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with back pay. In an effort to mollify the Employer’s concerns over Grievant’s
job performance, the arbitrator also ordered Grievant to undergo a fitness for
The County may require that employees submit to physical and medical
tests and examinations by a County appointed doctor when such tests and
examinations are considered necessary to the County in maintaining a
capable work force, employee health and safety, etc., provided, however,
that the County will pay the cost of such tests and examinations. In the
event there is a disagreement between the employee’s physician and the
County’s physician concerning the employee’s ability to do his job or
return to his job, at the written request of the employee, the employee will
be referred to a mutually agreeable physician for examination whose
decision shall govern the matter. The County and the employee shall
share the cost of the physician. JX 1.
Beginning in late April of this year, there has been a lengthy exchange of
letters, largely among counsel for each party and the arbitrator, which are
1
Terminology follows that used in the Opinion.
2
labeled serially for references purposes; the bracketed insertions in the text of
the letters, e.g., [L3], are by the arbitrator. In a 5-page letter dated May 8, 2007
counsel stated:
It is, evidently, the County’s position that Mr. [Grievant] has no right to
seek a second opinion. The Sheriff has told the Business Agent, …
(“Union Agent”), that Article XXIV only applies to medical tests not
psychological tests. This, of course, ignores the fact that the first sentence
in §24.1 states “the County may require that employees submit to
“physical and medical test and examinations by County appointed
doctor when such tests and examinations are considered necessary to the
County maintaining capable workforce…” (Emphasis added). It is the
position of the Union that the clear and unambiguous language of §24.1
does apply to psychological examinations. When asked by [Union
Agent], the Sheriff would not confirm that section 24.1 in the future is
limited to physical exams.
The second and related issue is back pay. It is the Union’s position that
the award specifically awards back pay to Mr. [Grievant] until a point
when the grievant is finally determined to be unfit for duty only, at this
point should he be treated as terminated. Since Mr. [Grievant] has a right
to a second opinion (which was performed on May 7, 2007) he should
continue to be paid. In the event that the second opinion contradicts the
County’s psychologist, then he should continue to be paid until a third
and independent review is completed. The County, in a letter dated May
1, 2007, states:
They have informed the Union they will no longer pay Mr. [Grievant]
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and consider the matter final. L3 @ 4.
The letter raises strenuous objections to the report of the County’s psychologist,
On May 10, 2007, the arbitrator responded with a letter addressed to both
counsel (“L4”):
I have received Mr. Gutscher’s letter and email of May 8, 2007 [L3].
While I am happy to continue jurisdiction over this matter (as it was
retained for just such occurrences), in light of the Employer’s position as
described on page 4 of Mr. Gutscher’s letter, the immediate issue which
must be addressed is the arbitrator’s compensation. If the Employer truly
has closed its books on this matter, presumably that means it will
contribute nothing further towards the costs of arbitration.
(I) The Union could agree to pay the arbitrator’s bills in full as soon
as they are submitted and seek recourse against the Employer at a
later date. If the Union elects this alternative, I would require a
written promise from a duly authorized Union official.
Subsequently the arbitrator received a letter from the Union Agent (“L5”),
4
On May 24, 2007, the arbitrator wrote counsel the following letter
(“L6”):
I have received Mr. [Union Agent]’s letter of May 14, 2007 [L5],
indicating that the Union will pay the arbitrator’s bills and seek redress
from the Employer at a later date. Therefore the arbitration will proceed.
Please furnish me with the following:
(a) A copy of the psychologist’s report.
(b) A copy of Grievant’s doctor’s report.
(c) A copy of the booklet distributed to employees to explain the
benefits provided under the medical plan described in Section 11.1
of Article XI of the collective bargaining agreement.
(d) The name of “a mutually agreeable physician” to make the
ultimate decision as to Grievant’s fitness for duty. If the parties are
unable or unwilling to agree, then I request a list of five (5)
proposed doctors from each party. The doctors should be licensed,
practicing psychiatrists, whose practices are not connected to
Leelanau County. I respectfully suggest psychiatrists from the
Grand Rapids, Lansing, East Lansing, Ann Arbor, or Detroit areas.
5
examination?
(7) What did the Employer tell the psychologist in advance of the
examination?
(8) What criteria were used to determine Grievant’s “fitness for duty”
and where in the psychologist’s report is each criterion addressed?
(9) If the Union did not agree to those criteria, under what provision of
the collective bargaining agreement were they established?
(10) Pursuant to which provision of the collective bargaining agreement
was Grievant’s employment most recently terminated?
… First, I initially note that it was after all the Arbitrator’s own Award
which ordered the Employer to send the Grievant for a fitness evaluation
“as was done in 1999.” This was based on the concerns formed by the
Arbitrator as a result of certain behavioral observations of the Grievant.
The Arbitrator further ordered that “if possible, the same PhD.
Psychologist who evaluated Grievant in 1999 should be used.” Award at
p 50. The Employer fully complied with these directives. Following the
Employer’s receipt of the psychologist’s evaluation and opinion that the
Grievant was not fit for duty, his employment was terminated
accordingly.
Next, it was for the first time in Mr. Gutscher’s May 8, 2007, letter to you
[L3], that the POAM states that Mr. [Grievant] has a “second opinion
which was performed [sic] on May 7, 2007.” The Arbitrator must know
that to date, the Employer has not received any second opinion from
[Grievant], much less one that contradicts the opinion of Dr. …
(“Psychologist”). There is no requirement for the Employer to wait
indefinitely for receipt of one. Unless and until such a second opinion is
submitted to the Employer (and, perhaps, a third opinion if necessary),
there is no need for any further proceedings. In other words, there is no
current bona fide dispute concerning Mr. [Grievant]’s unfitness for duty.
6
Finally, there are several matters raised in your May 24, 2007, letter [L6]
with which the Employer respectfully disagrees. I will list these
objections:
The next letter in this lengthy exchange was from the arbitrator to both
I received Mr. McGlinchey’s letter of May 30, 2007 [L7], for which I
thank him. I was quite surprised to learn that the Union has not furnished
the Employer with a copy of the report of Grievant’s doctor, upon which
the Union relies in invoking the tie-breaker provisions of the collective
7
bargaining agreement. That oversight should be corrected when the
Union responds to the requests in my letter of May 24, 2007 [L6], since
any materials sent to the arbitrator must be copied to the opposing party. I
will, of course, take no further action until the Employer has received and
been afforded a reasonable time within which to review the report.
The arbitrator received the following documents along with a letter from
Union counsel, dated June 4, 2007 and addressed to the arbitrator and Employer
counsel (“L8”):
(A) Letter April 27, 2007, to Sheriff and County Administrator, from
Union Agent (“L1”).
8
An employee shall lose his seniority and the employment relationship
shall end for any of the following reasons:
The arbitrator interprets the phrase “pursuant to the terms of this Agreement” to
Grievant.
In the arbitrator’s letter of May 24, 2007 (L6), he sought to ascertain the
(5) Pursuant to what authority did the Employer send Grievant for his
most recent “fitness for duty” examination?
to note that the response failed to take issue with “[t]he facts as presented in Mr.
9
paragraph (1) of L6.
The arbitrator’s Opinion was based upon the language of Article XXIV, §
24.1, which is the only provision of the CBA which could reasonably be
interpreted to justify a fitness for duty examination. But for that provision, the
such an exam, much less the authority to fire them for failing one.
The arbitrator is not unmindful that the heading of Article XXIV reads
“Physical Examination” and is mindful of the fact that, on the very first page of
The headings used in this Agreement and exhibits neither add to nor
subtract from the meaning, but are for reference only.
The CBA contains no definitions of the words used in § 24.1, so they are to be
“physical” and “medical” subsume and include concepts such as “mental” and
“psychological”, because the brain is an organ of the body and the seat of
10
restriction on the Employer’s ability to maintain “a capable work force,
employee health and safety, etc.”, to read “physical” and “medical” in § 24.1 so
[E]ven where the contract does not contain the physical ability
requirement, it has been said that the term “ability” includes physical
(and mental) ability.383
383
See J.R. Simplot Co., 53 LA 1181, 1193 (Simon, 1969); Pittsburgh
Plate Glass Corp., 37 LA 1047, 1050 (Siciliano, 1962); Fairbanks Co., 32
LA 772, 774 (Jenson, 1959); Doehler-Jarvis Corp., 12 LA 896, 897
(Stashower, 1949). The terms “fitness” and “qualified” also include
physical and mental fitness or ability. See Reichhold Chems., 49 LA 952,
955 (Williams, 1967); Kilgore Inc., 35 LA 391, 394 (Dworkin, 1960);
Lockheed Aircraft Corp., 34 LA 67, 70 (Tatum, 1959). Cf. National
Dairy Prods. Corp., 34 LA 426, 427 (Cahn, 1960) (involving past
practice). Elkouri & Elkouri, supra, @ 909; emphasis supplied.
The word “ability” plainly appears in § 24.1. For these reasons, the arbitrator
concludes that § 24.1 governs the situation before him and includes mental and
psychological testing.
The Psychologist opined that Grievant is not fit for duty. The Psychiatrist
opined that Grievant is fit for duty. In this situation, the plain language of § 24.1
calls for “the employee [to] be referred to a mutually agreeable physician whose
11
this case. Indeed, even without an express contractual provision, it would be
It is difficult to understand how the issue of back pay could have been
(L7), that “[t]here is no requirement for the Employer to wait indefinitely for the
receipt of [a second opinion],” the Employer at least twice was notified that
Grievant was seeking one, in the Union Agent’s letter of April 27 (L1), and
The parties are urged to be reasonable and agree upon the amount owed
Grievant. If they return to the arbitrator on this issue and he finds that
one of them has been unreasonable, that party will pay. Opinion @ 52.
Because the arbitrator finds that the Employer has acted unreasonably,
12
Grievant is awarded statutory interest on all back pay, dating from his most
recent termination. Elkouri & Elkouri, supra, @ 1219-1221; MCL 438.7 &
438.31.
The arbitrator respectfully urges the parties to settle this case, as the
between the Employer and Grievant appears to be so great as to cast doubt upon
their ability to work together effectively. It seems that Grievant may be in the
Employer’s crosshairs and that it could be just a matter of time before Grievant
that tie-breaking physician were to side with the Employer, all manner of
Americans with Disabilities Act and Medical and Family Leave Act issues
might arise. See Rostow & Davis, A Handbook for Psychological Evaluations in
Law Enforcement (Haworth Presses 2004), chs 14 & 15. The case could take on
There may be several bases for federal jurisdiction in this case, such as a
13
have been challenged on several constitutional grounds, including
invasion of privacy and violations of First and Fourteenth Amendments
(including religious, political, social, familial, and sexual rights). Id. @
97.
Union counsel already has launched a vigorous attack against the conduct
of the examination and on the Psychologist’s Report itself, alleging that “the
County spoke with Dr. [Psychologist], in advance of the fitness for duty exam
and the Union has serious issues regarding the psychological evaluation.” L3 @
However, much more must have transpired between the Department and
The Sheriff said nothing remotely to this effect before the arbitrator. The
arbitration hearing.
obtained from the Sheriff, which was not presented at the arbitration hearing:
14
The Sheriff noted that his first task when elected was to deal with sexual
harassment, in particular, 17 memos by Deputy [Grievant] calling
another officer a “homo”. The Sheriff dropped the charge from sexual
harassment to conduct unbecoming an officer “so as not to hurt his
career.” (Italics in Psychologist’s Report.)
It would take far too long to discuss all of the “new evidence” which was
presented to the Psychologist but not to the arbitrator; suffice it to say that the
impropriety and might provide evidence for a challenge on due process grounds.
Again, it would take too long to discuss each of the instances in which the
Psychologist sought to contradict the arbitrator’s findings, but one area in which
he strayed so far out of his field and so greatly exceeded the scope of his
thinking skills” (Psychologist’s Report @ 21), the PhD himself may have
anticipated that anyone with a college education, much less a PhD, would
realize that much of what he wrote on pages 35-38 of his Opinion was said
15
tongue in cheek. It was simply satire,2 written to chide the Employer for making
But failing to exhibit a sense of humor may not be the worst of the
already had indicated was not sexual harassment, as a matter of law (Opinion
wrote:
One gets the feeling on reading this section carefully, that the arbitrator
is giving a defense for what is commonly considered sexual harassment
and inappropriate sexual remarks on the basis of free speech. Id. @ 17;
italics in Psychologist’s Report.
This was a clear violation of Grievant’s right to have the sexual harassment
allegations against him decided upon the basis of law, instead of professional
biases.
On page 37 of the Opinion, the arbitrator set out Michigan law on the
subject, the only provision of which that could possibly apply to Grievant’s
2
How anyone could seriously believe that President Clinton issued an executive order on oral sex is beyond the
arbitrator’s comprehension. Opinion @ 36. Yet the PhD may have swallowed it, hook, line and sinker.
16
The arbitrator found that Grievant’s purpose was playful and that his
amuse the Male Dispatcher, who replied in kind. In fact, the repartee went
wholly unnoticed until the Undersheriff went digging for dirt on Grievant, and
Clark County School District v Breeden, 532 US 268 (per curiam), reh
den 533 US 912 (2001), fully supports the arbitrator’s ruling and is so
Title VII forbids actions taken on the basis of sex that "discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment." 42 U. S. C. §2000e-2(a)(1).
Just three Terms ago, we reiterated, what was plain from our previous
decisions, that sexual harassment is actionable under Title VII only if
it is "so 'severe or pervasive' as to 'alter the conditions of [the victim's]
employment and create an abusive working environment.' " Faragher
v. Boca Raton, 524 U. S. 775, 786 (1998) (quoting Meritor Savings
Bank, FSB v. Vinson, 477 U. S. 57, 67 (1986) (some internal quotation
marks omitted)). See also Burlington Industries, Inc. v. Ellerth, 524
17
U. S. 742, 752 (1998) (Only harassing conduct that is "severe or
pervasive" can produce a "constructive alteratio[n] in the terms or
conditions of employment"); Oncale v. Sundowner Offshore Services,
Inc., 523 U. S. 75, 81 (1998) (Title VII "forbids only behavior so
objectively offensive as to alter the 'conditions' of the victim's
employment"). Workplace conduct is not measured in isolation;
instead, "whether an environment is sufficiently hostile or abusive"
must be judged "by 'looking at all the circumstances,' including the
'frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee's work
performance.' " Faragher v. Boca Raton, supra, at 787-788 (quoting
Harris v. Forklift Systems, Inc., 510 U. S. 17, 23 (1993)). Hence, "[a]
recurring point in [our] opinions is that simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the 'terms and conditions of
employment.' " Faragher v. Boca Raton, supra, at 788 (citation and
quotation marks omitted).
Perhaps the Psychologist is unfamiliar with the Clark County case and
18
utterance” as characterized by the High Court) and unprotected sexual
correctness.
Most assuredly, Drs. Rostow & Davis are attuned to the free speech
issues:
In the instant case, fellow officers Grievant and Male Dispatcher were just
engaging in free speech, as was their constitutional right. AFGE, Local 1629
19
to the former’s entanglement in the irrelevant on/in distinction
hundreds of years ago in Othello: “With her, on her; what you will.” Iago,
Act IV, Scene I. The Male Dispatcher certainly understood that it’s a
retorted to Grievant. Opinion @ 35. It begins to look like Grievant was fired
Not only did the Psychologist fail to specify the non-standard definition
standard of proof which he was using to convict Grievant. As best the arbitrator
can discern, it was somewhat akin to Iago’s rule of thumb for judging marital
infidelity:
Work on,
My medicine, work! Thus credulous fools are caught;
And many worthy and [skilled workers] even thus,
All guiltless, meet reproach. Iago, Othello, Act IV, Scene I; liberty taken.
20
Despite a lack of evidence, Grievant has now been fired twice for alleged
sexual harassment, first by the Employer directly and a second time indirectly
by the Psychologist, who improperly superimposed his own notions about the
subject over the arbitrator’s legal findings of fact and conclusions of law. The
duty to see that that practice is carried out consistently with controlling law
Smith v Maryland, 442 US 735 (1979) (private party may be agent of public
Parke Care Centers, 123 F3d 868 (6th Cir 1997); cert den, 522 US 110 (1998), a
federal sexual harassment case, so it seems that Grievant may have been
charged with violations of federal law. Opinion @ 38. Were he to file suit for a
declaratory judgment that he has not violated that law, a federal court might
accept jurisdiction over this and any other federal issues which he might raise.
Still other issues might get swept in under the doctrines of pendant and ancillary
The arbitrator’s suggestion, and it is only that, is for the parties to settle
the case before it literally becomes a federal one. He respectfully urges them to
21
package, to another position with the County—whatever it takes to bring this
which “still drags its dreary length before the Court, perennially hopeless.”3
VI. Order
(A) Grievant is to be put back on the Employer’s payroll forthwith and paid
back pay with interest.
(B) On or before Friday, June 22, 2007, the parties are to decide upon a
mutually agreeable physician for examination whose decision shall
govern the matter. The parties shall further agree upon the documents to
be transmitted to the physician, the individuals whom the physician is to
interview, and the scope of the physician’s examination and written
report. Neither party is to have any contact with the physician except as
mutually agreed. The physician’s report is to be transmitted
simultaneously to Union counsel, Employer counsel, and the arbitrator. If
the parties fail to agree, the arbitrator will make the necessary decisions.
(C) The County and Grievant shall share the cost of the physician.
(D) The Employer is responsible for one-half of the continuing costs of this
arbitration.
The arbitrator retains jurisdiction to resolve any issues which may arise
3
C. Dickens, Bleak House, ch 1.
22