1993 NAC 105 International Guards Union of America, Local 21 and Westinghouse Hanford Company

Title: Westinghouse Hanford Company and International Guards Union of America, Local 21
Date: March 5, 1993
Arbitrator: Luella E. Nelson
Citation: 1993 NAC 105

In the matter of arbitration between:

INTERNATIONAL GUARDS UNION OF AMERICA, LOCAL UNION 21

and

WESTINGHOUSE HANFORD COMPANY

Discharge of Gilbert Perez, Grievance

No. 92-011/HGU; FMCS No. 93-00397

LUELLA E. NELSON, Arbitrator

This Arbitration arises pursuant to Agreement between INTERNATIONAL GUARDS UNION OF AMERICA, LOCAL UNION 21 ("Union"), and WESTINGHOUSE HANFORD COMPANY ("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 December 14, 1992, in Richland, Washington. The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute. Both parties filed post-hearing briefs on or about January 23, 1993.

Alex J. Skalbania, Esquire, Critchlow, Williams, Schuster, Malone & Skalbania, P. O. Box 1487, Richland, WA 99352.

Charles K. MacLeod, Esquire, Senior Labor Counsel, Westinghouse Hanford Company, P. O. Box 1970, B3-15, Richland, WA 99352.

1. The Company will determine a Patrolman's qualifications for initial employment, and for continued employment except as otherwise limited by this Agreement, except for the determination of medical qualifications and mental standards which will be made by Hanford Environmental Health Foundation (HEHF).

1. ... All members of the Union, the Company, and all Patrolmen employed by the Company are required to comply with all protective security regulations now in effect or as may be promulgated at Hanford Operations, Richland, Washington. The arbitrator provided for in Article XX of this Agreement shall not make any decisions that conflict with security regulations adopted by the Department of Energy.

• Illness or mental condition that in opinion of medical authority may cause a significant defect in judgment or reliability...

• Used alcohol habitually to excess or has been without adequate evidence of rehabilitation...

• Engaged in unusual conduct; not honest, reliable, trustworthy; may be subject to pressure to act against U.S. (such as sexual activity, demonstrated financial irresponsibility, or notoriously disgraceful conduct).

The Employer operates the Hanford Nuclear Reservation (the "facility") as a contractor to the Federal Department of Energy ("DOE"). Grievant began working at the facility in 1975 as a Patrolman. He was discharged effective March 31, 1992, based on his failure to follow the prescribed plan of treatment for alcohol dependency and his lack of medical clearance due to alcohol abuse.

Hanford Patrolmen are certified Federal Protective Force Officers and hold commissions as Deputy Sheriffs of Benton County, Washington. They are required to maintain DOE security clearances of at least a "Q" level. DOE suspends employees' security clearance when it suspects alcohol abuse, then conducts hearings to determine whether to reinstate the security clearance. The Employer's Administrative Review ("AR") program keeps such employees working by assigning them to duties that do not require a security clearance.

DOE suspended Grievant's security clearance on March 12, 1991. The Employer placed him in AR. While in AR, Grievant performed maintenance duties under Supervisor Loren Martin.[1] By letter dated January 31, 1992, DOE notified the Employer that the DOE Hearing Officer recommended to revoke Grievant's access authorization. Grievant appealed the recommendation. Following his discharge, DOE suspended further proceedings regarding his security clearance.

The Employer contracts with the Hanford Environmental Health Foundation ("HEHF") to conduct regular employee physical examinations. HEHF also provides assessment and monitoring under the Employer's Employee Assistance Program ("EAP"). The EAP includes treatment for substance abuse at the Employer's expense. So long as the employee complies with the treatment plan and the monitoring plan, admission of a substance abuse problem does not give rise to discipline. Of 70 employees who have participated in the HEHF substance abuse program since 1989, three (including Grievant) have been found unfit for duty; approximately 35 are still in the program.

Grievant enrolled in three in-patient substance abuse programs between the fall of 1991 and the date of his discharge. The Employer paid the cost of these programs. It reimbursed Grievant for the difference between his salary and the state disability benefits during his in-patient treatment through March 24, 1992.

Grievant came to HEHF Employee Assistance Counselor Kris Myers through the EAP in September 1991. Grievant explained that he had come in because of the AR program, and asked to enroll in a substance abuse monitoring program. Myers explored Grievant's treatment history and explained the prerequisites of such a program. Those requirements included admitting his dependence on alcohol and completion of a formal substance abuse program. She referred him to an in-patient substance abuse program at Our Lady of Lourdes Hospital ("Lourdes").

Grievant left the Lourdes program against medical advice. He met with HEHF Manager Lowe[2] in November 1991 to discuss his reasons for leaving. Grievant reported, inter alia, that the Lourdes counselor yelled at him, intimidated him, told him not to speak in Spanish, and accused him of sexual harassment. Grievant was angry over the program and felt the staff was prejudiced against him. He claimed that he was not drinking; however, Lowe later learned that he was drinking. Lowe testified that Grievant's remarks were simply a continuation of his denial of the problem.

The Lourdes discharge report was not introduced in evidence. According to Lowe, it mentioned that Grievant had blackouts, and testing showed that he suffered cognitive impairment. Other tests showed Grievant's liver disfunction had increased by 110% in one year. The extent and progression of liver damage indicated Grievant was consuming at least five drinks per day. Myers testified that the report described Grievant as alcohol dependent, consuming 15 beers per day.

Lowe recommended that Grievant try a substance abuse program at Valley Alcohol Council. Myers suggested he try the Sundown M Ranch ("Sundown"). She also told him he had to complete a program successfully at that time or be deemed unfit for duty. Grievant decided to return to the Lourdes program. However, before the end of the program, Lourdes asked him to leave.

The Lourdes counselor told Myers that Grievant was delusional regarding the impact alcohol had on his life. Grievant's reports of his alcohol consumption differed from information Lourdes had from "collateral sources." There was no indication that he missed sessions or refused treatment. Instead, his problem was denial. After interviewing Grievant, talking to the Lourdes staff, and inquiring into Grievant's absence record,[3] Myers recommended that the Employer remove him from work. She confirmed her recommendation in a February 26 letter reading, in relevant part:

...[Grievant] has been "no-cleared" to return to work. We cannot recommend that he will remain continuously fit for duty due to non-compliance with treatment for alcohol dependency.

We observe that successful rehabilitation has not occurred. [Grievant] voluntarily admitted himself to Our Lady of Lourdes Chemical Dependency Unit for alcohol dependency on November 4, 1991 and left against medical advice on November 8, 1991. [Grievant] re-admitted himself to Our Lady of Lourdes Chemical Dependency Unit treatment on February 2, 1992 and was discharged for non-compliance on February 25, 1992.

[Grievant] has been encouraged and then required by HEHF to obtain assistance for many years. He has resisted all reasonable efforts to remediate his substance abuse problem. He has shown work performance problems related to substance abuse.

On February 27, Myers received a note from Grievant asking to work one week, then enroll in a substance abuse program at Sundown. Myers told him she could not clear him to work, that he had to have successfully completed a program, and that she had already sent a non-clearance note to the Employer. Myers told him his continued employment was up to the Employer. She further told him that, if the Employer decided to rehire him, he would have to complete a program successfully and show adequate rehabilitation for HEHF to consider clearing him.

Grievant enrolled in a 21-day intensive in-patient program at Sundown on March 3. After completing it, he met with Myers. Myers told him it was too late, and that HEHF had already issued a non-clearance letter. Lowe and Myers testified that they placed little significance on Grievant's completion of the Sundown program. Myers concluded from the Sundown discharge report that Grievant did not understand or accept the basic tenets of the recovery program. He continued to be delusional and relapse prone. Although the report showed some improvement in his view of the problem, he still did not admit having a problem. He gave evasive information and minimized his problem. During their interview, he at one point admitted he was an alcoholic, then retreated from that statement and said he did not drink that much. Lowe testified that nothing in the first few weeks after the non-clearance decision could have changed that decision, in view of Grievant's six-year history of unwillingness to rehabilitate.

After receiving the DOE Hearing Officer's recommendation, Manager Don Millbauer first attempted unsuccessfully to place him permanently with the manager in the area where he worked on AR. Millbauer was unable to locate Grievant at the time of the DOE decision, as well as later when he received the non-clearance letter from HEHF. He was aware that Grievant had expressed an intention to enroll in a treatment program, but was uncertain whether he had actually done so. After consultation with other managers, he decided to discharge Grievant for being unfit for duty. In a March 27 memo, Millbauer notified Grievant:

It is a condition of employment that every [Employer] employee maintain Medical Clearance as deemed appropriate by the [HEHF]. As of February 26, 1992, the HEHF has indicated you are not cleared to return to work at the Hanford Nuclear reservation.

Upon review of HEHF correspondence, you have failed repeatedly to follow the terms of the substance abuse program you voluntarily enrolled in. In addition, HEHF no longer endorses your fitness for duty. Therefore, your employment with [the Employer] is hereby terminated.

Grievant received two disciplinary letters during his tenure with the Employer. No evidence exists of other disciplinary action against him. On September 1, 1988, he received a letter of counselling on absence abuse. The letter required him to present doctor's verifications for each absence due to illness and to improve his absence record. The supervisor who issued the letter recalled that Grievant had 13 sick days, of which all but two were on Mondays. He was absent a total of 14 days in 1988. On October 25, 1990, he received a letter of discipline over a failure to perform a proper and thorough security search on a DOE employee.

Martin testified that Grievant's attendance while in AR was poor. He was absent for 21 days in 1991. During the three months of 1992 before his discharge, he was absent 36 days, including the days when he was in in-patient treatment programs. Martin testified that Grievant never appeared to be under the influence of alcohol at work and performed his work in a satisfactory manner.

The Employer has an informal practice of allowing transfers in and out of the Patrolmen unit. In recent months, the Employer has reduced its need for Patrolmen by consolidating areas of the facility. It has been transferring two or three Patrolmen per month into non-unit jobs. Patrolmen who are on AR are eligible for such transfers. Many of the non-unit jobs at the facility do not require security clearances.

Two highly respected HEHF professionals determined Grievant was not fit for duty for any job at the facility because of his long-standing non-compliance with treatment programs for his extremely serious alcohol abuse. Despite notice of the consequences, Grievant continued his obstinate non-compliance and was kicked out of the Lourdes program. He completed the Sundown program only under the shadow of being declared unfit for duty, and he still exhibited numerous problems following up on treatment. He suffered numerous medical problems and work performance problems as a result of his drinking. He also engaged in physically abusive and obscene conduct off the job as a result of his drinking.

HEHF is the proper source for fitness-for-work determinations. It would be disastrous for the program if an arbitration decision stripped any semblance of standards or requirements away and second-guessed the medical authorities regarding compliance and fitness for duty. Grievant was amply warned of the result of non-compliance. Over a number of years, despite untold opportunities, he refused to comply with treatment. He should not be rewarded for this refusal.

The Employer had just cause to discharge Grievant once notified by HEHF that he was unfit for duty at any job. The Employer's policy calls for discharge when an employee will not comply with treatment and HEHF declines to medically clear him to work.

Grievant refused to comply with treatment programs. Even at his discharge, he was still in denial. The Employer stood by him for a long time at substantial expense. Persistent non-compliance with treatment must ultimately result in job loss if the requirements are to mean anything.

Grievant had very poor attendance. He had lost his security clearance and was unable to do his Patrolman job. The DOE Hearing Officer recommended after a hearing that he lose his security clearance. It is a condition of employment known to all employees that the employee must maintain his security clearance. Grievant did not do so.

In most discharge cases, the grievant is expected to testify. Where an employer establishes a prima facie case, the Arbitrator may draw an adverse inference from the grievant's failure to testify. Grievant did not testify here. The Union presented no evidence to show any rehabilitation beyond completion of the Sundown program in March 1992. Lowe and Myers reviewed this step and found it inadequate to change their diagnosis that he was not fit for duty at any job.

Reinstatement would be futile. Grievant had numerous opportunities to salvage his employment. His failure to follow treatment requirements in two Lourdes programs was the final straw. It is improper for the Arbitrator to overturn a discharge on the chance the employee may succeed in the future in stopping his alcohol abuse. Lowe and Myers considered Grievant a bad candidate for recovery because of his past history and attitude. Employees such as Grievant have a very low rate of successful employment even when given additional chances. The lack of evidence of rehabilitation after Sundown leads to the inference that Grievant would simply go on drinking.

The Employer proved by a preponderance of the evidence and/or clear and convincing evidence that Grievant was discharged for just cause. He had job related problems due to his alcohol abuse. The discharge was consistent with the Employer's Standards of Conduct and Management Requirements and Procedures. The Union presented no evidence of rehabilitation or error on the part of HEHF's staff. Grievant did not deny he had a current problem. The Union's evidence did not disprove the proof of just cause. The Employer's action must be upheld.

The Employer failed to meet its burden to establish that it had just cause to terminate Grievant for the reasons set forth in his termination letter. The Employer must conduct a fair, reasonable and thorough investigation into the circumstances. It must make an accurate determination based upon its investigation as to whether or not just cause existed for discharge. The discharge decision must stand or fall on the reason given at the time of discharge. An employer may not add other alleged reasons after the fact.

Grievant's termination letter relied only on HEHF's refusal to medically clear him. The Employer cannot rely on alleged excessive absenteeism, failure to possess a security clearance, or other reasons. A fair, reasonable and thorough investigation of the situation would have revealed that just cause did not exist for his discharge as of March 27, 1992.

Millbauer admitted that termination was not automatic when HEHF found an employee medically unfit. The Employer had a responsibility to look into all the circumstances before deciding on termination. Had the Employer performed its responsibility, it would have determined that just cause did not exist for Grievant's discharge.

The Employer presented confusing and contradictory testimony from HEHF witnesses as to why HEHF withdrew Grievant's medical clearance, and from Employer witnesses as to why the Employer decided to terminate him.

Myers decided to pull Grievant's medical clearance primarily because he did not successfully complete the Lourdes program, as well as other prior programs. However, she told him in February/ March 1992 that if he successfully completed an in-patient program, HEHF would restore his medical clearance. Before his discharge, Grievant successfully completed an in-patient program. HEHF and the Employer knew he had done so before his discharge. HEHF's refusal to reinstate his medical clearance contradicted Myers' earlier statement to him. At the time of his discharge, he had complied with the primary directive from HEHF. HEHF had no reasonable basis to continue to refuse to reinstate his medical clearance in March 1992. The Employer did not have just cause to terminate his employment based on HEHF's actions.

The Employer provided essentially no evidence whatsoever that Grievant would be a danger to himself or others if he continued to be present in the workplace, other than the fact that he had failed to complete the Lourdes program. By the time of his discharge, he had taken steps to alleviate this concern by successfully completing another program.

Martin's testimony establishes that Grievant would not have been a danger to anyone. Grievant did a good job and was a reliable employee. Martin did not indicate that Grievant was an unsafe employee in any manner. Presumably, he would have provided the same information to HEHF or the Employer if he had been asked. No evidence exists that Grievant was involved in work-related accidents of any significant nature or arrived at work while intoxicated. The only evidence of Grievant's work performance presented by the Employer came from individuals who had supervised him in 1988 and 1989. Even those witnesses did not testify to safety problems.

The Employer did not interview Martin or Grievant's co-workers to determine whether he posed a safety hazard. It did not determine whether he had been involved in safety-related incidents in the recent past. It did not ask him to comment on his ability to work safely in the workplace.

The Employer raised Grievant's absenteeism for the first time at the arbitration hearing. The evidence on this point shows that, if anything, his absenteeism was improving in the years immediately before his discharge. Even when his absenteeism was at its worst several years ago, the Employer merely gave him a written reprimand. Even if Grievant had an attendance problem, that would not establish that he was an "unsafe" employee. Missing work does not establish a danger to himself or others in the workplace. He was a productive employee and was performing his job in a satisfactory manner.

The money spent on Grievant's rehabilitation effort is another reason why the Employer should not have terminated Grievant when it did. It had already invested a large sum of money in him. He had responded to its efforts by successfully completing the most expensive portion of his rehabilitation, the in-patient program. All that was left was for him to continue with an after-care program, which would have been far less expensive. It does not make economic or logical sense to spend large sums rehabilitating him and then abandon that investment just when it is paying off. This provides another basis for determining that just cause did not exist for his discharge.

The appropriate remedy is to reinstate Grievant to his AR position as a serviceman pending a final DOE decision as to his security clearance. He is entitled to reimbursement for the pay and benefits he lost. But for his termination, he would have continued to receive his regular rate of pay while in the AR program. He also would have received the other benefits due him as a member of the unit. He would have been eligible for a transfer to a permanent position which did not require a security clearance. The Arbitrator should make it clear that, while Grievant is on AR, he should be afforded the same transfer opportunities that are available to other Patrol members.

This case is distinguishable from an earlier arbitration decision involving this facility. In that case, the arbitrator found that the employee's job performance had been sufficiently affected by his alcohol use to justify his termination. Here, the Employer failed to show that Grievant's job performance was affected to the point where he had become a safety hazard to himself or others. That is the appropriate standard for measuring whether to continue his medical clearance.

In this discharge case, the Employer bears the burden of establishing, by clear and convincing evidence, that it had just cause for Grievant's discharge at the time of discharge. The Employer's case must stand or fall on the grounds for termination cited at the time. The termination letter relied solely on Grievant's failure to maintain medical clearance through HEHF. Therefore, evidence of other possible reasons for discharge have been considered only as background, and not as independent bases for discharge.

An employer ordinarily is entitled to follow the advice of its medical professionals regarding its employees' fitness for duty. That is particularly so where, as here, the Agreement specifically places the determination of medical qualifications in the medical professionals' hands. The Arbitrator has neither the medical training nor the contractual authority to second-guess good faith medical opinions. Thus, the Union can prevail only if it establishes that HEHF acted arbitrarily, unreasonably, or in bad faith in declaring Grievant unfit for duty.

HEHF had the contractual authority to assess Grievant's fitness for duty as a Patrolman. That was his unit position, and the position to which he hoped to return if his appeal of the DOE security clearance decision succeeded. Unless he transferred permanently into a non-unit position, he had to continue to meet all job-related fitness requirements.

On its face, the HEHF non-clearance letter provided just cause for discharge. The letter set forth Grievant's recent treatment history and the basis for the conclusion that he had not complied with treatment. It specifically found him unfit for duty due to this non-compliance. The information revealed by his medical tests and treatment amply supports this finding.

By the last time Grievant sought out HEHF, his primary hope of retaining his job lay in rehabilitation. Myers informed Grievant at the outset that the first step of rehabilitation was to admit that he had a problem. Thereafter, both the Lourdes and Sundown discharge reports documented continued denial of the problem. Under the ground rules Myers set up, Grievant was not eligible for HEHF monitoring before or after the Sundown program.

Before Grievant re-entered the Lourdes program, Myers gave him notice that he had to complete that program or be deemed unfit for duty. Her comments did not suggest that he had the option of attempting multiple in-patient programs in the hope of eventually making it through one. When he came out of the Sundown program without an appreciation of the seriousness of his problem, Myers continued to consider him unfit for duty.

It was not unreasonable or arbitrary for Myers to conclude that Grievant's continued denial of his alcoholism made him unfit for duty. His drinking had prompted DOE proceedings to revoke his security clearance. His liver function had deteriorated noticeably over a single year. The Lourdes medical reports revealed a recent history of blackouts, and testing showed cognitive impairment. His continued denial and drinking suggested that his physical condition could only get worse. Given his physical state, it was unnecessary to await an on-the-job accident or blackout before barring him from the workplace.

It is irrelevant that other unit employees on AR remain eligible for transfers to non-Patrol positions. The AR program merely accommodates employees whose security clearances are under review by DOE. They must still meet other job requirements, including fitness for duty. Grievant did not meet this requirement.

The Employer's expenses for Grievant's rehabilitation programs have no bearing on the resolution of this case. The Employer underwrites such programs in the hope of returning its employees to work. That hope was not realized here. Grievant completed the Sundown program in the same state of denial as when he entered. The Arbitrator will not speculate on whether he could have become fit for duty by participating in further rehabilitation.

For all of the above reasons, the Employer has established that it had just cause for Grievant's discharge. Accordingly, the grievance must be denied.

Grievant's drinking has seriously compromised his health. His inability to admit how much he drinks or its effect on his life diminishes his hope of recovery. Sadly, his drinking has now cost him his job. He alone can take the first step toward recovery from alcoholism. The Employer did all it was contractually required to do to help him in that quest.

[1] Grievant and other AR employees assigned to Martin performed work that otherwise could not be done without extra employees.

[2] Lowe has known Grievant since 1988, and has known of him since a 1987 HEHF staff meeting on difficult cases. Lowe was aware of off-the-job alcohol-related incidents since 1980, as well as health complaints that he found suggestive of alcohol abuse.

[3] She testified that she learned that the Employer considered Grievant's absences to be excessive. She did not ask for specific numbers. She did not consult with Martin.