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USW Local 6354 and Vulcan Mold 11-12-87
USW Local 6354 and Vulcan Mold 11-12-87
USW Local 6354 and Vulcan Mold 11-12-87
and
Grievant has a history of absences, too extensive to set forth in full detail.
9. 7/27/87-8/9/87 vacation. Co Ex 4.
1
This letter of January 27, 1986 may be considered per Par 10.24 of the collective bargaining agreement, as
corrected in the Company's hearing brief:
Letters of Reprimand or discipline in personnel files shall become void after one (1) year from the date of
such letters, provided however, that in any instances where additional reprimand or discipline is required
because of repetition of a previous offense such letters shall not become void until two (2) years from
date.
At the time of the hearing, the current collective bargaining agreement was undergoing proofreading and the
parties submitted instead the predecessor agreement which was in force May 1, 1983-April 30, 1987 (Jt Ex 1),
with the stipulation that the relevant language remained unchanged.
2
Grievant was paid some vacation days during this period.
2
By letter dated August 10, 1987, the Company notified grievant that he
was being suspended for five days with intent to discharge at the end of that
period; see CBA Par 10.20. A discharge hearing was held August 14, 1987. Jt
justify its action. Jt Ex 3. Despite appeals for clemency, the Company upheld its
The Union argues that grievant's irregular attendance is due to mental and
physical illness and that it is unjust to discharge him for such circumstances
absences were due to illness and goes on to argue that it is entitled to discharge
grievant for excessive absences notwithstanding the fact that they may be the
Absenteeism, etc. 91-92 (BNA 1985); Jordan v Lear Siegler, Inc, 120 LRRM
3213, 3214 (WD Mich, 1985); 8 Employment Coordinator (RIA) Par EP-
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22759; 53 Am Jur 2d, Master and Servant, Sec 50, p 125; Annotation, "Right of
violates state or federal law; thus, we must look to the terms of the collective
bargaining agreement.
agreement. Paragraph 6.23 deals with jury duty; Pars 6.24 & 6.25 with funerals;
Par 7.20 refers to sick leave and Par 9.6 refers to absenteeism, illness; Par 9.45
addresses leaves of absence; Par 12.13 grants vacation time despite illness; but
there is no unifying article governing all of the various types of absences or even
provision, Par 5.0, and upon other absence and tardiness provisions, Pars 6.13 &
6.14, but these latter provisions would seem to have no application to the instant
matter. It can be inferred from the Company's May 7, 1987 letter to the grievant
(one absence a month O.K.) that matters of absences are dealt with on a case-
by-case basis.
directly addresses the issue before me and being referred to none by the parties,
I conclude that the following provisions of Article IX, Seniority, when read in
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tandem, are controlling:3
An employee shall lose his seniority [u]pon discharge for just cause. Pars
9.34 & 9.35.
Seniority shall not be lost because of: absence of any employee due to
personal illness not exceeding two (2) years unless extended by the
Company *** . Par 9.42 (emphasis in original).
44. The rule negotiated by the parties is that an employee may not be discharged
for an extended absence due to illness until two years have elapsed.4 The issue
From May 27, 1986 through July 12, 1987, grievant was off continuously
due to illness. Co Ex 4. At the time of his return to work on July 13, 1987, he
presented two doctors' certificates, both stating that he could return to work with
"no restrictions". Co Ex 5. I agree with the Union that the grievant should not
have been released to return to work and find that the doctors' certificates were
noted after hospitalization in late August of 1986, that grievant's condition was
"Unimproved" and that his prognosis was only "Guarded to poor". Grievant was
3
Although the Union relied on Article IX generally during the grievance procedure (Jt Ex 2), there is no claim
that the grievant suffers from "physical disability" within the meaning of Par 9.36.
4
It is important to note that these provisions do not say that an employee may not be discharged for a succession
of shorter absences due to illness. Indeed, a protracted, isolated illness may prove less disruptive of the workplace
than recurrent sick days. See generally Block & Mittenthal, "Arbitration and the Absent Employee" in Arbitration
1984: Absenteeism, etc. (BNA 1985).
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being evaluated by the University of Michigan Medical Center as late as June
condition is such that he is unable to operate a crane at this time." Id. Further, at
the hearing, the grievant testified that he has been advised not to drive and told
Despite the foregoing medical facts, grievant explained that he came back
to work because he needed money. To obtain the doctors' certificates, he told his
doctors that he was broke. I find that the grievant should not have returned to
work on July 13, 1987 and remains unable to work today. Whether he ever will
grievant is still within the two-year grace period granted by the CBA, Par 9.42
and should be treated as though he is still on sick leave. This means, of course,
that he is not entitled to back pay and is to be reinstated only to such status and
absence. If it extends beyond two years, then the Company is free to discharge
him pursuant to the express terms of the CBA. However, given the willingness
the Company can anticipate receipt of additional dubious certificates before the
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two years is up, and a repetition of the cycle of work, absence, discipline which
it has experienced the past several years. To prevent the grievance and
into place.5
The grievant shall remain on sick leave. If the two-year period lapses and
grievant takes no action, then he may be discharged on May 28, 1988, pursuant
to CBA, Par 9.42. If the grievant deems himself recovered and desires to return
to work at the end of the two-year period, then he shall give the Company
written notice on May 27, 1988 and shall submit to such mental and physical
examinations as the Company deems reasonable (to be arranged and paid for by
the Company). If these examinations indicate that the grievant is well enough to
the CBA. In addition, the grievant may submit his own medical evidence, of
5
Although "[t]he arbitrator shall not have authority to alter in any way the terms and conditions of this
agreement", "[i]f the arbitrator determines that the action taken should be modified rather than revoked or
affirmed, such grievance shall be disposed of upon such terms and conditions as may be deemed proper under the
circumstances." Pars 10.6 & 10.22. Although I cannot find any provision of the CBA which requires doctors'
certificates prior to a return to work from a long illness (Cf. Pars 7.17 & 7.18), the grievant submitted two to
wrongly induce the Company to return him to active work. At the very least, it does not seem improper under
these circumstances to give the Company the right to have the grievant evaluated objectively before it takes him
back again.
6
It is regrettable that doctors' certificates are viewed with such skepticism in arbitration proceedings, but the
skepticism is born of experience. See, e.g., Zack (ed), Arbitration in Practice 96 (Cornell University 1984);
Gershenfeld (ed), Arbitration 1984: Absenteeism, etc. 81-83 (BNA 1985).
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to work, he may be discharged under Par 9.42.
I am not unmindful that the grievant has been with the Company for 20
years, but his absenteeism has gotten out of hand. The Union has even come
under criticism from its own membership for defending grievant's excessive
absences. Co Ex 3. Grievant has been given chance after chance to correct his
reprieve at this time only because he falls within an exception of the CBA, but
his protection expires in May of 1988. I urge the Union to impress upon the
Finally, at the hearing, the grievant complained that his medical bills are
not being paid, although this complaint was not part of the formal grievance. Jt
Ex 2. If true, I assume that this situation will be rectified so the grievant may
receive the medical treatment to which he is entitled under the CBA. Moreover,
entitled.
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SUPPLEMENTAL OPINION OF THE ARBITRATOR
... I conclude that grievant is still within the two-year grace period
granted by the CBA, Par 9.42 and should be treated as though he is still
on sick leave. This means, of course, that he is not entitled to back pay
and is to be reinstated only to such status and fringe benefits as he would
have enjoyed on continuous sick leave. Opinion, p [6].
arisen and the parties have turned to the arbitrator for resolution.
applied for renewed sickness and accident benefits and that the Company had
denied his application. Mr. Fagan informed the arbitrator that he was forwarding
further represented that the Union concurred with this procedure and would be
received a call from Mr. Clinton Parrott, Steelworkers Staff Representative, who
stated that the issue was straightforward: In light of the arbitrator's opinion of
November 12, 1987, was grievant entitled to renewed S & A benefits? The
Company transmitted its materials by letter dated December 22, 1987, cc: Clint
Parrott.
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Grievant's application for S & A Benefits, dated 12-8-87, strongly
psychiatrist opines that grievant has been "continuously totally disabled" since
7-10-1987, prior to grievant's improvident return to work on July 13, 1987; see
Opinion, pp 4-5.
grievant was continuously disabled for the purpose of giving him the benefit of
CBA Par 9.42 (see Opinion, p 4) but not continuously disabled for the purpose
sick leave, May 27, 1986 - May 27, 1988. He already has received all S & A
benefits to which he is entitled for this period. The Company's decision is,
therefore, affirmed.
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1988, the arbitrator ruled that grievant should remain on sick leave until
expiration of the maximum two-year period for leave of absence due to personal
illness, on May 27, 1988. See CBA, Par 9.42. The arbitrator retained jurisdiction
By letter dated May 17, 1988, the arbitrator reminded the parties that the
two-year period was about to expire and urged that grievant notify the Company
May 25, 1988, and stated that he was ready and able to return to work. The
Company informed grievant that he would have to undergo mental and physical
examinations to determine his fitness to return, per the opinion of November 12,
1987.
these appointments and their importance, grievant failed to keep any of them.
On June 10, 1988, the arbitrator received word of the Company's action
Parrott indicated that the word on the street was that grievant had been
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matter. That time has elapsed, without further word from the Union.
I am satisfied that grievant has been extended all the rights and benefits
doubtful that grievant would recover sufficiently to return to work, and his
and unpredictable behavior for which the Company sought to discharge him in
the first place. In the absence of clear and convincing evidence to the contrary, it
personal illness. Since his illness has extended beyond the maximum two-year
limit set by CBA, Par 9.42, the Company acted within its contractual right in
discharging him.
______________________
1
The scope of this remark is, of course, limited to the issues placed before me. I express no opinion as to whether
grievant may be entitled to other benefits such as Social Security disability, workers' compensation, disability
pension, etc.
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