change
in doctors) and "too late" the April 30 C‑84 because it came in
at the pre‑disciplinary hearing (despite the fact that it had been in
process since before the April 4 notice was sent) is to unfairly discharge an
employee on a technicality.
There is plenty
of evidence indicating the Grievant's delinquency was not from job abandonment
but from her stalled recovery and search for different treatment. Not only was
she seeing doctors, but had also had her intake interview with the
rehabilitation specialist. The record does not disclose when Fife became aware
of the fact that the Grievant had accepted the February 22 invitation to enter
rehabilitation, but Martin testified she was aware through Fife of the
Grievant's involvement before the pTe‑disciplinary hearing. Moreover the
rehabilitation specialist had the necessary prescriptions, and transmitted
authorization to the pain management clinic shortly after the pre‑disciplinary
meeting and this delay was adequately explained to be unrelated to be unrelated
to the discipline process. The Grievant was even evaluated before the removal
letter was signed. **12**
The bottom line is that
although the Grievant erred in not
keeping the Employer abreast of her whereabouts and the Employer made a good
effort to determine the Grievant's status, the Employer also disregarded clear
signals that the Grievant had not abandoned her job, but was, in fact, hampered
in meeting the technical requirements of notice by virtue of exercising her
right to change doctors. The Employer may suspect the motives of the Grievant,
the legitimacy of her disability, and her good faith efforts to return to work,
but suspicion is not the proper basis for removal under the just cause
standard. In other words, the Employer may have begun a course of action to
remove the Grievant for job abandonment, but it had ample opportunity to
interrupt that process, test the Employee's documentation and claim if it so
chose, and then act on the basis of its investigation.
VII AWARD
The Grievant was not removed for
just cause. The grievance is sustained in its
entirety and the remedy requested
granted. The Arbitrator retains jurisdiction for thirty
(30) days to resolve any disputes arising over the
implementation of this award.
Anna
DuVal Smith, Ph.D.
Arbitrator
Cuyahoga County, Ohio
August 9, 1997 **13**