This 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.

Hearing 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.

APPEARANCES:          

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 

On 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

 

             ISSUE

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 

ARTICLE 9 - MANAGEMENT’S RIGHTS

Except 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 to:

(a) Direct employees.

...

(e) Relieve employees from duty because of lack of work or other reasons.

...

(g) Determine methods, means, and personnel by which operations are to be conducted. 

ARTICLE 11 - EMPLOYEE ASSISTANCE PROGRAM [EAP]

...

Section 2.   No information gathered by an Employee Assistance Program may be used to discipline an employee.

... 

ARTICLE 20 - DISCIPLINE AND DISCHARGE

...

Section 1.  The principles of progressive discipline shall be used when appropriate. ... Discipline shall be imposed only for just cause.

... 

ARTICLE 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 Exhausted.

(a) 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.

...

(c) 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

...

Section 3.  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.

....

 

               FACTS

Grievant 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

On 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:

You 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 Cascade’s records.

At 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.

...

In 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 hospitalize you.

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.

Dr. 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”).

Meanwhile, 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.

On 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

Grievant 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.

Dr. 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.^[1]  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:

Harmful 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.

In 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. Duyck.

Dr. 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 was

... 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 his symptoms.

Finally, he strongly recommended against delivering his report to Grievant, commenting that misunderstanding or misinterpretation could “cause additional distress or symptomatology.”

On 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.

Grievant withdrew his appeal in June 1996, and his WC claim was dismissed..

THE DEPARTMENT’S INQUIRIES

Safety & 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 Grievant:

... 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 corrections.

Merritt 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 recommendation.

Grievant 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.^[2]  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.

Should 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 dismissal.

Merritt 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...

From 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.

On November 15, the Department sent Dr. Heck’s IME report to Dr. Mead with three questions:

1)         Do you concur with Dr. Heck that [Grievant] is not medically stationary?  If you do not concur, why?

2)         Do you agree with Dr. Heck that [Grievant] is unable to return to normal work?  If you do not agree, why?

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?

SAIF 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.

On 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

Dr. 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.

Based 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 unpaid leave.

Dr. 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.

Armenakis 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.

Grievant 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.

 Armenakis 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

On 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 letter stated:

You 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.

The 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.

On 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 concluded:

... 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 your dismissal.

     POSITION OF EMPLOYER

Although 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.

The 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.

Dr. 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.

The 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.

If 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.

It 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.

The 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.

The 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.

This 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.

The 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.

The 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.

Even 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.

If 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.

The 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.

Grievant 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).

The 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.

On 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.

By 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 rights.

Although 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.

Article 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.

It 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.

An 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.

After 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

The 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.

Absent 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.

Article 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.

Article 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).

Article 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.

Even 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.

Assuming 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.

Here, 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.

Dr. 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.

Dr. 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.

The 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.

Refusal 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.

The “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.

The 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.

Grievant 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.

Article 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.

Grievant 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.

If 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.

       OPINION

The 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 misconduct.

In 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 resolved.

Technically, 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 misconduct.

A 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.

In 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.

Grievant 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 including discharge.

On 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.

Turning 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 safety.

The 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.

Turning 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 EAP.^[3]

Grievant 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.^[4]  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.

Whatever 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.

Merritt’s 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.

Turning 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 examination.

In 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.

In 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.

Once 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 been made.

Grievant 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.

The 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.

         AWARD

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.