Question

At the Zooming-Arrow bus lines (ZA), the mechanics were represented by a union. Mr. Jordan Haier (the Grievant), a maintenance mechanic, complained of severe elbow and arm pain as he removed the cracked windshield of a bus in November of last year. Conse- quently, ZA filed a report on his behalf with the state Worker’s Compensation Board. From December to February, Mr. Haier received therapy and treatment while working “light duty” in the Parts Department, consistent with his physician’s restrictions. In late Feb- ruary, he saw an orthopedic specialist who recom- mended surgery. Because the company allows transitional or light duty work for only 90 days, and because of the impending surgery, Mr. Haier was placed on full disability as of March 1st. In mid-March, Mr. Haier applied for a mechanic position with Wistful Vistas (WV), a competing bus line. Mr. Haier stated in his WV application that he currently worked for ZA and that he had previously been injured on the job. However, he identified no medical restrictions when he filled out his employment application. He was hired on March 25th. Mr. Haier received state Temporary Total Disability (TTD) payments in the amount of $500 per week while working as a mechanic for WV from April 8th until April 26th. On April 30th, the Grievant had radial tunnel decompression surgery and did not work throughout the month of May. The surgeon authorized the Grievant to return to work with restrictions on June 5th. ZA did not allow Mr. Haier to return to work on transitional duty, pursuant to its 90 day limit. Thus, he remained on leave and did not return to work at ZA until August 19th. Meanwhile, WV allowed him to return to work in July and accommodated his restrictions. On July 29, the state Worker’s Compensation Board notified Mr. Haier that his TTD payments were being suspended based upon their discovery of his work for WV. Upon learning of the Board decision, ZA investigated and concluded that Mr. Haier had been dishonest with ZA managers. They terminated his employment on Sept. 13th for “dishonesty.” Mr. Haier filed a grievance and the union appealed his termination decision to arbitration. Mr. Haier has lied to everyone. He obviously lied to Wistful Vistas about whether there were any restric- tions on his ability to work when he applied to work there. He apparently did not tell WV that he was receiving Worker’s Compensation while also employed. He lied to the state by not telling the government of his employment by WV at the same time that he was receiving Worker’s Compensation. It is widely known that it is against state law to work while receiving Worker’s Compensation; the state program is designed to compensate someone while they recuperate from an occupational injury or illness. Working jeopardizes this recovery process because the patient risks worsening the injury by working. Finally, the Grievant lied to Zooming-Arrow. On Sept. 5th, he was interviewed by ZA manager, Andrew Molzahn, with union steward Tommy Barfield present. During that interview, Mr. Molzahn asked the Grievant if he had been working for any Company besides ZA, and the Grievant responded “yes,” indicating that he was working for WV. When Mr. Molzahn asked the Grievant how long he had been doing full-time, full- duty work for WV, the Grievant stated that, although he had been hired in early March, he did not begin working for WV until “several weeks later” and that he had only been given “full-duty work” after the sur- geon’s restrictions were lifted in August. The time mentioned was, coincidentally, the time when Worker’s Compensation payments ended. Mr. Haier misled Mr. Molzahn because he implied that he did no work for WV prior to August. At no point during this con- versation did the Grievant mention that he worked for WV in April, July, or in August prior to coming off of Worker’s Compensation leave. Finally, he admitted to Mr. Molzahn he really didn’t need to abide by the “light duty” restrictions imposed by the surgeon. This suggests that, in the final analysis, either Mr. Haier was lying to ZA by refusing to return to work in a timely manner—or he was lying to himself, because he now thinks he can do work that he was actually incapable of performing. We note that arbitrators routinely uphold an employer’s right to terminate employees for dishonesty. Dishonesty is a most serious offense. Both the employee and the employer in an employer/employee relationship have the right to expect honesty, truthful- ness, and fair dealing in that relationship. Further, tak- ing wages and benefits under false pretenses constitutes dishonesty and is just cause for discharge. Mr. Haier was aware of the company rules: When hired, he signed and acknowledged receiving both (1) a copy of the col- lective bargaining agreement, which states that employ- ees may be disciplined for just cause, and (2) a copy of the ZA Rulebook. It contains the Company’s rule stat- ing that “employees will be subject to severe discipline, including discharge, for dishonesty.” Given Mr. Haier’s awareness of the rules and his deliberately misleading statements, the arbitrator should uphold the discharge. Position of the Union The Union first noted that the employee had a fine twelve-year work record with ZA; Mr. Haier received “good” or “excellent” overall evaluations on his perfor- mance appraisals and only two notations in his file for excessive absences, six and seven years ago. Prior to the incident requiring surgery, Mr. Haier had been injured at work twice. Neither was serious and no paid time off was taken for recuperation. Mr. Haier is a conscientious employee: When on a ladder, removing the cracked windshield from the bus, the seal tore loose and it was all he could do to stop the windshield from crashing down on another mechanic who was below, replacing a light bulb. Whenever he had a doctor’s visit or received feedback from a physi- cal therapist, Mr. Haier turned in a doctor’s note to ZA and reported his prognosis for returning to work. During the past nine years, Mr. Haier has held a second job with various other companies in the area as a mechanic. Because he is supporting his elderly mother who is in “assisted living,” Mr. Haier has a need for additional income. He never hid the fact that he worked a second job while working at ZA, and ZA was aware of Mr. Haier’s second jobs because at times he even came to work at ZA wearing his uniform from the second job. Our client (the Grievant) denies lying to WV on his job application. During that time, he was shuttling back and forth between doctors, specialists, and testing technicians. Although one specialist had recommended surgery, no clear diagnoses or treatment plan had been formulated and agreed upon at the time he filled out the WV application. Mr. Haier’s duties at WV did not endanger recovery from his injury: He changed oil, replaced lamps, and reprogrammed software in busses. After surgery, he trained other mechanics while doing ther light duty tasks. He could have done similar work at ZA; however, ZA had a policy limiting “light duty” to 90 days. ZA management did not follow proper disciplinary procedure. When meeting with the Grievant on Septem- ber 5th, Mr. Molzahn did not indicate that the purpose of the meeting was disciplinary or that Mr. Haier might be terminated. It is customary for the Union to be informed of a discipline/discharge meeting and to have time to prepare to present the employee’s case. This opportunity was not afforded to the union. Our client was honest in his answers to the questions that Mr. Molzahn asked, as he asked them. For example, Mr. Molzahn only asked about full-duty work at WV; he did not ask about light-duty work. In addition to not telling the Grievant the purpose of the meeting, the penalty imposed was inconsistent with the disciplinary procedure: Management should have imposed a suspension (if they believed a penalty was warranted); termination for a first- time offense is overly harsh and inconsistent with the principles and rules of progressive discipline. Finally, regarding the Worker’s Compensation issue, this was the first time Mr. Haier ever collected worker’s compensation benefits. At no time did anyone explain how Worker’s Compensation worked with respect to securing a job from second employer. “Nobody told me that I couldn’t,” he said in a sworn affidavit. He did not know until August that he was not supposed to collect Worker’s Compensation benefits if he was working. He thought that the Worker’s Com- pensation benefits he received was compensation for the fact that his 90 days of transitional duty had elapsed and he could not work for ZA until he was fully released by his physician to return to work. The Grievant never retained an attorney to represent him with respect to this Worker’s Compensation claim. It is common for arbitrators to overturn or reduce management-imposed discipline when management bears some degree of responsibility for the offense. Here, management had a responsibility to explain what was expected of a ZA employee while receiving Worker’s Compensation—particularly since managers knew that the Grievant routinely worked other jobs. In terms of duplicate payment, Mr. Haier received both a paycheck and a state payment for only three weeks in April; state payments would have resumed in late July, but the duplication was discovered and state payments stopped. The Grievant offered to repay the money to the state (with interest) if that is appropriate. Mr. Haier may have been guilty of not asking enough questions in advance; however, he is clearly not guilty of “dishonesty.” In conclusion, the injury was real. Management at ZA has failed to prove “dishonesty” and they have failed to prove intent to defraud, given that Mr. Haier kept the company informed of his diagnosis and recovery and he answered all questions managers posed to him. To dis- charge a twelve-year employee with a fine work record because of ignorance of how a complex government enti- tlement program works while recovering from an acci- dent is (literally) “adding insult to injury.” Relevant Contract Clause: Appendix G: Memoran- dum of Understanding Article G-7 Discipline—Employees will neither be disciplined nor will entries be made against their records without just cause. Use of the term “just cause:” Just cause includes violation of Company rules, regulations and instructions not inconsistent with this Agreement. When discipline is issued, employees will be given written notice specifying the charges and penalty by hand delivery with signed acknowledgment of receipt. Notification will be furn- ished to the appropriate Union shop steward. Relevant Work Rule: Manual of Rules & Regula- tions Applicable to Maintenance Employees Part I General Rules for Maintenance Employees 7. Discipline: Maintenance employees may be disci- plined with penalties up to and including discharge. It would be impractical in this Manual to set forth the extent to which every act shall subject an employee to discipline. As a general rule, however, a violation involving violence, theft or dishonesty, possession of deadly weapons, tampering with safety devices and guards, or unapproved use of Company property, will be considered as a very serious viola- tion and may subject the employee to severe disci- pline, up to and including discharge. Questions 1. In this case, the burden of proof is on management to prove that the Grievant was “dishonest.” Have they proven this? Justify your answer. 2. It has been said that “ignorance of the law is no excuse” for avoiding criminal punishment. To what extent is “ignorance of the law” a reasonable defense for avoiding termination in employment? To what extent did managers bear responsibility for Mr. Haier’s becoming informed about how the state Worker’s Compensation program works? 3. Many points made by Zooming-Arrow managers involved Mr. Haier’s actions that did not involve the company; they involved his relationship to Wistful Vistas bus lines. To what extent should the arbitra- tor consider actions taken by an employee while “moonlighting” for another employer? 4. Did managers disregard proper procedure when they disciplined Mr. Haier? Justify your answer. How much weight should arbitrators give proce- dural propriety or impropriety when deciding a case like this one? 5. If you were the arbitrator, how would you rule? justify your decision.

Answer 1

1.

The management of Company ZA has successfully proved that the grievant i.e. Mr. Haier was being “dishonest”. As per the management claims it was clear that Mr. Haier was being dishonest with Company ZA, Company WV, as well as the state. While applying for job in Company WV, Haier has not specified about his Worker’s compensation funded by state plan and his job restrictions.

Similarly, he did not inform the state about his employment with VW and kept receiving the workers compensation for temporary total disability. In addition to this, the management also established that Mr. Haier lied to the ZA manager and union steward about his job duration with Company WV. As per his statement he has joined Company VW in August, whereas he has been working with the company since March, which clearly shows his intention of not returning to the work in timely manner. All these facts from the case helps in proving that Mr. Haier was being dishonest.

2.

“Ignorance of law” cannot be taken as an excuse for any illegal activity including lying and being dishonest. In this case, the worker, i.e. Mr. Haier was not only violating the law by taking the worker’s compensation for disability while being working in Company VW. Besides, he also did intentional lying and hiding of facts. While applying for job in Company VW, the employee did not disclose about his disability. Similarly, during interview with ZA management, he also lied about his job duration with a competing firm. All these factors cannot be neglected on the basis of the argument that the employee was not aware of the law.

Manager’s has certain responsibility about helping the worker getting his worker’s compensation and other benefits. Management of a company should post official notice in bulletin board, lunchrooms, or similar places about the worker compensation plan and responsibility of both workers and employer. Besides, it should also include all the details regarding employer and insurance company.

3.

The arbitrator should consider the actions taken by the employee while moonlighting for other employer as well, because the employee was currently employed with both the companies and was also receiving worker compensation benefit on behalf of his previous employer i.e. Company ZA while working with Company VW. Besides, the company’s work rule also stated that maintenance employees can be disciplined with discharge if found to be being dishonest. Since, the dishonest actions of the employee was related to both the employers, it should be taken into consideration.

4.

As per the company’s contract clause, it was mentioned that whenever an employee would be charged for disciplinary issues, he/she would be given written notice specifying the charges and signed acknowledgement. Furthermore, notification would be provided to appropriate union shop steward.

However, in the given case, the company did not follow this procedure. After learning the Worker compensation board’s decision of termination of employee benefit, the company terminated his employment without following proper procedure. After learning about the issue, the management at ZA should have followed their company disciplinary policy before terminating the employees, because it was not a very serious act like violence, tampering with safety devices, etc. Arbitrators should give certain weight to this procedural impropriety for the employer, so that they do not repeat the same actions again in future.    

5.

Being an arbitrator, one would support the employer’s decision to terminate the employee as his dishonesty was being confirmed from the given evidence. Mr. Haier, despite of his awareness of the gravity of his acts violated them and also provided misleading statements that was unacceptable. Furthermore, the arbitrator should also notify the employer, i.e. Company ZA to follow proper procedures established in their guidelines so as to avoid future disputes with the union.