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In re
Birmingham Steel
Corp.
and
U.S.W.A. Local
9777
116 LA (BNA) 615
FMCS Case No.
00/08457
April 30, 2001
* Selected by parties through procedures of the Federal Mediation
and Conciliation Service
Was the Grievant, B__,
discharged for just cause?
If not, what should be the
appropriate remedy?
The Dispute
This case involves the discharge of an employee
whose answers on her pre-employment medical history did not disclose
pre-employment injuries and surgeries that came to light in connection with an
injury she suffered after 4 months working in the steel mill.
The hiring process starts
with an application and a battery of tests. Those who pass are interviewed. If
given a conditional offer of employment at the interview, the applicant is sent
for a pre-employment physical examination (on which the offer of a job is
conditioned).
The Grievant's employment
application is dated July 22, 1999. Its 2nd page pertains to Employment
History. At the top it asks:
Please explain fully any
time periods during which you were not employed
The Grievant answered:
1991-1996 House wife
Have you ever been
discharged or asked to resign your employment? If yes, explain
The Grievant answered: June 1999 will explain
Next it has 3 blocks for prior employment in which she listed: 1)
Quinn Door from April to June, indicating she was a secretary, to answer phone
&take orders at $11.30 per hour, and was "Fired Ended up Being
Temporary"; 2) Menards from Aug. 1997 to April 1999, in Millwork Dept.
& Sales, at $6.50 per hour to $8.95 per hour, left for "Better
Pay"; 3) Oak Cab Company, from 1974-1997 as Cab Driver & Dispatcher at
a pay rate starting at 25% and ending at 35% with reason for leaving indicated
"Temporary As Needed" . Above the signature line there are several
paragraphs of information, the 2nd of which states:
The information I have provided in this Application for Employment
is true, correct and complete. If employed, any misstatement or omission of
fact on this application may result in dismissal. . . .
The Grievant was
interviewed by General Foreman, Joe Piker. Thereafter she was sent for a
physical at the occupational health services utilized by the Company in her
area. In connection with the physical, individuals are asked to fill out a
medical history which starts with 3 columns of conditions for which the
individual is to check a box for NO or YES. Of the 12 boxes for the 1st column
the Grievant checked no for the first 11 and then appears to have gone back and
checked YES for Chicken Pox. The last on e (Eye injury or disease) is not
clustered with the group of 6 above it and is blank. Of relevance here is the
fact that among the other 11 boxes that she checked NO, when she went back and
checked YES for Chicken Pox, she did not do likewise for Backache or Back Injury
or for Epilepsy. In the 2nd column she ran a line down checking NO for all 12
boxes, but then put an X in the YES box for Measles. In the 3rd column she ran
a line down checking NO for all 11 boxes and did not go back and put an X in
any box -notably not doing so for Surgery. She also left blank the answer to
the question at the end of the 3rd column, about ever being injured on job.
Below that section, the form asks for last visit to doctor and type of injury.
In response to this she wrote: "?2/./97" "Hysterectomy".
Below that, just above Applicant Signature line it says:
I hereby state that the
information given above is accurate and true and that the hospital and
personnel physician and/or nurse will not be held responsible for the result of
misrepresented or withheld facts ... I understand any incorrect or misleading
statement may be grounds for dismissal. . .
The doctor then fills out
the rest of the form and another form on which he indicates whether the
individual is medically qualified, or medically qualified with specified
restrictions or accommodations. Dr. Panuska examined the Grievant and found her
medically qualified on 7-26-99. On July 28, 1999, she signed for a copy of the
Company's General Rules and started work in the steel mill as a laborer. She
bid from that to a set-down position and from there to "tagger". A
tagger tags the bundles of rebar which is essentially a counting of what goes
out of the plant. None of these jobs were particularly light work. Rebar weighs
about a pound and a half a foot, and 60 foot lengths, which the tagger may need
to maneuver around, weigh about 90 pounds.
On December 1st, after being on the job about 4
months, the Grievant was injured in an accident in which she apparently was
holding the end of a 60 foot section of rebar when her supervisor at the other
whipped the rebar to try to get it to separate itself from the pile. In her
grievance she said that his doing that threw her 4-6 feet, although medical
reports the next day and next week indicate she was then saying 2 feet. 1 At
any rate, she went to the Emergency Room and saw the Company doctor (not the
same one as the one at the occupational health service examination) the next
day. She had a Functional Capacity Evaluation thereafter and various medical
treatments. She was on and off work (light duty) and a workers’ comp claim was
initiated for her.
The reports coming back from the doctors in
December indicated prior surgeries 2 -for fusions of discs-and at some point it
caught the attention of the Safety Manager who administers workers' comp and
caused him to wonder why something wasn't known about it. He mentioned it to
the Human Resources Manager and they checked the employment application and
medical history finding no mention of the relevant surgeries. They discovered,
and the Grievant later confirmed at arbitration, that she had undergone surgery
for spinal fusion of 2 cervical disks in 1992 for an injury while working at
Wag s Restaurant and had eventually been compensated for 35% injury of
"man as a whole", and that subsequently in 1998 she had again been
injured at work, this time while working for Menards, and had another surgery
with respect to disks in her neck, for which she was hospitalized 5 days and
eventually found to have suffered 18% injury of "man as a whole".
Additionally, the FCE form had mentioned a history of epilepsy, which they felt
had relevance, and the Company had also discovered that in August 1998 she ha d
checked into a hospital for back pain.
The Grievant was notified by certified letter
(since she was off work at the time) that she was being placed on 5 day
suspension subject to discharge, which the notice dated January 21, 2000
indicates was for "Falsification of your medical questionnaire relating to
your pre-employment physical."
A hearing was requested and held on February 2,
2000. The Company's answer which ends in its decision to convert suspension to
discharge, notes the arguments she offered in response to the falsification charge,
which were that: she claimed Joe Piker knew about the surgery at her interview
when she was hired; that she told the doctor verbally at her examination; she
claimed she was in a hurry that day and just drew a line down the
"no" column; and that she mentioned
putting the information on some other form, but there is no other form.
Mr. Zimmerman said they
took a break in the meeting in which the Company people asked Piker about her
claim that he knew about her injuries and surgeries at the time of the
interview-which, Mr. Zimmerman said he flatly denied-and in which they also
phoned the doctor to ask him if it was possible he was told about the surgeries
and did not note it down. Mr. Zimmerman said the doctor said no and explained
his procedure. Mr. Zimmerman said the Company representatives checked their
files to satisfy themselves t hat the doctor noted discrepancies the way he
said he did. They returned to the meeting and rejected the contentions. Their
written answer notes Mr. Piker's denial that anything was mentioned at that
time (the interview), and the doctor's denial that he was told verbally about
past surgery, and his saying that whenever a patient tells him something that
was marked "no" on the questionnaire, he circles the "no"
answer and writes a comment and that he uses the history form in making his
exam and does not examine for anything not noted on it. The answer went on to
say:
"... Whether the truth would have made a
difference on her employment cannot be measured. It's possible that the doctor
would have requested more tests or may have put lifting restrictions as a
condition of employment. We do not know."
The final paragraph that
follows affirmed discharge as the result.
A grievance, which is now
before the arbitrator, was filed in protest. The grievance describes the
accident with the rebar noting that B__ returned to light duty but eventually
had to go off work because of the injury, and it asserts that at the hearing on
the suspension, "... B__ fully explained what she thought the
questionnaire was asking when she filled it out."
At arbitration the Grievant stated that when she
went for her physical, the nurse called her in before she had finished filling
in the medical history. She said the nurse told her it didn't matter because
the doctor was going to examine her anyway. She said the nurse asked her when
was the last time she went to a doctor and she replied it was when she had a
hysterectomy and the nurse told her to just put that down. She said she didn't
really look at the medical history form as being the Company's-that you always
have to fill one out every time you see a doctor.
The Grievant further said the fact that she had
neck surgery (the disk fusions) is obvious because she has a scar that,
although it might not look like it to a lay person, any doctor would recognize
as a surgical scar. She also testified that anyway, this doctor asked her if
her hysterectomy was her only surgery and that she said no, and told him about
her neck. She said he had a form with a picture of the body that he was making
notes on. For that matter, she said she had been to him before for her physical
for Menards and for having injured her hand while working there and she assumed
he knew her. She insists that she did not try to mislead him. She also
pointed out that it was noted in the records that she told those treating her
after her December injury about her prior surgeries and says that obviously
shows she had nothing to hide. Moreover, she insisted that Mr. Piker was also
aware of her prior injuries and surgeries at the time she applied for
work.
After the Grievant's
initial testimony, when called as a witness by the Company, Mr. Piker also was
called as a witness. He said that he had never seen her before the interview,
but that she had contacted him by phone-having gotten his name from he didn't
know who-and asked him what she had to do to get employment with the Company.
He said he told her she would have to take the battery of tests and then there
would be an interview process, and then a physical. He insisted that she did
not tell him anything in the phone call or at her interview about prior neck
surgery or about her workers’ compensation cases and said only that she had
basically been a housewife for the last few years. When the Union suggested on
cross-examination that he knew her before she came to work there, he replied
that was not so, that he did not know her, he spoke to her on the phone
once.
In her later testimony,
when called as a witness by the Union, the Grievant said that her son was
dating Mr. Piker's daughter and it was his daughter who told her they were
hiring and her father was a supervisor. She said she phoned several times about
his daughter and her son and that she also talked to him several times about
her getting a job at the plant and what all she needed to do. She said that he
assured her that her prior injuries and neck surgery did not matter so long as
she did not fail the tests and she passed the physical. She said that he did
not think there would be a problem, being that she was released and able to
work, and that he advised that she not mention
her employment at Wags because it would only cause questions.
At arbitration the Grievant and the Union
contended that she had explained the failure to have noted her prior surgeries
on the medical history questionnaire, and that it is their belief the real
reason for her discharge is not that she lied, but because she got hurt. She
testified that after she came back on light duty, Mr. Piker accused her of
lying and said she wasn't going to walk around and not work and get paid for
it. She said he was upset because he had a couple of other people on light duty
and that he said he had gotten her the job and he would take it away from her.
The Company totally rejects the contention that
the discharge was on account of getting hurt. It noted that many others,
including both her representative, Mr. Fabbre, and her husband, Mr. Eppard,
have been injured on the job in the plant and have received workers' comp,
returning to work on light duty, and have continued to be employed there.
The Company says that the Grievant, although she
does not want to believe it, was discharged for the falsification she was charged
with. The Company points out that she was, after all, being hired to work in a
steel mill and that, with the Company being unaware of any problem, she was
given physically demanding jobs. Her job duties included bending, twisting, and
lifting heavy metal rebar. The Company notes that the doctor said that the
medical history that she did not provide at the time of her physical would have
been significant to him and the Company says that it would also be significant
to the Company in terms of safety risks both to herself and others and its
ability to know whether an accommodation was needed. The Company contends that
her explanations were incredible, irrelevant, and/or later contradicted, and,
in its view, even if true would not remove just cause for her termination.
The Company says the record supports its
conclusion that she intentionally falsified her medical history for fear that
the truth might affect the likelihood of her being hired. It says her claim that
the nurse told her it was no big deal and just to sign the form and put down
the last time she saw a doctor is simply not credible. Nor was her claim to
have told the doctor. In fact, says the Company, her claim that the
doctor would have known by looking at her pretty clearly suggests she did not
tell him otherwise why say that? At the hearing, in response to Company
questioning, she said she had not lied in checking NO for Backache or Back
Injury. Later, in response to Union questioning, she admitted having had a back
injury years ago for which she went to the hospital, but on cross-examination,
she then admitted that might have been as recently as August 1998. As to her
nothing to hide claim, the Company points out that once she was injured again, aside
from concern about herself in terms of medical need to know for treatment
purposes, the metal plate and screw were bound to show up on an X-ray. The
Company does not believe her claim as to Mr. Piker, and contends that her
statement on the Application form about being a "House Wife" during
the period she was employed and injured resulting in 35% to "man as a
whole" at Wags Restaurant to be a material falsification. Finally, the
Company points out that in addition to the safety implications of her falsification,
honesty is particularly important in the job of a tagger, because the amount of
production recorded on the tags determines the incentive pay for a large group
of employees.
The Company argues that
the Grievant's omissions on her medical history questionnaire, concerning
injuries and surgeries that left her by 1998 with cumulative disability in
excess of 50% (or over 60% if you go back further) amount to violations of the
Work Rules with respect to falsification and with respect to dishonesty, as
well as violation of the statement above the signature line on the form. The
Company says she had very short work tenure at the time this came to light and
there is no mitigation there . The Company contends there are clearly safety
and efficiency issues involved. It says it has previously and consistently
discharged employees who falsify documents, and that in all the circumstances
here, there is no reason for an exception and the grievance should be
denied.
The Union argues that the
Grievant adequately explained the way she filled out the questionnaire-that she
was called into the office before she was finished filling it out and the nurse
told her it was no big thing, just to put down when she went to see a doctor
and who that was. The Union notes that she expected any gaps to be covered by
the physical exam and it also notes that she testified the exam was quite
thorough and that, according to her testimony, the doctor was writing on a
piece of paper with a drawing of a body on it and asked her about the scar on
her neck, which she then told him about. The Union notes that the columns of
conditions do not include "neck" and argues that she did not consider
her neck to be the same as her back. As to the epilepsy, her testimony was that
she had not had a seizure since she was 17 or 18, and "surgery" was
an item in the last column that she had not gotten to when called in, and for
which column she just put a line through the NO boxes.
Secondly, the Union argues
that in addition to the Grievant's explanation as to the medical questionnaire,
Mr. Piker knew about her neck surgery because she had queried him as to whether
that would be a problem with her getting a job at the plant and he had assured
her it would not so long as she was released from her doctor and had no
restrictions. The Union contends the Grievant told Piker at her interview that
she did not put anything down about her surgery because he had said it wasn't
that important, and that at that interview she also explained her past employment
history. The Union notes that on her Application she admitted having been
discharged from a prior job, and that, says the Union, shows she was not trying
to hide anything. For that matter, says the Union, there are only 3 blocks for
prior employment and she put down Menards which was both recent employment and
was one of the places she had suffered injury. Further, says the Union, when
she was injured and was sent to the Company doctor she told him about her
complete history, showing again that she was not trying to hide anything.
The main thing, says the
Union is that the Grievant came to work with no type of restriction related to
any prior condition. The doctor examined her without finding that she was not
medically qualified, and indeed she worked without any problem until her
supervisor caused her to be injured. The Union argues that the real reason she
was fired was because of the injury she suffered by her supervisor, and not
because of any real attempt on her part to hide or mislead the Company about
her health history.
The Union argues that the
Company has not borne its burden of proof to show that it had just cause for
discharge and it contends that the Grievant should be reinstated with full
seniority and be made whole for all benefits and monies lost.
ARTICLE III
Section 2. The rights to manage the business and plant and to direct the working force shall include but not be limited to, the right to ... suspend or discharge for proper cause...
General Plant Rules
All employees are
instructed to comply with the roles as defined by the following list. Violators
are subject to discharge, or lesser disciplinary action, depending upon the
gravity of the offense as determined by the company, for the following
infractions:
* * *
DISHONESTY Stealing
property of the Company, of fellow workmen, or of others, or any other conduct
of a dishonest nature
FALSE EMPLOYMENT
APPLICATIONS OR RECORDS Making false statement upon applications for employment
or on other company records.
Much as the arbitrator can
sympathize with the fact that the Grievant has had a tough time, working jobs
in which she has been injured, and might well fear that listing her surgeries
would hurt her chances of being hired, there are both safety and honesty issues
here that have to be faced. With respect to safety there is not only the danger
of re-injury and the risks to self and others associated with it, but also the
matter of treatment in the event of an injury where the individual might not be
conscious to volunteer important information about a history of seizures or
prior injuries that could impact the type of treatment given. In this case the
individual had been working only 4 months before being injured on the new job
and she was injured seriously enough that she volunteered the information she
had not disclosed when hired. Although she and the Union claim that doing so
shows she was not trying to conceal it, the Company's view makes a lot more sense-she
needed to disclose the prior history because it might make a difference to
treatment and at this point it was going to be discovered anyway.
The Company has a reasonable interest in being made
aware of medical conditions when placing people in jobs. It is not really
believable that the nurse at an occupational health service would suggest that
the medical history portion of the form was not important, but in any case the
Grievant herself says the nurse told her that she needed to list her last visit
to a doctor and sign it. Unfortunately for her, that testimony drew the
arbitrator's attention to her answer as to the date and purpose of her last
visit to a doctor and the lack of truthfulness in it makes her other assertions
about what she said and to whom and when she said it, a lot less convincing.
To that question she wrote down a question mark and then suggested February
1997 for hysterectomy. It is just not believable that in July 1999 she had
already forgotten being hospitalized for 5 days for a disk fusion in her neck
in 1998. It is also not believable that she had already forgotten the back pain
that was bad enough to cause her to go to a hospital in the summer of 1998. In
fact, indicating a surgery that was unlikely to make a difference, but recent
enough to be plausible as a last visit to a doctor, suggests a careful attempt
to mislead.
Secondly, whether others told the Grievant it
would be okay to not take the time to be accurate or okay to leave out things
that might raise questions, or whether that is merely an invention that she
chooses to believe, "others" were not the ones who signed the forms.
The very statement over the signature line on the medical history form makes it
clear that claims that a nurse or a doctor somehow okayed a misrepresentation
have been heard before and are not an acceptable excuse. It says: "I
hereby state t hat the information given above is accurate and true and that
the hospital and personnel physician and/or nurse will not be held responsible
for the result of misrepresented or withheld facts. . . ." As to
her claims about Mr. Piker, they pertain to alleged conversations between the
two of them, the substance of which he denies. By her answer to the "last
doctor visit question" she showed a willingness to lie, and additionally
she also appears to have a tendency to exaggerate (the being thrown 2'which
became 4-6', the back ache that was years ago that turned out to have been only
the year before the application and more recent than the hysterectomy). It is
hard to tell what, if anything, she might have told him, or whether in
hindsight she has convinced herself that she told him a whole lot more than she
did. In any case, it was her decision what to actually put on the forms-not
his, and not the nurse's or the doctor's-and it was she who signed for the
truthfulness of her application and her portion of the pr e-employment medical
form.
Given the level of physical activity and the
weight of the materials she would be handling, the omissions and false answers
on her medical form were serious misrepresentations. It is truly unfortunate
that she was injured, but the arbitrator is not persuaded that it was the
injury, rather than the falsification that her injury brought to light, that
was the basis for her discharge. Even the fact that it happened so soon in her
employment suggests that the basis for concern about non-disclosure was valid.
If such misrepresentation be condoned it would create serious safety issues,
and in the matter of honesty, that too is a serious problem.
Under all the circumstances of this case, the
arbitrator is of the opinion that the Company has shown that withheld
information and false or misleading statements amounted to just cause for
discharge and the grievance must be denied.
Grievance Denied.
Footnotes
1. CX5 indicates she reported the next day that: "She was
moving this bar approximately 2 feet when her partner threw the rebar down to
the floor. The bar fish-tailed and jarred the patient. There was no direct
trauma. There was no fall. She subsequently got lightheaded. She felt pain
between her shoulder blades and found it hard to take a deep breath. . .
." and at her Intake Interview the following week for a Functional
Capacity Evaluation CX 6, it is reported that "... The co-worker whipped
the bar to loose n it from the other bars while B__ was holding it. She was
thrown back approximately 2 feet and felt a sharp pain between her shoulder blades
as well as some shortness of breath and right arm throbbing. . . ."
2. On the doctor's report of 12/2/99, under "Past Medical
History", the typed text says only: "The patient has no other ongoing
medical problems". There is a penned in entry "has history of
previous cervical spine surgery" which the Company's witness, Mr.
Zimmerman, said he understood to be the doctor's, but it's not clear when it
was added. On the Dec. 7th FCE report several sentences into Medical History,
it says "... She has also had 2 cervical fusions which she believes are at
C5 and C6 in 1991 and 1996/97 "
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