1 BEFORE JOSEPH V. SIMERI ARBITRATOR THE ARBITRATION

BEFORE
JOSEPH V. SIMERI
ARBITRATOR
THE ARBITRATION
)
) FMCS Case No. 12-53093-A
Between
)
)
SLOAN VALVE COMPANY
) G_____, Grievant
)
And
)
)
UNITED STEEL WORKERS OF )
AMERICA, LOCAL 7999
)
ARBITRATION AWARD
This dispute was arbitrated on November 30, 2012 in Schiller Park, Illinois.
Paul Geiger, Esq. and Chris Hart represented Sloan Valve Company (“the Company”)
and Loretta Tyler, Staff Representative for United Steel Workers Local 7999, (“the
Union”) represented G_____ (“the Grievant”). The Company and the Union presented
witnesses and introduced evidence. The Company and the Union chose to file posthearing briefs and agreed to extend the time for filing such briefs to January 16, 2013.
This Award is issued within 30 days from the submission of the post-hearing briefs.
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ISSUE
The agreed issues are, first, whether the Discharge Grievance is arbitrable. If it
is arbitrable, was the Grievant discharged for just cause? And, if the Grievant was not
discharged for just cause, what is the appropriate remedy?
ALL RELEVANT CONTRACT PROVISIONS
It is customary in arbitration awards to set forth the applicable Contract
provisions in the body of the award. Here, the provisions that the parties believe are
relevant, are lengthy. In addition, the Company’s Family and Medical Leave Policy,
which is at the heart of this Grievance, contains an additional 11 pages of text. For that
reason, both the relevant Contract provisions and the Company’s Family and Medical
Leave Policy are attached as an appendix to this Award. Reference to the Contract and
the Company’s Family and Medical Leave Policy is made when appropriate.
FACTS
The Company manufactures commercial plumbing products for use all over the
world. Included in its products are faucets, vitreous china fixtures, showerheads, and
flush-o-meters. The Grievant worked as a machine cleaner in the Company’s
maintenance department.
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The Company and the Union agreed, in Article XIII, Section 3 of the Contract,
to an employee-attendance requirement. The Contract permits two call-in excused
paid sick days each contract calendar year. All other absences are either excused, or
unexcused. Absences under the Family and Medical Leave Act (“FMLA”) are
excused if there is compliance with the Company’s FMLA Policy.
FMLA documentation must be submitted in accordance
with the requirements under the FMLA policy in order to
verify the FMLA Leave. Failure to produce documentation
upon the day of return or in accordance with the FMLA
will render such documentation unacceptable and
unexcused absences will be assessed accordingly.1
Points are assessed for absence infractions. If an employee is assessed nine points
within a 12-month period, as night follows day, discharge follows nine points.
The Company provided the Grievant with training on the Company’s FMLA
Leave Policy. The training occurred in June 2011. A PowerPoint copy of the
Company’s presentation is in evidence. The Grievant acknowledged attendance at the
training by signing a “Training and Policy Acknowledgment” form, dated June 15,
2011. The Acknowledgment states, in part, above the Grievant’s signature:
I have received a copy of the Substance Abuse policy and
FMLA Policy and agree to abide by the policy guidelines
as a condition of my employment and my continuing
employment at Sloan Valve Company.
1
Contract, Article XIII, Section 3(a), Appendix, Page 2-3.
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The ultimate question is whether the Grievant’s absences were excused under
the FMLA. If not excused, the parties agree sufficient attendance points were
accumulated by the Grievant to justify his discharge.
ANALYSIS
A.
Is the Grievance arbitrable?
After a suspension hearing on December 20, 2011, the Company sent a letter to
the Grievant, dated January 3, 2012, and addressed to the Grievant’s residence, ____
N. 20th Ave., Melrose Park, IL 60160. The letter notified the Grievant that he was no
longer employed by the Company. Grievant had accumulated nine attendance points
under the Company’s Attendance Policy. The very next day, January 4, 2012, the
Union filed a Grievance based upon the termination. The Union’s Grievance said that
The Hartford, the Company’s FMLA Administrator, failed to notify the Grievant of
the need to recertify for leave under the FMLA. The Union also wrote in its Grievance
that the termination violated Contract Article XIII, the Discipline and Discharge
article. It requested that the Grievant be brought back to work and made whole for all
losses. In response to this Grievance, the Company, on January 12, 2012, stated that
the Grievant was notified of the need to recertify his intermittent leave under the
FMLA on August 8, 2011. It attached a copy of a letter, dated August 8, 2011, from
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The Hartford to Chris Hart, the Company’s Manager of Employee Relations, notifying
Mr. Hart that The Hartford had sent the Grievant a written notice that the Grievant
needed to recertify to continue to receive approved FMLA.
Then, on January 24, 2012, the Union filed a second Grievance alleging a
violation of Article XIII of the Contract, asserting that the Grievant was unjustly
discharged. That second Grievance, as did the first one, alleged a violation of Article
XXII of the Contract. Article XXII contains 16 Sections. There is no reference in
either Grievance to a particular Section of Article XXII, but Section 3 of Article XXII
does state that if the Company is required to give notice to its employees, the notice
can be posted on the Company bulletin board. If a notice is not calculated to come to
the attention of the employer and employees, then the Company may resort to notice
by telephone, certified mail, or telegram. Section 2 of Article XXII states that
employees shall keep the Company’s Human Resources Department fully informed of
any change in the employee’s name, address, or telephone number. The Union
requested that the Grievant be returned to work and made whole for any loss of pay.
On January 24, 2012, the Company responded that this second Grievance was
not timely filed. The discharge occurred on January 3, 2012. The second Grievance
came 21 days later, on January 24, 2012, long after the three-day limit provided in
Article XVI, Section 2 of the Contract. Then, on January 26, 2012, the Union, by
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email, responded to the Company’s denial of the second Grievance. The Union stated,
“This Grievance was filled (sic) in error, please disregard.”
Based on these facts, the Company argues that the Union goofed. The Company
says that the first Grievance filed by the Union, which was filed the day after the
Grievant lost his job, complained only that The Hartford failed to notify the Grievant
of the Grievant’s need to recertify for FMLA Leave. That Grievance never went to the
second step set forth in Article XIII of the Contract.
The Company then says that since this first Grievance did not go to step two, it
died a natural death. And Grievance number two died a contractual death because the
Union withdrew it and because it was not filed until January 24, 2012, twenty-one
days after the three-day time limit required by the Contract.
I do not know why the Union withdrew the second Grievance. No evidence was
introduced to explain the withdrawal.
Returning to the first Grievance, it states that The Hartford failed to notify the
Grievant of the need to recertify for FMLA. While it does not use the words
“discharge” or “termination,” it does state that Article XIII of the Contract was
violated. Article XIII is the Discipline and Discharge article. Most importantly, the
Grievance asks that the Grievant be returned to work and made whole. This first
Grievance was never withdrawn. The Company, the Union, and the Grievant met at a
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suspension hearing on December 20, 2011. The parties exchanged information,
presented their positions, and the Grievant was suspended pending discharge. The
suspension then became the Grievant’s termination. The Union requested arbitration
within the time limits set forth in the Contract.
I am from Indiana, the nation’s Basketball Mecca. The Company’s complaint
about the first grievance is, in Hoosier land, the basketball equivalent of “no harm, no
foul.” I am not blowing the whistle. The parties need to play on. This Grievance is
arbitrable.
B.
The Positions of the Parties.
If I were to describe the positions of the parties as a conversation between them,
which I overheard, it would sound something like this:
Grievant: You fired me because of attendance. But some of my absences should have
been excused because they were Family and Medical Leave Act absences.
Company: Well, no. You were receiving intermittent leave under the Family and
Medical Leave Act and we asked you to recertify your eligibility. Under our Family
and Medical Leave Act Policy, you were supposed to provide that medical
certification by having a doctor complete a medical certification form. You did not do
that.
Grievant: You were supposed to provide me with the medical certification form, and
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you did not do that.
Company: Yes, we did. We mailed the form to your home address and here is a copy
of the cover letter and the form.
Grievant: Well, I never got it. Somehow the United States Postal Service messed up
and didn’t deliver it to me.
Company: Boy, is that a fishy, lame excuse. When it was clear you hadn’t submitted
the medical certification, Chris Hart, our employee relations manager, met with you
and told you that you needed to recertifiy.
Grievant: I remember we talked about the Family and Medical Leave Act, but I don’t
remember you specifically telling me I had to recertify. About three weeks later, I
took a short-term disability leave of absence.
Company: Yes, you did take a short-term disability leave of absence and, while you
were on disability, we sent you a letter, dated October 17, 2011, addressed to your
home, which you did receive, and in which we told you that you were one point away
from being discharged because of some of your absences were not excused under the
Family and Medical Leave Act.
Grievant: I did get that letter and when I got it, I called the Company’s Family and
Medical Leave Act Administrator to find out what was going on. This was on October
26, 2011 when I was still on short-term disability leave. I told the FMLA
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Administrator that I had never received a recertification form. I kept trying to get a
copy of the form, but could never reach anybody at the Administrator’s office to get
one. I finally got a form from the Company. I picked up the form from Antoinette in
Human Resources. I got this form a little before my appointment with my doctor,
which was on November 21, 2011.
Company: You say you received the form from Antoinette in Human Resources in
November of 2011. That is impossible, because Antoinette stopped working for us
about a year before that, in October of 2010.
Grievant: Well, I am pretty sure it was her; but now I don’t remember.
Company: You didn’t receive the form from the Company. The only person that had
access to the form and the only one who could have given you a copy is Chris Hart.
You did not get the form from him. The only other place you could get the form from
is the Administrator. And that is where you did get the form and you got it by mail in
August of 2011, just like we said.
Grievant: I don’t deny that you had the right to request recertification. But, I did the
best I could. I provided you with a Certification, dated November 21, 2011.
Company: Well, you were trained in the procedure to follow concerning FMLA
claims. We had special training concerning this Company FMLA Policy. See, you
even signed this Training & Policy Receipt Acknowledgment form. Above your
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signature, it says that you have been informed by the Company about the content,
requirements, and expectations for its bargaining unit employees under the FMLA
policy effective October 1, 2010. Above your signature, it states that you agree to
abide by the FMLA policy as a condition of your employment and your continuing
employment with the Company. Finally, above your signature, it says that if you have
any questions at any time regarding the policy, that you will consult with the
Company’s Human Resources staff or with your union. You signed this right after the
training on June 15, 2011.
Grievant: I did my best. I couldn’t reach anybody at The Hartford. When I finally got
a copy of the Certification form, I took it to my doctor and had it filled out.
Company: Look, the Company’s FMLA Policy is the same as the FMLA Regulations
under Federal Law. It is your responsibility to provide us with a recertification within
15 calendar days after you know we need one.
Grievant: I tried.
Company: Even if we accept as true everything you have said, that you some how,
some way, did not know or find out that you needed to recertify until mid or late
October 2011, you still waited almost a month before you even met with your doctor
to have the recertification form completed. You did not meet with your doctor until
November 21, 2011. Even then, you didn’t turn the form into the Company until you
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returned from your leave of absence on December 20, 2011. Our FMLA Policy and
the FMLA Federal Regulations are the same. You have the responsibility under the
Policy to ensure that we are provided with timely, complete and sufficient
recertifications. The only exception is if it is not practicable under the particular
circumstances to do so despite your diligent, good faith efforts. You made no diligent,
good faith effort. Basically, you dilly-dallied and sat on your hands. We had no choice
but to let you go.
C.
The Merits.
The courier service of the ancient Persian Empire was described in HerodotusHistories.
It is said that as many days as there are in the whole
journey, so many are the men and horses that stand along
the road, each horse and man at the interval of a day’s
journey; and these are staid neither by snow, nor rain, nor
heat, nor darkness from accomplishing their appointed
course with all speed.2
Today’s courier service, for how much longer none of us knows, is the United States
Postal Service. We know that neither snow, nor rain, nor heat, nor gloom of night,
stays today’s couriers from the swift completion of their appointed rounds. Ultimately,
a resolution of this Grievance depends on a finding that the critical piece of mail was
2
Herodotus-Histories (8.98) (Trans. AB Goodley 1924).
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either delivered to the Grievant, or was not delivered to the Grievant.
This is what we know. When I say, “this is what we know,” what I mean is,
what we know is undisputed. We know the Grievant was under intermittent FMLA
Leave. We know that under the circumstances applicable to the Grievant in this case,
the Company was justified in requesting from the Grievant recertification of the
Grievant’s need for continued intermittent FMLA Leave. We know the Company’s
FMLA Policy imposes on the Grievant responsibility to ensure that the Company is
provided with “...timely, complete and sufficient certifications, or recertifications,
unless it is not practicable under the particular circumstances to do so despite the
employee’s diligent, good faith efforts.” We know the Grievant’s absences, unless
excused by the FMLA, are sufficient to warrant discharge. We know that the Grievant
initially secured FMLA intermittent leave on December 14, 2010. We know this
FMLA intermittent leave was limited to absences from work two times each week,
lasting one day.
We know the Grievant’s normal work schedule included Sundays. We know
that on Sunday, July 31, 2011, Grievant used the first day of his FMLA intermittent
leave. He used the second day of that week’s allotment on Monday, August 1, 2011.
The Grievant then missed his third day that week, Thursday, August 4, 2011. We
know the Grievant’s third absence that week exceeded the amount of absences that he
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was permitted under his FMLA intermittent leave.
We know the Company’s FMLA Policy, in Section 6j requires that when
recertification is necessary, “...it shall be the employee’s responsibility to ensure that
the Company is provided with timely, complete and sufficient certifications or
recertifications, unless it is not practicable under the particular circumstances to do so
despite the employee’s diligent, good faith efforts. The failure to do so may result in
the delay or denial of FMLA Leave.” We know the Grievant did not timely submit a
recertification.
But, there may be a life preserver for the Grievant. The life preserver is a
showing of a diligent, good faith effort to recertify. And so, did the Grievant here
diligently and in good faith seek to provide the recertification?
In my other life, I was a trial lawyer. And while no one would confuse me with
Clarence Darrow, or Melvin Belli, I did have some success in adding two and two. In
evidence, is the letter from The Hartford, addressed to the Grievant, at ____ N. 20th
Ave., Melrose Park, IL 60160, his home. All agree this is the Grievant’s address. He
lives there with his mother, also a Company employee. The letter, dated August 8,
2011, notifies the Grievant that the Grievant has exceeded the amount of his weeklyauthorized FMLA Leave. The Grievant is notified in the letter that recertification is
necessary. The letter encloses a Certification of Health Care Provider form and tells
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the Grievant that the form must be completed and received by The Hartford not later
than August 23, 2011. Importantly, the letter tells the Grievant that the failure to
provide the requested information may cause him to lose the protections afforded him
under the FMLA and/or the Company’s Leave Policy. The Certification of Health
Care Provider form sent in The Hartford’s August 8, 2011 letter follows:
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Examining the form, it contains the Grievant’s typed name, the Company’s typed
name, the typed Leave ID number, and the typed date of 8/8/2011.The Grievant did
not return this Certification of Health Care Provider form, either to The Hartford or
the Company by the due date.
On September 2, 2011, the Grievant met with Mr. Hart. The purpose of the
September 2, 2011 meeting between Mr. Hart and the Grievant was to discuss the
Grievant’s FMLA Leave. Mr. Hart testified that he told the Grievant that the Grievant
exceeded his FMLA entitlement on August 4, 2011. The Grievant denies that he was
told that by Mr. Hart. Mr. Hart told the Grievant that the Company would forgive
certain FMLA denials that occurred before June 1, 2011, but that any FMLA denials
after June 1, 2011, would not be removed. There is a dispute, a big one, between the
Grievant and Mr. Hart whether or not at that September 2, 2011 meeting, the Grievant
was told by Mr. Hart that the Grievant needed to recertify the Grievant’s FMLA
claim. Mr. Hart says yes. The Grievant says no. It makes sense that, at a meeting to
specifically discuss FMLA absences, the need to recertify would be discussed. I credit
Mr. Hart’s testimony on this significant point.
The Grievant went on an unrelated short-term disability leave of absence
beginning September 23, 2011. While on that leave, the Grievant received, on October
18, 2011, a letter from the Company, dated October 17, 2011. The letter is also
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addressed to the Grievant at ____ N. 20th Ave., Melrose Park, IL 60160. The Grievant
admits receiving that letter the very next day, October 18, 2011. The letter informed
the Grievant, in essence, that the Grievant was in extreme danger of losing his job
because of the accumulation of attendance points. In part, the letter stated:
After the information surrounding your unexcused absence
for 8/4/11 became available, you sat down with Chris Hart
to discuss the circumstances of the absence. At this time
you are again informed of the proper reporting procedure
for excused FMLA absences. Please recall that last May
you met with Chris, during which time he instructed you on
our FLMA policy.
The Grievant says that this October 17, 2011 letter from the Company was the first
time he knew that he had an FMLA attendance problem. So, now where are we? First,
the Grievant says he never received The Hartford August 8, 2011 letter notifying the
Grievant that the Grievant had exceeded his FMLA leave entitlement. This is the letter
that was sent to the same address as every other letter to the Grievant, ____ N. 20th
Ave., Melrose Park, IL 60160. Either The Hartford did not send that letter, or if The
Hartford sent that letter, the United States Postal Service failed to deliver it, or The
Hartford did send the letter, and it was delivered to the Grievant’s address by the
United States Postal Service. If delivered, the Grievant either failed to open it, or
opened it and disregarded it.
The Hartford letter contained the Certification of Health Care Provider form.
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We know the Grievant came into possession of the form, and if the Grievant did not
receive the letter that contained the form, where did the Grievant get the form? The
Grievant says that when he found out about the Company’s letter of October 18, 2011
telling him he was in big-time attendance trouble, he went to the Company and
secured the form. Specifically, the Grievant testified on direct examination that he
picked up the form from a Company employee named Antoinette in Human
Resources. But, on cross-examination, he was confronted with the fact that Antoinette
left the Company’s employment in 2010. Undaunted by that fact, the Grievant
admitted that it might not have been Antoinette, but it had to have been somebody
from the Company.
And who from the Company could it have been? Mr. Hart, in rebuttal, testified
that only he could authorize the release of the Certification of the Health Care
Provider form. Now look at the form submitted by the Grievant, which follows:
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21
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This form has The Hartford icon on it, you know, the picture of the eight-point buck.
This form has Grievant’s pre-printed typed name on it. This form has the Company’s
pre-printed typed name on it. This form has Grievant’s pre-printed Leave ID number
typed on it. But instead of the preprinted date of 8/8/11, the space for the date contains
“white out,” and the date 11/21/11 is handwritten in that space. The logical inference
for the “white out” is to cover up the preprinted date of 8/8/2011 on the form sent by
The Hartford. Two plus two equals four. I conclude the Certification of Health Care
Provider form, the one finally completed by the Grievant, was the one sent to him by
The Hartford, on August 8, 2011. The Company’s FMLA Policy requires, in Section
6a, that once recertification is requested, it is the employee’s responsibility to provide
the Company with the medical recertification within 15 calendar days. This, the
Grievant did not do.
I want to give the Grievant the benefit of the doubt. Might this conceivably be a
case where two plus two does not equal four? Let us assume, with a great leap of faith,
that the Grievant, for the first time, secured the Certification of Health Care Provider
form from the Company. He would have likely picked up the form shortly after he
received the Company’s October 17, 2011 letter in which he was notified that he
violated the attendance policy. The form is not completed until November 21, 2011.
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Thus, the form was not completed until well after 15 days from the time the Grievant
absolutely knew he was about to drown. But even after it was completed, the Grievant
did not deliver it to the Company until December 12, 2011, when he returned from his
leave of absence.
Under the Company’s FMLA Policy, it is the Grievant’s responsibility to
ensure that the Company is provided with a timely, complete and sufficient
recertification. There is, as I pointed out, a lifeline. That lifeline is a diligent and good
faith effort to comply. Yet, the Grievant took almost a month to complete the form. As
an aside, the completed form itself is fraught with questions. The Grievant completed
some of the form himself. The health care provider did not complete the entire form
because there are different dates on the form, and different handwriting. The
frequency and duration of the requested leave is confusing. But, apart from all of that,
the Grievant did not even deliver the completed form, such as it is, to the Company
until the Grievant returned from medical leave on December 20, 2011, almost another
month after it was completed.
Even if I accept the Grievant’s testimony that the recertification form was faxed
to Hartford by the Grievant on November 21, 2011, by his own admission, that date is
more than 15 days after he received the form, whether he received it on October 18,
2011, October 20, 2011, or October 26, 2011.
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The Company’s Family and Medical Leave Act Policy, in accordance with the
Federal Family and Medical Leave Act, is an employee right. But with that right,
come obligations. To exercise his right under the FMLA, the Grievant is required to
meet his obligations. All he had to do, whenever he got the form, was to get it
completed and get it to the Company or The Hartford within 15 days. This is not hard
to do. But, instead of making a diligent good faith effort to do that, he did as little as
possible. Unfortunately, his little is not enough.
AWARD
Thus, I make the following Award:
1.
The Grievance is denied. The discharge of the Grievant is sustained.
2.
Within 30 days from the date of this Award, the Company must provide
the Grievant, on Company letterhead, a neutral letter of reference setting forth only
the Grievant’s name, the beginning and ending dates of his employment, his job title
and job duties, and his rate of pay.
3.
The Arbitrator retains jurisdiction over this case for implementation of
the remedy.
4.
The Company and the Union must pay the Arbitrator his fee and
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expenses as provided in the Collective Bargaining Agreement between the parties.
Dated: February 4, 2013
_________________________________
Joseph V. Simeri, Arbitrator
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