City of Dayton, Ohio
International Association of Firefighters
117 LA (BNA) 1142
AAA Case No. 52-390-00021-00
Louis V. Imundo, Jr., Arbitrator.
This case pertains to; two separate, but interrelated issues. The first was whether the instant grievance was properly before the Arbitrator. The second was whether the Grievant, H__, was entitled to injury leave for emotional trauma that she sustained while at work in September 1998.
It was Management's position that the instant grievance was procedurally defective because H__ failed to file it within the 15 calendar days time limit set forth in the Parties negotiated grievance procedure. It was the Union's position that H__'s state of mind in June 1999 was such that it was understandable that she failed to remember that she had a prescribed time limit from the date that she learned that her request for injury leave had been denied to file a grievance. It was also the Union's position that H__'s failure to have filed her grievance within the prescribed time limit did not prejudice Management's case and in view of such the time limit in this instance should be waived.
It was Management's position that even if the instant grievance is determined to be arbitrable H__ is not entitled to injury leave because it did not occur in the course of and arising out of her employment with the Dayton Fire Department.
It was the Union's position that H__ is entitled to injury leave because the injury she sustained occurred during the course of and arising out of her employment with the City. It was the Union's position the Agreement does not exempt psychiatric injuries from eligibility for injury leave. It was the Union's position that other employees in the Fire Department have been granted injury leave due to the actions of another employee, which caused injury.
Article 12—Injury Leave, Section 1 (in part)
Injury leave is leave of absence with pay for an employee to recover from a job connected occupational illness or injury received in the course of and arising out of employment with the City of Dayton. Leave is not deducted from sick leave credits.
Injury leave may be granted provided the injury is reported to the immediate supervisor or designee within seventy-two (72) hours after the occurrence or, in the case of occupational diseases, after the diagnosis of the occupational disease by a licensed physician.
Final judgment of the employee's ability to return to work rests with the Director of Fire or his/her designee based on a reliable medical opinion. All bargaining unit employees shall be fully covered under the Worker's Compensation Laws of the State of Ohio.
Article 21—Grievance And Arbitration Procedure, Section 4 (in part)
Grievance Procedure. The aggrieved employee or group of employees covered by this Agreement may within fifteen (15) calendar days after the employee(s) becomes aware or reasonably should have become aware of the occurrence complained of, contact his/her/their steward who shall further attempt to resolve the issue or, if unsuccessful, formally write a grievance complaint on forms supplied by the Union.
Appropriate Assistant Chief of Fire
The aggrieved employee or group of employees covered by this Agreement shall present his/her or their grievance in writing on forms supplied by the Union to the appropriate Assistant Chief of Fire. Distribution of copies of the grievance shall be made by Management as required. One (1) copy shall be retained by the employee. A grievance shall be filed within fifteen (15) calendar days after the employee becomes aware or reasonably should have become aware of the occurrence complained of or, within thirty (30) calendar days if a written request for a fifteen (15) day extension was properly processed by the Chief Steward. The grievance complaint shall be filed at Step 1 by the appropriate Chief Steward. The Assistant Chief of Fire shall reply in writing to the grievance within fifteen (15) calendar days after it has been presented to him. If the aggrieved employee does not refer the grievance within fifteen (15) calendar days after receipt of the decision rendered in this step, it shall be considered to be satisfactorily resolved.
Management or the Union, based on the facts presented, have the right to decide whether to arbitrate or appeal any grievance. Management's agent for authorizing arbitration is the Manager of Labor Relations and the Union's agent is the President or his designee. In the event the matter is submitted to arbitration, the City must within fourteen (14) days apply to the A.A.A. (American Arbitration Association) and an arbitrator shall be appointed by the A.A.A. under its voluntary rules upon the application of either party to that association, unless the parties mutually select an arbitrator.
The Arbitrator shall have no power to add to or subtract from, change, modify, or amend any of the provisions of this Agreement.
The decision rendered by the impartial arbitrator shall be final and binding upon the Union, Management, the grievant and all the employees covered by this Agreement. Each party hereto shall pay the expenses incurred in the presentation of its own case, the expenses, incident to the services of the arbitrator shall be shared equally by the Management and the Union.
The employees covered hereunder shall be bound by any decision, determinations, agreements, or settlements which may be effectuated pursuant to invoking the grievance-arbitration procedure including any determinations as to the merits or arbitrability of a grievance, as shall be made by the authorized representative who is an employee covered by this Agreement handling the grievance, provided however, that such determinations regarding arbitrability or merits shall be made upon the facts with which the authorized representative is confronted.
The Parties did not agree on a joint stipulation of the Issue of arbitrability, i.e., was the instant grievance timely filed? The Parties agreed in principle on the merits Issue. The Arbitrator has determined the Issues to be as follows:
• Is the instant grievance properly before the Arbitrator?
• If the instant grievance is arbitrable, did Management violate Article 12, Section 1 of the Agreement when they denied the Grievant injury leave for the period 9/15/1998 through 5/19/1999?
• If the Agreement was violated, what is the appropriate remedy?
Relevant and Pertinent Information from the Record
The following has been taken from the Arbitrator's notes, recording of the Hearing, written transcript, testimony of witnesses, documentary evidence, and the briefs.
In her opening statement with respect to the arbitrability Issue Ms. Dickens made the following points to support Management's position:
• At issue in this case is the City's denial of H__'s request for injury leave pay. The request was for the period September 15, 1998 through May 19, 1999.
• H__'s claimed injury was suffered on September 15, 1998. However, her injury investigation report was not submitted until May 6, 1999. In her report, H__ states that she suffered some psychological impairment as a result of sexual harassment/hostile work environment while she was working as a paramedic with the City's Fire Department.
• H__'s claim was denied on the basis that what occurred was not the result of a work-related injury. Management's response to H__ was by letter dated May 28, 1999.
• Pursuant to what is set forth in Article 21 the aggrieved employee or group of employees may, within 15 calendar days after the employee becomes aware or reasonably should have become aware of the occurrence complained of, contact his steward who shall further attempt to resolve the issue. It is further provided that a grievance shall be filed within 15 calendar days after the employee becomes aware or reasonably should have become aware of the occurrence complained of, or within 30 calendar days if a written request for a 15 day extension was properly provided by the chief steward.
• There was no written request made for an extension of the time limit.
• H__, acting through the Union, did not file her grievance until July 6, 1999. This was obviously far beyond the 15 calendar day's time limit.
• The instant grievance clearly establishes that H__ learned on May 28th that her claim had been denied.
• Management believes that the instant grievance was untimely filed and is not arbitrable.
In his opening statement with respect to the Issue of arbitrability Mr. Davis made the following points to support the Union's position:
• On September 15, 1998 an incident occurred which is documented in the Joint exhibits.
• Prior to that date a firefighter brought into work a picture on his computer. It had been shown around the Fire Department and came to H__'s attention. The picture so upset H__ that she was sent home. She was told by her District Fire Chief that they would turn in sick leave, but later on it would be changed.
• An extensive investigation was undertaken in regard to possible discipline against the firefighter, B__, who brought the offensive picture to work. Rather than face possible disciplinary action B__ retired.
• As a result of what happened H__ was treated for anxiety and depression. She was unable to return to work.
• A lawsuit was filed on her behalf. The court granted a motion for summary judgment on March 14, 2001. The case was sent on to the court of appeals.
• The problem we have here is that there was pending litigation. That is the reason for the delay of the arbitration.
• We have a situation here where H__ did not become aware, and bring it to the Union's attention that what the City had done is it kept her in the dark with respect to her sick leave usage until she had used all of it up. Then they used her compensatory time and subsequent to that they put her on FMLA.
• At that period of time it was brought to her attention that she should do something about this because it did happen at work. H__ was suffering from depression and did not realize that what had happened could possibly be an injury, an on-duty type of situation. This was brought to the Union's attention the day the grievance was filed.
• The City appears to be playing on the disability of H__. They want strict adherence to the timeline. The fact of the matter is there was a pending court action.
Ms. Dickens called Mr. Brent McKenzie as Management's first witness. Mr. McKenzie testified that he became the City's Labor Relations or Employee Relations Manager on February 25, 2002. Mr. McKenzie testified about his role and responsibilities in processing grievances. Mr. McKenzie testified that with respect to setting an arbitration date through the AAA for the instant grievance the Union requested a postponement because of the pending civil litigation. Ms. Dickens submitted into the record, a copy of a letter dated June 13, 2000 from Mr. Davis to the AAA requesting a postponement of a date for H__'s grievance to be arbitrated because of the pending civil lawsuit. Mr. McKenzie testified that the City had refused to consider arbitrating H__'s grievance because it had been untimely filed. Ms. Dickens asked the witness if the Union ever asked for a time limit extension to the instant grievance being filed? Mr. McKenzie answered no. Ms. Dickens submitted into the record, a copy of a letter dated November 1, 1999 from Ms. Julie McGinnis-Garcia the witness's predecessor, to Mr. Timothy Goecke of the IAFF Local 136 wherein she informed him that Management would not participate in submitting H__'s grievance for arbitration because it was untimely filed. Ms. Dickens submitted into the record, a copy of a letter dated December 2, 1999 from Mr. Davis to Ms. McGinnis-Garcia wherein he informed her that it was up to an arbitrator to make a determination as to whether time limits have been missed and the matter is not arbitrable. Mr. McKenzie said that subsequent to receiving Mr. Davis' letter the City agreed to put the matter before the Arbitrator. Mr. McKenzie testified that the time limits for filing grievances have not changed since September 1998.
Mr. Davis cross-examined. Mr. Davis pointed out to Mr. McKenzie that the City was not timely in their filing for the arbitration. Mr. McKenzie concurred.
Mr. Davis made the point that H__ was compelled to use her accrued sick leave, compensating time, and eventually went on unpaid medical leave under the FMLA all stemming from her alleged work related injury or illness. Mr. McKenzie concurred and said that her time off from work was approved and she was allowed to be off on sick leave.
Ms. Davis redirected. The witness's testimony did not add to, or subtract from what was already in the record.
Ms. Dickens called H__ as Management's second witness. H__ was called as a hostile witness. Ms. Dickens said to H__ that the September 1998 incident involved a photograph of a nude woman that looked like her or was her. The witness concurred. The photograph was seen by members of the Department and as a result she suffered great stress and strain. Ms. Dickens said to the Grievant that she was diagnosed as suffering from adjustment disorder and depression. The Grievant agreed. H__ said that she learned about the photograph on September 12th and went home on September 15th. Ms. Dickens directed H__ to Joint No. 14 and reviewed with her the medical practitioners who treated her. Ms. Dickens asked H__ if, prior to September 1998 she had any kind of psychological issues or impairments? The witness answered no.
Ms. Dickens directed H__ to Joint No. 2 and established that she had signed the Injury Investigation Report which indicates that the event occurred on September 15, 1999 (sic) and that the document was received by the Fire Department Director's Office on May 6, 1999. Ms. Dickens directed H__ to Joint No. 4 and pointed out that it indicates the event that gave rise to the instant grievance took place on July 1, 1999. Ms. Dickens directed the witness to Joint No. 3 and said that she received it around June 1999. The witness concurred. Ms. Dickens asked H__ if, after receiving the May 28, 1999 letter she had any doubt that her request for injury leave was being denied? The witness answered yes, I was aware of that. Ms. Dickens asked H__ when she went to the Union to ascertain what she could do after learning that her request for injury leave had been denied? H__ said that she would have to check with the Union records, and did not know off the top of her heard.
Mr. Davis examined. Mr. Davis directed H__ to Joint No. 14, the April 10, 1999 letter that Dr. Phyllis Kuehnl-Walters sent to Assistant Chief Moore and asked her if the letter was given to her or mailed to the Fire Department? The Grievant said that she thought it had been given to her. Mr. Davis asked H__ when she returned to work? H__ answered September 2000.
Mr. Davis, referring to the instant grievance said to H__ that she went to the Union in July. The witness answered affirmatively.
Ms. Dickens redirected. Ms. Dickens referred H__ to Dr. Kuehnl-Walters’ April 10, 1999 letter and pointed out to H__ that she did not file an injury investigation report until May 6, 1999. Ms. Dickens pointed out to H__ that in September 1999, the Agreement, specifically Article 12 had a 72 hour time limit for reporting injuries. H__ said that she did not file an injury report because she was being carried on sick leave. Ms. Dickens pointed out to H__ that before the September 1998 incident she had filed injury reports and had received injury pay. H__ concurred.
Mr. Davis re-examined, Ms. Dickens redirected, and Mr. Davis re-examined. The witness's testimony did not add to, or subtract from what was already in the record, or it was not significant with respect to the Issue of arbitrability.
The Arbitrator questioned H__. The Arbitrator, noting that she initially was off work on sick leave asked H__ when she first formed the opinion that she might be entitled to injury leave? H__ answered that she came to believe such after having a couple of conversations with Union officials. H__ said that she spoke with Mr. Jim Crabill and Mr. Tim Goecke. H__ could not recall the dates of the conversations, but did recall that they were mostly by telephone. The Arbitrator asked H__ when she received the May 28, 1999 letter rejecting her claim for injury leave? H__ was unable to provide a specific or even an approximate date received the letter, but did acknowledge that she received it. H__ testified that after receiving the rejection letter she did contact the Union, but could not recall the date or with whom she spoke. The Arbitrator asked H__ why she did not file a grievance shortly after reviewing the May 29th letter and speaking with Union officials? H__ answered: “1 may not have conversed with the Union upon receiving this letter. It may have been some time frame, but I don't know exactly how many days afterwards that I was in contact with the Union.” H__ went on to say that at the time she did not realize that she had a time limit for filing a grievance.
Mr. Davis re-examined. Mr. Davis said to H__ that she filed her grievance shortly after having spoken with Union officials. The Grievant answered yes.
Ms. Dickens redirected. The witness's testimony did not add to, or subtract from what was already in the record.
The Arbitrator requestioned H__. The Arbitrator asked H__ if she prepared the grievance, or if someone did it on her behalf? The witness said she did not prepare it. H__ further testified that she did not sign it. The Arbitrator asked H__ if she reviewed the grievance before it was filed, or at the time it was filed? H__ answered: “I believe I did, but I cannot be 100 percent sure.”
Mr. Davis elected not to bring forth any witnesses and said that everything the Arbitrator needs to consider is already in the record.
The Union rested.
The Parties rested.
Ms. Dickens waived making a closing argument.
In his closing argument Mr. Davis made the following points:
• The record establishes that H__ was suffering from psychological problems.
• H__ immediately reported to her supervisor what had occurred and he sent her home. H__ satisfied the 72 hour reporting requirement. H__ sustained an injury at work.
Ms. Dickens pointed out that H__ did not follow the procedure set forth in Article 12 for filing an injury investigation report. Ms. Dickens said that nothing materially happened between May 29, 1999 and July 1, 1999 that prevented H__ from grieving the fact that her injury leave request had been denied, notwithstanding the fact that her request was made several months after the incident itself.
Mr. Davis argued that H__ was suffering from psychological problems and was not thinking clearly.
The Arbitrator noted that the record contains documents that speak to H__'s medical condition, but there has been no testimony from H__ regarding her state of mind during the period May to early July 1999. Testimony from H__ regarding her state of mind came forth as part of the Union's case with respect to the merits of the instant grievance. Essentially the Union's position was that H__ was suffering from extreme mental anguish and this was a mitigating factor in her not filing a grievance over the denial of injury leave within the negotiated time limit.
The Parties then proceeded to present their cases on the merits Issue.
The Arbitrator, in order to dispose of the arbitrability Issue first has elected not to discuss his findings with respect to the merits Issue at this time and instead will focus on H__'s testimony and other relevant information that was put forth during the merits Issue phase of the Hearing.
When first called as a witness by Management the Arbitrator asked H__ when she first formed the opinion that she might be entitled to injury leave? H__ answered: “Well, the first .... the day of the incident when Chief Fleming said he thought, you know, that it should be carried on duty, and then when he was informed that it would be carried on sick, I left at that time with the opinion that I will be carried on sick leave, and did not know if I would be entitled to injury leave or not.” The Arbitrator, believing that perhaps H__ had not fully understood the question asked her: “When did you come to form the opinion that you might be entitled to injury leave, and what caused you to come to that opinion that you might be entitled to injury leave? At some point, obviously your thinking changed.” H__ answered: “In conversing with my Union and finding out whether this was something I should pursue or not.” The Arbitrator further questioned H__ in an attempt to learn when she first spoke with Union officials about filing for injury leave. The Arbitrator was not able to get an approximate date, no less a certain date.
When called as a witness by the Union during the merits Issue phase of the Hearing the Arbitrator had the opportunity to question H__. The Arbitrator again asked H__ at what point she came to believe that she qualified for work injury leave? H__ answered: “From day one.” The Arbitrator asked H__ why she did not file for work injury leave from day one? H__ answered: “I was so distraught when I left, I wasn't thinking of anything like that.” The inconsistency in H__'s testimony regarding when she first came to believe that she may be entitled to work injury leave will be discussed in the Opinion.
The Arbitrator questioned H__ about what treatment she was receiving and what medications she was taking during the period May, June, July 1999. H__ testified that during this period she was receiving counseling from a psychologist biweekly and intermittently saw a psychologist. H__ said that she was taking Paxil once a day and another medication for an irritable bowel.
The Arbitrator questioned H__ about her ability to carry out her normal life's activities during the aforementioned period. H__ testified that for a long period of time she had difficulty performing normal tasks. The witness could not recall when her ability to function normally began to improve. The Arbitrator asked H__ if she had been able to drive on her own to get medical treatment? H__ answered yes. The Arbitrator ascertained that H__ was married and that her husband was able to go to work and leave her at home alone. The Arbitrator ascertained from H__ that her life's activities were not being supervised and that she was able to go food shopping and get out and about.
Issue No. 1
Is the instant grievance properly before the arbitrator?
There was no disputing the fact that on or about or between the period September 8, 1998 through September 14, 1998 B__, a firefighter and coworker of H__, while on duty showed a picture of a nude woman in a sexually explicit pose to male coworkers. B__ had obtained the picture through the Internet and had downloaded it on his computer. Although the picture was not of H__ there was an apparent striking resemblance to her. B__ apparently e-mailed the picture to male coworkers and had others view it on his computer. It was undisputed that B__ attempted to create the impression in viewers' minds that the picture was of H__. B__ was charged with having violated multiple rules and regulations. Rather than face disciplinary action B__ retired.
H__ learned about the existence of the picture and had an opportunity to view it. H__ was so traumatized by what had taken place that she could not face her colleagues. On September 15, 1998 H__ was sent home from work and placed on sick leave status. She did not return to work until September 2000. During this period H__ was treated by a psychologist, a psychiatrist, and her family physician.
The record establishes that the City received H__'s Investigation Injury Report on May 6, 1999. The record further establishes that it was accepted as being a valid submission despite the fact that it was submitted nearly eight months after H__ went on sick leave. The request was denied on May 28, 1999. The reason for the denial was: “.... the fact that your condition was not the result of a work related injury.” There was no assertion by Management that the injury leave request was being rejected because it was untimely filed. However, in their Step 1 response to the instant grievance Management, in part, denied the grievance because it failed to meet the 72 hour requirement set forth in Article 12, Section 1 of the Agreement. In their Step 2 answer Management made the additional claim that the injury report was untimely filed in violation of General Order 8. In the Arbitrator's opinion, Management's claim that the injury report was untimely filed was itself untimely because they accepted the Investigation Injury Report, and more significantly it was rejected solely for the previously cited reason.
The record establishes that from the time they received the instant grievance forward Management steadfastly maintained that said grievance was untimely filed and would not be properly before any arbitrator. The record establishes that H__ received the May 28, 1999 letter of denial sometime in early June and that she understood its contents. The record establishes that the instant grievance was filed on July 6, 1999 a date that was well beyond the 15 calendar days time limit set forth in Article 21, Section 4 of the Agreement. The Union's primary defense for the very late filing was that H__ was still so emotionally traumatized by what occurred in September that she was not mentally competent enough to comply with the negotiated timeline. The Union also made the collateral argument that: “The City's case was not prejudiced in any way as a result of when the grievance was actually filed.” The Union further argued that the initial arbitration was delayed over 18 months due to the pending lawsuit without objection from the City.
As stated, from the time they received the instant grievance forward Management asserted that it had been untimely filed. The Arbitrator notes the absence of anything in the record to suggest, no less prove that in the past the Parties had been lax in adherence to time limits for processing grievances. In the Arbitrator's opinion, for a variety of good reasons there must be timelines for filing and processing grievances. Without written timelines and adherence to them a negotiated grievance procedure could quickly become meaningless. Waivers or exceptions to strict adherence to timelines should be on an exception basis and must be by mutual agreement. In the instant case there was no request by the Union for a waiver of the time limit, or for an exception to be made.
The record establishes that both the Union and the City agreed to postpone the arbitration of the instant grievance. Apparently they separately and jointly did so because both Parties believed it was in their best interests. At any time either the Union or the City could have served notice on the other and the AAA and demanded that a hearing be scheduled. The Arbitrator agrees with the Union that the City's case was not prejudiced by the untimely filing of the grievance. However, if the Arbitrator were to rule that an exception to the 15 day time limit was justified in this case because the City's case was not prejudiced by the untimely filing he would be ignoring Article 12, Section 4's clear and unambiguous language and quite likely be exceeding his authority under Article 12, Section 4, Step 3 of the Agreement. In the Arbitrator's opinion, in this case the only valid basis for ruling that an exception to the 15 calendar day time limit is if H__ was not sufficiently mentally competent to realize that she had to file her grievance within the negotiated time limit.
The record establishes that H__, during May, June, and July 1999 was not hospitalized, being heavily medicated, under the supervision of a care provider, or that her life's activities were curtailed by her own volition, or by a licensed medical practitioner's orders. The record establishes that H__ was able to function in public and that she could drive a motor vehicle alone. The Arbitrator does not take issue with H__'s claim that she was still suffering from the emotional trauma that resulted from what happened in September 1998. However, it is the Arbitrator's opinion that the lingering affects from what happened were not so serious that it impaired her ability to think clearly and act rationally. In the Arbitrator's opinion it is most significant that H__ had the mental capacity to file her Injury Investigation Report. The Arbitrator's opinion is further supported by the fact that the number of times H__ saw her psychologist had decreased from weekly to biweekly. In the Arbitrator's opinion, all of the aforementioned does not portray the image of a person who was so distraught and depressed that she could not file a grievance within the negotiated time limit. Additionally, the Arbitrator believes that H__ was not a wholly credible witness, and portions of her testimony were self serving and not credible.
In conclusion, in light of all the aforementioned it is the Arbitrator's opinion that the Union failed to prove that H__ was in such a state of mind that her failure to have filed the instant grievance in a timely manner was justified and that in this instance an exception to the time limit should be granted.
If the instant grievance is arbitrable, did management violate Article 12, Section 1 of the Agreement when they denied the grievant injury leave for the period 9/15/1998 through 9/15/1999?
As stated, the instant grievance is not arbitrable.
Issue No. 3
If the agreement was violated, what is the appropriate remedy?
As stated, the instant grievance is not properly before the Arbitrator.
The instant grievance is not arbitrable.