FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 85K-29664

Grievant Fidel Waters
UNITED CATERING, RESTAURANT, BAR
& HOTEL WORKERS, LOCAL 1064,
Union,

and

GREYHOUND FOOD MANAGEMENT, INC.,

Company.
_________________________________________/

OPINION OF THE ARBITRATOR

March 18, 1986

After a Hearing Held January 23, 1986

At the Dearborn Inn, Dearborn, Michigan

For the Union: For the Company:

William Mazey, Esq. Travis G. Clemens, Esq.

Rothe, Mazey, Mazey & Hamburger, P.C. Senior Labor Attorney
4000 Town Center, Suite 740 Greyhound Food Management, Inc.
Southfield, Michigan 48075-1589 Phoenix, Arizona 85077
 Decision

Grievant Fidel Waters was discharged from his job as grill cook with

Greyhound Food Management, Inc. for failing and refusing to report to work on

August 5th and 6th, 1985. Because the arbitrator finds the Grievant's excuse for

his absence from work to be implausible, the grievance is denied and the

Company's disciplinary action is sustained.

Factual Background

Grievant was hired by Greyhound on May 31, 1983. He also worked a

second job for Wayne Convalescent Center in Wayne, Michigan. For some

time, Grievant had sought employment with General Motors Corporation at

GM's Hydra-Matic plant in Warren, Michigan, to replace his second job at

Wayne Convalescent. After openings developed at Hydra-Matic, Grievant took

an excused absence from Greyhound to undergo a pre-employment physical on

July 31, 1985. Grievant proposed to continue work with Greyhound during his

regular shift from 5:00 a.m. until 1:00 p.m., and to work for Hydra-Matic from

3:30 p.m. until midnight. Grievant was a good worker and there was no

suggestion that holding two jobs interfered with his performance at either.

Although Greyhound management knew of Grievant's second job with Wayne

Convalescent, there was no evidence that they knew of his efforts to obtain

employment at Hydra-Matic.

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 Grievant was notified by Hydra-Matic in late July of 1985 that in addition

to taking a physical, he would be required to undergo a two-day orientation

August 5-6, 1985, at times which would conflict with his work at Greyhound.

On Sunday evening, August 4, 1985, about six o'clock, Grievant telephoned his

Greyhound supervisor, Mark Muller, at home. There were conflicts in the

testimony as to the contents of this telephone conversation but in essence,

Grievant requested time off from work during August 5-6, 1985, but was

refused because a replacement was unavailable. Grievant informed his

supervisor that Grievant would not be at work for the next two days but that he

would bring a doctor's excuse.

Grievant admitted that he attended orientation at Hydra-Matic on both

Monday, August 5, 1985, and on Tuesday, August 6, 1985, as planned.

Nevertheless, Grievant claimed that he had a headache which prevented him

from working at Greyhound. Grievant did in fact produce a doctor's excuse

dated August 6, 1985 and diagnosing migraine headache and hypertension [Co.

Ex. #1]. The Company did not deny that Grievant had obtained Co. Ex. # 1

from a licensed, practicing physician, but denied both the probity and

sufficiency of the document as the basis for a legally cognizable excuse for an

absence from work.

When Grievant did not report for work on August 5 or 6, 1985, his

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supervisor, Mark Muller, prepared a disciplinary report terminating Grievant's

employment [J. Ex. #3]. When Grievant reported for work on August 7, 1985,

he was informed that he was fired. The Union filed a grievance that same day,

which the Company denied on August 9, 1985 [J. Ex. #2], A hearing was held

before the arbitrator on January 23, 1986. At the hearing, Grievant was

represented by the Union attorney. Grievant, his supervisor, and William J.

Duffy, Personnel Director of Hydra-Matic [Co. Ex. #2], testified. At the

conclusion of the hearing, Grievant acknowledged that he had been given a full

and fair hearing and stated that he was satisfied with the representation afforded

him by his Union. Both parties filed post-hearing briefs on or about February

24, 1986.

Discussion

Grievant's claim of illness so severe as to incapacitate him for work at

Greyhound, but not so serious as to prevent him from attending two days of

prearranged orientation at Hydra-Matic, has a singularly hollow ring. Although

Grievant and his supervisor gave different versions of their telephone

conversation on Sunday evening, August 4, 1985, in both versions, the subject

of illness or a doctor's excuse arose only after Grievant had requested time off

and the supervisor had denied the request. It clearly appears that Grievant's

alleged illness was a mere afterthought fabricated in an effort to provide an

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excuse for an otherwise deliberate absence from scheduled work at Greyhound.

It is difficult to give much weight to the doctor's excuse because Co. Ex.

#1 has been altered materially. The middle numeral in the month/day/year

format has been altered to read "5". This numeral "5" indicating the day of the

month appears to be in a different handwriting than the numeral "5" in the year,

"85". There are two alterations in the date on which the patient can return to

work, the word, "Wednesday", and the numeral in "Aug. 7". The Grievant

attempted to explain the alterations as corrections to clerical mistakes, but this

explanation only heaped more doubt upon an already implausible excuse.

Even assuming an unaltered format for Co. Ex. #1, the content of the

doctor's excuse did not meet accepted criteria. In Ford Motor Co, 9 LA 45, 46

(Shulman 1947), the arbitrator wrote:

"A letter from a doctor which merely repeats the story told by the patient
without expressing the doctor's own professional opinion is clearly not a
medical opinion. Likewise, a letter from a doctor which merely states that
the patient was under his care is not sufficient evidence that the patient
was disabled by sickness from working. Again, a doctor's statement
certifying that the patient is now ready for work is not evidence that the
patient was disabled for work from any particular period of time. A
doctor's statement, to be sufficient justification for the employee's
absence ***, should state what the patient's illness was and how and why
it disabled him from working and for what period of time the disability
existed." (Emphasis supplied.)

The doctor's excuse states that the patient was under the doctor's care since

8/5/85, yet it is undisputed that the Grievant did not see a doctor until 8/6/85.

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The Grievant testified that the doctor did not order him to bed and the Grievant

did not report receiving any medication or other medical treatment. Co. Ex. #1

provides absolutely no explanation as to how and why the Grievant's "migraine

headache" and "hypertension" conveniently disabled him from working at

Greyhound but not from attending orientation at Hydra-Matic. The Grievant

sought to explain that he was too ill to perform physical labor around the hot

stoves at Greyhound but could passively attend orientation at Hydra-Matic, but

offered no clue as to how he knew on Sunday night that he would be well

enough to return to work as soon as orientation ended.

Having observed the witness, having listened to his excuse for missing

work at Greyhound, and having considered the context in which the excuse was

offered, I must respectfully say that I find the Grievant's excuse implausible. I

therefore conclude that the Grievant had no valid excuse for missing work.

Dismissal for failing and refusing to work when properly requested,

although severe, is not unreasonable. In Dryden Manufacturing Co, Inc, 66 LA

1071 (Williams 1976), the grievant took three days of vacation to harvest his

corn crop, contrary to management's instructions. Upholding the discipline of

discharge, arbitrator Williams stated:

"It is clear from the record that Grievant is a good employee of the
Company, having been employed for intermittent periods totalling nine
years, and that his previous work record is generally good. Grievant1s
failure to report to work on October 20, 21 and 22, after having been

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 specifically instructed to do so, and specifically denied time off on those
three days by the Plant Manager, amounted to serious misconduct, which
gave the Company just cause to discharge him. Discharge, while the
ultimate punishment that may be imposed to discipline an employee for
misconduct in the industrial forum, was an appropriate discipline to
impose in this instance. Grievant's economic situation, and the necessity
for him to gather his crop, does not mitigate the fact that he blatantly
refused to carry out specific instructions given him by his employer."

See also the applicable collective bargaining agreement, Article II [Jt. Ex. #1],

and compare it to the corresponding section of the labor contract in Dryden, 66

LA 1072-1073.

It may seem regrettable that a man whose economic needs required him

to work two jobs, or whose personal industriousness motivated him to do so,

should be fired. Indeed, even the Company concedes that "if the Grievant had

given the Company ample notice and had been candid, this unfortunate situation

may have been avoided" [Co. Brief p 14]. However, the limitation on the

arbitrator's authority is as follows:

"Where an employee has violated a rule or engaged in conduct meriting

disciplinary action, it is primarily the function of management to decide
upon the proper penalty. *** The mere fact that management has
imposed a somewhat different penalty or a somewhat more severe
penalty than the arbitrator would have, if he had the decision to make
originally, is no justification for changing it. *** The only circumstances
under which a penalty imposed by management can be rightfully set
aside by an arbitrator are those where discriminatory unfairness or
capricious and arbitrary action are proved ***." Stockham Pipe Fittings
Co, 1 LA 160, 162 (McCoy 1945).

For the foregoing reasons, the grievance of Fidel Waters is denied and his

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discharge by Greyhound Food Management, Inc. for just cause is sustained.

_________________________
E. Frank Cornelius, J.D., Ph.D.
DATED: March 18, 1986