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FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 87-27571


Grievance No. T-87-42
LOCAL 6354, UNITED STEELWORKERS
OF AMERICA,
Union,

and

VULCAN MOLD & IRON COMPANY,


Company.
______________________________________/

OPINION OF THE ARBITRATOR

November 12, 1987

After a Hearing Held on October 7, 1987


At the Holiday Inn, Trenton, Michigan

For the Union: For the Company:

Clinton J. Parrott Joseph P. Fagan


Staff Representative, District 29 Vice President-Industrial Relations
United Steelworkers of America, Vulcan Mold & Iron Company
AFL-CIO-CLC P.O. Box 70
7000 Roosevelt Road, Suite 200 Latrobe, Pennsylvania 15650
Allen Park, Michigan 48101
Grievant [LM] is a 20-year veteran of the Company's Trenton, Michigan

plant, where he is a crane operator represented by Steelworkers Local 6354.

Grievant has a history of absences, too extensive to set forth in full detail.

However, his attendance and disciplinary record can be summarized as follows:

1. "In 1985, [grievant] had 65 absences including 13 lates and 1 left


early." Co Ex 9.1

2. 5/22/85 5-day suspension + warning re future discharge. Id.

3. 2/9/86 5-day suspension + additional 2-week suspension +


warning re future discharge. Id

4. 4/30/86 5-day suspension + warning re future discharge. Co Ex 2.

5. 5/6/86 "*** [grievant] has not had a month of perfect attendance


since 1983 ***." Co Ex 3.

6. 5/27/86-7/12/87 sick leave. Co Ex 4.2

7. 7/13/87 reported late. Jt Ex 3.

8. 7/18/87-7/19/87 jail. Id.

9. 7/27/87-8/9/87 vacation. Co Ex 4.

10. 8/10/87 in court with son. Jt Ex 3; Un Ex 6.

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

Ex 2 & 3. The Company relied on incidents ## 6, 7, 8 and 10, among others, to

justify its action. Jt Ex 3. Despite appeals for clemency, the Company upheld its

decision to discharge grievant. Jt Ex 3; Co Ex 8.

In addition to a well-documented history of absenteeism, grievant has an

equally well-documented history of mental and physical illness, dating back to

1983. Un Ex 2, 3, 4 & 7. He has been diagnosed as suffering from paranoid

schizophrenia, hypertension, hypoglycemia, and cluster headaches. Id.

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

beyond his control. The Company questions whether some of grievant's

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

result of illness. Absent a violation of state or federal law or a provision of the

collective bargaining agreement, an employer may discharge an employee for

absences due to illness or injury. Gershenfeld (ed), Arbitration 1984:

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

employer to terminate contract because of employee's illness or physical

incapacity," 21 ALR2d 1247. There is no contention that the Company's action

violates state or federal law; thus, we must look to the terms of the collective

bargaining agreement.

There is no general article on absences in the collective bargaining

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

absences due to illness. The Company relies on the Management Rights

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.

Finding no provision of the collective bargaining agreement which

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).

See also the Company-provided accident and sickness benefits. Jt Ex 4, pp 41-

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

before me thus is reduced to determining whether the grievant is affected by the

two-year rule found in the collective bargaining agreement.

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

improvidently (if not deceptively) issued. Indeed, the grievant's psychiatrist

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

18, 1987. Un Ex 7. Moreover, at the hearing held October 7, 1987, grievant

presented a letter from his psychiatrist stating, "In my opinion, [grievant]'s

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

that he may never be able to work as a crane operator again.

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

be able to return to work is problematical. For these reasons, 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.

The true difficulty in this matter surrounds the termination of grievant's

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

of grievant's doctors to furnish him with whatever excuses seem advantageous,

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

arbitration process from becoming a sham, certain safeguards need to be put

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

return to work, then he shall be allowed to do so in accordance with the terms of

the CBA. In addition, the grievant may submit his own medical evidence, of

which the Company may be justifiably skeptical if prepared by the same

physicians who signed Co Ex 5.6 If the grievant is found to be unable to return

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

problems over an extended period of time, to no avail. He is being granted a

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

grievant and his doctors the realities of the situation.

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,

nothing in this opinion should be construed as restricting the grievant's rights to

apply for unemployment compensation, worker's compensation, disability

pension, Social Security benefits, or any other benefits to which he may be

entitled.

I retain jurisdiction to oversee implementation of this award.

DATED: November 12, 1987 _________________


E. Frank Cornelius

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SUPPLEMENTAL OPINION OF THE ARBITRATOR

By opinion dated November 12, 1987, the arbitrator ruled:

... 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].

The arbitrator retained jurisdiction to oversee implementation of the award,

because the factual situation was so unusual. As anticipated, a question has

arisen and the parties have turned to the arbitrator for resolution.

By telephone call on December 21, 1987, Mr. Joseph Fagan, Vice

President of Industrial Relations, informed the arbitrator that grievant had

applied for renewed sickness and accident benefits and that the Company had

denied his application. Mr. Fagan informed the arbitrator that he was forwarding

a copy of the insurance booklet and a position statement to the arbitrator. He

further represented that the Union concurred with this procedure and would be

communicating its position by telephone. On December 22, 1987, the arbitrator

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

confirms the correctness of the arbitrator's previous ruling. In it, grievant's

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.

A collective bargaining agreement represents a compromise between the

conflicting interests of labor and management. As such, it should be given a

balanced, fair interpretation. It would be inconsistent and unfair to rule that

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

of S & A benefits (see Jt Ex 4, pp 41-44).

As indicated in the Opinion, grievant is to be treated as on continuous

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.

DATED: January 2, 1988 _________________


E. Frank Cornelius

FINAL OPINION AND AWARD OF THE ARBITRATOR

In an opinion dated November 12, 1987 and supplemented January 2,

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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

to oversee implementation of the award.

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

if he intended to attempt to return to work. Grievant contacted the Company on

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.

A physical examination was scheduled for May 31, 1988, and a

psychiatric examination for June 2, 1988. Despite repeated reminders about

these appointments and their importance, grievant failed to keep any of them.

By letter dated June 2, 1988, the Company terminated grievant's employment.

On June 10, 1988, the arbitrator received word of the Company's action

and telephoned Mr. Clinton Parrott, Union representative, to seek his

concurrence in entering a final award upholding grievant's discharge. Mr.

Parrott indicated that the word on the street was that grievant had been

hospitalized in a psychiatric ward, and requested a week to investigate the

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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

he is due under the collective bargaining agreement.1 It always has been

doubtful that grievant would recover sufficiently to return to work, and his

failure to appear for scheduled medical exams is a continuation of the unreliable

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

is reasonable to conclude that grievant remains unable to work by reason of

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.

For the foregoing reasons, the Company's action in discharging grievant

is sustained, and I relinquish jurisdiction and declare this matter closed.

DATED: June 21, 1988 _________________


E. Frank Cornelius

______________________
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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