Title: State of Oregon, Department of Corrections and
Oregon Public Employees Union
IN ARBITRATION PROCEEDINGS
PURSUANT TO AGREEMENT BETWEEN THE PARTIES
Arbitration arises pursuant to Agreement between Oregon Public Employees Union
("Union"), and State of Oregon, Department of Corrections
("Employer" or “Department”), under which LUELLA E. NELSON was
selected to serve as Arbitrator and under which her Award shall be final and
binding upon the parties.
was held on January 29 and 30, 1997, in Salem, Oregon.
The parties had the opportunity to examine and cross-examine witnesses,
introduce relevant exhibits, and argue the issues in dispute.
Both parties filed post-hearing briefs on or about February 28, 1997.
The parties consented to an extension of time for preparation of this
Opinion and Award.
On behalf of the Union:
Lynn-Marie Crider, Esquire, Oregon Public Employees Union, 1730
Commercial Street, SE, P. O. Box 12159, Salem, OR 97309-0159
behalf of the Employer:
Josephine Hawthorne, Esquire, Assistant Attorney General (Hardy Myers,
Esquire, Attorney General, on brief), Department of Justice, Labor and
Employment Division, 1162 Court Street, NE, Salem, OR 97310
Was Grievant, Raymond V. Decker, discharged for just cause and
consistent with Article 20, 56, and 11 of the collective bargaining agreement;
and, if not, what is the remedy?
RELEVANT SECTIONS OF AGREEMENT
9 - MANAGEMENT’S RIGHTS
as may be specifically modified by the terms of this Agreement, the Employer
shall retain all rights of management in the direction of their work force.
Rights of management shall include, but not be limited to, the right
Relieve employees from duty because of lack of work or other reasons.
Determine methods, means, and personnel by which operations are to be
ARTICLE 11 - EMPLOYEE ASSISTANCE PROGRAM [EAP]
No information gathered by an Employee Assistance Program may be used
to discipline an employee.
20 - DISCIPLINE AND DISCHARGE
The principles of progressive discipline shall be used when
appropriate. ... Discipline shall be imposed only for just cause.
56 - SICK LEAVE
Section 2. Utilization of
Sick Leave with Pay. ...
Certification of an attending physician or practitioner may be
required by the Agency to support the employee’s claim for sick leave if the
employee is absent in excess of seven (7) days, or if the Agency has evidence
that the employee is abusing sick leave privileges.
The Agency may also require such certificate from an employee to determine
whether the employee should be allowed to return to work where the Agency has
reason to believe that the employee’s return to work would be a health
hazard to either the employee or to others. ...
Section 3. Sick Leave
After earned sick leave has been exhausted, the Agency shall grant sick
leave without pay for any job-incurred injury or illness for a period which
shall terminate upon demand by the employee for reinstatement accompanied by a
certificate issued by the duly licensed attending physician that the employee
is physically and/or mentally able to perform the duties of the position.
The Agency or the administrator may require that the employee submit a
certificate from the attending physician or practitioner in verification of a
disability, or its continuance resulting from a job-incurred or
non-job-incurred injury or illness. Any
cost associated with the supplying of a certificate concerning a job-incurred
injury or illness that is not covered by Workers’ Compensation benefits
shall be borne by the employing Agency. Any
cost associated with the supplying of a certificate concerning a
non-job-incurred injury or illness shall be borne by the employee.
In the event of a failure or refusal to supply such a certificate, or
if the certificate does not clearly show sufficient disability to preclude
that employee from the performance of duties, such sick leave may be canceled
and the employee’s service terminated.
ARTICLE 107 - JOB PROTECTION FOR ON-THE-JOB ILLNESS OR INJURY
Certification of a duly licensed physician that the physician approved
the employee’s return to his/her regular employment shall be prima facie
evidence that the employee should be able to perform such duties.
has been a correctional officer at the Oregon State Correctional Institution
(“OSCI”), a medium security facility, since 1986.
As such, he carries firearms on the job at times.
He was discharged February 9, 1996, based on his refusal to report
for a psychiatric examination. The
Department scheduled this examination after Grievant consulted the
Employee Assistance Program (“EAP”) and filed a Workers’ Compensation
(“WC”) claim, then sought to return to work on his physician’s release.
The Union challenges both the order to report for the examination and
the Department’s alleged use of records from the EAP.
THE EAP CONSULTATION
August 17, 1995, Grievant contacted Cascade Centers, the EAP provider.
He had previously received a pamphlet describing the EAP and
containing the following assurances regarding confidentiality:
can be assured that Cascade Centers will keep your use of its services strictly
confidential. Information disclosed to a therapist will never appear in
your personnel file. The
State’s agreement specifies they will have absolutely no access to
the time of his visit, he received a document describing Cascade’s treatment
policies stating, in relevant part:
Communications between you and Cascade are confidential. Information will not be divulged to anyone not in treatment with you, without your prior knowledge and written approval. No records or copies are released without your prior knowledge and written approval. NOTE: If you should file a workers’ compensation claim, you will be asked to sign a release that gives your insurance carrier access to our records as well as all your other medical records.
the rare event you convince us you plan to injure or kill someone, it is our
legal obligation to warn that person and/or the proper authorities.
In the case of a minor child, we must also report abuse.
If you become dangerous to yourself it may be necessary for us to
Cascade staff doctor Jack Wills interviewed Grievant, then referred him to Dr. Richard Mead. Dr. Mead’s first available appointment was a month later. On August 24, Grievant had a follow-up telephone conversation with another Cascade staff doctor, Jo Ann Barnes. He expressed concern over the delay in receiving treatment. Grievant told Dr. Barnes he was angry and wanted to punch his supervisor, Lt. Duyck; he wanted to say and do hurtful things to her; and that other than punching her he could not say what else he wanted to do to her.
Barnes arranged for Grievant to see Dr. Mead the same day.
Dr. Mead immediately took Grievant off work for a month; he later
extended the time off work, one month at a time,
for two more months. In
October 1995, Dr. Mead estimated the period of incapacitation at six months
for purposes of the Family and Medical Leave Act (“FMLA”).
based on her telephone conversation with Grievant, on August 24, Dr. Barnes
notified Lt. Duyck, the Oregon State Police, and other law enforcement offices
of the need to take precautions because Grievant could pose a danger to Lt.
Duyck. On August 25, Lt. Duyck
sent a memo to OSCI Superintendent Nick Armenakis notifying him of the
warning she had received from Dr. Barnes.
August 25, Grievant went to OSCI to deliver Dr. Mead’s sick leave slip and
fill out his WC claim. Upon his arrival, he was ordered to meet with Armenakis.
With a shop steward present, he discussed his WC claim and Dr.
Barnes’ warning to Lt. Duyck. In that conversation, he denied making threats against Lt.
Duyck. By all accounts, Armenakis
expressed concern over Grievant’s well-being, and asked that he let him know
if there was anything he could do to help.
On each visit to the facility thereafter, he was processed through the
metal detector before being permitted to enter OSCI.
THE WORKERS’ COMPENSATION CLAIM
filed a WC claim on August 25, alleging stress and depression.
The WC carrier, SAIF, sent Grievant to an Independent Medical Examiner
(“IME”), Dr. David Heck. Grievant
testified he accurately reported his feelings and thoughts to Dr. Heck, and
that Dr. Heck’s report accurately describes his comments.
Heck’s report issued on October 13, 1995.
That report went into extensive detail regarding incidents before and
during Grievant’s employment with the Department. It
also reflected interviews with supervisors and co-workers regarding incidents
at work. The report noted the
following comments by Grievant describing recurring unpleasant thoughts:
thoughts of wanting to hurt her (Lieutenant Duyck) or myself; mostly her.
By August, these were continuous daily thoughts.
I had thoughts of what I could do to make her feel angry and scared,
like the way I was feeling. I
wanted her to suffer physically like the way I felt in my head.
his interview with Dr. Heck, Grievant described his state of mind as of August
1995 as “to the point of explosion.”
He commented “I don’t feel I can ever go back to OCSI [sic] now.
They have pushed me to the edge.”
He referred to Security Manager Joan Palmateer as a “venomous
snake.” He acknowledged he
bullied people and did “stupid things on impulse that ended up causing him
great trouble.” The report
noted Grievant became visibly angry when discussing incidents involving Lt.
Heck diagnosed “major depression, single episode,” with an additional
diagnosis of “personality disorder ... with passive-aggressive and
antisocial personality traits.” He
noted a “chronic pattern of resistance and defiance toward authority.”
He recommended continued treatment with Dr. Mead, and noted Grievant
not capable of working at this point in time.
When he does become medically stationary, it is highly unlikely that he
could ever return to OSCI without incurring a significant exacerbation of
Finally, he strongly recommended against delivering his report to Grievant, commenting that misunderstanding or misinterpretation could “cause additional distress or symptomatology.”
November 1, SAIF denied Grievant’s WC claim.
Grievant filed an appeal to that denial.
An appeal hearing was scheduled for February 21, 1996, then postponed
to June 3 and 4, 1996. At the
time of the postponement, SAIF submitted a request for “appropriate security
measures” at the rescheduled hearing. In
support of its request, SAIF submitted a December 27, 1995, letter from Dr.
Heck. Dr. Heck described the
reasons for his professional opinion that Grievant should not return to the
workplace. He further expressed
concern that Grievant’s stress, lack of control over what was said about him
at the hearing, and characteristic coping behavior could “augment his stress
at hearing and rekindle self-destructive and/or violent thoughts.” He opined that Grievant could present a danger or threat to
some hearing participants.
withdrew his appeal in June 1996, and his WC claim was dismissed..
THE DEPARTMENT’S INQUIRIES
& Risk Manager Joyce Merritt testified she routinely received copies of
IME reports from SAIF, particularly on stress claims.
She contacted SAIF about the results of the IME examination in this
case on October 18. She received
verbal information from SAIF, attributed to Dr. Heck, to the effect that
should under no circumstances return to Corrections.
For him to return might exacerbate his symptoms and cause him to be a
danger to himself or others. He
has a real problem with authority, and he definitely should not return to
requested a copy of the report. Meanwhile,
on her recommendation, Armenakis sent a letter ordering Grievant to contact
management if he wanted to enter OSCI. Merritt
did not receive a copy of Dr. Heck’s written report until November 2.
Merritt testified Dr. Heck’s report was the most strongly-worded IME
report she had ever reviewed in a stress claim. Although other IME reports have recommended against sharing
the report with the claimant, Merritt testified this was an uncommonly strong
saw Dr. Mead on August 24 and 31; September 9 and 21; October 23; and December
1, 1995. After receiving SAIF’s
denial of his WC claim, Grievant requested a release to return to work.
On November 2, Dr. Mead issued an unrestricted release to return to
work effective November 6. On
November 3, the Employer suspended Grievant with pay, pending investigation of
his suitability to return to work; it later retroactively placed him on
administrative leave with pay instead.
On November 9, the Department sent Grievant a letter stating, in
relevant part, as follows:
Based on conflicting information we have received from medical providers
regarding your fitness to return to duty, we are going to seek an additional
medical evaluation. This evaluation
will be paid for by the employer. As
soon as we are able to schedule the medical evaluation, we will contact you.
Until further notice, you will remain in paid leave status.
you refuse or fail to participate in the medical evaluation, the Institution
may find it necessary to initiate the disciplinary process up to and including
testified she consulted with a doctor who frequently testified for SAIF in WC
matters. That doctor could not
see Grievant for several months. He
suggested Merritt send Dr. Heck’s report to Dr. Mead and ask whether he
concurred in Dr. Heck’s findings. Merritt
called Dr. Heck and requested a document she could send to Grievant to explain
why he was not permitted to return to work.
Dr. Heck followed up on that conversation with a letter explaining
the basis for the concerns in his report.
That letter stated, in relevant part,
... I stated “when he does become medically stationary, it is highly
unlikely that he could ever return to OSCI without incurring a significant
exacerbation of his symptoms.” In
other words, it is medically probable that [Grievant] would begin to
reexperience feelings of anger and resentment, which could easily escalate
into the type of emotional instability that he experienced in August 1995...
a psychiatric standpoint, [Grievant] has obviously not had sufficient
treatment for him to understand his role or contribution to his stress
condition. Instead he
externalizes blame for his emotional difficulties onto management at OSCI.
Furthermore, he has become extremely sensitized to any form of
discipline from his supervisors. If
he were to return to his employment position, he would be definitely
vulnerable to the same overreactions and misperceptions which fueled his prior
self-destructive and violent thoughts, potentially endangering himself or
others in the workplace.
November 15, the Department sent Dr. Heck’s IME report to Dr. Mead with
Do you concur with Dr. Heck that [Grievant] is not medically
stationary? If you do not concur,
Do you agree with Dr. Heck that [Grievant] is unable to return to
normal work? If you do not agree,
3) When [Grievant] is able to return to work, do you concur with Dr. Heck that he should not return to his job at OSCI. If you do not concur why?
had already sent Dr. Heck’s IME report to Dr. Mead with a form asking
whether he concurred with the report. Dr.
Mead checked a box on the form indicating he concurred with Dr. Heck, but
added a comment that Grievant had not “directly or indirectly stated, in my
presence, any intended harm to anyone.”
SAIF forwarded this response to Merritt on November 27.
November 28, Merritt left a message for Dr. Mead advising him the Department
was going to release his SAIF letter of concurrence to Grievant.
She testified Dr. Mead called back and urged her not to release that
letter. Merritt described Dr. Mead as unusually concerned about the
release of his concurrence. He
said he had a copy of Dr. Barnes’ notes, but that Grievant believed he did
not have that information. According
to Merritt, Dr. Mead said he feared Grievant would stop treatment and put
himself in more jeopardy if he learned Dr. Mead had that information. That same day, Dr. Mead sent Merritt a letter stating
Heck’s report answers the questions in your letter of November 15, 1995, and
the signature date supersedes all prior correspondence.
I therefore rescind the Return to Work Release, dated November 2, 1995.
on this letter, the Employer terminated Grievant’s administrative leave at
the end of the day on November 28. He
used sick leave and vacation pay to cover his time off work.
That leave was exhausted at some point in December; he then went on
Mead told Grievant on December 1 that he would release him to work.
However, he did not do so until January 2, 1996.
The Department immediately placed Grievant on administrative leave with
pay and duty stationed him at home. By
a letter dated January 12, Armenakis notified him of a medical evaluation
scheduled with Dr. Keith Lowenstein on January 24.
At the time, Dr. Lowenstein was under contract to do fitness-for-duty
evaluations. The letter notified
Grievant his participation in the examination was mandatory.
testified he wanted to work with Grievant to get him back to work.
He interpreted Dr. Heck’s report to indicate that Grievant could
never return to work without exacerbating his condition, and that he could
never be a correctional officer. Because
Dr. Mead’s release gave little information about the reason for returning
him to work, Armenakis wanted a third medical opinion.
Grievant testified he did not want to see Dr. Lowenstein because he was
afraid the Department had already arranged for Dr. Lowenstein to find him
mentally incompetent to perform his duties, thus giving the Department an
excuse to dismiss him.
and Union Steward John Kegley met with Armenakis on January 23.
Both Grievant and Kegley asserted the Employer had no contractual right
to order the examination. Kegley
testified he told Armenakis that Article 56 permitted him only to request a
certification from Grievant’s attending physician, and that he also
suggested Grievant had constitutional rights against unwarranted searches. Armenakis explained he had conflicting medical information.
Grievant testified he responded Armenakis should not even be reading
Dr. Heck’s report, as that was intended for use only by SAIF, and that
Armenakis should not have any medical reports, history, or evaluations.
gave Grievant a direct order to report for the examination.
He told Grievant if he did not comply, it would be considered
insubordination and appropriate discipline would be taken up to and including
dismissal. According to
Grievant and Kegley, when Kegley asked his authority for that order, Armenakis
replied he had “special authority.”
Grievant testified that Armenakis went on to explain this authority
arose from concerns over the safety and security of the institution, the
inmates, and the staff. Armenakis
testified that, either in that meeting or in a prior meeting, he discussed
whether it would be possible to place Grievant in another position if Dr.
Lowenstein’s report concluded Grievant should not be a correctional officer.
THE PRE-DISMISSAL AND DISMISSAL
January 24, the Department issued a Predismissal Notice to Grievant.
The notice briefly summarized Dr. Heck’s report and Dr. Mead’s two
releases. It then described the
order to report to Dr. Lowenstein and the events of Grievant’s January 23
meeting with Armenakis. The
did not attend the scheduled appointment with Dr. Lowenstein this morning.
By not attending the appointment as ordered by me, you have been
insubordinate and have failed to cooperate with me in assessing your ability
to safely return to work at the Oregon State Correctional Institution.
Employer held a pre-dismissal meeting on February 2.
At that meeting, Kegley presented a written statement of Grievant’s
position. The statement took
issue with Dr. Heck’s role in evaluating Grievant’s fitness to work,
arguing Dr. Heck was only to report to SAIF regarding whether Grievant’s
stress was job-related. It argued
that, prior to the January 1996 release, Dr. Mead had reexamined Grievant
“with Dr. Heck’s report in mind and again declared [Grievant] fit and able
to return to work....” It
referred to sections of the Agreement upon which Grievant was relying.
It argued Grievant should be restored to full duty status and made
whole. Grievant affirmed during
the meeting that the statement contained the information he wished to present.
February 6, the Department issued a Dismissal Notice, effective February 9.
The letter repeated the information in the Predismissal Notice and
briefly described the pre-dismissal meeting.
It found the matters presented in the pre-dismissal meeting had not
mitigated Grievant’s conduct. It
On January 23, 1996, I made it very clear to you, and you understood that I
was ordering you to appear for the medical evaluation on January 24, 1996, and
that your failure to appear would be considered insubordination.
I informed you it is my responsibility to provide a safe and secure
work environment at the Oregon State correctional institution for all staff
and inmates. I also informed you
this additional medical evaluation was necessary to make a decision regarding
your ability to safely return to work. Your
failure to cooperate with me in assessing your ability to return to work
safely and your insubordination by failure to follow my direct order to appear
for the medical evaluation scheduled for January 24, 1996, are just cause for
POSITION OF EMPLOYER
the Employer has the burden of proof as to the just cause issue, the Union
bears the burden of proof regarding alleged violation of the other contract
articles cited in the issue statement.
Employer had legitimate, work-related reasons to order Grievant to cooperate
in seeking a third medical opinion. Dr.
Heck’s evaluation raised significant concerns.
Dr. Heck never wavered in his opinion of Grievant’s safe return to
the institution and his potential threat to the safety of his co-workers.
The Department had a right to rely on Dr. Heck’s report and a
responsibility to take reasonable precautions.
Mead changed his opinion about Grievant’s fitness to return to work four
times. His November 1995
conversation with Merritt revealed that Grievant was concealing from him the
matters that had alarmed Dr. Heck. Although Dr. Mead had that information from other sources,
including Dr. Heck’s report, his knowledge that Grievant was manipulating
him did not allay the Department’s concerns.
Employer had a duty to take reasonable steps given the information it had. Its
decisions affected the safety of Grievant, his co-workers, supervisors, and
inmates. It could have terminated
Grievant based on Dr. Heck’s opinion that he could not return to the
workplace without exacerbating his condition.
It could have ignored Dr. Heck’s opinion and returned Grievant to
work based on Dr. Mead’s unrestricted release.
It could secure a third medical opinion, as it sought to do here.
the Department returned Grievant to work despite Dr. Heck’s report, and if
Grievant acted on the statements he made to Dr. Heck, the Department would
have failed to ensure Lt. Duyck’s safety and caused her harm; it would have
incurred liability in that failure. Any
misconduct toward a fellow employee would have occurred in an environment that
was already dangerous because of the presence of felons and firearms.
was reasonable to obtain a third medical opinion.
The Department was willing to pay for that opinion and abide by it.
To decide what to do, the Department needed Grievant’s cooperation.
Grievant’s statements to Dr. Heck in pursuit of his WC claim created
concerns about a substantial risk to OSCI.
Only Grievant could alleviate that concern.
The information from Dr. Mead did not reassure the Department of
Grievant’s safety in the workplace. Grievant
had to assist in unringing the bell he himself had rung.
order was reasonable and work related. Although
Grievant contended that order violated Article 56, he had to follow the order
and cooperate in assessing his safety in the workplace.
If Dr. Lowenstein had concluded Grievant would not act on the
statements he made to Dr. Heck, OSCI would have been faced with the decision
to return him to the workplace, and he still could have grieved the order. If Dr. Lowenstein had agreed with Dr. Heck, Grievant could
have preserved his grievance of the order.
prevailing view of arbitrators is that management has the right and
responsibility to take corrective action when an employee’s physical or
mental disability endangers his own safety or that of others.
OSCI was attempting to take that corrective action.
discharge met the tests of just cause. Grievant
received notice of the consequences of disobeying the order to report to Dr.
Lowenstein. Unlike most disciplines, if Grievant had agreed to comply
with OSCI’s order at the time of the pre-dismissal notice, dismissal would
not have occurred at that time. The
order was given to ensure the safety of employees and inmates. The State investigated the misconduct by seeking and
receiving Dr. Heck’s report. Grievant
has never disputed that he made the statements that caused Dr. Heck to
conclude he was a danger in the workplace.
When presented with conflicting medical evaluations, OSCI sought a
third opinion. Through his
refusal to cooperate, Grievant prevented OSCI from determining whether he
could safely return to work. No
evidence exists of disparate treatment. No
other discipline other than dismissal made sense.
If Grievant presented a threat, he could not return in any capacity.
If he intended to act on his statements, other discipline was not the
solution. He concealed his
statements from Dr. Mead, but he did not recant them and he refused an
opportunity to meet with a third doctor to provide some assurance he would not
act on those statements.
insubordination charge is not a subterfuge for another reason for dismissal,
i.e., the threats against Lt. Duyck made to Dr. Barnes.
OSCI could not have investigated those statements and imposed
discipline for them. OSCI reasonably relied on its insurer’s IME and
investigated only when it learned Grievant had made threats to that IME.
If he had disavowed those statements instead of repeating them, OSCI
may not have been faced with a conflict between Drs. Heck and Mead.
If he had been fully forthcoming to Dr. Mead, there may also not have
been conflicting medical opinions.
alleged violation of Article 56 is not a defense.
Employees should follow orders even if they believe those orders
violate the contract. Grievant
was obligated to follow the order and grieve it later.
He was not on sick leave when OSCI ordered him to meet with Dr.
Lowenstein; he was on paid administrative leave pursuant to Article 9(a), (e),
and (g). Therefore, Article 56
did not apply at the time of the order.
if the Arbitrator concluded that Article 56(2) applied to Grievant in January
1996, that provision neither restricts OSCI to the “attending
physician’s” release nor prohibits it from seeking further advice if that
release is disputed or inadequate. Explicit language would be needed to give up this significant
right. Relinquishment of such a
right should not be read into the permissive language of this provision.
Article 56(3)(a) applies, it must be read in conjunction with Article 107,
which states the attending physician’s release shall be “prima facie”
evidence that the employee should be able to perform his duties.
“Prima facie” evidence means evidence subject to rebuttal by
another physician. Dr. Heck rebutted Dr. Mead’s releases. OSCI could have simply refused to return Grievant to work,
leaving him on unpaid sick leave until June 1996, when he withdrew his appeal.
Instead, it placed him on paid status, duty stationed him at home, and
sought to resolve the conflict in medical evidence.
In effect, OSCI sought to determine if Dr. Heck’s rebuttal was
accurate. Nothing in the
Agreement prohibits the Employer from seeking a third opinion in such
conflicts. If OSCI had relied
solely on Dr. Heck’s report, it is likely the Union would have requested
that OSCI investigate further by securing a third opinion.
other subsections of Article 56(3) do not apply to Grievant’s circumstances.
Article 56(3)(c) applies to requests for further authorized leave to be
absent from work. The language is
instructive in that it provides for termination upon refusal of the employee
to provide a certificate. It is
illogical to argue that the Employer may terminate an employee who refuses to
provide a certificate to support a request for leave but is prohibited from
terminating an employee who refuses to cooperate in resolving questions about
his or her safety towards co-workers in the workplace.
had appealed the denial of his WC claim.
He was in limbo between a granted and denied claim.
Articles 56 and 107 give greater rights to injured workers than to
non-injured workers. It would be
inconsistent to prohibit agencies from seeking additional certification from a
non-attending physician for a non-compensably injured worker under Article
56(2), yet permit such certificates for injured workers under Article 107(3).
Under the Union’s theory, agencies would have a greater right to
challenge releases under Article 107(3) than it would have to challenge non-compensably
injured workers’ releases under Article 56(2).
Department did not rely on information obtained from an EAP in discharging
Grievant. Neither the
pre-dismissal notice nor the dismissal letter refers to any information from
the EAP. Dr. Barnes informed Lt.
Duyck only that she had information that caused concern for her safety.
Because Grievant’s consultation with Dr. Barnes was privileged, only
the Union could have called Dr. Barnes to testify about his statements to her.
No OSCI employee testified to any other contact with Dr. Barnes or any
other EAP representative.
August 25, Armenakis asked Grievant what OSCI could do to assist and accepted
without comment Grievant’s denial of the statements attributed to him.
According to Grievant’s own testimony, that denial was not true. OSCI did not inquire further of Grievant and did not address
the issue again.
October, when Merritt began inquiring into Grievant’s condition, SAIF had
Dr. Heck’s IME report. OSCI knew the EAP had contacted Lt. Duyck about Grievant’s
statements. It took no steps
other than to request that he check in with management upon visiting the
facility. It took no disciplinary
action based on Grievant’s information to the EAP.
It acted reasonably, responsibly, and with restraint as it gathered the
information needed to protect employees in the workplace and Grievant’s
Dr. Heck knew of Grievant’s statements to Dr. Barnes, that did not taint his
report. Grievant restated his
threats against Lt. Duyck to Dr. Heck. Dr.
Heck therefore had an independent basis for his conclusion about
Grievant’s safety in the workplace. OSCI
did not simply terminate Grievant upon receipt of Dr. Heck’s report.
It took into consideration information from Dr. Mead, and requested
cooperation from Grievant. Dr.
Mead also knew about the EAP information; yet the Union would have OSCI rely
on his evaluation.
11(2) should not be interpreted to require an employer to ignore a known
danger to other workers and clients in the workplace.
Based on Lt. Duyck’s report alone, OSCI could have directed Grievant
to confer with an Employer-retained practitioner to determine if he presented
a danger to himself or others in the workplace.
Grievant would have had to comply with that directive.
That is the only way to balance Article 11(2) with the responsibility
to ensure a safe workplace. Here,
because Grievant repeated his threatening statements to Dr. Heck and built
on those statements with other information, OSCI had an independent basis to
order Grievant to see Dr. Lowenstein. OSCI
could have taken an identical course of action even if it had no knowledge of
Grievant’s statements to the EAP, and even if Grievant had never consulted
with the EAP. Dr. Heck’s
report, standing alone, gave adequate reason for another evaluation.
is irrelevant whether Dr. Barnes violated Grievant’s privilege against
disclosure of patient/psychologist information or the promise of
confidentiality in the brochure by contacting Lt. Duyck.
OSCI did not rely on any information provided by Dr. Barnes.
In any event, the EAP provided Grievant with notice it believed it had
a legal obligation to warn appropriate persons to whom he presented a danger
of harm. Article 11(2) makes no
distinction between confidential and nonconfidential information. Moreover, the confidentiality question is not a contractual
issue that this Arbitrator should resolve.
Also, Dr. Barnes did not release any information from Grievant, but
informed Lt. Duyck of her concerns and to take precautions.
order directing Grievant to submit to an evaluation now is not an adequate
remedy. OSCI is a paramilitary
organization; orders must be followed when given.
The order was legal and reasonable; OSCI was entitled to have it
followed at the time, when these issues were fresh.
Grievant’s state of mind now is not relevant.
Moreover, both Dr. Mead and Dr. Heck emphasized the necessity of
seeking treatment for his condition. Grievant
did not return to Dr. Mead after December 1995.
signing a WC claim with a release, Grievant testified OSCI was not entitled to
receive any information about him. He
cannot agree to an examination if the Arbitrator orders it but contend that
OSCI cannot receive the results of that examination.
The Arbitrator should sustain the discipline and dismiss the grievance.
POSITION OF THE UNION
primary question in this case is whether the Employer had the contractual
authority to require Grievant to undergo a psychological evaluation to
determine whether he could safely return to work, where his treating physician
had certified his ability to return to work.
If the Employer did not have that authority, Grievant’s discharge for
refusing to subject himself to the examination was not for just cause.
specific contractual language, arbitrators generally recognize a managerial
right to request physical or psychological examinations where the Employer has
substantial reason to believe a worker’s continued employment would pose a
danger to the worker or to others. However,
collective bargaining agreements may limit that right.
This Agreement limits that right.
56 establishes the exclusive means for determining fitness for work after a
non-industrial illness. The
Employer may require a certification from the attending (i.e., treating)
physician. This strikes a balance
between the employee’s right to take leave without undergoing scrutiny by
the Employer and the Employer’s right to make sure leave is not abused and
that the worker does not return to work if he or she would risk the health and
safety of co-workers.
56 is language of both authorization and limitation.
Any other reading would not make sense.
It would permit management to require certification if an employee was
out for one day, or to ignore the attending physician’s certification and
either refuse to return the employee to work or demand another examination.
So read, the language would place no limits on management’s
prerogatives. The Employer’s
reading of Article 56 is inconsistent with the reading given to similar
language by District Judge Owen Panner in O’Connor v. Marion Co.,
U.S.D.C., District of Oregon, CV No. 89-866-PA (sl. op. 3, January 5, 1990).
107 does not control. It governs
the return to work of employees suffering “compensable injury or illness.”
Although Grievant filed a WC claim, his condition has never been deemed
compensable. Therefore, Article
107 did not apply. In Armstrong
v. Rogue Federal Credit Union, 145 Or App 268 (1997), the Court of Appeals
held that, if a worker requests reinstatement while his claim is in denied
status, the statutory rules governing reinstatement of workers with
compensable claims do not apply. That
is consistent with the approach taken by the WC law generally.
Grievant’s claim was not only in denied status when the Employer
sought the additional medical evaluation; the denial became final when
Grievant withdrew his appeal.
if Article 107, Section 3, were applicable, it does not address the question
of compulsory evaluations by non-treating physicians.
A comparison of that provision with Article 56, Section 2, strengthens
the Union’s argument regarding the purpose of Article 56.
Article 107 makes the treating physician’s certificate prima facie
evidence of ability to perform work. Article
56 simply allows the Employer to seek a certificate by the treating physician;
it does not suggest the treating physician’s opinion might be rebutted.
arguendo that Article 56 does not forbid the examination ordered here,
the Agreement must be read to require a substantial basis for the request.
The Employer bears the burden of demonstrating such a basis.
It has not met that burden. Absent
contractual language on the subject, arbitrators have permitted management to
refuse to continue to employ a worker who presents danger to co-workers or
property, or who is incapable of performing the job due to mental impairment.
As a concomitant, a psychological examination may be required.
However, before requiring such an examination, some cogent showing must
be made that the employee presents such a danger or is so incapable of
performing his job.
Grievant has performed satisfactorily. No
evidence exists that Grievant ever threatened anyone, on the job or elsewhere.
Grievant worked for most of August, despite his feelings of wanting to
hurt his supervisor. No
evidence of on-the-job conduct supports the view that Grievant would be
dangerous if allowed to return to work. The
only evidence supporting the order was Dr. Heck’s report. Dr. Heck’s opinion was not based on any conduct, but rather
on Grievant’s reported feelings. Based
on reports of Grievant’s conduct at work, Dr. Heck may have concluded
Grievant was unfit to be a corrections officer.
However, the Employer was privy to that information earlier, and had
not discharged Grievant. It is
immaterial whether Dr. Heck would choose to hire Grievant. Nothing in Dr. Heck’s initial report said Grievant was
dangerous. Only after the
Employer solicited that opinion did Dr. Heck opine that he was potentially
dangerous. In light of
Grievant’s satisfactory performance, this opinion is too weak to warrant
sending him for another examination.
Heck’s opinion was stale when it was used to justify sending Grievant for
another examination. Dr. Heck’s examination took place in mid-October; the
information upon which he relied addressed Grievant’s report of his
condition two months earlier, before he had any medical help.
Mead had treated Grievant on a number of occasions.
Although he had access to reports from the EAP, including chart notes
from Drs. Wills and Barnes, he reported in November that he was not aware of
any threats. Presumably, he
interpreted Dr. Barnes’ chart notes not to reflect any threat.
Grievant did not threaten anyone or say he intended to hurt anyone.
He said he felt like he wanted to hurt someone; that concerned him
enough to get help. The report suggests Grievant was self-aware enough that he
was not dangerous. Dr. Mead was
obviously concerned about being responsible for any harm that might ensue, and
therefore withdrew his November 2 release on the basis of Dr. Heck’s report.
However, after examining Grievant again on December 1, he concluded
again that Grievant was not dangerous and could return to work.
That more recent report should have been honored.
The Employer deliberately avoided discussing Grievant’s condition
with Dr. Mead.
Union does not contest the Employer’s ability to engage in a dialogue with
the treating physician. It disputes the authority to require an employee to undergo
an intrusive psychological examination of the Employer’s choice to address
the question that the Agreement reserves to the treating physician.
Since the order to undergo examination by Dr. Lowenstein was not
permissible, Grievant was entitled to refuse it.
to follow an order is not a basis for discharge if the order was unlawful
under the Agreement. One element
of just cause is that the rule or expectation must be reasonable.
Moreover, a worker is not insubordinate in refusing an order that
is not justified under the Agreement and either would interfere with the
worker’s privacy rights or could not be effectively remedied if the worker
obeyed the order and then grieved. Discharge
for insubordination is unwarranted in such cases.
“work now, grieve later” principle does not give management the upper hand
without regard to the impact of the unauthorized order on the worker.
It merely permits an employer to keep its business going without
enduring mini-strikes whenever workers disagree with management about the
meaning of the contract. In this
case, the order had nothing to do with Grievant’s performance of the duties
of his position. He was on paid
leave. Therefore, the “work
now, grieve later” principle would not serve its purpose.
Moreover, no effective remedy for violation of his rights would have
been available after the fact. His
right to privacy would have been infringed by the examination itself and the
disclosure of the results to the Employer.
Under those circumstances, he could not be discharged for
insubordination for violating the unlawful order.
Employer purports to rely on Dr. Heck’s report as the basis for its action.
The Employer had decided not to allow Grievant to return to work
before either the Employer or SAIF had seen that report.
The Employer was influenced by the inappropriate warnings made by Dr.
Barnes. All of the Employer’s
information gathering after those warnings was designed to justify a
decision already made. The
Employer closed its eyes to all other sources of information.
It chose to rely on Dr. Heck’s opinion, based on one three-month-old
examination, rather than Dr. Mead’s opinion, based on a more recent
examination. It chose not to seek
additional information from Dr. Mead before requiring Grievant to
participate in yet another examination. It
chose not to ask to speak to or see the records of the EAP provider. This conduct was not reasonable.
Even if Article 56 did not exist, the refusal to attend the examination
would not have warranted discharge.
acted in good faith. He did not
just refuse the order. He met
with the Employer to explain his position and ask for an explanation of the
Employer’s position. Instead of
a reasoned explanation, the Employer offered the industrial equivalent of the
parental, “because I said so.” If
the Employer had dealt with Grievant’s concerns respectfully, the outcome
could have been different.
11 forbids the use of information gathered by an EAP to discipline an
employee. Employees received
assurances of confidentiality; the more detailed information Grievant received
indicated disclosure would occur only if he planned to injure or kill someone.
Although Grievant ultimately released the EAP records when he filed his
WC claim, there is no evidence in this record that he ever indicated to the
EAP that he had any plan to injure or kill anyone.
Yet the EAP reported something to the Employer that led it to decide
not to allow him to return to work before it received any written report.
The EAP was wrong in making the disclosure.
The justification described in its materials did not exist.
Oregon law does not require any disclosure at all.
The Oregon courts have expressly held there is no duty to disclose.
Even if Dr. Barnes did not err in making the disclosure, the Agreement
controls the use to which such information may be put.
was terminated for refusing to go to an examination, not for making threats or
posing a danger to co-workers. The
circumstantial evidence indicates he would never have been barred from the
facility or required to undergo another examination but for the EAP’s
disclosure. Therefore, in effect,
he has been disciplined due to information from the EAP.
The only viable remedy for that wrong is to void the discharge.
the Arbitrator concludes management was entitled to require another
examination, termination for Grievant’s refusal to be examined was
excessive. Grievant is a
long-term employee and has apparently served successfully. He acted in good faith to protect his privacy and claim his
contractual rights. Principles of
proportionality and progressive discipline require that, even if the order was
lawful, Grievant be given another chance.
He should be reinstated with back pay.
If the Employer believes it has reason to believe Grievant is unable to
perform his duties due to his psychological condition, it may take steps to
terminate him on that basis. Such
action would not be warranted, but it would place the real issue on the table.
If the employer is not confident that Grievant is unable to perform, it
may put him back to work and exercise any contractual rights it has if the
exercise of those rights becomes appropriate in the future.
Employer bears the burden of establishing just cause for discharge.
It must show, by clear and convincing evidence, both that Grievant was
guilty of the misconduct charged and that the Employer imposed an appropriate
penalty for that misconduct. Reasons
that were not proffered as a basis for the discharge at the time cannot now
form an additional basis for the discharge.
If misconduct is established, the Arbitrator may not disturb the
discipline imposed if it falls within the range of reasonable responses to the
this case, the discharge rests on the charges of insubordination and failure
to cooperate. The insubordination
charge draws its essence from the failure to cooperate.
In general, employees have a duty to cooperate in an investigation of
potential workplace hazards (as well as other workplace concerns), so long as
that investigation is reasonably conducted.
Failure to cooperate, by itself, is generally insufficient to warrant
summary discharge, but calls for progressive discipline.
Furthermore, where the employee himself is the subject of safety
concerns, but refuses to cooperate in the investigation, it is reasonable to
remove the employee from the workplace until those concerns have been
refusal to submit to a medical examination is not insubordination.
Insubordination is commonly defined as a refusal to obey a bona fide,
valid, clear and unambiguous work order, where compliance would not endanger
the employee's health or safety, despite notice of the consequences of
refusal. It is sometimes
equated to a “one-man strike.” An
order to submit to a medical examination is not a “work order,” but an
order to engage in conduct outside, but related to, normal work duties.
The refusal, in turn, is not a challenge to the supervisor’s
authority to enforce work orders, but to management’s authority to require
additional medical certification. A
refusal in these circumstances therefore constitutes a resort to self-help,
but not insubordination. In
practice, however, simple insubordination and self-help have indistinguishable
disciplinary consequences, and many arbitrators view them as one and the same
distinction exists between simple insubordination and gross insubordination.
Gross insubordination goes beyond a mere refusal to obey orders.
It incorporates such concepts as defiance, uncooperativeness, or
insolence. Gross insubordination
may make summary discharge available as a penalty.
However, in that case, the insubordination must be clear-cut and must
unequivocally suggest that no alternative was left to the employer other than
to terminate the wrongdoer on the spot. Absent
such aggravating circumstances, summary discharge falls outside the range of
reasonable responses to simple insubordination or self-help.
general, employees are not privileged to engage in self-help merely because
they believe the terms of a collective bargaining agreement prohibit the
managerial action. The maxim
“work now, grieve later” does more than ensure against mini-strikes.
It provides an orderly process for resolving contract interpretation
disputes without complicating them with the question of appropriate
discipline. While some well-recognized exceptions to the maxim exist,
Grievant bears the burden of proving his conduct was justified.
engaged in self-help here. No
dispute exists that he received a clear order to report to Dr. Lowenstein and
clear notice that failure to do so would subject him to discipline up to and
this record, the order to submit to an additional examination was reasonable.
The Employer was in a highly unusual situation.
It was on notice that Grievant might pose a threat to Lt. Duyck, both
from Dr. Barnes’ warning to Lt. Duyck and from Dr. Heck’s reports.
Dr. Heck had expressed the opinion that it was unlikely Grievant could
ever return to work at OSCI without exacerbating his condition and returning
him to the mental state that had led to the warning from Dr. Barnes.
Grievant’s treating physician had rescinded his first release based
on Dr. Heck’s IME report, then issued another release without further
elaboration. Grievant sought to return to duty at OSCI, working with Lt.
Duyck, and potentially carrying firearms.
If Dr. Heck correctly gauged the impact of such a work environment on
Grievant, the Employer risked harm by returning him to work.
No after-the-fact intervention could remedy any resulting harm to Lt.
Duyck or to the maintenance of order in this correctional facility.
to Grievant’s first justification, Article 56 does not clearly and
unambiguously privilege a refusal to submit to an additional psychiatric
examination. That provision
governs when the Employer may require physician certifications for employees
who are on sick leave, who have exhausted their sick leave but seek leave
without pay, or who seek to return to work where a question exists regarding
parties have not submitted, as a separate issue, the strict contractual
question of whether the Employer could require medical certification from a
doctor other than the attending physician in these circumstances; they have
only submitted the question of whether Grievant could be discharged for
refusing an ordered examination. Assuming arguendo that Article 56 prohibited this
order, it still did not privilege Grievant to engage in self-help.
Such a reading would go beyond the plain language of the provision.
For example, where an employee was never off work, such an
interpretation would bar the Employer from following up on concerns raised by
its own observations of the employee’s conduct, or by citizen complaints.
A clearer contractual waiver would be required to bar such an inquiry.
to a second justification, the fact that the first notice of Grievant’s
alleged threats came from the EAP did not privilege his refusal.
Grievant was not discharged for threatening Lt. Duyck.
The principles of just cause therefore did not require the Employer to
investigate whether Grievant’s return to work
posed a hazard to Lt. Duyck. That
is not to say, however, that it had no reason to inquire into this subject.
Separate and apart from the dictates of just cause, as part of its
managerial role, the Employer has both the duty and the right to take
reasonable steps to ensure the safety of fellow employees, supervisors,
inmates, visitors, and the public in general.
Investigation of reported workplace hazards, or action to avert
perceived risk, are different matters from discipline based on reports of
possible future wrongdoing. Article
11 prohibits discipline based on information gathered by an EAP; it does
not suggest the Employer is powerless to investigate or head off possible
workplace hazards simply because the first entity to identify the risk was the
had no reasonable expectation that the EAP would keep secret all information
he gave, regardless of the circumstances.
On the contrary, he received written notice that disclosure would occur
if he persuaded the EAP staff that he intended to harm someone.
By continuing with his consultation, he accepted that limitation on
confidentiality. The Arbitrator
will not second-guess the legality or reasonableness of Dr. Barnes’ decision
to warn Lt. Duyck based on Grievant’s comments.
The comments have not been alleged as a basis for discharge.
Drs. Mead and Heck have made their own assessments of those comments
and apparently drawn divergent conclusions.
In any event, the Arbitrator has neither the psychiatric expertise nor
all the information necessary to assess whether they were “threats.”
She does note, however, that Dr. Mead did not write in November that he
was unaware of threats; he wrote that Grievant had not made threats in
his presence, a less reassuring comment.
Grievant may have understood about the use to which Dr. Heck’s report would
be put, the WC process includes release of the IME report to the Employer.
Dr. Heck’s report quotes comments similar to those Grievant made to
Dr. Barnes. This does not suggest
that Dr. Heck’s report was tainted by the EAP; it suggests that Grievant
made such comments to two different psychiatrists.
notes of SAIF’s verbal description of Dr. Heck’s report are somewhat
stronger than the actual initial report.
However, the Employer did not rely on those notes in ordering the
additional psychiatric examination; it relied on Heck’s actual report
and his later explanatory letter, both of which it had by the time this order
was given. Grievant’s own
comments, as quoted in Dr. Heck’s report, would have been troublesome enough
to warrant further inquiry, even if there had been no prior warning from Dr.
Barnes. In any event, as noted
above, Grievant was not disciplined for the reported comments, but for his
response to attempts to assess his state of mind as of the time he sought to
return to work.
to a third justification, a psychological examination unavoidably inquires
into matters that are normally kept private.
However, Grievant himself opened the door to such an inquiry by making
arguably threatening statements in the course of seeking WC benefits, in
addition to his earlier statements to the EAP.
Upon his request to return to work, the Employer reasonably sought
assurances that the threat identified by Dr. Heck had dissipated.
Grievant at no time indicated he would submit to the examination if
its scope could be limited to Dr. Heck’s stated concerns.
Instead, he flatly refused to submit to any examination, despite an
explanation of the reasons for the order to submit to an additional
examination. By Grievant’s own
testimony, Armenakis said he had conflicting medical opinions and referred to
a concern for safety. Grievant’s
disagreement with those reasons did not privilege his rejection of any
mitigation, no evidence exists that Grievant has received other discipline for
similar conduct, nor did the discharge rest on any such past discipline--or,
indeed, on any history of discipline. On
the contrary, Armenakis testified Grievant’s file contained no record of
discipline. This testimony outweighs the hearsay statements in Dr.
Heck’s report regarding alleged workplace improprieties. Grievant also had considerable length of service.
These factors bespeak an employee who was capable of working at an
acceptable level of performance despite whatever problems he may have about
his relationship with his supervisor. He
also acted responsibly in seeking treatment when his sentiments toward his
supervisor threatened to interfere with his employment obligations.
these circumstances, Grievant’s refusal to report for the examination
warranted severe discipline, but not discharge.
A suspension would have been in order for the refusal to cooperate, and
Grievant’s discharge shall be converted to such.
it received notice of a potentially serious mental problem impacting the
workplace, the Employer had the right to prevent Grievant from returning to
duty until it was determined that he was fit for duty.
Because Grievant did not report for the examination, no such
determination has been made. He
is not entitled to return to duty until and unless such a determination has
testified he is willing to undergo a psychiatric examination if the Arbitrator
concludes he was required to do so. Similarly,
the Employer has stated on brief that it is willing to abide by the results of
a third psychiatric examination. On
this record, Dr. Lowenstein’s contract with the State to provide
fitness-for-duty examinations has expired.
Therefore, the Arbitrator orders the parties, within 30 days, to agree
on a third neutral psychiatrist to conduct a fitness-for-duty examination.
The sole, controlling issue in the fitness-for-duty examination is whether, in the neutral physician’s professional opinion, Grievant is or is not fit for duty at OSCI. The neutral physician shall receive this Award, Grievant’s medical records in the Employer’s file, and any additional medical evidence the neutral physician requires to make his or her determination. If the neutral physician determines Grievant is not fit for duty, Grievant shall be terminated forthwith. If the neutral physician determines Grievant is fit for duty, he shall be reinstated as soon as possible and shall receive backpay and benefits from the date of the hearing herein.
parties to this case have not agreed that the Arbitrator shall retain
jurisdiction over the remedy portion of this Award.
Accordingly, no such jurisdiction is retained.
1. Grievant, Raymond V. Decker, was not discharged for just cause and consistent with Article 20, 56, and 11 of the collective bargaining agreement. However, just cause existed for serious discipline and to remove him from the workplace until such time as an independent psychiatric opinion certified his fitness to return to work. Accordingly, his discharge shall be converted to a suspension.
2. As a remedy, the parties shall, within 30 days after the date of this Opinion and Award, agree on a third neutral psychiatrist to conduct a fitness-for-duty examination. The sole, controlling issue in that examination is whether, in the neutral physician’s professional opinion, Grievant is or is not fit for duty at OSCI. The neutral physician shall receive this Award, Grievant’s medical records in the Employer’s file, and any additional medical evidence the neutral physician requires to make his or her determination. If the neutral physician determines Grievant is not fit for duty, Grievant shall be terminated forthwith. If the neutral physician determines Grievant is fit for duty, he shall be reinstated as soon as possible and shall receive backpay and benefits from the date of the hearing herein.
DATED: April 7, 1997
/s/ Luella E. Nelson
E. NELSON - Arbitrator
Although Dr. Heck’s report described various internal affairs
investigations, letters of reprimand, and counseling, Armenakis testified
Grievant’s file contained no record of discipline.
Although the Union contends the suspension with pay was improper, it
does not seek a remedy for that action in this proceeding.
It is of no moment whether Dr. Barnes notified only Lt. Duyck and
interested law enforcement personnel, as she told Grievant, or whether she
separately notified Armenakis, as parts of Grievant’s testimony would
suggest. In either event, her
report was merely the trigger for the investigation.
The Arbitrator recognizes that both
Dr. Heck and Dr. Mead were not assessing Grievant’s work up to that point,
but instead were concerned with the likelihood of harm in the future.
Even a third opinion would not definitively answer which doctor made
the better prediction. However,
given the divergent conclusions reached by the two doctors, a third opinion
was a reasonable and, in the labor relations world, customary approach to
resolve the conflict in medical opinions.
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028