Title: Washington Beef, Inc and UFCW Local 1439
E. CAVANAUGH, J.D.
For the Union:
K. Griffin, Counsel
North Atlantic Street
For the Employer:
Mendelson, A Professional Corporation
California Street, 20th Floor
Francisco, CA 94108
Employer terminated Grievant for an alleged refusal to perform his job and for
an alleged threat to injure himself (and/or to lie about receiving an injury) if
the Employer insisted that he return to work. Grievant claimed that he could not
perform the job to which he had been assigned because of the lingering effects
of a prior workplace injury. At a hearing held in Yakima, Washington on
September 20, October 20, and November 15 and 16, 2000, the parties had ample
opportunity to present argument as well as testimonial and documentary evidence,
including full opportunity to cross-examine each other’s witnesses.
The proceedings were transcribed by a certified court reporter, and a copy of
the transcript has been provided to the Arbitrator. The parties filed
simultaneous post-hearing briefs mailed December 20, 2000. Upon receipt of the
briefs, the record closed, and the matter is now ready for decision.
During the course of the hearing, the parties stipulated to the following
statement of the issues to be decided by the Arbitrator:
this grievance arbitrable? If so,
the Grievant terminated for just cause? If not, what should the remedy be?
the outset of the hearing, the Employer argued that the Union’s request for
arbitration was untimely and moved to dismiss the grievance. After hearing
argument, I reserved ruling on the Employer’s motion, pending receipt of
further evidence and further argument in the post-hearing briefs. I also stated
my intention, once the matter had been submitted for decision, to consider the
question of arbitrability first, then proceed to consider the merits of the
grievance only if I denied the Employer’s motion to dismiss. After carefully
considering the Employer’s motion in light of all the evidence and the
language of the labor agreement, I find that the grievance is arbitrable for
reasons that will be fully explained in this decision. Therefore, I will also
address the merits.
The Employer engages in the slaughter, processing, sale and distribution
of beef at its facility located in Toppenish, Washington. Grievant was employed
in a variety of positions within the plant from August 1997 to December 22,
1999, except for a short break in service in October 1997. On December 22, 1999,
the Employer terminated Grievant during a meeting in which Grievant allegedly
refused to work and made threats to “injure himself with a knife” and/or
claim that “his wrists hurt” if he had to go back to work. The circumstances
leading to the meeting and the termination are hotly in dispute, and in many
instances, the testimony of the Employer and Union witnesses—with respect to
matters occurring before, during, and even after that meeting—is simply
irreconcilable. Given these differences in testimony, each party understandably
questions the credibility and veracity of the other’s witnesses, and the
Arbitrator is left with the difficult task of attempting to determine the facts
on a record in which there is little, if any, agreement among those who
Some matters are essentially uncontested, however. For example, Grievant
suffered an industrial injury on November 12, 1999. He testified that he felt
something “pop” in his back while opening “edible paunches,” i.e., cow
stomachs. His back started to hurt, and then while hanging a stomach for further
processing, he got some “ingesta,” i.e. the contents of the cow’s stomach,
in his eye. Grievant reported the injury, although there is some dispute about
exactly when he made the report in relation to the incident. Ultimately, he went
to see Susana Cuevas, a Personnel Assistant and the Employer’s Labor &
gave Grievant a form to take to a doctor to have his condition evaluated for
possible “light duty” work. Grievant took the form to Sunnyside Hospital
that afternoon, and a doctor said he could return to work on “light duty,”
but could not lift over five pounds, nor could he engage in stooping, bending,
sitting, pulling, or pushing. Exh. E-3C. The Employer determined it had no work
for Grievant within those restrictions.
November 18, 1999, Grievant provided the Employer with a statement from a
different doctor at Sunnyside Hospital who said he should be off work until
November 22, 1999. Exh. E-5. Then on November 29, 1999, Grievant provided the
Employer with a release for light duty signed by a nurse practitioner at a
different clinic, the Yakima Valley Farm Workers Clinic. Exh. E-8. That release
said he should be on light duty for ten days with “no heavy pulling or heavy
lifting greater than 10 lbs.”
Employer believed it had work available within the ten-pound restriction.
Therefore, on December 1, 1999, Grievant was assigned to “stripping small
intestines,” a job in which the intestines are moved along a stainless steel
table (with the assistance of running water) and workers pull a portion of the
intestine over a half-moon vertical holder with teeth (the “luneta”).
The luneta anchors the product in place while the worker uses a knife to
cut the intestine and separate it from the fat.
Grievant tried the job for a short time (his time card for December 1, Exh. E-9,
shows 0.2 hours worked), but told the Employer that he could not do the work
because of the effects of his injury.
December 6, 1999, Grievant presented another “release” from the Farm Workers
Clinic, signed by the same nurse practitioner as Exh. E-8. See, Exh. E-10. That “release” authorized a return to
“modified work,” i.e. “no bending no lifting or pulling objects greater
than 10 lbs.” Id. After discussion
with Cuevas, in which Grievant reiterated his feeling that he could not perform
the work of stripping small intestines, Cuevas suggested he go back to the
doctor. He did so. He returned with another note from the nurse practitioner
excusing him from work for two weeks. Exh. E-11.
the two weeks had expired, Grievant returned to the Employer with a doctor’s
note (this time from Sunnyside Community Hospital) releasing him for “light
duty work – no lifting over 10 lbs. no heavy pushing or pulling – recheck
4-10 days for possible return to full duty.” Exh E-15. He returned to work on
December 21, 1999 and worked for a short time in the intestines area (his time
card for that day shows 0.3 hours, from 7:30-7:50 AM). Exh. E-9. Grievant again
complained of pain, however, and a supervisor sent him to see Cuevas. When he
told Cuevas that he still could not do the job to which he had been assigned,
she suggested he once again go see the doctor.
came back later that day with another note from Sunnyside Hospital. Exh. E-18.
Based on an unscientific comparison of handwriting by the Arbitrator, this note
appears to be from a different doctor than Exh. E-15. The new note released
Grievant for light duty for seven days with lifting not to exceed fifteen
pounds. In other words, it was less restrictive than a light duty release given
the day before by another doctor at the same hospital (as noted, that release
had limited Grievant to ten pounds).
In addition, the release from the day before had cautioned “no heavy pushing
or pulling” and advised Grievant to “recheck” in four to ten days for “possible
return to full duty.” Exh. E-15 (emphasis supplied). The second release,
however, said nothing about pushing or pulling (only lifting), and simply stated
that Grievant should “resume full employment” after seven days, apparently
without a “recheck.” Exh. E-18. Grievant also testified that the second
doctor took him off all medications, a decision that Grievant claims left him
“shaky” and “nervous.”
light of these “physical capacities” notes from Grievant’s doctor, the
Employer told Grievant the small intestine job was within his physicians’
restrictions and that he should report for work the next day, December 22, 1999.
Grievant did so, and it was Cuevas’ understanding that he worked for a few
before coming to her office and saying again that he could not do the job to
which he had been assigned. Tr. 77. Cuevas consulted Ron Hankel, the Director of
Human Resources, and Hankel said to bring Grievant to his office. He also called
into the meeting Jim Colepaugh, Employee Relations Manager, and Cande Tafolla,
Processing Division Manager. It is this meeting on December 22, 1999, attended
by Grievant, Hankel, Colepaugh, Tafolla,
and Cuevas, that resulted in the precipitating events that led directly to
the meeting, all the participants were bilingual except two: Hankel speaks only
English and understands virtually no Spanish; Grievant speaks Spanish and has a
very limited understanding of English. Thus, Colepaugh, who is bilingual,
conducted the meeting, and he “simultaneously” translated for Hankel.
What was said at this meeting is the crux of the case. Unfortunately, the
testimony of those who attended, in many critical respects, could not be more
different. The gist of the testimony of the Employer witnesses is that Grievant
repeatedly refused to return to a job within the restrictions set forth by his
doctor, and ultimately, that Grievant said “if the Company sent him back to
work, he would cut himself or say his wrists hurt.” Tr. 145 (Colepaugh). Other
Employer testimony was similar, although not identical, e.g., “If I go back
out there I’m going to cut myself. I’m going to say that my wrists hurt.”
Tr. 518 (Hankel); “. . . he was either going to cut himself, or hurt his
wrists or said something to that effect.” Tr. 727 (Tafolla). Cf. Exh. U-23, January 5, 2000 letter from Cuevas to the Department
of Labor & Industries (“We asked Mr. Garcia if he was going to work and he
said yes but if he cut himself on the wrist then it would be our fault and sue
[sic] the company”).
The Grievant testified that he said he would go back to work “but if I
injure myself or if I cut myself, the problem will be worse.” Tr. 271.
Grievant further testified that he explained to the Employer representatives
“I’m not threatening you that I’m going to cut myself. But since the
medication was taken away from me, I feel very nervous and at times my hands
shake.” Tr. 273. He also testified that he told the Employer representatives
“How can you believe that I would want to cut myself? I have never cut my
body.” Tr. 274. The Employer participants denied that Grievant made the “if
I injure myself” statement, and likewise denied that he attempted any
explanation of the original comment about cutting himself, e.g. about being
nervous and shaky because the doctor had removed him from medications the day
At the meeting, Colepaugh and Hankel conferred briefly and agreed that
Grievant should be terminated (after Colepaugh translated Grievant’s
statements for Hankel and asked for confirmation from Cuevas and Tafolla that he
had translated correctly).
Colepaugh then told Grievant he was terminated and escorted him off the
premises. There is a dispute whether at this meeting Grievant made a timely
request for union representation under the Weingarten
rule. The Employer claims Grievant’s request came after he had been terminated. Thus, the Employer argues, Weingarten
is inapplicable, and the Employer properly refused Grievant’s request.
Grievant, by contrast, claims he requested Union representation prior
to the termination. In the end, I have not found it necessary to resolve this
The termination paperwork, a “Payroll Change Notice,” states in the
“Remarks” section “Threatened to inflict injury on himself if required to
work. Refused to work as stipulated on doctor’s restrictions.” Exh. J-2A
(dated December 28, 1999 with an effective date of December 22, 1999). On
December 30, 1999, Union Representative Juvenal Perales sent a letter to
Colepaugh grieving the discharge and asking for a written statement of the
reasons for termination. Exh. J-2B. Colepaugh responded by letter dated January
12, 2000 reciting the facts of what he termed “gross insubordination.” Exh.
J-2C. Colepaugh wrote “Management met with him to try to convince him to
return to work. He refused. He then blatantly threatened to cut himself and
threatened that he would start to complain of a wrist injury if we returned him
to work. Of interest is that he did not even need a knife in his modified
A meeting between Union and Employer representatives took place on
January 18, 2000. Mr. Perales, the normal Union representative for Washington
Beef employees, did not attend because he was on vacation. He understood from
those who attended, however, that the Employer representatives had agreed to
suspend the grievance procedure time limits for Mr. Garcia’s case, in part
because he was on vacation and in part because the parties wanted to improve
union/management relations. Employer representatives strongly deny that any such
extension agreement was made, and there is admittedly no written document
evidencing an agreement to extend time limits as required by the contract. Exh.
J-1, Article 8, page 10 (“The time limits specified herein may only be
extended in a writing signed by authorized representatives of the Parties.”)
When Perales returned from vacation, he spoke on several occasions with
Colepaugh (and at least once with Hankel) about the Garcia matter. Colepaugh
never raised a timeliness issue. Perales testified that when he met with Hankel,
Hankel did suggest that the grievance was untimely, but agreed to discuss it
after Perales related his understanding of the meeting on January 18, 2000.
Hankel, however, denied that Perales said anything about a prior meeting or an
agreement to extend the time limits. Tr. 631-32. In any event, these additional
discussions did not result in a resolution of the grievance.
on March 8, 2000, Union Counsel Pam Griffin faxed and mailed a letter to Hankel
requesting that the Garcia grievance be referred to arbitration. Exh. J-2D.
Hankel replied by letter dated March 16, 2000 that the arbitration request was
untimely, coming more than ten calendar days after the Company’s January 12,
2000 letter, a letter he characterized as the Employer’s Step Two response.
Exh. J-2E. On March 29, 2000, Ms. Griffin faxed and mailed a response to
Hankel’s March 16, 2000 letter, reminding Hankel of the January 18 meeting and
stating the Union’s understanding that the Company had agreed to an extension.
Exh. J-2F. Griffin also argued that neither party had strictly followed the
requirements of the grievance procedure, and therefore that the Employer should
not insist on the technicalities of the grievance procedure’s timelines. In
addition, she asserted that, in any event, the issue of arbitrability should be
submitted to an arbitrator along with the merits. By letter dated April 18,
2000, Hankel again stated his view that the Garcia grievance was
“substantively and procedurally defective,” but he offered to select an
arbitrator in the interests of “expediting” the matter. Exh. J-2G.
COLLECTIVE BARGAINING AGREEMENT PROVISIONS
I have considered most closely the following provisions of the labor
ARTICLE 6. DISCIPLINE
No employee shall be disciplined or
discharged except for just cause . . . .
* * *
Company, within ten (10) days of a written request, will state the effective
date and reasons for discharge in writing to the employee and the Union. The
Company will send involuntary discharge notices to the Union within two (2)
business days of issuing such a notice.
following offenses, by way of example and not limitation, are grounds for
immediate discharge: dishonesty; falsification of Company records (including
time cards or employment applications); theft; fighting or making an extreme
threat to fight on Company time or premises with Company employees; deliberate,
or negligent destruction or alteration of, or damage to, Company property or
product or employee’s property; the selling, transporting or using of illegal
narcotics, alcohol or other substances controlled by federal law; unprovoked
extreme verbal abuse or assault against a supervisor or a fellow employee; or
* * *
ARTICLE 8. GRIEVANCE AND ARBITRATION
Step Two: Any
grievance not resolved in the First Step will be discussed in a meeting between
the Union Representative and the Company representative delegated to resolve
such matters not later than ten (10) calendar days of the filing of the
grievance, which period may be extended for a reasonable period of time upon
mutual agreement. If the grievance is not satisfactorily resolved in such
meeting, the party receiving the grievance will give a written response to the
other regarding its position, including reasons for denial, within five (5)
working days from the close of the Step Two meeting.
If the grieving party is not satisfied with the written response, it may
request in writing that the matter be referred to arbitration. This request will
be made not more than ten (10) calendar days from the receipt of the written
reponse. . . .
* * *
time periods set forth in this Article will be strictly observed and any
noncompliance therewith will mean that the grievance will be dismissed with
prejudice. Any party causing noncompliance with the time periods may not assert
this provision. If the party answering the grievance in accordance with Step Two
fails to timely do so, the grievance will proceed to Step Three. The time limits
specified herein may only be extended in a writing signed by authorized
representatives of the parties.
ARGUMENTS OF THE PARTIES
Union argues that this grievance is arbitrable because it was timely filed and
the Union reasonably believed the Employer had agreed to an extension of the
time limits for processing the grievance. Union representatives understood from
the meeting on January 18, 2000 that the Employer had agreed to an extension, in
part because Mr. Perales was on vacation, as the Employer was aware. Moreover,
the parties had been lax in enforcing the strict time limits of the grievance
procedure in the past. Therefore, the Union was led to believe the Employer
would not insist on strict compliance here. In addition, the Employer discussed
the case and listened to proposals from the Union even though the alleged
deadline for requesting arbitration had passed, thus further contributing to the
Union’s belief that the Employer would treat the request for arbitration as
timely. Finally, the Union contends that the Employer raised the issue of
arbitrability too late in the process.
the merits, the Union argues that Grievant did not threaten to injure himself or
to lie about suffering an injury. The Employer could have avoided this dispute,
the Union contends, if it had taken greater care to determine what Mr. Garcia
meant in the meeting on December 22, 1999. An employee should be
“forewarned” of the consequences of his actions before being terminated, the
Union urges. By failing to determine precisely what Grievant was saying and to
“remind” him that a threat to inflict an injury on one’s self would be
“taken seriously” and would result in termination, the Employer failed to
give Grievant adequate warning of the consequences of his actions.
addition, the Company did not adequately investigate whether Grievant was
actually capable of performing the job of stripping small intestines. For
example, the Employer did not provide a job description to the doctors,
allegedly a requirement of the Washington Industrial Insurance statute. Nor did
the Employer ever weigh the intestines to determine how heavy the job actually
is. In light of the somewhat conflicting medical “releases” and Grievant’s
consistent claim that he could not do the work, the Employer should have gone to
greater lengths to determine if this particular “light duty” assignment was
appropriate to Grievant’s condition.
the stated reasons, the Union contends that the grievance is arbitrable and that
Grievant’s termination was not supported by just cause. Therefore, he should
be reinstated with full back pay and benefits.
Employer contends that the Union failed to comply with the time limits of the
grievance procedure by failing to request arbitration within ten days of
Colepaugh’s January 12, 2000 letter. When the parties have set forth
“strict” time limits—and particularly when they have provided that those
time limits may be extended only in writing—an arbitrator has no authority to
forgive untimely processing of a grievance. Here, the Employer notes, it is
uncontested that there is no written agreement to extend the deadline for
requesting arbitration. Even with respect to the alleged oral waiver, the
Employer contends, the Union failed to present the testimony of a single witness
who attended the January 18, 2000 meeting to support that allegation.
Consequently, the Employer urges the Arbitrator to “enforce the clear language
of Article 8.” Employer Brief at 20.
the merits, the Employer contends that Grievant repeatedly refused to work at a
job within the restrictions set forth by doctors of his own choosing. There is
insufficient evidence of a medical or safety reason to justify Grievant’s
refusal to do his job, and even if Grievant subjectively
believed in good faith that he could not safely perform the work, that belief
was objectively unreasonable given his
doctors’ evaluations of his physical capacities. Moreover, in the meeting on
December 22, 1999, Grievant threatened to injure himself and to be dishonest in
saying that he had injured his wrists. The labor agreement specifies that
“dishonesty” is an offense for which immediate termination is appropriate.
Exh. J-1, Article 8.
the Employer argues that Grievant’s testimony was “inconsistent,”
“evasive,” “implausible,” and “self-serving.” It should therefore be
regarded as “unreliable.” Instead, the Arbitrator should credit the
testimony of the Employer’s witnesses, which is described as “consistent,
uncontradicted, and corroborated.” Employer Brief at 26.
the Employer requests that the Arbitrator dismiss the grievance as untimely or,
in the alternative, sustain the discharge of Grievant for “just cause.”
labor agreement provides strict time limits for requesting arbitration, and I
agree with the Employer that an arbitrator should enforce the procedural
prerequisites to arbitration even if it results in a forfeiture of a grievance
that might otherwise have merit. I recognize that arbitrators typically favor
the resolution of grievances on substantive grounds, recognizing the well-known
“therapeutic” value of the arbitral process (to use the words of Justice
Douglas in the Steelworkers’ Trilogy).
In other words, it tends to be the arbitral view that processing of grievances
on the merits fosters constructive labor-management relations.
procedural components of the grievance and arbitration procedure, however, are
as much a part of a collective bargain as wages, working conditions, “just
cause” provisions, and other traditional aspects of industrial
self-government. Thus, it is not for the arbitrator to give preference to some
provisions of an agreement by deeming them more “important” than others.
Rather, a collective bargaining agreement is a unified whole, jointly crafted by
the parties in the give-and-take of bargaining, and the resulting contract
reflects a complicated exercise in compromise. Even with the best of intentions,
an arbitrator should not, by choosing which elements of the agreement are more
deserving of enforcement than others, upset a delicate balance of interests
accomplished by the parties. Therefore, although there is a preference to
resolve doubts in favor of arbitration, in my view the burden is still on the
party seeking to establish arbitrability—in this case the Union—to prove
compliance with the agreed procedures leading to arbitration.
by those standards, a close reading of the grievance procedure language in this
agreement does not support the Employer’s argument that the Union failed to
comply with the prerequisites to arbitration. The Employer’s contention that
the Union’s arbitration request was untimely depends on the assertion that
Colepaugh’s January 12, 2000 letter was the written “Step Two” response.
Exh. J-1, p. 9 (Step Two). It is a written response at the close of Step Two that triggers a five-day period for requesting
Concededly, there was no Union request to move this grievance to
arbitration within five working days of Colepaugh’s January 12 letter. Thus,
if that letter constituted the written Step Two response, I would have no choice
but to dismiss the grievance because the request for arbitration was untimely.
evidence establishes, however, that the January 12 letter was not a Step Two
response at all, but rather a response to the Union’s request for a written
statement of the reasons for discharge. Exh. J-2B (Perales letter to Colepaugh
dated December 30, 1999); see also,
Exh. J-1, Article 6 (third paragraph). Nothing in Colepaugh’s January 12
letter gave notice to the Union that the Employer considered it a
“written response” at the “close of the Step Two meeting.” Nor,
in fact, could it have been such a response because, contrary to the clear terms
of the agreement,
no Step Two meeting had been held.
Thus, I find that a strict reading of the language of the agreement did not
require the Union to request arbitration within five working days of
Colepaugh’s January 12, 2000 letter.
subsequent discussions between Perales and Colepaugh, and the discussion between
Hankel and Perales, do not appear to have been formal Step Two proceedings. But
even if I found that one or more of them constituted a Step Two discussion, the
Employer did not issue a written response within five working days of the
“close” of any of these meetings. Again, under the strict language of the
agreement, it is the written response
at the close of the Step Two meeting
that starts the time period for requesting arbitration.
sum, under language of the agreement, read “strictly” as the Employer urges,
I cannot treat Colepaugh’s January 12, 2000 letter as a Step Two response. Nor
do I find evidence of a written response, issued after any of the discussions
between the Union and Employer, sufficient to start the clock on advancing the
grievance from Step Two to Step Three within five working days. In addition, I
note that the “strict enforcement of time periods” clause in the last
paragraph of Article 8 provides “if the party answering the grievance in
accordance with Step Two fails timely to do so, the grievance will proceed to Step Three” (emphasis supplied). Thus, even if any
of these meetings between Perales and the Company were Step Two meetings, the
Company failed to issue a written response within five working days, and the
grievance automatically moved to Step Three, i.e. to arbitration.
recognize that some of the testimony suggested the parties had, by practice,
jointly dispensed with Step Two meetings. See,
e.g., Tr. 594 (Perales). This evidence fell far short, however, of
establishing a mutually accepted past practice sufficient to alter the express,
detailed terms of Article 8 of the labor agreement. Moreover, even if the
parties mutually agreed to skip Step Two, they thereby removed the event by
which the timeliness of a request for arbitration must be judged, i.e. a written
response at the close of a Step Two meeting. Nor was there any evidence that the
parties had mutually agreed that the Company’s written response to the
Union’s request for information would supplant the response at the close of
Step Two as the trigger for demanding arbitration.
Thus, I cannot find that the Union’s request here came too late.
I have also considered whether it would be appropriate under these circumstances
to remand this grievance to the parties for further processing under Step Two. I
do not find it likely, however, that further discussion would be fruitful. In
light of the time and efforts the parties have now invested in a four-day
hearing on the issues, it would be wasteful in the extreme to start over at Step
Two without some reason to believe the parties would be able to resolve the
the reasons set forth above, the Employer’s motion to dismiss the grievance
for lack of a timely request for arbitration must be denied. I will therefore
consider the merits of the Grievant’s termination.
agree with most arbitrators that the Employer’s case must stand or fall on the
reasons for discharge given at the time of the Company’s action. Here,
therefore, the Employer must establish 1) that Grievant wilfully refused to work
at a job within his restrictions as set forth by his physicians, and/or 2) that
he threatened to cut himself with a knife or to feign injury if required to
return to work. These, somewhat paraphrased, are the grounds for termination
contained in the Employer’s Payroll Change Notice, Exh. J-2A, and in
Colepaugh’s letter of January 12, 2000 setting forth in writing the reasons
for termination in response to the Union’s request.
cannot find that the Grievant refused to work. It is true that he repeatedly
complained that the job to which he had been assigned exceeded his limitations,
but he did not refuse to work. For
that proposition, one need go no farther than the testimony of Susana Cuevas,
the Employer’s L&I Coordinator and the person, on the Employer’s side,
most familiar with Grievant’s situation.
example, on December 21, 1999, Grievant told Cuevas “he could not do – the
job was too hard and they were not meeting his restrictions, that he was having
to do more than he was required to do from the restrictions.” Tr. 69. The next
day, the “fateful” December 22, Grievant again told Cuevas and Colepaugh the same thing: “And Mr. Garcia told him [Colepaugh]
the same thing that he had told him
previously the day before. . . . He said that he could not do the work, that
they are not meeting his restrictions.” Tr. 82-83 (emphasis supplied).
This testimony by Cuevas at the hearing is corroborated by more or less
contemporaneous documentary evidence, i.e. Exh. U-23. In that exhibit, a letter
written by Ms. Cuevas to the Department of Labor & Industries dated January
5, 2000, she wrote “we asked Mr.
Garcia if he was going to work and he said yes . . . .” Id.
at p. 2 (emphasis supplied). This document, authored close to the events in
question by the Employer representative who dealt with Grievant most closely, is
entitled to great weight in determining whether Grievant “refused to work.”
It supports a conclusion that he did not refuse, but rather protested that the
work he had been asked to do exceeded his physical abilities.
Employer also argues, however, that Grievant’s subjective assessment of his
abilities is unsupported by objective medical evidence, specifically the
“release” from a doctor who said he could lift up to fifteen pounds. Thus,
the Employer contends, by repeatedly asserting he could not do a job that the
Employer judged to be within these limitations, Grievant in effect “refused to
evaluating this argument, I must bear in mind that assessments of physical
capacities made by general practitioners, including the often-overworked
physicians in emergency rooms and low-income clinics, is not an exercise in
exact science. Doctors may differ in their assessments, as the evidence in this
case clearly demonstrates. For example, on December 20, 1999, a physician at
Sunnyside Hospital limited Grievant to lifting ten pounds and cautioned him
against “heavy” pushing or pulling. Exh. E-16. That doctor suggested that
Grievant be reexamined in 4-10 days for “possible” return to full duty. Id.
The very next day, however, another doctor in the same hospital examined
Grievant and determined that he could lift fifteen
pounds. Exh. E-18. This second
doctor imposed no limitations on pushing or pulling, and he believed that
Grievant could return to full duty after seven days without
being rechecked. Id.
difference between these “releases” is clearly a matter of differing medical
opinion, i.e. there is no evidence in the record from which I could conclude
that Grievant’s medical condition changed significantly from December 20 to
December 21. The Employer, however, chose to rely upon the opinion of the second
doctor to the apparent total exclusion of the opinion of the first. For example,
on December 21, the Employer representatives told Grievant that his doctor had
eased his restrictions, and the Employer’s Brief makes the same assertion.
Employer Brief at 13. It is not clear on this record, however, why the second
opinion should have been judged more reliable medically than the first. Nor, in
any event, does it appear that either assessment was based on hard empirical
data such as a performance-based physical capacities evaluation. Apparently,
neither doctor even had the benefit of a written job description, such as the
description reflected in Exh. U-22, nor had either physician seen a videotape
like the tape the Employer produced for the hearing. It thus appears that the
doctors evaluated Grievant’s physical capacities in the abstract, making their
best “guesstimates,” rather than in the context of this particular job
assignment. It was the Employer who then applied that abstract assessment to the
job of stripping small intestines, determining that Grievant could perform the
job within the limitations established by his physicians.
Union argues that the law requires the Employer to provide a job description to
the physician to assist in evaluation of a patient’s ability to perform a
specific light duty job. I do not decide that issue, but it does appear to me
that it would have benefited the process greatly for the Employer to have made a
description available to Grievant so that Grievant, at least, could have
provided it to whatever physician he chose to consult. This is so because the
job of stripping small intestines appears to have been marginal in terms of
Grievant’s physical capacities. I note, for example, that Mr. Tafolla
testified that the entire intestine, before it is stripped, weighs 35-40 pounds.
If, as the testimony establishes, Grievant would have to lift at least one-third
of the intestine onto the luneta, the
weight involved in that process could easily have exceeded ten pounds—and
might have approached fifteen pounds. Moreover, from my review of the videotape,
it appeared that a partial bending and pulling motion is required to lift the
intestine onto the luneta. The doctor
who examined Grievant on December 20, 1999 suggested that Grievant avoid
“heavy” pushing or pulling. Exh.
E-16. Whether Grievant was capable of the particular motion of pulling the
intestine onto the luneta is not a
matter that lay people are capable of judging. They are particularly not capable
of accurately judging that question based on terse and somewhat conflicting
notes from doctors who 1) have not reviewed a job description, 2) have never
seen a videotape of employees performing the job, and 3) who have not been
provided with any similar information to enable them to evaluate the specific
job to which the Grievant had been assigned.
do not suggest any Employer animus toward
Grievant or any bad faith in determining what the Employer believed Grievant could do. I do find, however, that there are
substantial questions, amply reflected in this record, as to whether this job
was appropriate for Grievant. These questions prevent me from finding that
Grievant was “malingering” or irrationally refusing to work, i.e. that his
expressed concerns about the job are inconsistent with the objective medical and
to inflict self-injury or to be dishonest
Employer argues that Grievant threatened to cut himself intentionally and/or to
falsely claim that “his wrists hurt.” The Company contends that these
threats, both to injure himself and to be dishonest on an important matter such
as entitlement to workers’ compensation benefits, constitute sufficient
grounds for immediate termination. If these offenses were proved,
I would tend to agree that discharge, at least for one in Grievant’s position,
would be an appropriate penalty.
the testimony about what Grievant said in the December 22, 1999 meeting is
sharply in conflict. In fact, in reviewing that testimony, I find that it is
impossible to reconcile. Thus, some of the witnesses simply must be wrong. But
to say that some of the testimony cannot be true is not necessarily to say that
any of the testimony was intentionally false. Scholars have built careers on
investigating the vagaries of human perception and memory. Although an
exploration of that research is unnecessary here, I do note that the matters at
issue in this proceeding occurred at least nine months before any of the
testimony was taken under oath at a hearing, that the critical conversations (as
well as some of the testimony) occurred in two languages (with translations back
and forth), and that emotions ran high on both sides, potentially clouding
perceptions. That there are good faith differences in testimony in any
arbitration hearing is not surprising. That there would be sharp differences in
testimony in this hearing, given the considerations above, is almost a given.
side suggests that I disregard at least some of the testimony offered by the
other side based on inconsistencies and/or demonstrable defects in recollection.
In general, I have not found it necessary to resolve conflicts in the testimony
or to make difficult judgments about credibility.
There are more than enough inconsistencies to go around on both sides, but I
find the answer to the central question, on a more-likely-than-not basis, in a
congruence of the testimony of Grievant and of Susana Cuevas.
the question is whether Grievant threatened to cut himself or to lie about
hurting his wrists. That is what Colepaugh and Hankel understood from the
December 22, 1999 meeting. It was, truly, the
precipitating factor that led to termination. In carefully reviewing the
evidence, however, I find that Cuevas and Grievant essentially agree
as to what he said when judged by reference to Grievant’s testimony at the
hearing as compared to the letter Cuevas wrote to L&I on January 5, 2000. To
reiterate, the Cuevas letter said:
felt Mr. Garcia was a threat to himself and fellow employees, because when we
asked Mr. Garcia if he was going to work he said yes but if he cut himself on the wrist then it would be our fault and sue
[sic] the company.
U-23, p. 2 (emphasis supplied). I recognize that Cuevas testified somewhat
differently at the hearing, but I find her recorded recollection within two
weeks or so after the occurrence to be more reliable than her testimony many
months later, given in the context of what became a highly adversarial
proceeding. I also note that Cuevas wrote the letter to L&I to protest that
Grievant’s workers’ compensation claim had been allowed. I must therefore
assume that she stated the case as strongly as she could in an attempt to
convince L&I to reconsider its decision. As noted previously, Cuevas was
also the Employer representative who knew most about Grievant’s attempt to
return to work and to have his condition evaluated by his doctors. Consequently,
I find that Exh. U-23 is the Employer’s best evidence of what Grievant
actually said in the meeting, even though I recognize that it differs from the
recorded perceptions of others. See, e.g.,
Exh. E-19 (Colepaugh’s “exit interview” notes). At the very least, Exh.
U-23 creates a substantial question about just what Grievant said,
as opposed to what the Employer’s representatives thought he meant.
I note, however, that the language essentially quoted in the Cuevas
letter is not inconsistent with Grievant’s testimony at the hearing:
told him [Colepaugh] that’s fine, but if
I injure myself or if I cut myself, the problem will be worse.
271 (emphasis supplied). In other words, both Cuevas and Grievant agree that the
statement was conditional, i.e. if I
cut myself. Nor is that testimony essentially different from Tafolla’s
(“I’ll cut myself if I have to go
back to work”). Tr. 743; see also, Footnote
20, infra. No doubt, a genuine
“threat” may be stated in “conditional” form. But determining whether a
particular conditional statement is in fact intended
as a “threat” requires a consideration of context, tone, responses to
follow-up questions, and similar factors that might reasonably lead a hearer to
infer meaning beyond the plain import of the words spoken. Those matters are not
sufficiently in evidence here, however. Rather, Colepaugh
and Hankel believed they heard a “threat” and immediately determined that
Grievant should be terminated as a result.
But without adequate context evidence to confirm what the Grievant meant,
it is impossible for the Arbitrator to evaluate the accuracy of the Employer’s
perceptions of this essentially ambiguous language.
It is a fundamental principle of “just cause” hearings in labor
arbitration that the Employer bears the burden of proving that misconduct
occurred and that termination is an appropriate penalty. Given the ambiguous
nature of Grievant’s statement, as judged by the Employer’s best evidence of
what Grievant actually said rather than what the Employer representatives perceived him to mean,
I find that the Employer has failed to carry its burden to prove just cause for
termination. Grievant may well have been threatening to cut himself or to
falsely claim an injury, but the evidence does not clearly establish that fact.
In other words, the evidence does not exclude the possibility that Grievant
meant something more benign, e.g. that being forced to work at stripping small
intestines in his condition would likely result in further injury.
an arbitrator finds that an employer has failed to carry the burden of
establishing just cause for discharge, the presumptive remedy is reinstatement
without loss of wages, benefits, or seniority. Brand, Discipline and Discharge
in Arbitration at 370. I find that remedy appropriate in this case. Because of
the nature of the case, however, I will limit the remedy as follows.
should be reinstated, without a break in seniority, subject to the certification
of Grievant’s attending physician that he can resume employment without
restriction or, if restricted, that he is physically capable of performing the
position of “stripping small intestines” or a comparable light duty
position. To enable the physician to make the required certification, the
Employer shall promptly provide (and share with the Union) applicable job
description(s) and related information sufficient for the purpose of making the
certification. If the physician certifies that Grievant could have performed one
or more available positions within the plant at any time between December 22,
1999 and the date of the certification, Grievant shall be entitled to back pay
and benefits based upon amounts he would have earned in that position (or those
positions), less interim earnings, if any. It is specifically my intention,
however, that Grievant not receive back pay pursuant to this Award for any
periods during which he has received or will receive Temporary Total Disability
payments under the Industrial Insurance laws. If a physician is unable to
certify Grievant for a return to work, either on a full release or to light
duty, Grievant shall be treated as an employee on leave under the applicable
sections of the collective bargaining agreement and shall have all the rights
and responsibilities attendant to that status. This status shall also apply to
any periods between December 22, 1999 and the date of certification for which a
physician cannot certify Grievant’s ability to work, whether at his regular
job or an available light duty assignment.
matter will thus be remanded to the parties to apply the general remedial
principles set forth above. I will retain jurisdiction to resolve any disputes
with respect to the implementation of the remedy, including disputes relating to
the accuracy of the certification of Grievant’s attending physician, for a
period of ninety (90) days from the date of this Decision and Award and for such
reasonable extensions as the parties may mutually agree. Either party may invoke
this continuing jurisdiction with notice to the Arbitrator and the other party
via a letter postmarked or fax sent prior to the expiration of reserved
Having fully considered the evidence and arguments of the parties, I now
issue the following Award:
grievance is arbitrable;
discharge was not supported by just cause;
shall be reinstated without loss of seniority and with back pay and benefits,
subject to the limitations set forth in the body of the Decision;
Arbitrator will retain jurisdiction to resolve any disputes relating to the
implementation of remedy for ninety (90) days from the date of this Award and
for such reasonable extensions as the parties may mutually agree; and
parties shall bear the fees and expenses of the Arbitrator in equal proportion
as set forth in their collective bargaining agreement.
this 12th day of January, 2001
Michael E. Cavanaugh, J.D.
 The Grievant speaks very limited English. Consequently, the parties provided an interpreter to assist in the proceedings. While the Grievant was on the stand, an interpreter translated the questions into Spanish, and then translated Grievant’s responses into English. During the portions of the proceedings that were conducted in English, the interpreter simultaneously translated into Spanish so Grievant could follow. This procedure necessarily lengthened the proceedings to some extent, and in a case in which the nuances of language and meaning ultimately play a critical role, it also added a layer of ambiguity to the already difficult task of evaluating the parties’ attempts to communicate with each other.
 The Employer provided videotape of the process that was utilized extensively during the hearing to illustrate the demands of this job.
 Grievant’s time card for December 22, 1999 contains a notation, apparently by Supervisor Mario Garza, that Grievant “did not work.” Exh. E-17. On the other hand, the time card also shows a “punch-in” on December 22 sometime after 6:00 AM (the copy of the exhibit in the record does not contain the complete page, so the “minute” part of the punch-in is off the right hand edge of the copy). The time card does not show a “punch-out.”
 Grievant testified that he does not remember Tafolla at the meeting on December 22, but he is clearly in error. All the other participants testified that Tafolla was there, as well as Tafolla himself. I find that Tafolla did attend the meeting. Contrary to the Employer’s suggestion, I do not find this or the other discrepancies in Grievant’s account of the meeting, on matters that are somewhat tangential, to be sufficient to establish that I should treat all of his testimony as unreliable. See, Employer’s Brief at 26-29.
 There is some dispute whether Cuevas, who is bilingual, also translated for Hankel. During the Employer’s case-in-chief, she testified that she did translate. Tr. 85. The other Employer participants, however, testified that only Colepaugh translated. Later, during the Employer’s rebuttal case, Cuevas testified that she had not translated for Hankel. Tr. 638; 652.
 The Employer witnesses stated that Colepaugh had authority to make the termination decision, but because the Company was transitioning that authority from Hankel to Colepaugh, Hankel needed to concur. Cuevas and Tafolla, although they had no authority to terminate employees, were asked for their input. Each supported termination.
 Colepaugh was wrong about the knife, of course, as the Employer’s video of the small intestines job demonstrated at the hearing. Stripping small intestines does require the use of a knife, and I must therefore consider whether Colepaugh’s apparent misunderstanding of the nature of Grievant’s job assignment contributed to his interpretation of Grievant’s remarks as a “threat.”
 Mr. Perales’ testimony about the agreed extension was clearly hearsay because he did not attend the meeting. Thus, his second-hand testimony about what occurred is insufficient to establish that the Employer orally agreed to extend the time limits. Other Union participants, including Union counsel Ms. Griffin and rep Dale Palmer, did not testify. On the other hand, one of the Employer participants, Mr. Lawreence, produced his notes of the meeting, apparently made just after the meeting ended, and the notes did not mention Mr. Garcia. Exh. E-33. Thus, from the evidence in the record, I cannot find that the Employer entered into any express agreement to extend the grievance processing deadlines.
 The Employer notes that both Ms. Griffin, Union counsel, and Dale Palmer, a Union representative, attended the January 18, 2000 meeting. Both were also present at the hearing, although Mr. Palmer’s presence, to the Arbitrator’s knowledge, was very brief and on the final day. The Employer urges the Arbitrator to draw an inference, from the Union’s failure to call these witnesses, that they were unable to testify favorably to the Union’s position on the question of an agreed extension of time. With respect to Mr. Palmer, I would be inclined to draw such an inference. With respect to Ms. Griffin, however, the potential complications of alternating between the roles of witness and advocate in the same proceeding make the inference much less compelling. In other words, there may have been good reasons, other than inability to testify favorably, which could cause counsel to refrain from putting herself on the stand on this issue.
 The agreement provides “Any grievance not resolved in the First Step will be discussed in a meeting between the Union representative and the Company representative delegated to resolve such matters not later than ten (10) calendar days of the filing of the grievance, which period may be extended for a reasonable period of time upon mutual agreement. Exh. J-1, p. 9 (emphasis supplied).
 Although this clause does not contain an express time limitation for a party to invoke arbitration (unlike the “regular” provisions for moving from Step Two to Step Three), arbitrators generally hold that a party must act within a “reasonable” time to assert its rights when the agreement is silent on the time limits for that act. I would find that the Union acted within a “reasonable time” by demanding arbitration of this grievance on March 8, 2000.
 Nor does it seem logical that the parties would essentially remove any meaningful opportunity to discuss and resolve a grievance prior to moving to arbitration. Yet, it is clear that Step One in a termination grievance under this contract does not involve the players with authority to resolve the issues surrounding a discharge. Thus, the Employer’s position that the Union was required to request arbitration shortly after Colepaugh’s January 12, 2000 letter would seem to lead to a highly unusual result—that a party would be required to demand arbitration before any meaningful discussion of the grievance between those who have the authority to resolve it. That result is one the Arbitrator could accept only in light of clear evidence that the parties intended it. There is no such evidence here.
 This testimony concerning the December 22, 1999 meeting constitutes evidence, contrary to the testimony of Colepaugh and Hankel, that Grievant did say during the meeting that he could not do the work, that it was too heavy for him. According to Cuevas, he had said the same thing to Colepaugh the day before as well.
 On its face, the letter bears the date of December 5, 2000, but it also bears a receipt stamp from L&I dated January 7, 2000. The evidence established that Ms. Cuevas erroneously dated the letter December 5 instead of January 5.
 The 35-40 pounds was apparently an estimate because there was no competent evidence that Tafolla or anyone else had weighed a representative sample of intestines. Cf. Tr. 689-91 (Garza). The job description, Exh. U-22, asserts that the “whole intestine” weighs 20-25 pounds. Tafolla was the apparent source of the information on the job description as well (Tr. 638), but this discrepancy in estimated weight is not resolved in the record. See, e.g., Tr. 733. Garza estimated the whole intestine weighs twenty pounds. Tr. 678. Santos estimated an intestine showed in the video weighed forty pounds. Tr. 476. The weight of the intestine is critical in judging whether the job of stripping small intestines met Grievant’s physical limitations, yet it is not established with certainty on this record. I must, therefore, determine which estimate I will accept. I will assume that the whole intestine weighs up to forty pounds because a knowledgeable witness from each side (Tafolla and Santos) estimated that it does, and there is no competent evidence in the record that anyone ever weighed the intestines to get a more precise weight.
 The quantum of evidence required for the Employer to meet its burden is not a matter on which arbitrators agree. Brand, Discipline and Discharge in Arbitration at 335 (BNA 1998). Although the appropriate quantum of proof may vary with the particular circumstances involved, this Arbitrator generally looks for “clear” evidence that establishes the misconduct alleged. In other words, I do not require proof “beyond a reasonable doubt,” but often more than a “mere preponderance” should be required, in my view, to sustain an Employer’s decision to deprive an employee of his or her livelihood.
 In my experience, witnesses tend to quote others as having said what they think the other person meant. Likewise, in recalling the past, witnesses tend to testify that they said what they were thinking or what they intended to say. As the temporal distance from the events to the hearing increases, so does the likely impact of these tendencies. Moreover, if emotions such as anger or frustration are involved, these effects seem to be heightened. Here, Grievant in particular seems to have been frustrated by his attempts to navigate the medical system and meet his Employer’s requirements for dealing with his industrial injury. In any event, while I have no doubt that some witnesses consciously lie, even under oath, many more simply exhibit the subconscious limits of human perception and recall. I have kept these observations in mind in evaluating the testimony on behalf of both parties here.
 I also find it important that this report by Cuevas quotes Grievant as referring to “cutting himself on the wrist” rather than “saying his wrists hurt.” Based on the videotape of the small intestine job, it strikes me as not impossible that a person who felt “shaky” or “nervous,” as Grievant testified he felt on December 22, could slip and cut himself on the arm.
 Colepaugh’s interpretation of Grievant’s comments as a threat, of course, may have been influenced by the mistaken belief that Grievant did not use a knife in the job to which he had been assigned.
 Tafolla quotes Grievant as saying “I’ll cut myself if I have to go back to work.” Tr. 743. But that statement is not necessarily inconsistent with what Grievant testified either, i.e. it could be a “prediction” of an accident rather than a statement of an “intention.” In addition, when asked if Grievant had ever said in the December 22, 1999 meeting “I’m not threatening to cut myself,” Tafolla started to answer, then was interrupted by a distraction in the room. When the question was asked again, he looked to the Arbitrator to be decidedly uncomfortable as he said he did not remember one way or the other whether Grievant had made such a statement. Tr. 729. We’ll never know what Mr. Tafolla would have said had the proceedings not been interrupted, but in any event, the answer he finally gave is much less certain than the outright denials of the other Employer witnesses that Grievant ever attempted an explanation of his statement.
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