BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
METSO MINERALS, INC.
PACE INTERNATIONAL LOCAL 7-0889
(Douglas S. Gee Discharge)
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C.,
by Ms. Marianne Goldstein
Robbins, and Mr. Mark W. Floyd, on behalf of
Godfrey & Kahn, S.C., by Mr. John Haase, on behalf of
The above-captioned parties, herein "Company" and "Union", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Clintonville, Wisconsin, on December 14, 2001, at which time the parties agreed I should
jurisdiction if the grievance is sustained. The hearing was transcribed and the parties filed
reply briefs that were received by March 27, 2002.
Based upon the entire record and arguments of the parties, I issue the following
Since the parties were unable to jointly agree on the issue, I have framed it as
Did the Company have cause to terminate grievant Douglas J.
Gee pursuant to Article XI,
Section 1, of the contract and, if not, what is the appropriate remedy?
The Company manufactures and fabricates heavy construction-type equipment at its
Clintonville, Wisconsin, facility.
Grievant Gee, a material handler who spent most of his time operating a crane,
the Company for 29 years. During his employment, Gee was disciplined over various
included leaving the Company property without punching out; improperly shooting nails from
a high-powered nail gun; and being absent or late for work for which he was suspended on
(Company Exhibit 17). As related below, Gee was terminated on July 23, 2001 (unless
stated, all dates herein refer to 2001) for allegedly defrauding the Company by not working
receiving worker's compensation benefits when he was fit to return to work on and after June
Gee was injured on February 14 when a 300 pound or so piece of catwalk grating fell
head and shoulders. Gee suffered neck damage and missed work until July 19 when he was
by his doctor to return to work with restrictions. Throughout his time-off, Gee received
compensation benefits and he saw several doctors regarding his injury including
Dr. Robert Zoeller,
an independent medical examiner; Dr. David C. Ritzow, Gee's treating physician; and Dr.
Harrison, a board-certified specialist in occupational medicine.
Dr. Zoeller, who specializes in physical medicine, rehabilitation and pain medicine,
telephonically that he examined Gee on May 15 and that he then determined Gee "was
post-traumatic headaches" that were "primarily musculoligament in origin."
Dr. Zoeller that day
prepared a letter to the Company's insurance carrier, Gallagher Bassett Services, listing
restrictions that Gee had to follow if he returned to work on light duty (Union Exhibit 6).
said that Gee's activities on a June 28 video were "inconsistent" with those restrictions
was seen carrying weights in excess of 20 to 40 pounds; because he was seen pushing and
trailer full of firewood; and because "He demonstrated full range of motion. . ." in "excess
degrees." After seeing the video, Dr. Zoeller prepared a July 18 written report for
Services (Company Exhibit 15) where he stated that Gee was fit to return to his full
"without specific restrictions".
On cross-examination, Dr. Zoeller said that Gee on May 15 had shown "myofascial
pain"; that he then "was in quite a bit of pain, which is why he recommended trigger point
that "there's different definitions to repetitive"; and that he never saw a videotape of Gee's
a crane operator. He also said that one or two trigger injections should bring about
and improved function"; and that he would expect progressive improvement in such a
Dr. Harrison testified telephonically and said that he examined Gee for the first time
30, at which time he found that Gee had "myofascial pain syndrome"; that he on
May 30 "embarked
on a series of treatments using trigger point injections as well as physical therapy" not tried
that such treatment seeks to "restore normal range of motion and second is to reduce pain";
he on that day wrote a note stating that Gee could only perform "Sedentary duty without
or repetitive neck movement". (Company Exhibit 10). Dr. Harrison explained:
"The injections are to treat areas that are referred to as myofascial
trigger points. These are
dysfunctional areas within a muscle that had previously been injured. The areas are
an area of muscle tightness or induration or contracture to the length of muscle. Within this
contracted band there are tender areas which create a pain pattern that is typical for the
muscle involved. When these are found on exam, they're considered as being impediments
recovery or impediments to returning to normal use of the body part. If a muscle has
areas in it that are tight and contracted, the muscle can't relax in order to move to the
direction, and it can't contract normally to do a dynamic motion."
Dr. Harrison also saw Gee on June 14 and 25 at which time he administered trigger
and he said that there was an improvement in Gee's condition between June 14 and 25.
on June 14 wrote a note stating that Gee could perform "Sedentary duty without reaching or
repetitive neck movement" (Company Exhibit 11). His subsequent June 25 note stated
that Gee had
to "Avoid repetitive neck movements" (Company Exhibit 12). He again examined Gee on
at which time he again saw that Gee's facial muscles were tight, which is why he gave him
injection. He then wrote that Gee could return to work on light duty starting July 19 (Union
3, p. 4). He also examined Gee on August 9 and September 6 and he released Gee
for full duty on
Dr. Harrison also reviewed the June 28 video and said that Gee's "activities were
restrictions" he had listed; that, "I didn't see anything on the videotape which I felt exceeded
restrictions I had written on June 25"; and that based on his June 25 examination, he did not
Gee was capable of performing all of his crane operator duties. Dr. Harrison by letter
3 (Union Exhibit 5) informed insurance carrier Gallagher
Bassett Services that he was not certain Gee could return to work without any
restrictions and that,
"Nothing on the videotape changes my opinion" that he can return to work only with certain
After reviewing a second video showing Gee's crane duties, Dr. Harrison
Bassett Services on September 24 that the video confirmed his opinion that Gee was not fit to
to work until after July 5 and that Gee should have returned to work on light duty on July
On cross-examination, Dr. Harrison testified Gee on May 30 told him that his
neck motions made it impossible to perform his usual duties as a crane operator; that Gee
on June 14 and 25 that his neck was still stiff; and that Gee's neck rotation increased from
to 32 degrees after he received an injection (60 degrees is normal). Dr. Harrison also
said that he did
not see any signs of overt pain when Gee moved about on the June 28 video; that that was
with his earlier findings because "the activities he was doing were not exceeding what I
up until July 5 he had written notes stating that Gee was unable to operate a crane; and that
a car is different from operating a crane because: "Upward gaze and visual tracking is much
extreme when operating a boom crane. . ." He added that Gee's complaints about his neck
"consistent with what I was finding on examination"; and that Gee on June 28 "was moving
apparently at will."
Donald Prazuch, a licensed private investigator and polygraph examiner, was hired
Gallagher Bassett Services to conduct a surveillance on Gee, which he did by videotaping
activities on June 28 (Company Exhibit 14). He testified that Gee that day loaded his pickup
at home; drove to a physical therapist's office; drove to a Farm and Fleet sale; and then
drove to a
Lake of the Woods campground just south of Wautoma, where he unloaded the truck and set
Operations Manager James D. Grzeca testified that because of the medical restrictions
by various doctors on Gee's return to work, the Company determined that Gee could not
work operating a crane because that involved "repetitive neck movement." He explained:
concern was, you know, could he operate the crane and have no repetitive neck motion?"
determined that was not possible." He said that Gee returned to work on July 19; that there
light duty work for him before that date; that he and others viewed the June 28 videotape on
that he by that date had received a letter from Dr. Zoeller stating that Gee was fit to return
(Company Exhibit 15); and that after checking with corporate offices in Milwaukee, "I then
determination that termination was in order because the Company was being defrauded."
Grzeca added that since Gee was able to operate his truck on June 28, he could have
a crane because "The truck driving and crane driving are not significantly different" and
"Repetitive neck motion was our concern, and we saw him bending his neck many different
in extreme fashions in this videotape so we saw no evidence that there was an inability to
crane." He also said that he handed the termination letter to Gee on July 23 (Company
in the presence of a Union representative and that it had not been the past practice to call in
before a decision had been made to terminate an employee.
On cross-examination, Grzeca testified that Gee had provided the Company with
Return To Work slips prepared by Dr. Harrison which stated that Gee was not yet fit to
work (Union Exhibit 3, pp. 1- 3), and that he knew at the time of Gee's termination that
had written that Gee could return to work on July 19 with certain restrictions (Union Exhibit
Grzeca added that Gee did not engage in any misconduct before June 28 and that Gee
engaged in misconduct on that day and on the following days because "he demonstrated that
fact had the ability to move and use, repetitive neck motion. . ." and that, "What he did
continue to stay off work and not suggest to the doctor or suggest to the Company that he
capable of driving the crane."
Chief Union Steward Bob Kohel testified that the Company in the past "In most
had called in the Union before it decided to terminate certain individuals, i.e. Marvin
someone named "Wrong Way", the Wilson brothers, and Radtke. He also said that, based
prior experience in operating the crane, driving a car is different from operating a crane
"Because in a car I can relax and drive, and I watch ahead of me
and it's a clear road. I have no
loads. I have no other people to watch except for regular driving habits, and they come
years of doing it.
In the crane, everything you're doing is
different. You are constantly moving a different load.
You're moving it in a different direction. You're doing it from different positions. So you
looking around, watching what you're doing. You better be real conscious of what you're
somebody is going to get hurt."
On cross-examination, Kohel acknowledged that he was uncertain as to whether the
in the Union before terminating certain employees.
Gee, who spent about 75 percent of his time operating a crane, testified that when he
a crane "Your head is more in the upward position than it is in the downward position. . ."
testified about his February 14 injury when a piece of catwalk grating hit him on his head
shoulders and his subsequent medical treatment which included a trip to the hospital on
He said that his condition improved when Dr. Harrison gave him the injections "which
pain and let me extend my movement for three to four days after I got the injections." He
the shots wore off, the pain would gradually start to come back again" and I would be back
I was. Each time it was getting better."
Addressing what was seen on the June 28 video, he said that the tent canopy he
day weighed about 9½ pounds; that pushing the trailer involved 15 to 20 pounds "of
against it"; that he was still taking pain pills at that time; and that he did not believe he was
his doctor's work restrictions. He explained the difference in driving a car and operating the
as follows: "In the crane you're constantly sitting there with your head up moving from side
repetitively all day long, where in the film I was moving my head side to side but it wasn't
all day long
and it wasn't for long periods of time." He also said that he was terminated on July 23
being given the chance to say anything and that he continued to see Dr. Harrison after his
He filed a grievance over his termination on July 25 (Joint Exhibit 2), hence leading to the
On cross-examination, Gee testified that he did not tell Dr. Harrison or anyone at the
Company that he felt well enough to return to work on and after June 28; that Dr. Harrison's
25 Return To Work note (Union Exhibit 3, p. 3) did not contain a return to work date; that
not return to work on June 28 "Because of my neck movement"; and that while he could
June 28, he could not operate a crane, "Because that was repetitive and doing it more often I
that day." He acknowledged that he on June 28 did some climbing, some reaching, some
and some turning of his neck "For a short period of time. . ."
Union Steward Gary Schuelke testified that the Company on July 23 did not tell him
of time that Gee was about to be fired and that the Company did not conduct any
it fired Gee.
Operations Manager Grzeca was recalled as a witness and testified that employees
Marotz, Demasky and Radtke were all terminated without first contacting the Union.
POSITIONS OF THE PARTIES
The Union contends that the Company lacked just cause to terminate Gee because it
to meet its burden of proving that Gee intended to defraud the Company; because Gee was
to return to work on June 28 as attested to by Dr. Harrison; because no one from the
ordered Gee to return to work before July 19; and because Dr. Zoeller's
claim that Gee was fit to return to work on June 28 should not be credited because he
is not "board
certified in occupational medicine and had not seen Gee for two months." The Union also
the Company violated Article XI, Section 2, of the contract when it failed to tell the Union
time that it intended to fire Gee and that Gee's long tenure and good work record in any
be considered before he can be summarily fired without any prior investigation. The Union
traditional make whole remedy that includes Gee's reinstatement and a back pay award.
The Company claims that it had cause to terminate Gee because he "was fit to return
as early as June 28, 2001"; because Gee "lacks credibility concerning his claimed inability to
until July 19, 2001"; and because Gee received worker's compensation benefits "when he
was fit for
duty." It also contends that it has met its burden of proving that Gee intended to defraud the
Company; that its "failure to interview the grievant before terminating his employment does
provide the Grievant a basis for relief"; and that Gee does not have a good work record.
Standing alone, Dr. Zoeller's testimony that Gee was fit to return to work on and
28 certainly supports the Company's position.
His testimony, however, does not stand alone. It must be considered alongside the
of Dr. Harrison, Gee's treating physician at the time, who, unlike Dr. Zoeller, is
occupational medicine. By virtue of that board certification and continued treatment, his
opinion is entitled to at least, if not more, weight than Dr. Zoeller's opinion.
I therefore credit all of Dr. Harrison's testimony to the effect that Gee's June 28
activities all fell within the scope of his earlier work restrictions and that he did not believe
capable of performing all of his crane operator duties on June 28. Dr. Harrison
testified about Gee's
crane duties after he had seen video of some of these crane duties (Company
Exhibit 18). Since Dr.
Zoeller admitted on cross-examination that he had never seen that video, it is difficult to give
medical opinion as much weight as Dr. Harrison's medical opinion which was based
observation of Gee's actual crane duties.
Moreover, the sequence of events here is fully consistent with Gee's testimony that
injections "relieved the pain and let me extend my movement for three to four days after I
injections" and that, "As the shots wore off, the pain would gradually start to come back
Harrison corroborated this part of Gee's testimony by stating that Gee's facial muscles were
on July 5, which is why he gave him an injection on July 5. The fact
that he did so is clear proof that Gee after June 28 was still suffering pain and that he
Dr. Harrison was also on the mark in pointing out that driving a car is very different
operating a crane because: "Upward gaze and visual tracking is much more extreme when
a boom crane. . ." Dr. Harrison was in a position to make that judgment because he, unlike
Zoeller, had actually seen how a crane works and what a crane operator must do in order to
it work. In addition, I credit Koehl and Gee's composite testimony to the effect that
crane encompasses much more neck movement than driving a car.
The Company tries to discredit Dr. Harrison by claiming that he, "as the Grievant's
physician, has a natural bias to provide testimony favorable to the Grievant" and that such
reflected by his claim that Gee had not violated his restrictions while Gee himself admitted to
some of those restrictions.
In fact, there is not one iota of evidence showing that Dr. Harrison was biased in
favor of Gee,
just as there is not one iota of evidence showing that Dr. Zoeller was biased against him.
what we have here is a simple disagreement between two doctors regarding Gee's ability to
to work, which is hardly novel in these kinds of matters. In addition, Gee on direct
stated that he on June 28 did not violate any of Dr. Harrison's restrictions and
he added on cross-examination that he then did climb, reach, twist, and turn his neck "For a
short period of time, yes."
That "short period of time. . ." is a far cry from the restrictions Dr. Harrison imposed for
eight-hour work day which entailed far greater neck turning. Gee's statements on
thus hardly constitute a sufficient basis for discrediting Dr. Harrison.
Hence, when faced with the conflicting medical opinions offered by Dr. Zoeller and
Dr. Harrison, the Company chose the former even though Dr. Harrison was still
treating Gee and thus
was in a better position to know about his then-current health status; even though
Dr. Harrison is
board-certified in occupational medicine and Dr. Zoeller is not; and even though Dr.
Dr. Zoeller, had seen a video depicting Gee's crane duties, thereby enabling Dr. Harrison to
more informed medical judgment than Dr. Zoeller.
Given those conflicting medical opinions, the Company knew or should have known
was a reasonable disagreement between two doctors over whether Gee was fit to work on
and that, as a result, Gee reasonably relied on Dr. Harrison's June 25 note that he was not
fit to return
to work before July 19. Given that reasonable reliance and the Company's own failure to
Gee that he had to report to work before July 19, it must be concluded that the Company
Article XI, Section 1, lacked cause to discipline Gee, let alone terminate him.
That reasonable reliance distinguishes this case from the various arbitration cases
Company where arbitrators sustained the discipline of employees who had no such reliance
who acted in bad faith in taking time off. Moreover, since the Company lacked just cause to
it is unnecessary to decide whether the Company acted improperly when it failed to inform
ahead of time that it intended to fire Gee.
To rectify its violation of Article XI, Section 1, and pursuant to Article XI, Section
contract which mandates that a make whole remedy must be issued in these kinds of
Company shall immediately offer to reinstate Gee to his former position and it shall make
by paying to him all wages and benefits, including seniority, that he lost from the time of his
2001, termination to the time of his reinstatement, minus any offset of monies Gee received,
have received, that he would not have received but for his termination. In addition, and in
with the parties' wishes, I shall retain my jurisdiction for at least sixty (60) days to resolve
questions that may arise over application of the remedy.
In light of the above, it is my
1. That the Company lacked cause under Article XI, Section 1, to terminate
Douglas S. Gee.
2. That to rectify that contractual violation, the Company shall immediately take
remedial action related above.
3. That to resolve any remedial questions, I shall retain my jurisdiction for at
Dated at Madison, Wisconsin, this 17th day of May, 2002.