Arbitration Award

 

 

In re

Town of Harwich

(Massachusetts)

and

International Brotherhood of Police Officers,

Local 392

 

116 LA (BNA) 1461

AAA Case No. 11-309-00999-1

December 20, 2001

[Released and Published 2002]

 

Reginald Alleyne, Arbitrator.

 

 

I.

 

This is a termination case. At the hearing, the parties agreed that the issues to be decided by the arbitrator are the following:

Was the grievant, V, discharged for just cause? If not, what shall the remedy be?

At the time of her termination, grievant had been employed by the Town of Harwich police department for thirteen years. She was then on job-related injury leave with full pay, in accordance with Massachusetts law.1 Her termination letter, dated February 23, 2001, states in part as follows: "The termination ...is based on your failure or inability to return to either full or restricted duty as made available to you by the Harwich Police Department, taken in conjunction with the independent three-member medical panel report that indicates a unanimous opinion that you are capable of a return to duty."

On September 5, 1998 grievant suffered an on-the-job back injury. She was placed on authorized leave with pay. She subsequently filed a claim for accidental disability retirement. To evaluate the claim, the Public Employee Retirement Administration Commission (PERAC) convened a three-member medical panel to examination her. The panel members were a neurologist, an orthopedic surgeon, and an internist. They met on July 14, 2000. After reviewing grievant's medical history, as it related to her disability, and conducting a physical examination, the panel's reported diagnosis was "Recurrent low back pain by history." The panel concluded: "Based on the absence of objective findings, it is the Panel's unanimous and considered opinion that the member is not physically incapable of performing the essential duties of her job, as described in the current job description." 2

 

On the basis of the panel's report the Harwich Police Department sent grievant a letter dated August 8, 2000, stating in part that "you are hereby ordered to report for duty at this Police Department on the 14th of August 2000 at 0730." The letter confirmed an August 8, 2000 telephone conversation between grievant and the letter writer. Subsequently, on August 11, 2000, by letter from an attorney for the Town, the order to report for duty was withdrawn and held in abeyance pending conclusion of a Barnstable County Retirement Board hearing on August 22, 2000. On August 16, 2000, the Retirement Board's attorney raised several questions about the medical panel's report. He thought the panel had not been properly composed, because only one of its members was an orthopedic surgeon.3 He found what he determined to be inconsistencies in the panel's report. By letter, he asked the panel to reconcile its opinion with the opinions of grievant's doctors and the Town's designated orthopedic surgeon, each of whom had concluded that grievant could only return to restricted duty with the police department. The Town's attorney subsequently agreed that the Retirement Board attorney had "raised a number of legitimate concerns" about the medical panel's report. He so advised the Town Administrator.

 

By letter of August 23, 2000 to PERAC, grievant's medical panel responded to the request for clarification of its initial report. It again concluded that "the patient can perform the essential duties of a Police Officer." A third-party administrator, Meditrol Inc., met with the Town's chief of police and reviewed the files pertinent to grievant's medical condition, including a review of the medical panel's report. Solely on the basis of a review of the compiled record, Meditrol, on November 7, 2000, recommended that the chief adopt the panel's findings and offer grievant a return to her regular shift and rotation. Meditrol further recommended that the chief terminate grievant if she refused offers to return to work. Meditrol made no recommendation concerning light duty work. The chief adopted the recommendations. His letter of November 20 offered grievant a "return to your regular shift and rotation ... scheduled for Monday November 20, 2000." The letter contains nothing about light duty work of any kind.

 

The Town's Board of Selectmen met in executive session on February 12, 2001 to discuss grievant's pending personnel issues. Grievant was present and told the selectmen that the Retirement Board had requested a new medical panel because of questions concerning the first medical panel's decision and the composition of the panel. Acting on the recommendation of the Town Administrator, and relying on the decision of the medical panel, the Board of Selectmen voted to terminate grievant's disability payments, to terminate her, and "to continue to pay Officer V's medical expenses in accordance with Chapter 41, Section 100, until a final determination has been reached concerning Officer V's medical appeal." Grievant asked the Selectmen to put off a decision to terminate her until the second medical panel had made its decision. The Chair of the Board responded that "there would be no more debate," according to minutes of the meeting. The minutes of the meeting also indicate that the Union and the Town had taken up the issue of light duty during negotiations for a new collective bargaining agreement; that a settlement had been reached on December 4, 2000. The new tentative agreement included a provision that the Town could require light duty after 180 days of injured-on-duty leave. At the time the Board of Selectmen met to discuss grievant's case, and at the time of her termination, the then tentative agreement had not been ratified by the Union's members.

 

On May 3, 2001 another medical panel, appointed because of the noted concerns about the first panel, concluded that grievant "is physically incapable of performing the essential duties of her job as a police officer." It also determined that her "incapacity is likely to be permanent if surgery is not performed," and that the "incapacity is such as might be the natural and proximate result of the personal injury sustained on 9/5/98."Unlike the July 12, 2000 medical panel, two orthopedists were members of the second medical panel.4 On the basis of the second medical panel's findings and conclusions, the Retirement Board granted grievant's application for disability retirement on June 26, 2001. PERAC approved on July 26, 2001. It made disability retirement payments at 72 percent of grievant's full pay retroactive to the date of her termination.

 

At the arbitration hearing, the president of IBPO Local 392, Jeff Davis, testified for the Union. He has been a Town of Harwich police officer for ten years. He testified that there were no light duty assignments in the police department when the department offered grievant a light duty assignment. The department claims it intended to offer grievant a position as dispatcher. It is not disputed that grievant declined informal suggestions that she take a light duty position of dispatcher, and that her refusal was on the ground that the Harwich-IBPO collective bargaining agreement did not permit the Town to substitute restricted work for job-related injury leave. Mr. Davis testified that the Union would have supported the offer of restricted work if grievant had agreed to it, but did not support her termination from employment because of her refusal.

 

On the dispatcher issue, the Town's chief of police, William A. Mason, testified for the Town. He was hired in April of 2000 and began his tenure as chief in June of 2000. He came to his current position from the police department of a town in Colorado. He testified that no one is permanently assigned as dispatcher, that patrol officers from the street work as dispatchers, and that grievant could have returned to duty as a dispatcher. He also described staffing problems in the department as they related to grievant's leave status. More overtime hours, for example, were being worked. Both Davis and Mason testified that they were unaware of an officer being recalled to full or light duty from injured-on-duty leave while still in that status.

 

II.

 

Both parties filed post-hearing briefs. The Town argues that this is a contest of conflicting opinions on grievant's ability to work, and that the medical panel's decision should prevail. On the conflicting medical panel reports, the Town argues that "when a third doctor or a new medical panel is convened, the existing decision remains in place until a contrary decision or opinion is obtained." The Town takes the additional position that it made a reasonable offer to restore grievant to light duty work, and she refused.

 

The Union relies on the second medical panel's opinion and what it argues to be the "flawed" status of the first panel. It also argues that the Town had no right to offer grievant light duty because the issue of whether it could be offered was "under negotiation with the Union, and the Town never approached the Union to discuss a special arrangement for Officer V." It points to the past practice of the Town never having forced an officer to work light duty. The Union further argues that the Town "was not offering an accommodation because it did not believe Officer V was disabled when it ordered her to return to full duty based on the medical panel opinion." It describes the light duty offer as "a red herring to paint Officer V as a malingerer who sought to avoid work."

 

III.

 

Valid and competing concerns are at issue. The Town is interested in maintaining a well-staffed police department that, at pertinent times, was understaffed and using more than a desired number of overtime hours of work. The Union is interested in protecting grievant's rights under the collective bargaining agreement and governing law pertaining to injury and disability claims.

The first medical panel's conclusion that grievant was able "to perform the essential duties of a Police Officer" was contradicted by the second panel's conclusion. Knowing that a second panel decision was forthcoming, the Board of Selectmen decided that grievant should be terminated if she did not report to work. Both medical panels considered no more than the question whether grievant could perform the regular duties of a police officer. So did Meditrol. Consistently, Chief Mason's letter of November 20, 2000 offered grievant a "return to your regular shift and rotation," with no mention of light duty. Captain Peter Welch's letter of August 8, 2000 was an order to report for duty on August 14. It said nothing about light duty work. These actions, made without reference to light-duty work of any kind, were consistent with the police department's described practice of not assigning light duty work to an officer on paid job-related injury leave. Indeed, nothing in the record of this arbitration reveals that the Town formally offered grievant light duty work. As already noted, she was quite formally offered, in one instance, her regular patrol officer's job. In another, she was quite formally ordered to report to work as a regular patrol officer. Neither letter specifically enumerates what her job duties would be. However, in the absence of specificity concerning an unusual arrangement, like work as a dispatcher, or other light duty assignment, the strong inference to be drawn from the letters is that the offer and order, respectively, related to the essential work of a police officer. Grievant's termination letter contains the Town's only written communication to grievant about light duty work. In the absence of a formal offer of light duty work, there is no room here for the application of the principle, "obey now, grieve later."

 

When grievant's injury status was taken up by the Board of Selectmen, questions concerning the circumstances under which a bargaining unit member might be offered light duty work were under negotiations with the Union. At the time of grievant's termination, the agreement the Town and the Union had agreed to provided that a police officer could be offered light duty assignments following 180 days of work-related injury leave. But the agreement was only tentative. It had not been ratified by the Union's members. It had no effect at times material to this dispute. Existence of the tentative agreement demonstrates that the Town willingly regarded the light duty topic as a legitimate subject of bargaining between the Town and the Union. Any informal negotiations with grievant concerning light duty were preempted by the collective bargaining process, and that process included a ratification vote by the Union's members on agreements reached by the Town and the Union.

In sum, the subject of light duty for grievant appears to have been left in an uncertain state because of a combination of events: the Town's failure to provide grievant with a written offer to return to work on a light duty basis, as it had offered or ordered, in writing, that she return to her "regular shift and rotation;" the parties' negotiations for a light-duty clause in their collective bargaining agreement; and the conflicts in medical panel boards' conclusions on grievant's ability to perform the essential duties of a police officer. Before making a decision to terminate grievant, the Town could well have waited for the second medical panel's findings. It could have waited for a decision on ratification of the new proposed collective bargaining agreement containing language governing the relationship between work-related injury leave and authorized light duty assignments. It did neither.

 

In terminating grievant, the Town was understandably acting in the interests of staffing its police department in a manner consistent with the needs of the public it serves. But here it did so by means in conflict with grievant's right, as provided in the parties' collective bargaining agreement, to protection from being "discharged ... except for just cause."

 

IV.

 

AWARD

 

(1) V__ was not discharged for just cause. (2) She shall be retroactively reinstated to her status as an employee on job-related injury leave, commencing with the date of her termination and ending with the date her disability retirement became effective. (3) She is entitled to receive on a make-whole basis any back pay and compensatory fringe benefits she would have received had she not been so terminated.

Footnotes

1. Mass. General Laws, ch. 41, Section 111F.

 

2. When the town sought to introduce the medical reports into evidence, the Union objected on hearsay grounds. I overruled the objections and admitted the reports. The Union's post-hearing brief cites Willis v. Board of Selectmen of Easton, 405 Mass. 159 (1989), where a similar kind of medical report was determined to be inadmissible hearsay in a judicial trial proceeding. That is certainly the governing rule for Massachusetts judicial proceedings. But this is an arbitration proceeding. The uniformly applicable general rule governing labor arbitration proceedings is that hearsay is admissible. See American Arbitration Association Labor Arbitration Rule 28 ("parties may offer such evidence as is relevant and material to the dispute ... conformity to legal rules of evidence shall not be necessary"); City of Worcester v. Borghesi, 19 Mass.App.Ct. 661 (1985) (AAA rules permit the admission of hearsay evidence); United States v. International Brotherhood of Teamsters, 19 F.3d 816, 823 (2nd Cir. 1994) (rules of evidence are relaxed in disciplinary proceedings); Walden v. Local 71, International Brotherhood of Teamsters, 468 F.2d 196, 197 (4th Cir. 1972) (arbitration hearing is not a court of law and need not be conducted like one); Petroleum Separating Company v. Interamerican Refining Corporation, 296 F.2d 124 (2nd Cir. 1961) ("If parties wish to rely on [hearsay] objections they should not include arbitration clauses in their contracts"). See generally, Dennis R. Nolan, Labor Arbitration Law and Practice (West, 1979) ("the admission of hearsay in arbitration can be explained by the desire of all concerned for simple proceedings"). There are limited exceptions to the above-cited general rule. They need not be discussed here. None of them are applicable.

 

3. The pertinent statute provides in part that a medical panel "shall, so far as practicable, be skilled in the particular branch of medicine or surgery involved in the case." Mass. G.L. ch. 32 6(3). The attorney for PERAC and the attorney for the Union appear to read this language as requiring at least two orthopedists on grievant's first medical panel. I need not resolve that issue. Critical here is not the question why the second panel was appointed. For whatever reasons, the second panel was appointed and reported its relevant findings and conclusions.

 

4. Note 3, above.