Summary of Holding: A city had just cause to terminate a police officer with back problems who had been injured on duty, had not worked for 16 months, and after exhausting all leave and being carried on a no-pay status for six months.
City of Harper Woods
Police Officers Labor Council
121 LA (BNA) 718
FMCS Case No. 04/58160
June 29, 2005
Joseph P. Girolamo, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
This dispute involves an employee termination. The Employer contends the termination on April 29, 2003 was warranted because the Grievant was unable to return to work since his last work day—December 8, 2001. The Union responds that the Grievant suffered on-the-job injuries and the Employer was fully aware of the reason he had not returned to work following an approved FMLA leave.
By letter dated April 29, 2003, the Grievant was advised:
“As you are aware, the last day that you actually worked in the Police Department was in December of 2001. You exhausted all leave in August of 2002 and have been in a non-pay status since then.
In March of 2003, after reconsideration, your request for Family Medical Leave was granted under the Family Medical Leave Act. That 12-week leave expired April 25, 2003 even though you did not comply with City policy and directives under the Act to remain eligible for the leave through that date.
In accordance with Article 20-A, Section 3(3) of the collective bargaining agreement, you are considered to have been absent for three consecutive days and, as such, your employment with the City of Harper Woods is hereby terminated.
You are to return your identification card, badge, weapon and any and all other City issued equipment immediately.”
The Grievance contesting the above action is displayed:
“Contract Violations—Article and Section No.(s): Art. 8 Art. 19, Art. 29
Statement of Grievance:
On April 29, 2003, Officer FT was notified by written communication of Chief Lawrence Semple that he was being terminated from employment for being absent from duty for three consecutive days. Officer T has a workmans compensation case pending whereas he was off work recovering from back surgery from a work related injury. Per direction of the City, he applied for leave under FMLA and that leave had expired. In the doctors medical update of April 16, 2003, Officer T has a reduction in pain discomfort but physical therapy is to continue. To terminate Officer T while the City was fully aware of the above circumstances violates the above articles of the Collective Bargaining Agreement.
Filed at step #4
Desired Settlement of Grievance:
To immediately rescind the termination of Officer T until such time as a decision is rendered in the Workers Compensation case, and reimburse the Police Officers Labor Council for all filing fees, attorney fees, arbitration costs, and any other costs associated with the filing of this grievance.”
The City Manager answered the Grievance as follows:
“I am in receipt of and have reviewed the above referenced grievance as well as the notes from our meeting with your field representative Frank Klik held on May 15, 2003. I present herein my response and findings.
“The grievant has not had a physical work presence in the Police Department since December of 2001. From that point through August of 2002 he exhausted all accumulated leave time (sick, vacation, furlough and personal). Yet, at no time during that period did the grievant request in writing permission to use such leave time. When asked during our May 15, 2003 meeting if the Union had any written verification or other information wherein the grievant requested time off the response was no. A similar request was made of the Police Department. Other than when told to do so, the grievant made little, if any, effort to keep the department apprised of his status.
“Admittedly, the City acquiesced in not demanding such written requests. However, we believe the burden is on the employee to advise the City as to his work or leave status and the grievant failed to do so. From the period of August of 2002 until his April 29, 2003 termination, the grievant was in a non-pay status.
“In an effort to comply with the spirit and intent of the Family Medical Leave Act, the grievant was advised on January 14, 2003 that he could apply for a twelve-week medical leave in order to continue to receive City benefits. (The original letter was dated December 16, 2003 but was misdirected by the postal service). This letter directed the grievant to request, in writing, a medical leave, the reason for the leave, the duration and the starting and ending dates of the leave.
“This notice also required the grievant to submit a Medical Certification Statement to be completed by his health care provider. The statement was to state the date on which the grievant's health condition commenced, the probable duration of his condition and the appropriate medical facts regarding his condition.
“On January 27, 2003, the grievant requested this leave in writing. On February 14, 2003, I advised the grievant that his request was denied as his medical certification did not contain information necessary to process the request. The documentation did not indicate if his condition is chronic, if it is treatable, or any indication of when he intended to return to work or what course of action he intended to take to do so. However, based on discussions with your field representative, and, after further review, I reconsidered his request for medical leave and granted it effective on the requested date of February 1, 2003 and expiring on April 25, 2003.
“In my written approval dated March 13, 2003, I directed the grievant to provide information during his leave that was previously requested. Specifically, he was to advise if his condition was chronic, if it is treatable, the treatment course and frequency and who would provide the treatment. He was also asked to indicate when he expected to return to work.
“During his leave, the grievant failed to submit any additional information to the City. At the eleventh hour, on April 28, 2003, the grievant faxed a memo from John L. Zinkel, MD dated April 16, 2003 regarding a follow-up examination. This memo contained only a portion of the required medical information. The grievant made no effort during his family medical leave or upon its expiration to advise the City as to his employment or work status.
“Article 20-A, Section 2(3) and (5) of the collective bargaining agreement addresses and governs loss of seniority. An employee loses his seniority if he is absent for three consecutive working days without notifying the City and/or failing to return from sick leave.
“His absence has culminated to this and his employment was then terminated.
“This termination was done in accordance and compliance with the terms and conditions of the collective bargaining agreement. The City has not violated the contract and the grievance is, therefore, denied.”
The parties were unable to resolve their differences.
James Leidlein, City Manager of Harper Woods for 20 years, reiterated that the Grievant, a Police Officer, has not worked for the City since December 2001. Mr. Leidlein related that the Grievant utilized vacation, sick and other accumulated leave time until August 2002. Thereafter, he was on unpaid status, however, he did continue to receive fringe benefits. In January 2003, the Witness informed the Grievant of his FMLA rights. On March 13, 2003, he informed the Grievant of the following:
“Based upon discussion with your Labor Council Field Representative and further review, I have reconsidered my February 13, 2003 correspondence in which I denied your request for family medical leave. After this reconsideration, I have decided to grant your request for a twelve-week unpaid medical leave commencing on your requested date of February 1, 2003 and ending on April 25, 2003.
“During this leave, I would request that you apprise us of the items previously sought; i.e., whether or not your condition is chronic, if it is treatable, the treatment course and frequency and who will provide the treatment. Please also indicate when you expect you will return to work.
“This information should be submitted to the Chief of Police.”
A medical certificate, dated April 16, 2003, was received by the City advising the Grievant was under doctor's care and contained the following information as to his condition: “Impression:
1. Status-post 12/10/02 L2-S1 discography with IDET at L4-5 and L5-S1: patient describes 50% pain improvement compared with before procedure but still has residual discomforts.
1. Physical therapy with further recommendations accordingly.
2. Continue with current restrictions.”
The Witness said that nothing else was available at that point to the Grievant so the termination letter was sent to him. The Witness noted that his letter responding to the Grievance should have referenced Article 20-A, Sections 3(3) and (5). To the date of the Hearing, the Grievant has not returned to work and he has not submitted further information as to his condition. Mr. Leidlein acknowledged that in October 2000 the Grievant was involved in an on-duty car accident. In February 2001, the Grievant reported to having sustained another injury and he was off work until June 2001. On August 27, 2001, the Grievant again injured his back while chasing a suspect. Mr. Leidlein explained that in the case of on-duty injuries, the employee is sent to a City doctor and, here, the Grievant was referred to another doctor—Dr. Zinkel. Mr. Leidlein understands that the Grievant had back surgery in December 2002. The Grievant did file a Workers Compensation claim in which an opinion and order resulted on October 10, 2003.
T__, Grievant and Police Officer for the City of Harper Woods since December 1985, recalled that in October 2000 his scout car was rear ended and he was off work for two days because of back discomfort. In February 2001, he was assisting another Department with an accident on I-94. While he was attempting to close the left lane, a car approached and Mr. T went over the median to avoid being struck—the roadway had “black ice.” He sustained an injury to his back and the City designated doctor referred him to a Dr. Zinkel. The Witness was off work until July 2001. In August 2001, he was “forced”to return to regular duty on the Road Patrol. In that same month, he was involved in a pursuit of a stolen vehicle suspect and he aggravated his back while jumping a fence. Mr. T was off work for a short time and placed on light duty. Dr. Zinkel, in November 2001, recommended surgery, but the procedure was not approved by the Workers Compensation doctor. He was on light duty until December 7, 2001 when he was told to return to the Road Patrol. The Witness did not believe he was able to return to Road Patrol duty so he utilized sick leave and other leave time from December 8, 2001 until August 2002. Thereafter, he was on no pay status, however, the Employer continued to pay his medical insurance. He did have surgery in December 2002. While on no pay status, he was not forced to return to work. Mr. T did furnish the City with a medical statement from Dr. Zinkel in January 2003. His next scheduled appointment was in April 2003 and, in the interim, he was to wear a back brace. He was approved for FMLA pursuant to the earlier referenced letter. The Witness related that he was not told he was required to return to work when his FMLA was first denied. He further stated that when his FMLA was granted, it was not indicated he was required to return to work on its expiration. In April 2003, Dr. Zinkel did not recommend that the Witness return to work. He has had a second back surgery—October 2004—and he expressed a desire to return to work. Although the Police Chief recommended that he apply for a non-duty disability benefit, Mr. T has never submitted a non-duty disability claim. He has never applied for a duty disability.
Leslie Frank, Administrative Assistant, handles correspondence, including that dealing with FMLA. The Witness said it is her usual procedure to mail a copy of the City FMLA Policy, a Notice of Intention to Return From Leave, a Medical Certification Statement and an Application for Family or Medical Leave in cases such as the one herein.
On rebuttal, Mr. T denied ever receiving the forms which the City maintains were attached to the Policy.
The following provision of the Collective Bargaining Agreement is referenced in the termination letter to the Grievant:
“Article 20-1—Seniority— Sworn Officers
* * *
Section 3. Loss of Seniority. An employee shall lose his/her seniority for the following reasons only: * * *
3. S/he is absent for three (3) consecutive working days without notifying the Employer. In proper cases, exceptions may be made with the consent of the Employer, after such absence, the Employer will send written notification to the employee at his/her last known address that he has been terminated. If the disposition made of any such case is not satisfactory to the employee, the matter may be referred to the grievance procedure. * * *
5. Failure to return from sick leave and leaves of absence will be treated the same as (3) above.'' * * *
Discussion and Findings
The Employer stresses that the Grievant exhausted all of his available leave time prior to termination:
“There is no dispute that Grievant was out of all leave as of April 25, 2003. He had exhausted all sick, vacation, furlough and FMLA leave. There is also no dispute but that he did not report to work following the end of his last approved leave, that being the FMLA leave....”
In connection with the above, the City says the Grievant was extended FMLA despite the fact that “he really never qualified because he never did answer the qualifying questions.” In regard to the argument that the Grievant was not ordered back to work, the City responds:
“... Art. 20-A, §3(3) of the CBA places an obligation on the employee who is absent for 3 consecutive work days to `notify[ing] the Employer....' Grievant did not do that in this case. Rather than contact the City in a timely manner with the type of information it had been requesting for months, the Grievant merely faxed a meaningless medical examination letter to the Police Department.
“Second, even if this contact does satisfy the notification requirement of §3(3), this letter from his doctor underscores the most significant problem with the Grievant's position. He was not physically capable of returning to work as a police officer following the exhaustion of all his leaves under the CBA and the FMLA. Moreover, by his own testimony, due to his alleged physical condition, he could not perform the job duties of a patrol officer at the time his FMLA leave expired in 2003. Therefore, according to §3(5) he properly lost his seniority and his status as a Harper Woods' police officer. The City has no obligation under the CBA to continue someone in an employment status who has no more leave time. Certainly, Mr. T is still free to make an application to the City Pension Board for a duty or non-duty related pension, but that is not the issue in the case at this time.”
The City characterizes the Grievant's claim that he did not receive Employer forms along with the FMLA Policy as a “red herring”:
“That Policy, together with the February 13, 2003 and March 13, 2003, letters from Mr. Leidlein, which he admits receiving, clearly indicated that he was to supply certain information listed therein to the City. ...”
It is argued the Grievance should be denied.
The Union disagrees that Mr. T was discharged for just cause pursuant to Article 20-A, Section 3, of the Collective Bargaining Agreement. The Union points out the following:
“It is undisputed that Officer T was injured while performing his duties as a police officer. It is undisputed that Officer T, regardless of documentation provided by either side, was given twelve weeks leave under FMLA. This is confirmed in his termination letter dated April 29 and the City Manager's response to the grievance dated May 27, 2003, as well as testimony of the City Manager at this hearing. All indicate Officer T was on FMLA through April 25, 2003.”
In regard to Article 20-A, Section 3(3), the Union urges:
“This language requires an officer to be absent for three consecutive working days without notifying the Employer. However, the Employer has carried Officer T on unpaid status since August of 2002. This was done without discussion between the Employer and Officer T. There was no effort to assign him to any work schedule since that time. Based upon the termination, it seems Officer T was scheduled to work the three days immediately following his leave.
Even if Officer T was scheduled to work, it is undisputed that on the third day, April 28, the Employer was notified by fax of Dr. Zinkel's opinion to not return him to work. Undoubtedly, the Employer had notice of Officer T's inability to work on April 28, 2003 sufficient to satisfy Article 20-A, Section 3(3) of the collective bargaining agreement.”
The Union is critical of the Employer action in this case:
“The Employer should have provided a warning that termination was imminent despite the Employer's willingness to carry him on unpaid status prior to April 25 of 2003. This would have given notice that the practice of carrying Officer T on unpaid leave would be ending if he was unable to return to work. Notice of a change in established practice needed to be made by the Employer. This is especially true based upon the fact that the Employer was fully aware of the surgery for the on duty injury. The Employer was given notice as to his status on April 28 from a letter by Dr. Zinkel. Officer T did not simply disappear or not show up.”
The requested remedy is as follows:
“ ... The Union requests that Officer T be returned to work as a police officer with the City of Harper Woods. It is requested Officer T be made whole in regards to his back pay, seniority, vacation, sick time, medical coverage, or any other benefits he would have earned from the date of his unjust termination to the present.”
The Grievant, from December 2001 to August 2002, was allowed to utilize available leave time he had accumulated for that period when he was unable to work because of his back problem. In December 2002, the City Manager attempted to advise the Grievant that he needed to apply for leave under the City Family and Medical Leave Policy. The Grievant received the letter in mid-January 2003 and it was accompanied with the referenced City Policy. By letter dated January 27, 2003, Mr. T informed the Employer:
“Due to two back injuries sustained while employed by and working for the City of Harper Woods, I am requesting a medical leave offered under the Family and Medical Leave Act of 1993 (FMLA). Due to this required and necessary back surgery performed in December of 2002 1 am requesting this medical leave, beginning February 1, 2003 and through the offered 12 week time period.”
By letter dated March 13, 2003, the City Manager advised the Grievant:
“... I have decided to grant your request for a twelve-week unpaid medical leave commencing on your requested date of February 1, 2003 and ending April 25, 2003.”
“Article 20-A, Section 3(3), indicates that an “employee shall lose his/her seniority ...if s/he is absent for three (3) consecutive working days without notifying the Employer.”
Subsection 5 states:
“Failure to return from sick leave and leaves of absence will be treated the same as (3) above.”
The Parties have a different view as to the applicability of Subsection 5. The Employer contends that the failure to return from sick leave and leaves of absence gives rise to a loss of seniority. The Union maintains that the “three (3) consecutive working days without notifying the Employer” is also applicable.
I conclude the Employer reasoning has more merit. A sick leave or leave of absence is granted by the Employer because certain facts are made known as it relates to the necessity for the leave. In the case of an absence for three consecutive work days without notice, the Employer has no awareness of the reason for the employee's absence.
In the alternative, the Union urges that the Grievant reasonably believed he would be allowed to recover from surgery beyond the April 25, 2003 date. In support of the above, it is noted the Employer allowed the Grievant to exhaust all his accrued leave time without strict adherence to the Collective Bargaining Agreement. From August 2002 to January 2003, he was unilaterally placed on unpaid leave status. Given the above, the Union says: “Notice of a change in established practice needed to be made by the Employer.” It should be noted that the letter from Mr. Leidlein does indicate the leave will end on April 25, 2003. In any event, the element of notice is not dispositive since Mr. T was not able to return to work following his FMLA leave.
In order to place this case in the proper framework, it should be understood that the termination is not the result of misconduct by the Grievant. The Employer, in apparent recognition of his claim to having been injured and unable to work because of on-the-job injuries, allowed the Grievant to exhaust his accrued leave time. During an additional period—August 2002 to February 1, 2003—he was carried on no pay status. Thereafter, Mr. T was extended FMLA leave for an additional 12 weeks. At the expiration of that leave, the Grievant was still unable to report for work. That fact makes the Union-raised issue of notice one which is basically irrelevant. The bottom line is the Grievant was unable to return to work on April 29, 2003 and neither he nor his treating physician was then able to provide an expected return to work date.
The above facts, in my view, are not indicative of a rush to judgment by the Employer. It is, after all, widely accepted that an employer is entitled to a work force consisting of individuals who are available for work in accordance with a regular duty schedule. Exceptions occur when an employee has sustained illness or injury. The latter situations do not require an employer to indefinitely retain an employee in its work force. At some point, an employer must have the ability to sever the employment relationship with an employee who has been off work for an extended period of time and with no foreseeable prospect of being available for work in a reasonable future time period.
Based on the above reasoning, it is concluded the Grievance herein must be denied.
The Grievance is Denied. Pursuant to Article 18, Section 5, of the Agreement, the fees and expenses of the Arbitrator are to be paid by the Union.