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