 |
 |
|
|
|
|
|
|
|
|
|
|
National Arbitration Center
Title:
Children's
Services Division, State of Oregon and Oregon Public Employees Union, SEIU,
Local 503, AFL-CIO, CLC
ARBITRATOR'S This Arbitration arises pursuant to Agreement
between OREGON PUBLIC EMPLOYEES UNION, SEIU, LOCAL 503, AFL-CIO, CLC
("Union"), and CHILDREN'S SERVICES DIVISION, STATE OF OREGON,
("Employer"), under which LUELLA E. NELSON was selected to serve as
Arbitrator and under which her Award shall be final and binding upon the
parties.
Hearing was held on June 28, 1991, in Salem, Oregon, and on July 3 and
12, 1991, by telephone conference calls. The
parties were afforded full opportunity for the examination and cross-examination
of witnesses, the introduction of relevant exhibits, and for argument.
Both parties filed post-hearing briefs on or about August 15, 1991. APPEARANCES: On behalf of the Union: Robert G. Black, Esquire, Barnett, Sherwood & Coon, P.C., 135 SW Ash Street, Suite 600, Portland, Oregon 97204-3540.
On behalf of the Employer:
Mark E. Hunt, Labor Relations Manager, Personnel and Labor Relations
Division, 155 Cottage Street, NE, Salem, Oregon 97310. ISSUE
The parties were unable to agree on a statement of the issue, but
stipulated that the Arbitrator would frame an appropriate statement of the
issue. The Union would state the
issue as follows:
Did the Employer violate Article 45.1B - FILLING OF VACANCIES, of the
1989-91 collective bargaining agreement between the Union and the Employer by
failing to transfer the Grievant to Hood River or The Dalles, Oregon because of
the Grievant's "serious medical need?"
If so, what remedy? The Employer would state the issue as follows:
1.
Did the employer violate Article 45.1B, Section 6, Filling of Vacancies (CSD),
of the collective bargaining agreement by denying grievant Margaret Davis her
April 12, 1990 request for Hardship Transfer rights for a serious medical need?
2.
If so, what would be an appropriate remedy? After a review of the record and the positions of
the parties, the Arbitrator formulates the issue as follows:
Did the Employer violate Article 45.1B, Section 6, of the Agreement in
its disposition of Grievant's April 12, 1990, request for a hardship transfer
based on "serious medical need;" if so, what shall be the remedy? RELEVANT SECTIONS OF AGREEMENT ARTICLE 45.1B--FILLING OF VACANCIES (CSD)
...
Section 6.
... If a qualified employee requests a transfer because of extreme
economic hardship or serious medical need he/she shall be selected provided that
employee possesses the knowledge, skills and abilities essential to the
particular assignment. For purposes of this Section, a qualified employee means one
who has not been subject to discipline of denial of a performance pay increase,
reduction in pay, demotion or suspension within the previous twelve (12) months. FACTS
Grievant has worked at the Employer's Linn Branch in Albany since May
1988. This case involves her April
12, 1990, request for a hardship transfer to a location near The Dalles based on
an alleged "serious medical need."
No dispute exists that she is a "qualified employee" within the
meaning of Article 45.1B, Section 6. The
parties are in dispute regarding whether her medical condition and circumstances
constitute a "serious medical need" warranting a hardship transfer
under that Section.
Grievant filed the hardship transfer request at issue while the parties
were processing her grievance over an earlier hardship transfer request based on
alleged "extreme economic hardship."
The Union eventually withdrew the economic hardship grievance and is
proceeding solely on the medical hardship transfer request.
During the pendency of the two hardship transfer requests, Grievant
interviewed for ordinary transfers to locations nearer The Dalles, but without
success.
Grievant's husband and family live approximately 160 miles from Albany in
The Dalles, where her husband manages the family orchard.
She testified that she initially sought employment closer to The Dalles,
but eventually extended her job search to include the Willamette Valley.
At the time she accepted her position in Albany, her daughter was
attending college nearby, and she hoped her family could relocate.
However, her husband was unable to find employment in the Willamette
Valley and remains in The Dalles with her family.
Grievant commutes home on weekends. Grievant's
Medical Condition
Since January 1989, Grievant has suffered from uterine fibroids, the
symptoms of which both her own physician (Dr. Peter Peruzzo) and the District's
consultant (Dr. William F. Habjan) consider serious.
Her symptoms include excessive and unpredictable menstrual bleeding,
which so far has resulted in two hospitalizations and transfusions for severe
anemia. The only available
treatment options for this condition are a hysterectomy, administration of
hormones, or possibly a myomectomy. Grievant
strenuously objects to having a hysterectomy, and Dr. Peruzzo has not
recommended the more complicated surgery involved in a myomectomy.
As a result, Grievant has elected the third option of hormone treatment.
She is reluctant to change physicians because of the personal nature of
the examinations required for this condition and because she feels comfortable
with Dr. Peruzzo.
The hormones have both physical and emotional side effects.
Grievant has at times taken anti-depressants to combat the emotional side
effects of one hormone, Provera, but had to discontinue treatment at least once.
After a second hospitalization for anemia, she began taking a different
hormone, Ovcon. Ovcon controls the
bleeding but creates physical side effects, causes depression, and exaggerates
her emotional response to other distressing events in her life.
Dr. Peruzzo testified that Grievant's hormonal treatment requires
monitoring. A hysterectomy
could require follow-up treatment if complications occurred, and some women
experience psychological problems from the surgery.
In his view, complications and side effects from a hysterectomy would be
better handled if Grievant's family were nearby.
Her uterine condition is stable and would not be affected by relocating
to The Dalles. However, in his
view, her separation from her family compounds her depression problem.
Although medication is available to treat depression, her depression does
not require medical intervention at this point.
Some anti-depressant medications affect the ability to drive, make the
patient drowsy, or have other side effects.
After a review of Grievant's medical records, the Employer's consultant,
Dr. Habjan, testified that Grievant's condition is neither unstable nor life
threatening, and he sees no medical necessity for her to be near her treating
physician on a daily basis. When
hormone depression causes depression, Dr. Habjan attempts to alleviate it by
manipulating or eliminating the hormonal medication, counsels the patient, or
refers the patient to a psychologist or psychiatrist.
He acknowledged that a support system is helpful in dealing with
depression. He testified that many
women find it difficult to discuss matters related to their reproductive organs
or to undergo examinations and treatment. Grievant's
Earlier Transfer Request
Grievant filed an economic hardship transfer request on August 16, 1989,
based primarily on the cost of commuting and maintaining two homes. She testified that she was embarrassed to disclose the
details of her medical condition to the Employer because of the personal nature
of the condition, and therefore proceeded solely on an economic hardship
transfer request. Her transfer
request was denied on August 28, based on the fact that Grievant
"voluntarily applied for and accepted a ... position with the Linn Branch
even though your home and family were still in The Dalles."
The Employer continued to deny the transfer request through subsequent
steps.
During the pendency of the grievance, the Employer requested information,
some of which was provided. In
March 1990, the Union informed the Employer that Grievant had developed serious
medical problems and suggested a hardship transfer would also be appropriate
based on these grounds. In
response, the Employer took the position that Grievant had provided shifting
factual allegations and had refused to disclose information, thus raising
questions about her credibility.
In preparation for a scheduled arbitration over the grievance, the
Employer requested detailed information on all the bases in support of the
transfer request, a request that was ultimately presented in pre-arbitration
motions to Arbitrator Janet Gaunt. Arbitrator
Gaunt ordered disclosure of much of the information sought.
Because Grievant's medical condition was not asserted as a basis for her
request, Arbitrator Gaunt ruled that her condition was not relevant to that
particular transfer request and, therefore, that she need not provide her
medical records. The Union
subsequently withdrew the grievance in May 1990, and the arbitration hearing was
never held. Grievant's
Current Transfer Request
Grievant made the transfer request at issue on April 12, 1990, while her
earlier transfer request was still pending.
On April 26, Personnel Manager M. Mae Starnes informed Grievant that she
would have to provide medical documentation before a decision could be made on
this transfer request. On May 10,
the Union's Field Representative, Julie Kettler, transmitted to the Employer a
March 19 letter from Dr. Peruzzo describing Grievant's physical condition and
medications with which he was treating her.
Dr. Peruzzo noted, in relevant part, that
A side effect of these medications can be depression. In fact this has been a problem with [Grievant] and the
medication had to be stopped for a time. Because
of her family living in the area of The Dalles and her work being in the area of
Albany, monitoring her for this condition is quite difficult.
We have had to give up treatment several times because of the depression,
which might have been managed if she were closer to home and could have had
closer follow up of therapy. There
now is the possibility of having to treat this condition with surgery. It would be quite a burden if she had to be separated from
her family while this was being done. On June 7, Starnes noted "shifting
allegations" made as part of Grievant's earlier request for an economic
hardship transfer. Starnes
commented that
These shifting allegations raise questions about [Grievant's]
credibility, her alleged medical and physical condition, whether the condition
existed before she applied for and accepted the Social Service Specialist
position in Albany, whether whatever condition she has is caused or exacerbated
by her work location and whether the condition is something that can reasonably
be treated in the Willamette Valley. Starnes therefore requested the name, address, and
telephone numbers of all physicians who treated Grievant for any medical
condition on which she relied in her request for a hardship transfer, all
treatment records for those conditions, pharmacy records for all medications
taken for those conditions, and a letter from her counselor.
Starnes promised to act on Grievant's transfer request "as quickly
as reasonably possible" upon receipt of the requested information.
On June 28, Kettler protested Starnes' request for additional
information, arguing that such information had never before been requested or
required to process or review a hardship transfer request.
Kettler took the position that Starnes' request was "overly broad,
intrusive, an invasion of privacy and designed to harass the employee for
exercising her rights under the contract." Kettler further argued that Grievant was being held to a
different standard from other employees and that the Employer was unilaterally
changing its application of the contract provision.
Grievant filed the instant grievance on January 2, 1991, arguing that the
Employer had effectively denied her transfer by refusing to act on her request
and by demanding more information than required.
The Employer denied the grievance at the first step, on the basis that
Grievant had submitted and withdrawn the grievance prior to arbitration in May
1990 and could not re-submit the grievance.
The Employer denied the grievance at the second step, on the basis that
Grievant had failed to submit the specific information requested by Starnes in
order to permit the Employer to act on her request. The Union appealed to the third step.
On March 15, Personnel Manager Mary Jo Henderson offered to reconsider
Grievant's transfer request if she would "provide documentation that
confirms you were hospitalized, have required blood transfusions, and provide
your physician's diagnosis, prognosis and treatment plan...."
On March 18, Labor Relations Manager Mark E. Hunt requested the following
information:
1.
The name, address and telephone numbers of grievant's attending physician(s),
counselor(s) or other health care providers who have treated [Grievant] for her
"serious medical" condition.
2.
Copies of all health records from those health providers listed above
regarding treatment for her "serious medical" condition that would
substantiate the need for a hardship transfer.
3.
Any other documentation that would substantiate the necessity for a
hardship transfer due to the grievants "serious medical need."
On March 26, 1991, Grievant provided copies of her hospital records and
informed Starnes that her physician would write a letter regarding her
diagnosis, prognosis, and treatment plan. Dr.
Peruzzo's letter, transmitted on April 12, noted, in relevant part
[Grievant] has a condition of the uterine fibroids complicated by severe
metromenorrhagia. This
condition has led to a severe anemic condition, which over the past couple of
years necessitated several hospital admissions for transfusion.
She presently is being treated with hormonal therapy, which has
side-effects of depression. All of
this is further complicated by the fact that she is separated from her family by
her job.
I would suggest that the best solution would be for her to be able to
transfer to an area near her home and family, for a supportive family
environment, and also to be able to have consistent care for her ongoing medical
problems.
On April 3, Hunt informed the Union that none of the requested
information had been provided. He
denied the grievance, arguing that Grievant had failed to substantiate her need
for a hardship transfer and that the Employer's request for information was
appropriate. On April 19, Assistant
Administrator Joan Fraser informed Grievant that, after a review of the medical
information from Grievant and her doctor, "[w]e find that you do not
qualify for a hardship transfer."
On June 19, Hunt requested further information regarding Grievant's
condition. He noted that the
information received to date included Dr. Peruzzo's April 2 letter, an itemized
hospital billing from the hospital, and physicians' orders from the hospital.
Hunt expressed an intention to object to the introduction at the
arbitration of any materials not previously provided.
On June 25, the Union furnished copies of Dr. Peruzzo's chart notes and
additional copies of Grievant's previously-submitted hospital records. Bargaining
History
Hardship transfer provisions first appeared in the 1977 Agreement and
have remained unchanged since that time except for typographical errors and
omissions. During negotiations for
the 1977 Agreement, the Union proposed language permitting transfers
"because of economic hardship, settlement of a grievance, or serious
medical need." The Employer
counter-proposed with the current language, "extreme economic hardship or
serious medical need."
Former Personnel Manager Charles Furlow, the Employer's negotiator in
1977, testified that the parties agreed hardship transfers should occur only in
extreme situations. With regard to
medical hardship transfers, the focus was on the need created by the medical
condition rather than on a definition of qualifying medical conditions.
Types of conditions requiring relocation were those where the treatment
was not available locally, it was unreasonable to expect an employee to
commute to get medical treatment because of the distance or frequency of
treatment, and the problem was ongoing rather than temporary.
An example was an employee requiring kidney dialysis where dialysis
machines were not available locally. His
recollection was that the parties agreed that employees would not be eligible
for transfers based on serious medical conditions, such as cancer or heart
disease, for which local treatment was available, and referred to "serious
medical need" as not including mere choice of doctors.
According to the Union's Executive Director, Alice Dale, in subsequent
contracts, the parties' discussion of medical need was in terms of a condition
that would be improved by relocation. The
discussion was not in terms of whether the condition was life-threatening, but
rather on the impact of the medical problem on the situation. An example was an employee in the Willamette Valley with an
asthmatic child who would benefit from a transfer to an area with a lower pollen
count. The Union's former Field
Services Supervisor, Cal Hackler, recalled that in later negotiations the
parties talked primarily about whether the hardship transfer provisions were
still necessary, and did not discuss in detail the definition of "serious
medical need." Earlier
Cases
No evidence exists of earlier grievances or denials of hardship transfer
requests based on alleged "serious medical need," and Fraser was
uncertain whether she had ever handled another medical hardship transfer
request. The Employer's Personnel
Officer, Mary Greenlee, testified there have been perhaps five hardship
transfers, none of which were medical hardships with the possible exception of
one involving kidney dialysis. Two
economic hardship transfers involved the transfer of a spouse.
The parties arbitrated a third economic hardship transfer request before
Arbitrator Howell Lankford. The
employee in that case sought a transfer because of the voluntary relocation of
his ex-wife, with whom he shared custody of their children.
In interpreting Section 6, Arbitrator Lankford observed:
There can be no doubt at all that Section 6 does not entitle an employee
to a transfer just because the employee decides he or she would rather reside in
another part of the State. Such an
interpretation would make the "extreme economic hardship" exception
consume the entire class of transfer requests.
The result would not be changed if the request comes because the
employee's spouse simply decides he or she would rather reside in another part
of the State. We generally assume
that decisions on family residence are made on a family basis, and we therefore
generally attribute the decision to the employee. [footnote omitted] Arbitrator
Lankford distinguished the circumstances before him in that the employee had
limited influence over the ex-wife's choice of residence, but found that the
commute required by the ex-spouse's move was not an "extreme economic
hardship." POSITION OF THE UNION
Aside from one bilingual position in Hood River, Grievant is plainly
"qualified" for the positions that have opened and will continue to
open in her job classification in Hood River and The Dalles.
If the Arbitrator finds there is a serious medical need, she
"shall" be transferred. The Employer is required to grant a hardship transfer when
either an "extreme economic hardship" or a "serious medical
need" exists. These are two
separate and independent reasons for granting a hardship transfer. The Employer failed to properly apply this language to
Grievant.
Under the plain language of the Agreement, Grievant had a "serious
medical need." Her medical
condition is serious and would benefit from a transfer.
Testimony from both Union and Employer witnesses, as well as Grievant's
medical records, make it clear that she has a very serious medical condition.
If the Arbitrator believes the language is subject to several
interpretations, other rules of contract interpretation lead to the conclusion
that Grievant has a serious medical condition under any definition of
"serious." She has gone
through periods when her condition has been under control, and other periods
when it has not; her condition could develop into cancer at any time; and she
suffers from the side effects of her hormone treatment, including depression. No prior arbitration decisions have interpreted the term "serious medical need," although Arbitrator Lankford interpreted the term "extreme economic hardship" in the same clause. The Arbitrator is therefore free to form a judgment concerning the language in question.
The bargaining history of the language indicates there was no clear
understanding between the parties of exactly what was meant by "serious
medical need" at the time the language originated. Other hardship transfers have been granted for serious, but
not life-threatening, conditions. Grievant's condition qualifies under the examples discussed by the parties during negotiations. It requires constant treatment for both the primary condition and the side effects from her treatment. Both her physician's opinion and common sense dictate that separation from her family makes it more difficult to handle the side effects of hormone treatment or, if she elected to have a hysterectomy, of that operation.
Grievant need not seek medical attention in the Albany area instead of
continuing to consult her own physician. Nothing
in the contractual language or the bargaining history suggests that an employee
must use a medical facility or physician in one location rather than another in
order to qualify for a hardship transfer. Even
if the language requires that the necessary medical care be located a certain
distance from the employee's work site, the care required from Grievant's
treating physician and the daily support from her family can be found only in
The Dalles. Grievant has a
fundamental right to choose her own physician. The personal relationship and confidence between a doctor and
patient are of paramount importance in effective treatment, particularly for
medical problems as personal and private as those here.
Grievant should not be forced to discuss her most private matters with a
new physician.
Even if choice of physician is not grounds for a hardship transfer, the
physician's provision of unique services should be a factor in determining
whether there is a basis for hardship transfer.
Unique skills or the existence of a physician-patient relationship that
is integral to the proper treatment of the condition should qualify as grounds
for a hardship transfer.
The side effects resulting from Grievant's choice of treatment are not
beyond the scope of a hardship transfer. It
is the absolute right of a patient to choose the form of treatment, and
hormone treatment is a legitimate treatment option for Grievant's condition.
Even if Grievant at some point chose to proceed with a hysterectomy, her
prognosis would be improved if the procedure was performed in The Dalles, where
her family would be close at hand. Hysterectomy,
like any surgery, has some risk involved, and there is still a recovery period
and other possible side effects, problems which can be greatly alleviated by the
presence of close family members for an extended period after the operation.
Moreover, the side effects of either hormone treatment or a hysterectomy
are likely to continue for many years.
It is improper for the Employer to tell an employee what physician to use
and what medical treatment to undergo. The
Employer is ethically and legally wrong in presuming that it has the right to
dictate these choices in order to avoid the need to transfer an employee.
A number of openings have been filled since Grievant's transfer request.
The Employer has an obligation to either put Grievant into one of those
positions, create a new temporary position until a regular opening occurs, or
place Grievant in the next available position.
The Union is reluctant to urge either placement in the next available
position or replacing an employee currently in a position in Hood River or The
Dalles. If the Arbitrator rules in
Grievant's favor, the Union requests that the Arbitrator retain jurisdiction for
a period of 90 days. If after 60
days a position has not opened and Grievant has not been placed in it, the Union
would then request that Grievant be placed in one of the positions that had
already been filled. POSITION OF EMPLOYER
Grievant does not have a serious medical need as intended by the parties
when this language was bargained. Granting
her request would require a change in the language, its intent, and
long-standing practice. Such a
change would erode other employees' rights to be equally considered for
vacancies.
Long-standing practice does not substantiate that the parties intended a
broad interpretation and acceptance of the terminology at issue.
Unless the language is ambiguous, evidence of intent is irrelevant to
interpretation of the Agreement. The
Union presented no evidence of a broader intent or interpretation.
The use of "serious" versus "extreme" terminology
suggests that neither party wished to allow these provisions to expand and erode
employment rights for other represented employees.
The examples discussed in initial negotiations suggest a restrictive view
of eligibility. The lack of
disputes over this language suggests a long-standing agreement as to the intent
and administration of the language.
The Arbitrator must determine and give effect to the parties' mutual
intent at the time the language was negotiated, not the meaning that can be
possibly read into the language. The
Arbitrator cannot rule contrary to, amend, add to, subtract from, change, or
eliminate any terms of the Agreement. The
parties are charged with knowledge of contract provisions and the import of
words they chose. A party is bound
by the language even if its consequences were unanticipated.
The proponent of a provision must either explain what is contemplated or
use language which does not leave the matter in doubt.
Where doubt exists, any ambiguity not removed by other rules of interpretation
may be removed by construing the ambiguous language against the party who
proposed it--in this case, the Union.
Where a conflict in medical evidence exists, the Arbitrator should not
attempt to resolve the conflict, but should uphold the Employer if it acted in
good faith pursuant to good faith medical advice from its doctor, unless the
doctor's advice or its application was unreasonable, capricious, or arbitrary.
Because of Grievant's refusal to provide requested information in support
of her hardship transfer request, the Employer was forced to respond based on
the information at hand. Contrary
to Grievant's claim of a refusal to process the request, the Employer offered
Grievant repeated opportunities to substantiate her serious medical need.
In delivering the previously-requested medical documentation only two
days before the scheduled arbitration hearing, the Union undermined the
integrity of discovery and effectively barred the Employer from rendering a
decision consistent with the intent of the contractual language.
The Employer's medical experts reviewed the belatedly-proffered medical
evidence and concluded that Grievant's medical condition was not uncommon, was
treatable with common solutions, and did not require relocation to remedy.
The January 21, 1991, entry shows that the medical condition is
transitory in nature and is neither serious nor life-threatening.
Although hormonal therapy can have side effects, an integral part of the
treatment process is adjusting treatment to find the correct medication
equilibrium.
The Employer will not intrude upon or try to influence Grievant's
decisions regarding residence, seeking timely medical treatment, choice of
physician, or choice of treatment. However,
it was never intended that the Employer be compelled to remedy an employee's
decision in these matters by granting a hardship transfer. Grievant's personal choices and physical condition do not
present such a serious medical need as to compel a hardship transfer as intended
by the parties.
The shifting allegations raise questions about the veracity of Grievant's
alleged medical and physical condition, whether the condition existed before she
applied for and accepted employment in Albany, whether her condition is caused
or exacerbated by her work location, and whether the condition can reasonably be
treated in the Willamette Valley. OPINION
In administering a contract, an employer may request information
reasonably related to determining whether the employee meets the contractual
requirements for a benefit. Thus,
although medical information is of a very private and personal nature, an
employee who seeks benefits based on a medical condition must comply with reasonable
requests for information and records documenting the condition. The intrusion on the employee's privacy is assuaged by the
employer's obligation to restrict access to such medical information to those
individuals who must review it in order to recommend or make a decision on the
requested benefit. If the employee
is unwilling to submit medical documentation under such limited access, his/her
only recourse is to forego the benefits.
Until well after the filing of the grievance, the Employer knew only that
Grievant had a common, but potentially serious, medical condition and that her
doctor believed she would be better off if she worked closer to her home.
Despite a specific request for further information, the Employer did not
have treatment records or other supporting evidence of the gravity of her
particular condition. Without the opportunity to consult its medical advisers about
her medical history, the Employer could not make an informed decision on whether
her circumstances met the contractual requirements for a medical hardship
transfer. Therefore, at the time
the grievance arose, the Employer was not in breach of its contractual
obligations in not making a final decision on her transfer request.
Grievant eventually provided the information requested by Henderson--her
records of hospitalization and transfusions, and Dr. Peruzzo's letter
describing her diagnosis, treatment, and prognosis.
She provided the doctor's treatment records requested by Starnes and
Hunt only two days before the arbitration hearing.
The Employer's medical advisers have now reviewed those records, and the
record permits an analysis of the extent to which a "serious medical
need" has been shown.
The governing language is ambiguous, but in context suggests that
hardship transfers are limited to very unusual cases.
The use of language such as extreme economic hardship and serious
medical need expresses an intent to avoid allowing hardship transfers to become
a routine means of securing a transfer. This
intent is consistent with the accepted rule of construction that exceptions to
a general provision are to be narrowly construed.
The ambiguity arises because of the use of the term "serious medical
need." The use of this language, rather than "serious medical condition,"
implies a medical condition coupled with other circumstances that create a
"serious" need that can be met through a transfer.
Thus, a medical opinion regarding the gravity of a patient's condition
does not, in itself, determine whether a hardship transfer is warranted.
The record is insufficient to establish the existence of a binding
practice in administering the medical hardship transfer provisions.
However, the ambiguity in the language can be resolved by examining the
bargaining history both at the time the provision first appeared in the contract
and in subsequent discussions of the provision.
In discussing the medical hardship language, the parties consistently
focused on treatment that was unavailable locally as well as conditions, such
as asthma, which would be improved by the location rather than factors subject
to local control. Had the parties
intended to permit medical hardship transfers based on a preference for a
particular physician or the existence of a therapeutic relationship, there would
have been no need for a discussion of treatments not available locally.
By definition, a physician located elsewhere is a treatment not available
locally. It is unnecessary to
speculate regarding whether a particularly highly-skilled physician might
provide a medical service warranting a medical hardship transfer.
On this record, the parties did not intend to make an ordinary choice
of physicians a sufficient reason for a medical hardship transfer.
Simply put, Grievant remains free to consult the physician of her choice.
If she chooses to continue to consult a geographically-distant physician,
the burden of that choice falls on her, and not on the Employer.
No evidence exists that Grievant knew at the time she began working for
the Employer that her physical condition impeded a lengthy commute.
On the contrary, her serious physical symptoms began around January 1989,
when she first consulted Dr. Peruzzo and was hospitalized for anemia.
The medical evidence unequivocally establishes that she has a serious
medical condition and that the treatment she elected is among the
medically-acceptable treatments for her condition.
However, it is also beyond dispute that adequate medical treatment for
her condition exists in the Willamette Valley, if she chooses to change
physicians.
Grievant's distance from her family and physician compounds the emotional
distress caused by her hormone treatment, and the medical evidence supports the
need for family support when dealing with a serious condition such as hers.
The gravity of her underlying condition would not be eased by a change in
work location, and no evidence exists that the need for family support differs
from that raised by any serious medical condition.
Neither the narrowly-drafted language of the hardship transfer provision
nor the limited bargaining history suggests that the parties intended to entitle
an employee to a hardship transfer simply because the employee has both a
serious medical condition and significant family or other support structures
elsewhere. Instead, the parties
focused on transfers which would improve the medical condition itself.
The possibility that Grievant may require a hysterectomy in the future is
not a "serious medical need" within the meaning of the contract.
It is uncertain at this point whether she will ever undergo such a
procedure. While it would be
difficult for her to be separated from her family at the time of surgery if she
elected that procedure, no reason appears why she could not be near her family
during her surgery and recuperation. Similarly,
the possibility that such surgery, if performed, could have long-term side
effects does not establish a serious medical need at this time.
The applicability of the medical hardship transfer provisions to any such
side effects, if they were to occur, could only be determined once it was known
that Grievant had, in fact, suffered them.
For all of the above reasons, it is concluded that Grievant's current
circumstances do not constitute a "serious medical need" requiring
a hardship transfer within the meaning of Article 45.1B, Section 6, of the
Agreement. Accordingly, in these
circumstances, the Employer did not breach its contractual obligations in
denying her request for a hardship transfer. AWARD The Employer did not violate Article 45.1B, Section 6, of the Agreement in its disposition of Grievant's April 12, 1990, request for a hardship transfer based on "serious medical need."LUELLA E. NELSON - Arbitrator
|
