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University

and

UNION


_______________________________________________________________________________________________________________________________

IN THE MATTER OF THE
VOLUNTARY ARBITRATION BETWEEN

 

 

ISSUE


SHOULD THE GRIEVANT HAVE BEEN RETURNED
TO WORK FOLLOWING THE EARLIER AWARD IN
THIS MATTER, AND IF NOT, ARE THERE PROCEDURES
THAT SHOULD BE FOLLOWED AT THIS TIME?


On April 6, 1999, I issued the following award concerning Mr. GRAPE:

 


AWARD


For the foregoing reasons, the Grievant shall be reinstated with
seniority, but without back pay and benefits. His time off from work shall be considered a disciplinary suspension.
Upon reinstatement, Mr. GRAPE will be subject to the six months of conditions found in Mr. Skidmore�s August 19, 1997 letter. In particular, the Employer need not accept excuses based upon mental problems. Further, the Grievant shall not consume alcohol, and proof that he has done so, shall constitute just cause for discharge.
Mr. GRAPE was required to take a return-to-work physical following the award, and the University�s physician determined that he should not be placed back on his job. A grievance was filed over that decision on May 27, 1999, requesting Mr. GRAPE�s reinstatement as directed in my award.
The Union wrote:
VIOLATION(S): Article 1, Paragraph 4 and 6. Article 4,
Paragraph 10. Article
15, Paragraph 73, and any and
all others that may apply.
STATEMENT: On May 26, 1999, the Union became aware that Mr. R GRAPE had not been returned to work as the University was instructed by Arbitrator Mark Glazer in his award for Grievance GS-4.
REMEDY DESIRED: That Mr. GRAPE be returned to work
immediately and made whole for any and all losses, since Mr.
Glazer�s award dated April 6, 1999.

 

 

The University answered the grievance as follows:

Disposition:
In the instant matter the Union demanded that the Grievant be returned to work forthwith and receive full pay for the time of the Glazier(sic) award, April 6, 1999, until his return to duty.
The Employer declines to agree. Please be reminded that the University Physician on May 21, 1999, wrote:
�I have completed my evaluation and review of
medical records on Mr. R GRAPE. Because of both
health and safety issues, I am unable to release him to
work at this time...�
It will be necessary for the Grievant to furnish the Employer a medical transcript from his physician and psychiatrist explaining that he is not drinking alcohol and that his medication is controlling whatever physical or psychilogical (sic) problem he has. When this documentation is received it will be sent to the University physician for her evaluation and action.
Therefore, the grievance is denied.
An arbitration hearing was held on October 27, 2000. Testifying for the University were E. PEAR, M.D., University Physician and James Rhodes, Chapter Chair, as an adverse witness. Testifying for the Union was Richard GRAPE, Grievant. Comprehensive post-hearing briefs were submitted by the parties.

 


BACKGROUND


Following his reinstatement in the arbitration award, Mr. GRAPE was sent to Dr. PEAR for a return-to-work physical. He was examined by the doctor on May 5, 1999, and the request was made for his medical records. Pending receipt of these records, Dr. PEAR drafted a return to work letter for the Grievant.

After reviewing the medical records and becoming concerned about what she regarded as the Grievant�s erratic behavior, which included alcohol consumption, Dr. PEAR refused to return the Grievant to work. She wrote the following letter on May 21, 1999, which prompted the present grievance six days later:


Dear Mr. BOAT:
I have completed my evaluation and review of medical records on Mr. R GRAPE. Because of both health and safety issues, I am unable to release him, to work at this time. If you have questions concerning, this, please give me a call at
453-9221.
Sincerely,

E. PEAR, M.D., M.S.
University Physician
Following the Employer�s July 15 answer to the grievance, Mr. GRAPE submitted the following report from his family physician on July 29, 1999, which authorized his return to work:


FAMILY PRACTICE
R GRAPE has been under my care from 7/29/99 and is able to return to work on 7/30/99. No physical rest.
Dr. KEE
*** Date: 7/29/99
Dr. PEAR testified that initially she thought that she could return the Grievant to work with close supervision. However, after reading the award she developed concerns about the Grievant�s medication and work history, and she thereafter requested a medical release.
Dr. PEAR said that when the Grievant came into the office, members of her staff smelled alcohol on his breath. Also, an office person was concerned about the Grievant�s aggressive behavior.

Dr. PEAR was also worried about the Grievant�s lab reports, which indicated alcohol use, and she felt that the reports showed an abnormality. The psychiatrist�s reports, in addition, indicated that the Grievant was still drinking and Dr. PEAR was concerned about the harmful potential effects of alcohol interacting with the Grievant�s prescribed medication.
The University physician testified that she issued her negative report because of safety concerns relative to the Grievant�s operation of heavy equipment, and the potential harmful effect that he could have on himself and his co-workers. Dr. PEAR indicated that she didn�t want the Grievant to return to work until it had been verified that he was not drinking and that his use of medications allowed him to work safely.
Mr. GRAPE is a Laborer II. He testified that Dr. PEAR�s medical examination lasted five to ten minutes, without an alcohol test. Following the examination, the Grievant said that he provided his complete psychiatric file. Mr. GRAPE feels that his doctor�s note returning him to work was sufficient to require the University to allow him to return to his previous employment. Mr. GRAPE did not request a third doctor to examine him.
The Grievant testified that he had a drinking relapse after he was refused the opportunity to return to work. In December of 1999, the Grievant was put on probation for impaired driving. This included alcohol testing on a regular basis. Mr. GRAPE is on probation until December of 2000. The Grievant says that he went on a drinking binge on July 26, 1999 and that he entered a substance abuse program.


PERTINENT CONTRACT PROVISIONS
ARTICLE 2
RIGHTS OF THE EMPLOYER

The Employer reserves and retains, solely and exclusively, all rights to manage and direct its work forces, except as expressly abridged by the provisions of this Agreement, including by way of illustration but not limitation, the determination of policies, operations, assignments, schedules, discipline, and layoff, for the orderly and efficient operation of the University.


ARTICLE 19
MEDICAL DISPUTE
-80 In the event of a dispute involving any employee�s physical ability to perform their job at the University, when the employee is not satisfied with the determination of the University�s physician, they may submit a report from a medical doctor of their own choosing and at their own expense. If the dispute still exists, at the request of the Union or the Employer, the University�s physician and the employee�s physician shall agree upon a third medical doctor to submit a report to the Employer and the employee, and the decision of such third party will be binding on both parties. The expense of the report of the third party shall be shared equally by the Employer and the employee. The prevailing determination will be effective at a date mutually agreed to by the Union and the University.


ARTICLE 15
PRESENTING A GRIEVANCE
-73 Finality of Decisions
- There shall be no appeal from the Arbitrator�s decision. Each such decision shall be final and binding upon the Union and its members, the employee or employees involved, and the Employer. The Union will discourage any attempt of its members and will not encourage or cooperate with any of its members in any appeal to any Court or Labor Board of a decision of the Arbitrator so long as the Arbitrator has not exceeded his/her contractual or legal authority. The Employer shall not appeal the decision of the Arbitrator to any Court or Labor Board so long as the Arbitrator has not exceeded his/her contractual or legal authority.

POSITION OF THE UNIVERSITY


The University contends that Dr. PEAR reasonably concluded that the Grievant was still drinking in violation of my previous award. The University also contends that it reasonably requested a transcript from the Grievant�s psychiatrist, yet all it received was a return-to-work slip from the Grievant�s family physician.
It is emphasized that the Grievant failed to pursue his paragraph 80 remedy by requesting an independent medical examination.
It is particularly noted that the medical reports indicate that the Grievant was drinking even at the time of the reinstatement award, and that he went on a binge drinking spree in July of 1999. Thereafter, he was arrested for impaired driving and the Employer says that his alcohol screens show that he continues to use alcohol.
The Employer asks that the Grievant be barred from returning to work due to his failure to provide medical reports as requested by the University�s physician. Further, it is requested that the arbitrator note that due to the Grievant�s continued drinking, the Grievant should not be allowed to return to the University.


POSITION OF THE UNION


The earlier award, it is argued, required the University to return the Grievant to work. It is further asserted that the University�s physician was biased against the Grievant. The Union also argues that the Grievant should have been returned to work following his doctor�s medical opinion. The Union also contends that the Grievant submitted his medical reports as requested.
The Grievant�s relapse should not be held against him, it is argued, because it was due to the University�s wrongful failure to reinstate him.

DISCUSSION


Initially, it must be determined what this case is and is not about: it is clearly not a discharge case; the Grievant was not disciplined for using alcohol, and as an arbitrator, I do not have jurisdiction to refuse to return him to work because of his alcohol use. Simply stated, I cannot revisit my earlier award and make changes based upon new facts. Rather, this case is limited to the issues presented by the grievance. The grievance challenges the University�s decision not to return the Grievant to work following my earlier award conditionally reinstating him.


The most important question is whether the University could require the Grievant to pass a medical examination as a condition of his reinstatement, notwithstanding my award. The contract does not specifically speak to that issue; however, paragraph 80 of Article 19 creates the conditions for a medical examination when the University is concerned about an employee�s physical ability to perform his or her job. This suggests that the University can order a physical for a returning employee, since the employee�s physical ability to perform the job after a long layoff would reasonably be of concern. Further, absent a prohibition in the contract, the management rights clause would permit a physical examination for a returning employee.
Finally, it is a clear rule in arbitration that a returning employee may be subject to a physical examination before he is returned to work. Obviously, the thought is that during a period of a long layoff there may be a condition that develops that prevents the employee from performing his job. Elkouri and Elkouri note the principle in How Arbitration Works (BNA 5th Ed, p. 798) as follows:


Management�s good faith right to require job applicants to submit to a physical examination is so basic that it has rarely been an issue in arbitration. The utility of physical examinations obviously is not ended once the applicant has been hired and has commenced service with the employer
- situations arise to warrant physical examinations during the employment relationship.

It is clear from reported arbitration decisions that management has the right, unless restricted by the agreement, to require employees to have physical examinations where the right is reasonably exercised under proper circumstances, such as where an employee desires to return to work following an accident or sick leave, or following extended layoff, or where the employee has bid on a job requiring greater physical effort.
The only limitation on management�s right to perform a return-to-work physical is that it must be performed reasonably.
Therefore, MSU could order a return-to-work physical following my conditional reinstatement award. Once the examination was ordered, the provisions of paragraph 80 of Article 19 determined the appropriate result in this case: an arbitrator is not free to craft a separate procedure.
To begin, paragraph 80 allows the University to issue a report prohibiting the employee�s return to work based upon his or her medical condition. If the employee is dissatisfied with the report, he/she may submit a report to the University concerning the employee�s medical condition. Paragraph 80 says:
In the event of a dispute involving any employee�s physical ability to perform their job at the University, when the employee is not satisfied with the determination of the University�s position, they may submit a report from a medical doctor of their own choosing and at their own expense.
In this case, Dr. PEAR on May 21, 1999, disqualified the Grievant from returning to work. This created the conditions for the Grievant to provide a report from his own doctor. It should be noted that the Grievant was not contractually required to submit a medical transcript as requested in the third step answer, although it is certainly an implied condition for a medical examination that the Grievant provide all of his medical records to the University. Clearly, if the medical records requested by the University in the third step answer had been favorable to the Grievant, it could have led to a change in Dr. PEAR�s position. However, as a matter of contract, the Grievant complied with the contractual requirements by submitting a report from his own doctor, and by previously submitting medical reports to Dr. PEAR.


Mr. GRAPE submitted a medical slip from his family physician on July 29 stating that he had no physical restrictions. While a report from his psychiatrist would have been preferable, and the accuracy of the slip is called into question, since the Grievant admits that he was on a drinking binge, the report from his doctor did satisfy the contractual requirements.


Once the Grievant�s report was submitted, the Employer continued to disqualify him. I cannot, as a matter of contract, review the relative merits of the University�s medical and the Grievant�s medical report, to decide whether he should have been returned to work. That is because paragraph 80 makes it clear that either the employee or the University must request a third doctor, chosen by the employee�s doctor and the University�s doctor, to make a final and binding decision when there is a disagreement between the University�s and the employee�s position on his medical ability to return to work. The contract says in paragraph 80:


If the dispute still exists, at the request of the Union or the Employer, the University�s position and the employee�s position shall agree upon a third medical doctor to submit a report to the Employer and the employee, and the decision of such third party will be binding on both parties. The expense of the report of the third party shall be shared equally by the Employer and the employee. The prevailing determination will be effective at a date mutually agreed to by the Union and the University.
The mandatory procedures of paragraph 80 failed to take place in this case. Once the University refused to accept the Grievant�s physician�s report, he was required to request to have his doctor and the University�s physician agree upon a third doctor to make a final and binding report.

That procedure never occurred, and therefore an arbitrator has no jurisdiction to do anything except to require the parties to follow the procedures of paragraph 80.


Because of the lengthy delay since Dr. PEAR�s last report, Mr. GRAPE should be reexamined by the University�s physician. He should execute medical releases and make all of his medical records to date available to the University�s doctor. If the University�s doctor continues to disqualify the Grievant, he may submit a report from his own doctor. If that report returns him to work, the Grievant must request his doctor and the University�s doctor to agree upon a third doctor to make a final and binding recommendation pursuant to the requirements of paragraph 80.
There is no other remedy that is appropriate at this point. Back pay and benefits are inappropriate, because there hasn�t been a report to date from a third doctor authorizing the Grievant�s return to work.


I would emphasize that all of my concerns that existed in my initial award continue, and they would apply should the Grievant be returned to work by a third doctor. In particular, my comments concerning the use of alcohol continue to apply.

AWARD


1. The Grievant�s return to work is dependent upon a favorable report from either the
University�s physician or a third physician selected by the Grievant�s doctor and the
University�s doctor pursuant to the procedures found in paragraph 80 of Article 19.


2. Due to the extended length of time since Mr. GRAPE�s last examination by a
University doctor, the Grievant shall be re-examined by the University�s physician.


3. Mr. GRAPE shall execute a release for all of his medical and psychiatric records, as
well as his court records, and he shall supply them to the University�s physician.

4. If the University�s physician returns the Grievant to work, that is the end of this case; however, there will be no back pay and benefits since the Grievant had not been previously cleared to return to work under the provisions of paragraph 80 of Article 19 by a third doctor.
If the University�s physician disqualifies the Grievant again, he may submit a report from his own doctor.


5. If the Grievant�s report from his own doctor is favorable and the University doesn�t accept it, the Grievant may utilize the procedures in paragraph 80 to request his doctor and the university�s doctor to select a third doctor to make a final and binding report and recommendation concerning his return to work. The Grievant shall comply with any of the requests of the third doctor for medical records and reports.


There will be no back pay and benefits pending the report of the third party doctor:
if the third party doctor�s report is favorable to the Grievant, he shall be returned to
work; otherwise, the disqualification of the Grievant will remain.


I will retain jurisdiction for problems associated with the remedy.


The conclusions of my award of April 6, 1999 will apply in the event the Grievant is qualified pursuant to paragraph 80 to return to work.
Mark J. Glaze
Arbitrator
January 4, 2001