2001 NAC 107 Washington Beef, Inc and UFCW Local 1439

Title: Washington Beef, Inc and UFCW Local 1439
Date: January 12, 2001
Arbitrator: Michael E. Cavanaugh
Citation: 2001 NAC 107

The 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.[1] 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:

At 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 testified.

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 & Industries Coordinator.

Cuevas 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.

On 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.”

The 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.[2] 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.

On 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.

When 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.

Grievant 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.”

In 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 minutes[3] 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,[4] and Cuevas, that resulted in the precipitating events that led directly to Grievant’s termination.

At 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.[5] 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 before.

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).[6] 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 factual dispute.

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 job.”[7]

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.”)[8]

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.

Finally, 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.

The 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.

The 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 unlawful harassment.

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.

Step Three: 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. . . .

All 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.

The 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.

On 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.

In 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.

For 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.

The 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.[9] Consequently, the Employer urges the Arbitrator to “enforce the clear language of Article 8.” Employer Brief at 20.

On 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.

Finally, 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.

Consequently, the Employer requests that the Arbitrator dismiss the grievance as untimely or, in the alternative, sustain the discharge of Grievant for “just cause.”

The 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.

The 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.

Judged 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 arbitration. Id. 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.

The 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,[10] 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.

The 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.

In 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.[11]

I 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.[12] Thus, I cannot find that the Union’s request here came too late.

Finally, 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 matter there.

For 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.

I 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.

I 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.

For 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).[13] 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,[14] 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.

The 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 work.”

In 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.

The 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.

The 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. Tr. 27.[15] 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.

I 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 physical evidence.

The 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,[16] I would tend to agree that discharge, at least for one in Grievant’s position, would be an appropriate penalty.

But 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.

Each 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.[17] 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.

Specifically, 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:

We 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.

Exh. 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.[18]

I note, however, that the language essentially quoted in the Cuevas letter is not inconsistent with Grievant’s testimony at the hearing:

I told him [Colepaugh] that’s fine, but if I injure myself or if I cut myself, the problem will be worse.

Tr. 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[19] and Hankel believed they heard a “threat” and immediately determined that Grievant should be terminated as a result.[20] 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.

When 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.

Grievant 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.

The 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 jurisdiction.

Having fully considered the evidence and arguments of the parties, I now issue the following Award:

Grievant 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;

The 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

The parties shall bear the fees and expenses of the Arbitrator in equal proportion as set forth in their collective bargaining agreement.

[1] 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.

[2] The Employer provided videotape of the process that was utilized extensively during the hearing to illustrate the demands of this job.

[3] 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.”

[4] 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.

[5] 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.

[6] 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.

[7] 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.”

[8] 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.

[9] 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.

[10] 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).

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] 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.

[16] 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.

[17] 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.

[18] 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.

[19] 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.

[20] 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.