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Title: The Regional Transportation District and Amalgamated Transit Union
Date: March 17, 2003
Arbitrator: John Wormuth
Citation: 2004 NAC 125

 

In the Matter of Arbitration 

between

The Regional Transportation District

and

Amalgamated Transit Union,  Local 1001

Louis Locastro, Grievant 

John F. Wormuth
Arbitrator

Arbitrator’s Case No. A-02-905
(RTD- ATU No. 02-10420)

March 17, 2003

 

INTRODUCTION

            This Arbitration arises from a grievance filed by The Amalgamated Transit Local 1001, hereafter referred to as the Union, on behalf of itself and Louis Locastro, hereafter  referred to as the Grievant, a bus operator, whose classification is covered by the terms of the  Collective Bargaining Agreement (CBA), Article ll - Section 10 -  Occupational Classifications and Wage Rates. The subject of this arbitration is the August 12, 2002 termination of the Grievant’s employment by The Regional Transportation District, hereafter referred to as RTD.   RTD  terminated the Grievant for his  alleged failure  to return to work on the first scheduled work day after expiration of a medical leave. The CBA, Article ll -  Section 8 (b)(3) states: “An employee may be terminated for failure to return to work on the first scheduled work day after expiration of a medical leave, or if the employee accepts employment during a medical leave” (Emphasis provided). The crux of this arbitration  revolves around the question of whether or not the Grievant involuntarily resigned by  abandoning  his job, or if the Grievant was  terminated for “proper cause”.  Both RTD and the Union uniformally apply the term “proper cause” to be synonymous with  “just cause” and  assign it the same import, meaning  and application.  Substantial controversy  exists surrounding the justification and   circumstances that caused RTD to terminate the Grievant.  As argued by RTD, the Grievant  involuntarily resigned his job when he failed to report to duty upon expiration of a medical leave.  It is the Union’s contention  that  the Grievant  did not involuntarily resign and, in fact,  he was improperly terminated by RTD. Such termination by RTD is in violation of the “proper cause” provisions  of the  CBA.      Authority for this Arbitration is the CBA, Article I, Section 10, Grievances and Arbitration, whose duration is March 1, 2000 to February 28, 2003.  RTD’s  publication titled  “Trailblazer”, which prescribes operating rules and regulations, is subordinate to    Article I Section 10 -  Grievances and Arbitration; a  violation of which may  result in discipline up to and including discharge.

            This arbitration was heard on January 14, 2003, commencing at 9:15 a.m. at the offices of the Regional Transportation District, 1600 Blake Street, Denver, Colorado, 80202-1399.

The parties  unanimously selected John F. Wormuth as the Arbitrator in this arbitration, to render a final and binding award.  The parties agreed that this arbitration was timely and properly before the Arbitrator, and that all procedural requirements had been met. There were no pre- hearing briefs, but closing briefs were submitted and accepted.  No other briefs or submissions were proffered and none were  requested by the Arbitrator.  Prior to testifying all witnesses were administered an oath or affirmation by the Arbitrator.   There was no transcription of the hearing but the Arbitrator did take detailed notes and supplemented those notes with a digital recording. Prior to the taking of evidence the Arbitrator informed the parties that both the notes and recording of this arbitration are for  the exclusive use of the Arbitrator  and will not be shown to anyone. The record of this arbitration was closed on February 18, 2003, upon receipt of the closing briefs  from both RTD and the Union.

The parties were given full opportunity to present evidence, examine and cross-examine witnesses, produce exhibits and present argument, and availed themselves of the opportunity to do so. The RTD introduced Exhibits, marked RTD 1 thru 15 and the Union introduced Exhibits marked Union 1 thru 6. There were two Joint  Exhibits identified as such and marked 1 and  2. All of the exhibits were admitted into evidence and are incorporated herein by reference.

APPEARANCES

ON BEHALF OF REGIONAL TRANSPORTATION DISTRICT:

           Rolf G. Asphaug, Esq.
         Deputy General Counsel

ON BEHALF OF AMALGAMATED TRANSIT UNION  LOCAL 1001
AND LOUIS LOCASTRO, GRIEVANT
William B. Jones, Esq.
General Counsel

ISSUE

            The parties did agree that the issue before the Arbitrator is whether there was proper cause for the termination of the Grievant.

RTD’s position is  that:

1)                  “The Grievant  involuntarily had terminated his employment by failing to return to work or to  timely obtain extension  of medical leave upon expiration of his medical leave.”  (RTD closing  brief, pg 1).

 The Union  states the issues as follows:

1)        Louis Locastro’s employment was terminated without proper cause.

 2)        What is the appropriate remedy?  (Union closing  brief, pg 1).

The Arbitrator frames the issues to be determined  thusly :

1)        Did the Grievant voluntarily resign,  involuntarily terminated or abandoned his employment from the RTD? and if not;

2)                 Was the Grievant discharged for proper cause as defined in Article I  Sections 5, 9 and 10 of the CBA?  and if not;

3)                 What is the appropriate remedy?

RELEVANT CONTRACT  LANGUAGE

Article I -   Section 5    Rights of Management

“The management of the system and the direction of the working forces vested exclusively in the Employer and the Employer shall continue to have all rights customarily reserved to management, including but not limited to the right to hire, promote, suspend, discipline, or discharge for  proper  cause;  (Emphasis provided)…”

Article II  -  Section 8  Sick Pay, Leaves-of-Absence, Days Off

(b)  Medical Leave ---- All Regular Full-Time Employees

(1)                  “A medically disabled employee will be permitted to work only with the written permission of a physician and as long as he or she is able to perform the duties of his or her job. Upon written request, the employee may be granted a medical leave-of-absence. The leave-of-absence may be extended when requested in writing and accompanied by a letter from the attending physician stating such extension is necessary. In order to return to his or her job after medical leave, an employee must have a written release from a physician stating that he or she is able to perform the duties of his or her former job. An employee returning from medical leave will be given his or her former job with no loss of seniority or pay status. The Employer reserves the right to request that the employee submit to an examination  by a medical doctor of the Employer’s choosing and at the Employer’s expense.”  (Emphasis provided).

            Of relevance to this Arbitration is an RTD generated publication titled the “Trailblazer”.  Within the “Trailblazer” is a section titled Bus Operators Guide, Section 1, Article 111: Grievance Procedure.  It is of particular note in that it specifies that  any discipline imposed under authority of the Bus Operator’s Guide draws its essence from and is subordinate to the Collective Bargaining Agreement. It  is as follows “This code shall be administered within the framework of Article I, Sections 9 and 10 of the Collective Bargaining Agreements between the Regional Transportation District and Amalgamated Transit Union, Division 1001”. 

FACTUAL BACKGROUND

The RTD is a public transportation system that serves the City of Denver and surrounding communities. Since 1996 the Grievant has been employed as a bus operator who has no apparent history of prior disciplinary actions, and none have been alleged.

On or about January 14, 2002, the Grievant was involved in a non industrial motor vehicle accident.  This accident caused the Grievant to seek medical care from Peter M. Nicholson, M.D. who determined that the Grievant sustained sufficient injuries to prevent him from driving a bus. The Grievant applied for and was granted a medical leave of absence on January 15, 2002 and it was renewed monthly except on  two occasions,   until his termination on August 12, 2002.  On January 22, 2002, while on  medical leave,   the Grievant was involved in another non industrial motor vehicle accident.  From January 14 until August 12, 2002,   medical documentation in support of the Grievant's request for medical leave was provided by Dr. Nicholson.  Article ll, Section 8 (b) Sick Pay, Leaves of Absence, Days Off   is the contractual authority that regulates the  granting, denial, and review of medical leaves of absence. 

POSITION OF THE REGIONAL TRANSPORTATION DISTRICT

It is the position of RTD that the Gievant abandoned or  involuntarily resigned his job since he failed to report for duty at the expiration of a medical leave of absence. The Grievant ignored his contractual obligation to renew the leave in a timely manner and thereby severed his employment relationship.  Had the Grievant complied with his contractual obligation to do so   it would have brought his  leave request  into compliance with RTD’s procedures. This would have   permitted RTD to grant or deny the Grievant’s request for medical leave based upon its merits.  Adequate notice of this requirement  is provided to the Grievant by contract and is further stated on the “Bargaining Unit Request for Leave of Absence “.   RTD gave  the Grievant  additional  time to provide the required medical  documentation but he failed to do so in a timely manner.  RTD exercised  it prerogative to schedule a “fitness for duty evaluation” and obtained the Grievant’s acquiescence.  However, the Grievant did not participate in the “fitness for duty evaluation” despite his commitment to do so and  knowledge of his contractual responsibility. None of these requests were complied with by the Grievant  and RTD had adequate reason to conclude that the Grievant had involuntarily terminated   and or abandoned his employment .

POSITION OF THE AMALGAMATED TRANSIT LOCAL1001

            It is the position of the Union  that the Grievant’s employment was terminated without proper cause in direct violation of the Grievant’s contractual rights as enumerated by the terms and conditions of the CBA. The argument  advanced by RTD that the Grievant involuntarily terminated or abandoned his position is adverse and in opposition   to  the principle of proper cause.  Further,  that involuntary termination  or job abandonment, as implemented and applied by RTD,  is not contemplated or permitted by the terms of the CBA.  In fact, the  notion of involuntary  termination or job abandonment can not be discovered  in the CBA and is abhorrent to it.  The  fact is that the Grievant was in substantial  compliance with his contractual obligations in that he provided written documentation throughout the period of his medical  leave, as required. Therefore, the Grievant did not  involuntarily terminate  or abandon his job but was rather  terminated without proper cause.

Discussion

            Elementary to the resolution of this Arbitration is the question of whether or not the Grievant, as stated in the termination letter of August 12, 2002,  “abandoned your job and thus involuntary terminated.” (JT.Ex 2). Prior to an examination of the Grievant’s actions it is necessary to determine if in fact the Grievant did abandon his job.

      There are essentially two general categories of alleged job vacation that can be applied to the instant case. They are: voluntarily resignation or   job abandonment, also referred to here as ínvoluntary termination.  In the first instance,  an employee voluntarily  tenders his or her resignation either in writing or verbally. Generally, this involves the employee’s notifying the employer of his or her intent to leave the employer’s employ by a certain date and time. Under these conditions the employment relationship is severed voluntarily.   In the second instance,  the employee  abandons his or her job, usually without notice, and often offers no explanation for his or her decision.  This type of occurrence is commonly referred to as absent without leave, or involuntary termination,  and the employee is considered to have abandoned his or her job. Other examples are cases where the employee   cuts off all communication with the employer and refuses to answer the inquires made of him or her, and this results in  termination for job abandonment.  Although they differ in circumstance, these events  have the common element   of employee generated action or omission.  It is not uncommon  for an employee to sever his or her  employment  without notifying  the employer and  the Union.    Resignation is a conscious act on the part of an employee and when executed by the employee it voluntarily severs the employment relationship. Job abandonment, or involuntary termination,  is a passive act by an  employee but it  still stands as an independent act that derives its legitimacy  and authority from the actions or omissions of the affected employee.  The CBA in question  does not contemplate or sanction involuntary termination or job abandonment.  An interpretation that is inconsistent with the principles of proper cause would mean that an employee who accepts  medical leave automatically terminates  his or her contractual and due process rights.   No such conclusion can be drawn from this CBA nor in the instant case.

            A review of the Grievant’s actions persuasively indicates that the Grievant was actively engaged with the employer and intended to return to duty. Throughout the entire leave period the Grievant continued to preserve the employment relationship by providing documentation in support of his medical leave. This documentation began in January of 2002 and was provided to RTD monthly and  without apparent interruption until July of 2002. RTD requested in April of 2002 that the Grievant  obtain a more detailed report from the treating physician, and it was provided.  RTD had accepted, prior to April 2002, the treating physician’s documentation of medical leave that was conveyed on his physician’s prescription pad.  On April 18, the Grievant’s treating physician provided a detailed letter indicating the Grievant’s injuries and plan of treatment.  (RTD Ex 5).  This apparently satisfied RTD’s need for additional information at that time.   RTD argues that the information provided subsequently, on the physician’s prescription pad, is not adequate documentation of the same injuries.  Although prescription pad documentation is minimal, it is commonly accepted and is given substantial weight in determining the legitimacy of a medical leave.

            In the instant Arbitration, RTD had adequate documentation and knowledge concerning the Grievant’s need for a medical leave.  The April 2002 letter from the treating physician formed the factual base upon which subsequent prescription pad documentation is dependent.  RTD was bound to accept these notes until additional information could be provided.  The flow of this information is controlled not by the Grievant or RTD, but by  the independent business practice of the treating physician.

            RTD was able to contact the Grievant throughout the entire period of leave and  he responded to inquires made. There was no testimony given that indicated that the Grievant’s whereabouts, address and telephone number were unavailable to RTD. In fact, testimony offered and the exhibits introduced  by the parties to this Arbitration indicate the  contrary.  Further,  the record indicates that the Grievant was responsive and this is not the customary action of an employee who  intends to terminate his or her employment.  

            There was no evidence produced to support the proposition that the Grievant walked off the job thereby involuntarily terminating his employment, nor was there any evidence produced that the Grievant submitted his written or verbal resignation.

                    The Grievant was granted by RTD a  qualified  medical leave   per  Article ll, Section 8 (b)  Medical Leave, on  January 15,  2002.  The Grievant’s  treating physician  is chosen    from  a list of disciplines  found   in  Article ll section  (a)  (7) of the Agreement. Qualification for a medical leave as defined in the contract is limited to those employees who are medically disabled.

            The very nature of a medical leave distinguishes it from other leave programs because its purpose is to allow the employee  to return to productive  work capacity.  Part of the benefits bestowed by a medical leave under this contract is that a returning employee will be given his or her job back without  “loss of seniority or pay status.” (JT Ex. 1. Art ll sec 8 (b) (1).  Return to work status is subject to a medical  examination and clearance that indicates the employee is fit for duty. Additional testimony was offered that RTD,  as a matter of internal policy, requires bus operators who are absent from duty for more than thirty days to undergo skills training.  All of the above assures RTD that an employee returning from leave is both fit and capable to perform his or her duties.   RTD may challenge the granting or renewal of an existing medical leave by requesting additional documentation or by requiring that the  employee submit to a medical examination by an RTD appointed doctor.  During an authorized medical leave the employee receives certain payments for health and welfare.  RTD offered testimony that the cost of these benefits is approximately $500.00 dollars per month.  No evidence was presented, nor was it alleged, that the Grievant obtained the medical leave for a purpose other than a qualifying disability.

            The basis upon which RTD may contest  a medical leave is controlled by the contract’s proper cause provisions.  Encompassed within the proper cause standards is the issue of notice, reasonableness, and contractual due process.

            The Grievant testified to, and the exhibits of both RTD and the Union support that, up until July of 2002 there were no problems associated with RTD granting his medical leave. In April of 2002, Senior Labor Relations Representative, Sherie Skinner, requested that, as a condition of extending the medical leave until April 10, the Grievant supply additional “adequate medical documentation.” (RTD Ex. 4).   Ms. Skinner’s letter clearly directs the Grievant for compliance by a certain date and further advises  the Grievant that he may be required to release information and  see a different doctor other than the treating physician. The Grievant complied with RTD’s request and submitted a comprehensive  letter from his treating physician  dated April 18, 2002  (RTD Ex 5).  RTD accepted this documentation and granted a leave  with a return to work date of June 1, 2002. (RTD Ex 6)  The leave was again renewed with a return to work date of July 1, 2002. The period of time between July 1 and July 25  is not covered by an approved “Request for Leave of Absence”  (RTD EX8). However, RTD took no action on the Grievant’s employment status until July 29, 2002 when he was advised that his request for a medical leave of absence was denied. The letter of July 29 essentially allowed the Grievant, without a certain date, to elect from two acceptable courses of action. He could return to work, assuming a medical clearance, or supply additional documentation. It is clear from the testimony that at no time during this period did the Grievant’s treating physician certify him fit for duty and this did not occur until November 1, 2002.  This left the Grievant with only one practical solution and that was to obtain additional documentation which he proceeded to do.  RTD  received two post termination  reports from the Grievant’s treating physician on August 13 and  20, 2002. 

            The Grievant testified to the circumstance as to why the reports were received by RTD post termination.  It is the practice of the Grievant’s treating physician to require an office visit prior to issuing requested medical information, and the earliest one available was August 20.  In the report of August 13, the treating physician inserted a handwritten note on his previously  handwritten report of April 18 that re-stated the facts concerning the Grievant’s injuries and plan of treatment.

            Consideration of the events that occurred between July 29 and August 12, 2002, is of particular import.  On August 5, Senior Labor Relations Representative, Sherie Skinner, instructed Human Resources Assistant, Renita Bell, to schedule a fitness for duty examination on the Grievant’s behalf. (RTD Ex 10).  Ms. Bell contacted the Grievant so it could be determined which location was convenient for the Grievant, as RTD’s contractor has numerous offices in the Greater Denver area.  In the course of their conversation the appropriateness of a fitness for duty examination was discussed because the Grievant had not been released by his treating physician to return to duty.  The Grievant testified that Ms. Bell indicated she would contact him if necessary, but no contact was made, which impressed the Grievant that there was no  need for the examination.  Ms. Bell was not available to testify, but the Grievant’s version of these events is not impeached by other testimony.  The Grievant’s understanding of a fitness for duty examination and its purpose is  supported by the language of the CBA.  Article II, Section 8 (b) (1) states: “A medically disabled employee will be permitted to work only with the written permission of a physician and as long as he or she is able to perform the duties of his or her job” (Emphasis provided)  (JTEX.2)  None of the above conditions or circumstances existed that would have allowed the Grievant to return from leave.  The medical leave of absence form is emboldened with the following requirement: “Employees must contact their supervisor/manager one week in advance of being released to arrange a Company physical, if necessary”.  (Emphasis provided). (RTDEx 1, 2, 3, 6 7, 8)  No evidence was submitted that the Grievant ever received a medical clearance, much less one a week in advance.

            The Grievant’s conclusion when  Ms. Bell’s failed to  get back to him about the need for the fitness for duty examination  is  logical.  Both the CBA and the leave of absence form have clear instructions to the employee returning from medical leave and specify the conditions and circumstances by which restoration to duty can occur.  However, none of these specified conditions or the chain of events that would trigger a return to duty were present in the instant case.

RTD asserts that the Grievant did not respond to its requests  on a timely basis between August 5 and 12, 2002.  RTD attempted to gain the Grievant’s compliance to a request for additional medical documentation and to participate in a fitness for duty examination.  RTD’s letter of July 29, 2002 (RTD Ex 9) denying the Grievant’s request for an extension of a medical leave of absence lacks a specific date by which the Grievant must supply the additional information.   Representatives of RTD testified that in conversations with the Grievant they conveyed to him the urgency of the request. Verbal urgency is not a substitute for adequacy of notice and what is urgent to one party may not be to the other.  RTD had knowledge that the Grievant was absent due to medical disability and failed to  consider the totality of the information available when it terminated the Grievant.  Ignoring the entire record that gave rise to the Grievant’s medical leave of absence is to exercise a restrictive view and resulted in the termination of the Grievant without proper cause.

In April RTD requested additional information and gave the Grievant a timeline to respond and comply.  In July, no such timeline was provided.  This omission on RTD’s part violated the Grievant’s contractual due process rights. It is therefore difficult to conclude that RTD was unaware of its notice obligations to the Grievant.

RTD throughout the entire period of time between July 29 and August 12, 2002 had the power to resolve this controversy and answer any doubts concerning the Grievant’s necessity for a medical leave by scheduling the fitness for duty examination that the Grievant had agreed to take.

Therefore,  the Arbitrator rules that the Grievant did not  voluntarily or involuntarily terminated  or abandoned his employment, but rather he  was terminated by RTD. The termination of the Grievant on August 12, 2002 is subject to the proper cause provisions of the CBA.

FINDINGS AND CONCLUSIONS

1)                The Grievant did not involuntarily resign, involuntarily terminate  or abandon his job.

2)                The termination of the Grievant is subject to the proper cause standard contained in the CBA.

3)                The Grievant was not terminated for proper cause.

4)                The Grievant is found to be not at fault.

REMEDY

            The Grievant’s medical leave is reinstated for the period of August 12, thru November 1, 2002 with all of the benefits provided in Article II, Section 8 (b) Medical Leave.  Effective November 1, 2002, subject to satisfying the fitness for duty requirements, the Grievant is restored to full duty status as provided for in Article I, Section 9, Discipline (d). The Grievant shall be restored all of his base wages and benefits with no loss of seniority or job status.  The Union’s request for overtime is denied.

            The Arbitrator remands this remedy to the parties to determine its implementation.  The Arbitrator will maintain jurisdiction for a period of thirty (30) days to resolve any disputes that may arise regarding the remedy.

AWARD

            The grievance is sustained.

           ___________________________
                      John F. Wormuth 
                            Arbitrator                                                                   March 17, 2003

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