Holding: Management did not have just cause to discharge a
part-time police officer with an excellent record who had been unable to
perform his duties for medical reasons for 17 months, where the bargaining
contract provides that a break in seniority occurs only after two-year period
of a layoff or a failure to work, and the officer was willing to submit to
independent medical examination to verify his medical condition.
|
Borough of East Conemaugh
and
Teamsters Local 110
121
LA (BNA) 1693
October
20, 2005, Decided
March
15, 2006, Reported
Matthew M. Franckiewicz,
Arbitrator
Contract Provisions Involved
Article VI-Seniority
Section 2. Seniority shall be broken by:
1. Discharge;
2. Voluntary quit;
3. No work or layoff for more than two (2) years;
4. Unauthorized leave of
absence;
5. Such other reason as may
be agreed upon by the local Union and the Employer involved.
Article VII-Shop Stewards
The Employer recognizes the
right of the Union to designate Shop Stewards and alternates. The authority of
Shop Stewards and alternates so designated by the Union shall be limited to and
shall not exceed the following duties and activities.
1. The investigation and
presentation of grievances in accordance with the provisions of the collective
bargaining agreement. * * *
Article X-Discharge and Discipline
Section 1. The Employer shall not discharge, suspend or otherwise
discipline any employee without just cause. In all cases involving discharge or
suspension of any employee, the Employer must immediately notify the employee
in writing of his discharge or suspension and the reason therefore. Such
written notice shall also be given to the Shop Steward, and a copy mailed to
the Local Union office, within three (3) working days from the time of the
discharge or suspension.
Section 4. Should it be determined that a discharge or suspension was
not for just cause, the aggrieved employee shall be fully reinstated in his
position and compensated at his usual rate of pay for lost work
opportunity.
Section 5. Police tenure act: 53 P.S. 811
1. Physical mental
disability;
2. Neglect or violation of
official duty;
3. Violation of any law
which would constitute a misdemeanor or felony;
4. Inefficiency, neglect,
intemperance, immorality, disobedience of orders or conduct unbecoming an
officer;
5. Intoxication.
Article XI-Grievance Procedure
Step 1. The aggrieved employee or employees must present the
grievance to the mayor and president [of] council within five (5) days after
the reason for the grievance has occurred, except no time limit shall apply in
cases of violation of wage provisions of this Agreement.
Step 2. If a satisfactory settlement is not effected with the
mayor and president [of] council within three (3) working days, the Shop
Steward and/or the employee shall submit such grievance in writing to the Union’s
Business Representative. * * *
Article XII-Arbitration
Section 2. The decision of the Arbitrator shall be final and binding
on the parties and the grievant. The Arbitrator shall not have the authority to
amend or modify this Agreement or establish new terms or conditions under this Agreement.
The Arbitrator shall determine any question on arbitrability. In the event the
position of the Union is sustained, the aggrieved party shall be entitled to
all benefits of this Agreement which would have accrued to him had there been
no violation.
Section 3. The parties acknowledge that in deciding the issue of “just
cause for discipline”, the arbitrator has the authority to consider traditional
elements of the concept of just cause, including, but not limited to,
progressive discipline, industrial due process, consistency of enforcement,
nexus to the work place, notice to employee, proper investigation, mitigation
and appropriateness of the penalty.
The parties expressly authorize
the arbitrator to reduce a penalty imposed by the employer in cases where the
arbitrator determines that the penalty imposed is too severe under the
circumstances.
The Facts
Grievant D__ had been a part
time police officer for the Borough of East Conemaugh since 1995. He was never
issued any discipline during the course of his employment. According to Borough
Council President Steven J. Coy, all Council Members respected D__ and regarded
him as a good officer. Coy himself characterized D__ as a “wonderful” officer.
In recent years he was also employed as a part time officer by the nearby
Township of East Taylor. He was employed on a full time basis as a security
officer by Memorial Medical Center in Johnstown.
The police force at East Conemaugh consists of two full time ranking
officers and six to eight part time officers. The part time officers select
their shifts by seniority from those available. The Borough attempts to provide
24 hour police coverage, but filling all the shifts is a challenge, and
occasionally a shift is not staffed.
According to the Grievant, the job at Memorial Medical Center was more
physically demanding than his police jobs, since the Medical Center treats
psychiatric and drug patients, and the need to physically restrain a patient or
outsider arises on average two or three times a week.
On February 5, 2003, in just such a physical confrontation, D__
suffered multiple leg fractures while subduing a psychiatric patient. He had
surgery that same day, during which a rod was inserted along one of his leg
bones, and the other bone was realigned. About three months later he underwent
a second surgery, during which a plate was inserted along the smaller leg bone.
He was immobilized for about five months after the incident. After the
immobilization period, he returned to Memorial Medical as a dispatcher, a
lighter job than his former security officer position there, but was unable to
fulfill the duties of a police officer.
His recovery was disappointing,
and ultimately in July 2004 he underwent more surgery to remove the hardware
from his leg. Thereafter his condition began to improve, and in October 2004,
his surgeon cleared him to return to work on November 1. Memorial Medical
wanted to conduct an independent assessment of D__’s condition. D__ completed
the physical examination at the Medical Center, and it cleared him to return to
full duty in January 2005. He resumed his former job with the Medical
Center
Meanwhile, East Conemaugh
Council had asked D__ to keep it informed of his medical condition. According
to Council President Coy, D__ attended about three Council meetings, and told
the Council in essence that his condition was about the same. Coy testified
that at each of these meetings Council asked D__ to return the police equipment
in his possession, and he promised to do so, but failed to return the
equipment. (The June 18, 2004 discharge letter, quoted below,
mentions that the Borough will need its equipment back. A letter dated
July 8, 2004-after the discharge-appears to have been the only other written
request to D__ to return the police equipment.) Coy also stated that Council
asked D__ to update it at least monthly, but he failed to keep this
schedule.
D__’s recollection is that he
attended two Council meetings in early 2004, and told the Council that he was
facing a third round of surgery, but was not asked about returning his
equipment until the July 8, 2004 letter. He testified that at one of the
Council meetings, he said that if it was determined he would be unable ever to return, he would not wait the 24 months but would resign for
medical reasons.
The Borough discharged D__
effective July 1, 2004. The discharge was communicated by a letter from the
Borough Solicitor dated June 18. It states:
The Borough of East
Conemaugh has directed me to notify you that you are dismissed as a part-time
police officer for the Borough, effective July 1, 2004 unless you are
physically able to perform the duties of a police officer by that date.
You have informed the Borough
that due to your Hospital related work injury that you have been unable to
cover any police work shifts during the past sixteen (16) months. The Borough
needs to secure another officer to work your shifts and will also need the
Borough police equipment assigned to you for the other officer.
Should you become
physically able to return to your police duties in the future, based upon a
release by a physician to full police duties, the Borough will be pleased to
consider you for police employment.
Coy testified that the Borough’s
decision was prompted by the need to staff the open shifts, too many of which
were left unfilled, and that the Council had no firm expectation when or if D__
would return to duty. The practice has been to hire an additional officer only
when one of the other part time officers departs. In addition, D__ had in his
possession some police equipment that another officer could use.
When asked why the Borough did
not simply hire an additional part time officer without discharging D__, Coy
stated that the factors included payments to the state for compensation, the
four personal days that are required even for an officer who works only a few
shifts, paperwork for Borough Secretary Nancy Geyer, D__’s failure to keep
Council updated regarding his physical condition, and (admittedly a minor
issue) the police equipment D__ still possessed.
The grievance in this case is
dated July 2, 2004. Two copies of the grievance form were offered in evidence.
One is signed by Council President Steven J. Coy with the date July 3 next to
the signature. The other is also signed by Coy in a different place, also dated
July 3. This form also bears the signature of Mayor Ron Ling, with the date of
July 3 next to the Mayor’s signature as well. Coy testified that he recalled
signing only one grievance form, but the two signatures appear to be in the
same hand. The authenticity of the Mayor’s signature on one form is not
disputed. Coy could not recall whether or not the Mayor’s signature was already
on the grievance form that he signed.
Union Steward Terry Williams
presented the grievance form(s) to Coy and Ling. D__ did not personally serve
the grievance on either. Coy testified that the Steward did not serve him, but
that D__ may have presented the grievance to him.
At a meeting between
representatives of the Union and the Borough on December 20, 2004, the Borough
agreed that D__ would have until February 2005 to respond on his status. The
Union asked if the Borough had any problem with him returning to work and the
Borough replied that it did not. According to Coy, the consensus was that if
D__ presented a medical authorization, he would be permitted to return to work.
Union Business Agent Richard Keller testified that the Borough agreed that they
would return D__ to work if he was medically able to return within the
contractual two year period, and that D__ said that he was scheduled for a
medical evaluation in January. There was no discussion of D__ having failed to
keep Council informed of his status, or to return police equipment.
In fact, at no time prior to the
hearing did the Borough attribute its failure to recall D__ to his having
failed to return equipment or having failed to inform Council of his medical
condition.
Around January 17, 2005 D__
presented Borough Secretary Nancy Geyer with the October 22, 2004 return to
work certification signed by his physician, and the January 13, 2005 Memorial
Medical evaluation. She said she would inform Council and notify D__ for an
examination by the Borough’s physician. Keller spoke to Borough Secretary Geyer
in January 2005. She said she had the release and was talking to Council about
setting up an appointment with the Employer’s physician to examine D__ for a
return to work.
At some point D__ asked Coy to
arrange a physical for him, but Coy replied that it was not his decision but
one for the entire Council. D__’s recollection is that Coy also said he would
discuss it with Council and get back to D__. No return to work physical was ever
scheduled, Council never having voted on the matter.
D__ presented East Taylor
Township with the Memorial Medical evaluation material. East Taylor returned
him to work without requiring any further medical examination.
Issue
There are two issues in this
case. The first is whether the grievance is procedurally arbitrable. The second
is whether on the merits, there was just cause for the discharge.
Position of the
Borough
The Borough argues that the
grievance is not arbitrable for procedural reasons. It contends that although
D__ was physically able to visit the Borough office, he failed to serve the
grievance personally on the Mayor and Council President. It claims that the
grievance procedure envisions an attempt to settle the grievance directly
between the affected employee and the Mayor and Council President before the
Union Steward is to play any role. It asserts that as the drafter of the
grievance procedure, the Union, should be held to its terms, and that the terms
are clear and not subject to modification through parol evidence. It regards
the arbitrator as without jurisdiction to reach the merits of the
grievance.
As to the merits, the Employer
maintains that it had just cause to discharge the Grievant, since at the time
he had been off work since February 2003 and there was no indication he would
be able to return in the foreseeable future. It submits that the Police Tenure
Act is incorporated in the collective bargaining agreement, and that physical
disability is a basis for removal under the Police Tenure Act.
It contends that even in
hindsight, D__’s physician did not determine until November 2004 that he had
recovered sufficiently to return to work, and D__ did not actually return to
his former job with the Medical Center until January 2005. It urges that the
Medical Center’s assessment is dubious and unsupported by medical evidence. It
faults the Grievant for failing to provide a Worker’s
Compensation determination that his injury has been resolved. It reasons
that a governmental entity differs from a private party and cannot relinquish
the powers essential to fulfilling its functions. It insists that it needed to
fill the schedule and retrieve his equipment in order to maintain a proper
level of police protection.
It asks that the grievance be
denied.
Position of the
Union
As to the arbitrability issue,
the Union notes that there is no dispute that the Mayor and Council President
in fact received the grievance within the time frame specified in the
agreement. It submits that the language of the agreement does not require a
face to face meeting between employee and Borough officials to file a
grievance. It observes that the Borough does not claim that it was prejudiced
by the lack of personal service of the grievance.
On the merits the Union maintains that D__ returned within two years
from a medical leave, and did not suffer a break in service. It asserts that
the Borough’s conduct after the discharge suggests that it understood the
relevance of the two year time frame specified in Article VI, and that it at
least initially appeared willing to reinstate him if he passed a physical
within the two years. It contends that he was not even accused of any
misconduct. It regards the return of equipment as an afterthought, not a reason
for the discharge. It insists that if the Borough felt a need to fill vacant
shifts, it could have done so without terminating him.
It asks that D__ be reinstated and
made whole, and that the discharge be expunged.
Analysis and Conclusions
As stated earlier, there are two
issues in this case, the first whether the grievance is procedurally
arbitrable, and the second is whether the Borough had just cause to discharge
the Grievant. I find the grievance to be arbitrable, and I find that the
Borough lacked just cause to terminate the Grievant when it did.
The Borough’s argument on
arbitrability is that the Grievant failed to personally “present” his grievance
to the Mayor and Council President within five days. I find that this position
represents a strained and implausible reading of the contractual requirement
that “The aggrieved employee or employees must present the grievance to the
mayor and president [of] council within five (5) days ...” In my view, the
Borough places the emphasis on the wrong phrase in its reading of the sentence.
The point of this language is to insure prompt notice that a dispute exists,
not to demand that grievance be served in any particular manner. The signatures
on the grievance forms demonstrate that the grievance was in fact brought to
the attention of the Mayor and Council President within the five clay period.
Would anything be gained-and more to the point, could the parties who drafted
the language have thought that anything would be gained-by requiring a grievant
to bring his grievance in person to the representatives of the Borough? In the
case of a group grievance, specifically provided for in this sentence, did the
parties really intend that the entire group must parade the grievance to the
mayor and president of council? Did the parties consider that there was some
advantage to mandating that a grievant physically bring his grievance form to
the mayor and council president rather than sending it through the mail?
Such an intention seems to me
highly unlikely. The parties to the agreement realized that the people involved
on both sides of the grievance procedure are not lawyers steeped in the
practice of dotting every “I” and crossing every “T.” Moreover, even lawyers
are satisfied when a plaintiff uses a process server to serve a copy of the
lawsuit on the defendant, rather than doing so personally. Indeed, if the
parties did expect such meticulousness from grievants, they imposed a higher
standard on employees than on themselves, since the sentence that supposedly
requires fastidious adherence to the proper form of service itself commits a
typographical error by omitting the word “of.”
Moreover, Article VII states
that the duties of Shop Stewards include the “presentation” of grievances. The
obvious implication is that a Shop Steward may present a grievance on behalf of
the individual Grievant.
I find that a grievant complies
with the procedural requirement of Article XI Step 1, so long as he or she in
some manner delivers a copy of the grievance to the specified Borough
officials-whether personally, through an agent, by mail, or in some other way.
Indeed, even if I concluded, as I do not, that the parties really did contemplate
that a grievant ought to personally hand a copy of the grievance to the mayor
and council president, a strong and consistent arbitral aversion to procedural
forfeitures, demonstrated through many decades of decisions, would impel me to
the conclusion that the Grievant had substantially complied with the supposed
requirement by using an agent, Union Steward Williams, to present the grievance
on his behalf.
Accordingly, I conclude that the
grievance is procedurally arbitrable, and should be considered on its merits. I
note that in his award of October 11, 2005, Arbitrator Atul Maharaja reached
the same conclusion under substantially identical facts, although on the basis
of somewhat different reasoning, namely that the Borough had waived any
procedural arbitrability issue when the Mayor accepted a grievance presented by
the Shop Steward on behalf of the grievant in that case. Thus the conclusion I
reach on the issue of procedural arbitrability is at least consistent with the
decision of Arbitrator Maharaja.
On the merits, I determine that the Borough lacked just cause to
discharge the Grievant effective July 1, 2004.
The contract forbids the
Employer from discharging an employee without just cause. The essence of the
just cause provision is a recognition that the Employer has legitimate
interests, which sometimes require the removal of an employee for the overall
good of the organization. In this particular case, though, it is difficult to
imagine how the Borough was serving its own interests, let alone those of
Grievant D__, by terminating his employment. To the contrary, the Borough’s
apparently abrupt decision to terminate D__ is mystifying to me. What
conceivable need did the Borough have to terminate the Grievant, particularly
as of July 1, 2004, rather than retaining him in employee status and monitoring
whether his medical condition might improve sufficiently to permit a return to
work?
D__ was a part-time officer, and
for the most part the fringe benefits provided under the agreement are
restricted to full-time officers. Thus retaining D__ in employment status did
not mean that the Borough was required to deplete its funds providing insurance
and other benefits to an officer who was providing no services. The Borough had
experienced some difficulty staffing all the shifts, but it did not alleviate
this problem by reducing its corps of officers. Retaining D__ not preclude the
Borough from hiring an additional part time officer to fill empty shifts.
Customarily the Borough did not hire a new part time officer unless one of the
existing staff departed, but nothing mandated that the Borough blindly follow
this custom in the face of changed circumstances.
In summary, I simply cannot envision what advantage the Borough gained
by removing from the employment roster an employee who was generally regarded
as an excellent officer.
The “just cause” standard is not
necessarily a fault standard, and at some point an employer may terminate the
employment of an employee who for medical reasons is simply no longer able to
perform the job involved, despite the lack of any moral turpitude on the
employee’s part. In the case of an employee who becomes temporarily unable to
perform his or her job through illness or injury, the just cause standard would
preclude the employer from immediately terminating the employee and instead
require that the employer afford the employee a reasonable time for medical
treatment, recovery and recuperation before concluding that the employee is
beyond salvage.
In this regard, I note the Employer’s reliance on language from the
Police Tenure Act, included in Article X Section 5 of the collective bargaining
agreement. The conclusion is the same under either provision, however, that an
injured officer temporarily unable to perform his duties must be given a
reasonable time to recuperate.
The question of how long is a
reasonable time, or what is the deadline by which an employee must be
sufficiently recovered to resume work, might be an exceedingly difficult one,
involving such factors, among others, as the employee’s work history, his or
her current condition, the prognosis for future improvement, the employer’s
size and its operational needs. But here, the agreement itself reveals what the
parties themselves considered a reasonable period to be. Article VI Section 2
provides that seniority shall be broken by (among other things) “No work or
layoff for more than two (2) years.” A break in seniority is equivalent to the loss of employment status.
Thus, this Section expresses the parties’ determination that an employee will
lose employment status if for some reason other than layoff, he or she fails to
work for a period of two years. By implication, if the employee has been off
work for less than two years, he retains seniority, and remains an employee.
As of July 1, 2004, the cutoff
date specified in the June 18 discharge letter, D__ had been off work about 17
months. The agreement at least implicitly afforded him a period of 24 months to
recover from his injury. By terminating his employment before that period had
elapsed, the Borough discharged him without just cause, and thereby violated
the agreement. Accordingly, I conclude that the grievance should be
sustained.
The parties devoted substantial
attention to events that occurred after July 1. Of course, by then the contract
violation had already occurred, and these subsequent events are pertinent
primarily with respect to the remedy. Grievant D__ had been cleared to return
to his Medical Center job as of January 13, 2004, and presented documentation
to this effect to the Borough on January 17. Since the Medical Center job was
more strenuous, presumably D__ was fit to return to work with the Borough as of
January 17. The Borough would reasonably require some time to handle
administrative matters, and to obtain an independent medical evaluation if it
had chosen to do so. It seems to me reasonable to use February 4, 2005, the end
of D__’s two year contractual period to return to work, as the beginning date
for the computation of a make whole remedy.
Although the Borough contends
that D__ failed to demonstrate his ability to return to work, and that the
Medical Center’s determination of fitness was a “doubtful opinion,” D__ stood
ready to submit to examination by the Borough’s own physician, but the Borough
never asked him to do so. Any doubt about his fitness to return must be
resolved against the Borough, which had the opportunity to verify his medical
condition, but failed to take any action to arrange an independent medical
examination. The Borough’s contention provides no basis for any reduction of
backpay.
Award
The grievance is sustained. The
dismissal of Grievant D__ is abrogated. The Borough shall reinstate Grievant
D__ to his position as a part-time police officer, with seniority intact. In
addition, the Borough shall make him whole for economic losses suffered as a
result of his termination, in accord with Article X Section 4 and Article XII
Section 2 of the collective bargaining agreement. The computation of the amount
shall assume that he would have returned to work on February 4, 2005.
Jurisdiction is retained for the limited purpose of resolving any disputes that
may arise in connection with this remedy.