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Birmingham Steel Corp.
U.S.W.A. Local 9777
116 LA (BNA) 615
FMCS Case No. 00/08457
* 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?
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.
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.
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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