BOARD OF ARBITRATION
Case Nos. USS-45,209
-45,210
-45,211
-45,212
March 8, 2007
ARBITRATION AWARD
UNITED STATES STEEL CORPORATION
Gary Works Grievance Nos. WGa-06-0372
WGa-06-0373
and WGa-06-0374
WGa-06-0375
UNITED STEELWORKERS OF AMERICA
Local Union No. 1066
Subject: Discharge – Violations of Last Chance Agreement –
Failure to Report Accident – Failure to Comply with
Directions of Medical Personnel
Statement of the Grievances: USS-45,209 (Gr. No. WGa-06-0372):
"The Company has unjustly
discharged (Grievant) effective 5-16-06 for the
following alleged offense: Violation of LCA on 5-0506,
3rd turn.
USS-45,209 (Gr. No. WGa-06-0373):
"The Company has unjustly
discharged (Grievant) effective 5-16-06 for the
following alleged offense: Violation of LCA on 5-05-06,
3rd turn.
2 USS-45,209 et al.
Statement of the Grievances:
Cont'd
USS-45,211 (Gr. No. WGa-06-0374):
"The Company has unjustly
discharged (Grievant) effective 5-16-06 for the
following alleged offense: Failure to comply with
medical personnel.
USS-45,212 (Gr. No. WGa-06-0375):
"The Company has unjustly
discharged (Grievant) effective 5-16-06 for the
following alleged offense: Violation of LCA
"Remedy requested: (Identical for
all grievances) Grant J&D for grievant until full
and final settlement of this grievance. Remove
this discharge and bring (Grievant) back to
work. Pay all monies lost and make her whole."
Contract Provisions Involved: Article 5, Sections I and J of the May 20, 2003
Basic Labor Agreement.
Grievance Data: _______Date ______________
Grievances Filed: June 5, 2006
Step 2 Meeting: June 23, 2006
Appealed to Arbitration December 12, 2006
Cases Heard: February 8, 2007
Statement of the Award: The grievances are sustained as
set forth in the Findings.
BACKGROUND USS-45,209
-45,210
-45,211
-45,212
1/ Grievant is an incumbent Utility Technician in the Hot Rolling Division of the Continuous Pickle Department at the Gary Works, with a service date of February 1994. The Union protests her four discharges for two violations
of a Last Chance Agreement, failure to report an accident, and failure to comply with the directions of medical personnel.
2/ On November 24, 2005 Grievant entered into a one-year
Last Chance Agreement, which specifically mentioned her past absenteeism,
tardiness, and unacceptable work performance. The LCA indicated how she
should rectify this behavior and conduct herself in a safe and responsible
manner on Company property.
The Agreement also provided:
Failure by (Grievant) to abide by ANY of the
conditions of this Agreement will be
considered will ful misconduct on the part of
(Grievant) and will result in suspension
subject to discharge. This is the final
opportunity for (Grievant) to become and
remain a satisfactory employee. (Emphasis in
the original)
3/ Ronald Kaminsky is the Area Manager for the Continuous Pickle
Department. He testified that Grievant, after finishing her third turn on May 5, 2006, from 3:00 to 11:00 p.m., took a bus from the work area to the gate. As she
was leaving the bus, she slipped on the steps and fell on her arm and buttocks.
The bus driver, who worked for Laidlaw, which provides contract bus services
to USS, took some information from Grievant and asked her whether she would
like any medical attention. Grievant declined, saying she just wanted to go
home. Grievant then left the plant. Kaminsky pointed out that the driver was
not a Management employee and that Company policy requires any accident
to be reported immediately to Management. The purpose is to correct any
unsafe conditions that might exist.
4/ On May 6, 2006 Grievant reported for her third turn.
Kaminsky said that about 8:00 p.m. she informed Management she would
like to go to Medical because she had had an accident the
2
night before when she was leaving the bus. Grievant visited the Medical
Department, obtained some Aleve and an ice pack, and was told to return to
the Medical Department for a follow-up on Monday, May 8.
5/ Grievant reported for work as scheduled on Sunday, May 7.
But she was then issued three suspensions, one for failure to notify
Management of her accident in timely fashion, a second for violating her
LCA, and a third (later rescinded) for violating a Safe Jobs Procedure. She
was thereupon escorted from the Plant and locked out.
6/ According to Kaminsky, no one told Grievant she did not
have to attend her follow-up session with the Medical Department on May 8.
When she did not appear as scheduled, Management and Plant Medical made
several attempts to call her but were unsuccessful. Kaminsky stated that
despite being locked out, Grievant could have got to Plant Medical by
approaching the guard at the gate. Later Grievant explained that she was
out late on May 8 and did not get the telephone messages in time.
She also said Supervisor Mike Yeomans told her not to worry about the
medical appointment. Grievant did not call in on May 9 or 10. She was
then issued two further suspensions, one for failure to comply with medical
personnel and another for again violating her LCA.
7/ On cross-examination Kaminsky stated that the Laidlaw bus
driver report the May 5 incident to Plant Security but apparently did not
identify Grievant as the employee involved. Kaminsky acknowledged that
he had not told Grievant she could report to the guard and she would be
allowed in for her medical appointment.
8/ Michael Yeomans, Operating Manager for Continuous
Pickle, testified that he received a call from Group Leader John Russell about
8:00 p.m. on May 6. Russell said he had a problem because Grievant had fallen
off the bus the night before and now wanted to see Plant Medical. She was
sent there and the medical evaluation cleared her to return to work. Yeomans
interviewed Grievant and prepared an accident report form. Grievant was
disciplined after a May 7 meeting with her and Union representatives.
Yeomans stated that Grievant did not ask, "What about Monday (the May 8
medical appointment)?" Yeomans also
3 USS-45-209 et al.
denied telling her she didn't have to attend the medical follow up on May 8.
9/ Grievant testified that she didn't think she was injured at the
time of the bus fall, "just embarrassed." The bus driver called his supervisor,
and that took 15 minutes. The supervisor made out a report and Grievant said
she was "fine, o.k." The supervisor took Grievant's name, badge number, and
department. The supervisor then told Grievant she could go home.
Grievant stated she didn't consider this a real "accident."
10/ According to Grievant, when she went to work on May 6,
Team Leader Russell said he had "heard you slipped" on the bus and was
"laughing and joking" about it. He then said, "I have to send you to Medical."
Grievant emphasized that she had never told anyone she was injured. She
went to Medical because the Team Leader asked her to do so.
11/ Grievant said she told Medical personnel about the incident
but added she felt "fine". They instructed her to return to work but to
follow up with medical on Monday, May 8. Supervisor Yeomans came to
the Clinic and talked with the Medical people. Yeomans said he had to
fill out an accident report. Grievant returned to the job and finished her
shift. Yeomans told Grievant, "See you tomorrow."
12/ When Grievant came to work on Sunday, May 7, she said
that Security was waiting for her at the gate. She was escorted to the job
and told to get Union representatives. Debra Orr and the Union Griever
joined Grievant and Supervisor Yeomans.
Grievant was given a five-day suspension. Grievant said she asked
Yeomans, "What about Monday?" and he replied, "Don't worry about
that."
13/ On Monday, May 8 Grievant said she did not go to the Medical
Department. She was not allowed to appear on Plant property. She added
that no one had told her she could go to the guardhouse. Grievant was out
late on Monday and did not get two calls from Plant Medical on her recording
machine until about 11:30 p.m. or midnight. That was too late to do anything
about it.
14/ A-9b hearing was hold on May 11. Grievant said a Labor
Relations persons asked her to go to Plant Medical. She
4 USS-45, 209 et al.
agreed and tried to but Security would not let her in She called Union
Griever William McCall and he got Labor Relations to make some phone calls and she was finally admitted. Grievant concluded by declaring that it had never been explained to her that failure to report an accident would be a violation of her LCA.
15/ On cross-examination Grievant stated she had told the Company at the 9-b hearing about her conversation with Team Leader Russell on May 6. She explained that she accepted the pain reliever Aleve from Medical on May 6 because her "whole body was stiff." She said it is common for her whole body to feel stiff and she couldn't tell whether the slip on the bus had anything to do with it. She said she had never complained about pain in her shoulders, as indicated in Supervisor Yeoman's accident report.
16/ Assistant Union Griever Debra Orr attended the "suspension meeting" on May 7. She testified she heard Grievant ask Yeomans, "What about Monday?" and he replied, "Don't worry about that."
17/ Union Zone Griever William McCall attended the 9-b hearing. He testified that the testimony Grievant gave there was the same as at the arbitration hearing. He also confirmed Grievant's account of her difficulties in getting access to the Plant, where the Medical Department is located. McCall said she would not have succeeded without the phone calls he arranged on May 11.
18/ In rebuttal, Donald Payne introduced a medical report on Grievant prepared by the Medical Department just before midnight on May 6. Grievant indicated a pain level of "7/10" in her right leg and left shoulder when she awoke from sleep the evening of May 5, and then again "7/10" at work after a few hours on May 6. Responding to this rebuttal, Grievant stated she had been under a doctor's care before May 5, 2006 for pain in her left side and wrist. She insisted she never told the nurse at Plant Medical that her pain was from the bus fall, and added that she was "stiff all over" from the past.
5 USS-45,209 et al.
POSITIONS OF THE PARTIES
19/ The Company points out that Grievant has given different versions of what happened, suggesting that her credibility is suspect. she didn't report her accident immediately, as required, and she didn't go to the Medical Department despite repeated calls, which is the equivalent of insubordination. Each of those justifies discharge as separate violations of Grievant's Last Chance Agreement.
20/ Although Grievant claimed she wasn't injured by the slip on the bus, the Company points out her statements to Plant Medical on the evening of May 6 contradict that. She also states it was Team Leader Russell, not she, who said she should seek medical attention, but Russell, a bargaining unit member, was
never called to testify. Citing USS-13, 311, the Company observes that a discharge
is proper even for failure to report a minor accident.
21/ The Company continues that despite repeated calls from the
Medical Department, Grievant failed to report as required. An intentional
refusal to follow orders is also grounds for discharge, as shown by USS-44,850
and many other Board decisions. Finally, the Company stresses that the LCA
very explicitly says that failure to comply with "ANY" requirement is a violation
supporting discharge. See USS-38-005.
22/ The Union responds that Grievant was indeed a credible witness,
and did not present varying versions of what happened. Union Griever McCall testified the account she presented at the 9-b hearing was the same as her account
at arbitration. Most important, she didn't believe she had an "accident" that had
to be reported. USS-13,311, cited by the Company, clearly involved an accident.
In any event, the bus driver and the driver's supervisor here took a report of the
incident and transmitted it to USS.
23/ It was improper for the Company to speak about "insubordination"
the Union maintains, since that was never charged or raised at the 9-b hearing.
Grievant had every good reason to believe she was excused by Yeomans from returning to Plant Medical on May 8. She was also locked out of the Plant and her experience in trying to get access on May 11 demonstrated the difficulties she
would have encountered Only phone calls
6 USS-45,209 et al.
from Labor Relations enabled her to get in. She was also never told she could go
to the guardhouse and Security would permit her to enter. None of this, the
Union concludes, rises to the level of a violation of the LCA.
FINDINGS
24/ If employers are not to be discouraged from entering into last
chance agreements, it is vital that such arrangements be recognized as truly
"final" opportunities for employees to demonstrate that they can be capable,
effective members of a business enterprise. In fairness to employees, however,
violations must be adequately defined by the LCA and the evidence must be
sufficient to show that a violation has in fact occurred. Here the two specific
actions alleged are failure to report an accident and failure to comply with
Medical directions.
25/ Grievant's LCA is emphatic that violations of "ANY" condition
of the Agreement can result in discharge. But the LCA deals most specifically
with absenteeism, tardiness, leaving before relief at shift's end, and work
performance, which were Grievant's previous failings. None of those factors
is implicated in this case. "Safety" is a more general factor, though without
any suggestion of prior infractions by Grievant, and any "unsafe behavior" is
stated to be a "material violation" that may result in discharge. The Company
initially charged Grievant here with a Safe Jobs Procedure violation but that
was rescinded. Of course, failure to report an accident or comply with
medical directives may have safety implications.
26/ Long, well-established Company policy requires the immediate
reporting of accidents to Management. See, for example, USS-13,311 (1977).
Grievant claims she did not think her slipping on the bus constituted an
"accident," at least not at this time. It was certainly not the usual industrial
accident, of the sort discussed in USS-13,311, where a hot chip flew off a
machine and landed in an employee's shoe, burning his foot. Grievant here
had finished her shift and was on a bus heading to the gate. Grievant's
immediate reaction, which we credit, is that she was "embarrassed," not
injured. Furthermore, the bus driver and the bus driver's supervisor both
took information and made a report that was transmitted to USS. Grievant stated
7 USS-45,209 et al.
without contradiction that, unlike the LCA's treatment of several other
specifically mentioned types of conduct, no one informed her that failure to
report an accident would constitute a violation of the LCA.
27/ We conclude that it was not unreasonable under all the
circumstances for Grievant to believe that she did not have to report the
incident at the time it occurred. If she had skidded off the steps, landed
upright, and gone on her way unscathed, it seems unlikely she would have
been charged with a violation. From her perspective, that is essentially how
this incident appeared at the moment. The Company has cited nothing
closer to these facts than the "hot foot" case, where the employee immediately
noticed a burn. The argument over the cause of Grievant's pain that
subsequently developed, and whether she or someone else requested medical
attention for her, has little to do with that she perceived at the time she slipped
on the steps.
28/ Even if Grievant should have reported the incident, either
at once by taking herself back to the Plant around midnight on May 5 or
first thing the next day after she realized she was having pain from some
cause, we further conclude it was not unreasonable for Grievant to believe
that the report to the bus supervisor substantially fulfilled any obligation on
her part. It was never made clear at the arbitration whether Grievant was
even aware that the bus supervisor was not part of USS Management. In
any event, the supervisor reported to the Company. To Grievant, trying
to get home around midnight after a working day, the dual reporting by
both bus driver and supervisor must have seemed very official and complete.
29/ The second specific allegation of wrongdoing is that Grievant did
not report back to Plant Medical on Monday, May 8 as instructed. Here there
is a direct conflict in the testimony. Grievant asserted that at the May 7
suspension meeting, she asked Operating Manager Michael Yeomans, "What
about Monday (meaning the medical follow-up scheduled for May 8)?" She
stated Yeomans replied, "Don't worry about that." Yeomans denied both
Grievant's question and his response.
30/ Assistant Griever Debra Orr, who was present at the May 7
meeting, testified at the arbitration that Grievant asked the question and
Yeomans answered it exactly as Grievant had
8 USS-45,209 et al.
related the exchange between them. Both Orr and Yeomans came across as
honest and reliable witnesses. We also note that Orr would lose her usefulness
to the Union as its representative to the Company if USS lost confidence in her
truthfulness. When two honest, generally reliable witnesses differ over whether
a particular statement was made, it is more likely that the person asserting the
affirmative is right. It is easy even for conscientious witnesses to be distracted
and not see or hear something, or later to forget what actually occurred. But
when trustworthy witnesses believe affirmatively that they saw some particular
event or heard some particular statement, the likelihood is they did. It would
also not be surprising if a busy Supervisor, who probably had other pressing
matters on his mind, did not hear or accurately remember precisely what was
said in this situation. But for Grievant and Orr, it was of the utmost importance.
31/ We find that, whatever exactly may have been uttered by
Supervisor Yeomans on May 7, it is likely he said or assented to something
said to him that led Grievant reasonably to conclude that she was no longer
required to report to Plant Medical for a follow-up physical exam on May 8.
It would have been more prudent for Grievant to have phoned on May 9 or 10
in response to the messages left on her answering machine on May 8. But
with the exam date now past, we cannot fault Grievant for waiting to
contact the Company until the scheduled 9-b hearing on May 11.
32/ Our ultimate conclusion is that neither of the two specific charges
against Grievant has been proved to our satisfaction. With that determination,
we further find that both subsidiary allegations of LCA violations must also
fail. There was not proper cause for Grievant's discharge and she should be
made whole for all losses.
9 USS-45,209 et al.
AWARD
33/ The grievances are sustained as set forth in the Findings.
Findings and Award recommended
pursuant to Article 5, Section
I-6 of the Agreement by
Theodore J. St. Antoine, Arbitrator
Approved by the Board of Arbitration
Shyam Das, Chairman
BOARD OF ARBITRATION
Case No. USS-45,193
May 22, 2007
ARBITRATION AWARD
UNITED STATES STEEL CORPORATION
Gary Works
and Grievance Nos. WGa-06-0012
UNITED STEELWORKERS
Local Union No. 1066
Subject: Discharge – Falsification of Company Documents
Statement of the Grievance: "The Company unjustly discharged [Grievant] for the alleged following offense: Falsify Company documents.
"Remedy Requested: Remove this
unjust discharge off the Grievant's record. Put [Grievant] back to work. Pay him all monies lost and make him whole. The Union requests J&D for grievant until final settlement of this grievance."
Contract Provisions Involved: Article 5, Sections I-9 and J of the May 20, 2003 Basic Labor Agreement
Grievances Data: Date
Grievance filed: January 9, 2006
Second Step Meeting: February 15, 2006
Appealed to Arbitration: October 12, 2006
Case Heard: December 20, 2006
Statement of the Award: The grievance is denied.
BACKGROUND USS-45,193
1/ This case from Gary Works concerns Grievant's discharge for falsification of Company records. Grievant had about eight years of service at the time of his discharge on January 5, 2006. On December 29, 2005, Grievant was assigned as a grinder operator on No. 1 grinder. As explained by Steve Jurczak, North Sheet Mill Roll Shop Coordinator and Grievant's supervisor at the time in question, the grinder operator grinds out defects in the roll and then returns it to the mill. He then records data about the roll in the computer. As operator, Grievant earned an incentive rate, described by Jurczak as "the more rolls you grind, the more you earn."
2/ Grievant's initial report for December 29 indicated that he worked two hours and was idle six hours because a crane was parked over his machine. The six hours were recorded as Code 5. This meant a formula was applied to give Grievant incentive pay for the time he was unable to operate. Grievant's earned standard hours were recorded as 548.11% performance, which Jurczak said was "extremely out of the ordinary." He said a normal average would be in the 240 to 260 range. It is sometimes higher, he said, but is never in the 500 range. The report was brought to his attention by the team leader, who characterized it as "crazy" and "ridiculous." Jurczak said the high percentage made him suspicious, so he investigated the report.
3/ Grievant reported he completed four rolls before the crane parked overhead, and was on the fifth one at that time. Jurczak said the fifth roll data showed that Grievant had removed .145 inches of material. This concerned Jurczak because he said it would have been impossible to remove that much and complete four other rolls in two hours. He inspected the computer records and discovered that Grievant had taken an eddy scan on the grinder at 4:11 a.m., which was during the time Grievant said he was unable to operate. But Jurczak said an eddy scan is taken when the machine is grinding, not when it is idle. Jurczak said the amount of stock taken off the fifth roll indicated that Grievant had been grinding when he said he was unable to do so.
4/ Jurczak said he spoke to Grievant about the Code 5, and Grievant told him about the overhead crane. Jurczak then showed Grievant the eddy scan. According to Jurczak, Grievant initially said he didn't know why he took an eddy scan, and then said it was because the necks were hot. Jurczak said the necks can get hot when the machine grinds for a long time. Again, however, he said this would indicate that Grievant had been grinding. Jurczak also said an operator would not do an eddy scan on a hot neck. Jurczak asked Grievant why he hadn't put more oil on the necks and Grievant turned and walked away, and said just don't pay me.
5/ Jurczak said it is common for him to question employees about the cause when they claim a Code 5. The problem here, he said, was that Grievant changed his story and lied to him. Jurczak testified that at the 9B hearing, Grievant said he knew what he did was wrong, but he thought the entry would be corrected. Jurczak said it is common for him to correct errors on reports, but the corrections typically concern transposed numbers or some similar mistake. None of the errors had resulted in anything like the amount of incentive Grievant claimed in this case. Jurczak said he typically gives employees the benefit of the doubt if they are honest with him, but Grievant was not. He also testified that Grievant had never come to him and said he did not understand how to record a Code 5.
6/ On cross examination, Jurczak said if there is a roll in the machine when an employee quits grinding, he can run an eddy scan later if he turns it back on. But the machine has to be operating to do so, Jurczak said. He also agreed that he had adjusted Grievant's reports at other times, as well as those of other employees and that other employees have not been disciplined for entering incorrect data.
7/ The Union's Grievance Chairman testified that he was at the 9B hearing and that Grievant did not say he knew what he did was wrong. In addition, he said Grievant asserted that he had asked for training about how to claim Code 5 on several occasions.
8/ Grievant testified that he made no admission at the 9B hearing. During the arbitration hearing, he identified several production reports he had turned in asking for training on how to claim rolls correctly. Although Code 5 is not mentioned in any of the reports, Grievant said the training requests were related to his confusion about using Code 5. He also said he knew the 548% he turned in on December 29 was high and that he knew he would not be paid 548%. However, he assumed Jurczak would correct the report as he had had always done in the past. Grievant identified records showing Jurczak had corrected the December 29 report on two occasions.
9/ Grievant testified that he completed the first 4 rolls in an hour-and-a-half and then started on roll 809. The crane moved overhead while he was working on that roll, so he shut off the grinder with the roll still in the machine. He said he performed an eddy scan at 4:11 because he knew he would be asked why he didn't grind another roll. Grievant also said he tried to grind on the roll but the necks got hot so he had to stop and shut off the machine. He said he knew an eddy scan could be taken only when the machine was running, so he turned it on at about 4:11 and took a scan, and then turned it off again because the necks were still too hot.
10/ On cross examination, Grievant acknowledged that the reports asking for training in claiming rolls did not mention Code 5 or say he did not know how to claim Code 5. But he said he asked about Code 5 on other reports and that he also asked verbally for training on Code 5. Grievant acknowledged that at the time of the reports asking for training on claiming rolls, there was an issue about how to claim rolls when the ultra sound failed. But he said the request for training were not related to that problem. Grievant also said he had only claimed Code 5 three times in 2005.
11/ On rebuttal, Jurczak identified records indicating that Grievant had claimed Code 5 thirty-three times in 2005. In addition, he said Grievant never asked him for help with Code 5. The requests for training related to the ultra sound problem and to how a roll should be recorded when it had to be run twice. Jurczak also said Code 5 is covered in weekly safety meetings.
12/ Jurczak agreed he changed the record for December 29 twice, although not because the process itself was difficult. Initially, he changed the report by estimating that Grievant had operated for about 4 hours. Later, after Grievant lied to him, he said he recalculated the percentage on the basis of eight hours of operation. Jurczak reiterated that even though he corrected typos and transposed numbers on grinding reports, he has not changed submissions like the one at issue here. This could not have been an innocent mistake, he said. On cross examination, Jurczak acknowledged that it was hard to believe Grievant thought he would get paid 548%.
POSITIONS OF THE PARTIES
13/ The Company argues Grievant understood that claiming Code 5 for six unworked hours was the wrong thing to do. Grievant could have operated his machine for the 6 hours he claimed to be down, the Company says, as the 4:11 eddy scan demonstrated. Initially, Grievant told Jurczak he could not grind because there was a crane parked over his machine. Then he changed his story to say he couldn't grind because the necks were hot. In the hearing, the Company says, there was yet another story – that Grievant did some grinding within the 6 hour period. In addition, the Company points to Jurczak's testimony that Grievant could not have taken off the amount of material he claimed in only two hours. The critical fact, the Company asserts, is that despite his protests to the contrary, Grievant knew how to use Code 5, having done so thirty-three times in 2005.
14/ The Company agrees that Jurczak sometimes corrects mistakes in reports, but those are innocent mistakes, which the Company says is not what is at issue here. The Company argues that Grievant falsified the report in order to inflate his incentive. The Company says even if Grievant had some confusion about Code 5, he certainly knew that he could not claim Code 5 for the six hour period when he was actually grinding. The Company also cites cases in which the Board has held that falsification of documents is proper cause for discharge, especially when employees are trying to get unearned money.
15/ The Union says Grievant admitted running the eddy scan later in the shift, and said he tried to do some grinding, but the necks were too hot. Grievant knew when he turned in the report that he would not be paid 548%. In fact, the Union claims Grievant told the team leader that he expected the report to be adjusted. Although Grievant testified that he knew the document was wrong, the Union says Grievant did not falsify it. Rather, it was an error that he thought would be corrected. The Union argues there was no deception, which means the falsification discharge cannot stand. Unlike the Board cases the Company cites, the Union says there was no attempt to steal here.
FINDINGS
16/ It could be that Grievant was uncertain about how to claim Code 5 for a roll that was left in the machine. But the difficulty in this case is not merely Grievant's alleged ignorance of proper procedures; rather, the problem is Grievant's claim that he was unable to operate for six hours and was therefore entitled to Code 5. There may have been a crane parked over Grievant's machine that prevented him from working for some period of time, but the record does not support a conclusion that it was there for six hours.
17/ When confronted about his report, Grievant did not tell Jurczak that he knew the report was incorrect because he did not know how to account for the downtime. Instead, he claimed the crane was overhead, and, when pressed by Jurczak, changed – or at least supplemented – his story to say the necks were too hot to operate. Not only did Grievant fail to mention that problem to Jurczak initially, but the daily report he filed says he was down for six hours because there was a crane over his grinder; it says nothing at all about the necks being hot, which Grievant presumably would have included if it were true. Moreover, Grievant said he told the team leader about the crane; he did not testify that he told the team leader about the hot necks. Finally, Grievant's report did not mention his alleged problem with Code 5 procedures, a significant omission given the previous reports in which Grievant asked for training about how to claim rolls.
18/ Grievant admitted running the eddy scan at 4:11 a.m., which he said was to show the roll was still cracked. On cross examination, he said he tried to grind, but was unable to do so because the necks were hot. But if there was a crane over his machine for all six hours, as he claimed initially, why would he think he could grind beginning at 4:11? There is, in short, no credible evidence that Grievant's machine needed to be down for six hours on December 29. Even if Grievant did not know how to claim Code 5 – which seems unlikely given the evidence that he used it thirty-three times in 2005 – he at least knew he could not claim to be down for six hours when he actually operated the grinder, or when there was no impediment to doing so.
19/ The Union's principal argument is that Grievant could not have had an intent to deceive because he knew 548% was significantly higher than he could expect to be paid. Had Grievant intended to steal money, the Union argues, he would not have submitted such an outlandish figure. But even if Grievant thought the percentage somehow would be adjusted, he still submitted a form with false information. He has never provided a credible explanation for his actions, and the Board can only conclude that he submitted the false information to inflate his incentive performance and receive more pay than he earned. No matter how the percentage should have been calculated, Grievant's report and his statement to Jurczak indicated he was down for six hours when he either did or could have operated during the time.
20/ The Company submitted cases in which the Board has said dishonesty is proper cause for discharge. In USS-44,885, the Company discovered that an employee had manipulated time records in order to receive over $1700 in unearned pay. In upholding the discharge, the Board said, "Intentionally manipulating payroll records to receive pay, especially a significant amount of pay, for hours not worked is the equivalent of theft." In USS-38,862, an employee swiped in, turned the turnstile, and then left the plant, something he later admitted having done on previous occasions. The Board sustained the discharge, citing the "extremely serious nature" of the employee's conduct. In USS-27,685, an employee falsified his timecard to receive pay for time not worked on 14 occasions over a period of less than two months. The Board concluded the discharge was for proper cause, finding that the employee had "repeatedly misrepresented" the hours worked. Discharge was also warranted in USS-14,878, where the Board found "a systematic falsification of records, subtly and over a long period of time by an employee in a position of trust and confidence." See also USS-45,062, upholding the discharge of a much longer service employee for falsifying travel expenses submitted for reimbursement to the Company.
21/ The instance in the case at issue may differ in magnitude, but not in object or design. Grievant's purpose was to gain income he did not earn. The fact that his attempt to obtain monies he was not entitled to was unsuccessful does not change the seriousness of his misconduct. Even if Grievant believed Jurczak would reduce the 548% figure, the record still establishes that Grievant knowingly claimed Code 5 for some period of time he was able to operate on December 29, 2005. Grievant also has not been candid in the statements he has provided regarding his actions, including his testimony at arbitration. In these circumstances, the Board finds that the Company had proper cause for discharge.
AWARD
22/ The grievance is denied.
Findings and Award recommended
pursuant to Article 5, Section
I-6 of the Agreement, by
Approved by the Board of Arbitration
BOARD OF ARBITRATION
Case Nos. USS-45,196
-45,197
-45,198
May 30, 2007
ARBITRATION AWARD
UNITED STATES STEEL CORPORATION
Gary Works
Grievance Nos. WGa-06-0353
and -06-0354 -06-0355
UNITED STEELWORKERS
Local Union No. 1066
Subject: Discharge – Scrap Handling - Violation of SJP
Statement of the Grievances: USS-45,196 (Gr. WGa-06-0353):
"The Company has unjustly discharged [Grievant] effective on 5-18-06 for the following alleged offense: Impeding an accident investigation.
"Remedy Requested: Grant J&D for grievant until full and final settlement of this case. Remove this discipline, bring [Grievant] back to work and pay all monies lost."
Statement of the Grievances: USS-45,197 (Gr. WGa-06-0354):
(Cont'd) "The Company has unjustly discharged [Grievant] effective 5-18-06 for the following alleged offense: Violation of 4961L002SJP when you were standing on scrap while attempting to remove scrap from a scrap box.
"Remedy Requested: Grant J&D for grievant until full and final settlement of this grievance. Remove this discipline, bring [Grievant] back to work and pay all monies lost."
USS-45,198 (Gr. WGa-06-0355):
"The Company has unjustly discharged [Grievant] effective 5-18-06 for the following alleged offense: Violation of 4961L002SJP when you attempted to remove scrap with your gloved hand.
"Remedy Requested: Grant J&D for grievant until full and final settlement of this case. Remove this discipline, bring [Grievant] back to work and pay all monies lost."
Contract Provision Involved: Article 5, Sections I-9 and J of the May 20, 2003 Basic Labor Agreement
Grievances Data: Date
Grievances Filed: May 23, 2006
Step 2 Meeting: June 23, 2006
Appealed to Arbitration: October 12, 2006
Cases Heard: February 20, 2007
Statement of the Award: The grievances are sustained. The Company is ordered to reinstate Grievant and make him whole.
BACKGROUND USS-45,196
-45,197
-45,198
1/ This case concerns Grievant's discharge for three offenses: Impeding an accident investigation (WGa-06-0353); Violation of the Scrap Handling SJP for standing on scrap while attempting to remove scrap from a scrap box (WGa-06-0354); and Violation of the Scrap Handling SJP by attempting to remove scrap from a scrap box with his gloved hand (WGa-06-0355). Grievant had about 5 years and 9 months of service at the time of his discharge on May 18, 2006.
2/ On May 2, 2006, Grievant was assigned to the 5 Electrolytic Tin Line as an exit driver. His duties included using a fork lift tractor to haul and dump the scrap box that contained pieces of metal from the line. Arthur Wright, Shift Manager, said Grievant came to him and complained that he had cut his hand trying to pull a piece of scrap from the scrap box. Grievant said the scrap was stuck in the box and that it "sprung back" and cut him. The injury was serious enough to require surgery. Wright said after he sent Grievant for medical treatment, he went to the scrap yard to secure the site and investigate. It was obvious to him, he said, that Grievant had stood on scrap on the ground in order to pull other scrap from the box with his hands.
3/ Wright said both standing on the scrap and attempting to remove wedged scrap by hand violated the Scrap Handling SJP, 4961L002SJP. In particular, Wright referenced Sections 2-C and 2-E:
C. Use tongs and/or scrap pullers to remove embedded, wedged, or inaccessible scrap. NEVER pull or jerk with only your gloved hands.
....
E. NEVER WALK OR STAND ON SCRAP OR STRIP. DO NOT attempt to remove scrap from unit housings while unit is running. Shut down unit and lockout before removing scrap.
(capitals in original)
Wright said the scrap is as sharp as a razor blade and that it could cut through a Kevlar glove, which Grievant was wearing. There are no tongs at the scrap yard, but there are some on the coating lines, about 300 yards away.
4/ The Company submitted pictures of the box and surrounding area as they appeared shortly after the accident. The box is on its side with undumped scrap standing vertically at or near the bottom. There is scrap strewn in front of the box, some of which appears to be only partially out of the box. A picture from the side seems to indicate that scrap completely covers the area in front of the box. However, an angle looking directly into the box appears to show a narrow area not covered by scrap, although it is hard to tell how close to the box it is. Wright said it would not have been possible for Grievant to reach into the box if he had not stood on the scrap. In addition, he said there was blood on the scrap in front of the box where Grievant must have stood. Wright said Grievant was familiar with the SJP's requirements that employees not stand on scrap or use a gloved hand to remove wedged scrap from the box. A Company exhibit indicated that Grievant had been contacted on the SJP twice in 2004.
5/ On cross examination, the Union advocate pointed to paragraph 2 of the Scrap Handling SJP (quoted above), which is headed "HANDLING SCRAP IN AND AROUND UNITS." He also directed Wright's attention to paragraph 2-E, which specifically mentions not trying to remove scrap "while the unit is running." There is also an admonition to shut down the unit and lock it out before removing scrap. Wright said the tinning line is a unit and that the scrap yard is part of the unit.
6/ The Union referenced SJP No. 4961T013SJP, headed "PICKING UP, HAULING AND UNLOADING SCRAP." This, the Union argues, is the Tractor Operator SJP that applied to Grievant. Wright agreed that the SJP says, "IF YOU UNLOAD SCRAP BY HAND, KEVLAR GLOVES AND WRISTLETS MUST BE WORN"; however, he said when Grievant got off the truck to pull scrap from the box the Scrap Handling SJP applied. He also said there was no conflict between the two SJPs because the Scrap Handling SJP applies when scrap is wedged in the box.
7/ William Coe, Area Manager, said his practice is to investigate incidents as quickly as possible in order to correct any hazards that might affect other employees, and to discover the facts before memories fade. Coe said he called Grievant on May 3 or 4 and asked when he could come to the plant for a meeting. Grievant told him he was taking Vicodin and could not drive the 75 miles from his home to the plant. Grievant offered to meet Coe outside the plant at a nearby restaurant on May 5, but Coe declined because of the number of people involved. Coe said Grievant told him he was supposed to take Vicodin until May 10, so the two agreed to meet that day.
8/ Later, Coe learned that Grievant had been at the plant on May 5 to retrieve his car. Grievant had not told Coe he planned to be there that day. Coe said he met with Grievant on May 9 and that Grievant told him there was a piece of scrap wedged in the box, and he reached in to get it. The scrap sprang back and cut his hand. According to Coe, Grievant first told him he had stood on scrap to reach into the box, but later said he may not have stood on the scrap.
9/ Donald Payne, Department Manager of Labor Relations for the Gary Complex, said he was present at an investigatory meeting on May 11 where Grievant seem lucid and "absolutely normal." Grievant claimed not to remember all of the events of May 2, although he seemed to have a clear memory about other details. Payne testified that Grievant said he stood on scrap and reached inside the box to pull out a piece that was wedged. The scrap cut his hand, which felt like a "guillotine." Payne said Grievant claimed not to remember what happened after that. Payne also said Grievant's story about retrieving his car on May 5 was confusing and had something to do with his wife "nagging" him about it. Grievant also claimed that he remembered not taking Vicodin that day.
10/ The Local Union's Health and Safety Representative testified the Scrap Handling SJP relied on by the Company is for employees who work on the line, not tractor operators. He said the "L" in the SJP title means "line," not "labor" as the Company claims. He also said generic SJPs that apply to everyone (which is how Coe described the Scrap Handling SJP) have no letters in them. The Representative said employees who work on the line handle scrap when the strip breaks or if they are trimming scrap. When there is a break, the employees shut down the line and lock it out before handling the scrap, as the Scrap Handling SJP requires.
11/ Over the Company's objection, the Board admitted evidence that following Grievant's accident, the Company revised the Tractor Operator SJP to require the use of tongs whenever an employee handles scrap. The witness also said he was part of the safety investigation of the accident and that the safety committee did not think Grievant had violated the Tractor Operator SJP. He said this case was the first time the Company said the tractor operator had to use tongs.
12/ The witness also identified the Job Qualification Record (JQR) for tractor operators on the electric coating lines. The JQR says operators are to be trained in 34 SJPs; the Tractor Operator SJP is on the list, but the Scrap Handling SJP on which the Company relies is not. On cross examination, the witness said the higher standard for line employees is because scrap can become embedded or wedged in the machinery. In addition, some of it may be torn. The witness said Grievant had been contacted on the Scrap Handling SJP because it was covered at departmental meetings. On rebuttal, Coe said the SJPs listed in the JQR are not the only ones that applied to Grievant. He also said that when Grievant gets off the tractor — as he did to empty the scrap box – he becomes a laborer and the Stock Handling SJP applies to him.
13/ Grievant said he had never been told that a tractor operator was part of the line. He also said he is not qualified to perform any of the jobs on the line, and he does not assist when there are strip breaks. Grievant said no one had ever told him to use tongs when emptying scrap boxes; he was told only that he had to wear gloves and wristlets. He estimated that he has dumped scrap 1500 times and he said there have been other occasions when he had to pull scrap out of the box. This was the first time he was hurt and he said the accident was not foreseeable.
14/ Grievant said there are usually a few pieces that do not come out of the box. On the night in question, it was dark, and he reached into the box thinking there were only a few small pieces in it. He said it felt like his hand had been hit with a guillotine. Grievant denied ever saying that he stood on scrap to reach into the box. Rather, he said he told Coe he went into shock and that he could have been standing on the scrap or off to the side.
15/ Grievant said he called Coe on May 4 and that the two of them spoke cordially for about 20 minutes. He said he answered all of Coe's questions, and offered to meet him outside the plant the next day. Grievant said he did not want to go into the plant because he was taking Vicodin. Grievant acknowledged that he retrieved his car on May 5. He said his wife had been diagnosed with cancer on May 3 and that she decided she wanted the car on May 5. Grievant said he went because he did not have any drugs in his system that day. He did not call Coe, he said, because he thought the May 10 meeting was a "done deal."
16/ On rebuttal, Laura Kocel, Labor Relations Manager for the West Side, said at the investigatory meeting on May 11, Grievant volunteered that he was standing on the scrap. The Union called a witness who said he was also at the May 11 meeting and that Grievant never said he was standing on the scrap.
POSITIONS OF THE PARTIES
17/ The Company says Grievant's job is a utility tech, and that tractor operator is one of those functions. He became a laborer when he got off the tractor and he was obligated to adhere to the requirements that he not stand on the scrap or handle the scrap with his hands. This is clear, the Company says, because of the "L" in the Scrap Handling SJP. The Company also points out that there is no conflict between the two SJPs because the Scrap Handling SJP applies to working with scrap that is wedged, which was the case here. Also, Grievant had been contacted about the Scrap Handling SJP.
18/ The Company argues that Grievant admitted standing on the scrap to reach into the box. The Company offered three witnesses who said he did, although one of them acknowledged that Grievant made the statement and then backed away from it. The Company cites USS-42,647 as indicating that it is entitled to insist on close adherence to safety measures.
19/ Finally, the Company argues that Grievant hindered the investigation by failing to tell Coe that he was able to get to the plant and meet with him prior to May 10. The Company has legitimate reasons to conduct an investigation quickly, which Grievant frustrated in this case. Moreover, Grievant did not explain why he was unable to drive because of Vicodin on May 4, but could retrieve his car without using the drug on May 5.
20/ The Union argues that Grievant was a tractor operator on May 2 and that as such he was subject to the Tractor Operator SJP. He was not a laborer and he was not paid as a laborer. The Union points to the fact that the Company does not keep tongs within 300 yards of the scrap yard, which it says is evidence that employees are not expected to use them when they dump the scrap. The Union also notes that there are no "L" SJPs in the JQR, which lists the SJPs required for a tractor operator.
21/ The Union says there was conflicting testimony about whether Grievant stood on the scrap, which keeps the Company from proving that he did. In addition, the Tractor Operator SJP does not say Grievant cannot stand on scrap. The Union also says Grievant did nothing to impede the investigation. He and Coe had agreed to meet on May 10 and Grievant even offered to meet with Coe on May 5. Finally, the Union says there was no reason to deny Grievant Justice and Dignity.
FINDINGS
22/ The Board rejects the Company's claim that Grievant impeded the investigation. Grievant had surgery on May 2, so it seems likely that he was taking Vicodin when he spoke to Coe apparently on May 4. Coe wanted an early meeting and Grievant offered to meet near the plant on May 5. It is understandable that Coe turned down this request, but it does tend to show that Grievant was not trying to avoid the investigation. The same thing is true of Grievant's testimony that he spoke with Coe on the telephone on May 4 and answered his questions about the accident. It may be that Grievant would have had a duty to inform the Company of his presence in Gary on May 5 had the parties left the meeting time open. But they set it for May 10 and it was reasonable for Grievant to believe, as he testified, that the May 10 meeting was a "done deal."
23/ There is no question that the Tractor Operator SJP applied to Grievant. More difficult is the applicability of the Scrap Handling SJP, and the meaning of "L" that appears in the identification number. The wording of the SJP strongly suggests that it applies to line operations. The location for the SJP is identified as "Coating – Electrolytic Lines – Tin Products ..." and Paragraph 2 applies to "Handling scrap in and around units." The most logical interpretation of "units" is the line unit itself, because Paragraph E says not to remove scrap "while unit is running" and that an employee is to "shutdown and lock out unit before removing scrap." Moreover, unlike the Tractor Operator SJP, the Scrap Handling SJP is not listed on the Tractor Operator JQR. The Company points out that Grievant was contacted on the Scrap Handling SJP twice in 2004. But the Safety Chairman testified credibly that these contacts came in departmental meetings, meaning that they were not directed specifically toward Grievant or other tractor operators.
24/ The Board is also influenced somewhat by the subsequent change to the Tractor Operator SJP requiring tractor operators to remove scrap with tongs or other approved tools. The Board understands the Company's claim that this evidence is irrelevant and inadmissible as a subsequent improvement. But the policy at issue in such cases is to avoid having the subsequent improvement be taken as an indication of negligence or fault, thus discouraging improvements. Company fault is not an issue here. The evidence is merely some indication – certainly not conclusive – that the Company questioned the applicability of the Scrap Handling SJP to tractor operators.
25/ The Board rejects the Company's argument that even if Grievant is covered by the Tractor Operator SJP, he becomes a laborer as soon as he gets off the tractor. There are, the parties agreed, no laborers in the department, although the Company points out that employees perform some labor functions, which it says was true of Grievant when he emptied the box. But emptying the box by hand is expressly covered by the Tractor Operator SJP as a function of the tractor operator. The Board finds that the Tractor Operator SJP, not the Scrap Handling SJP, governed Grievant's work.
26/ Grievant's claim that he did not stand on the scrap was not credible. But even if standing on the scrap was a poor or unsafe work practice, it is not expressly forbidden by the Tractor Operator SJP. Grievant was disciplined for violating an SJP, not for poor work practices in general. Grievant did not violate the Tractor Operator SJP and the Scrap Handling SJP does not apply. The grievances will be sustained and the Company ordered to reinstate Grievant and make him whole. Given this conclusion, the Board need not address the Union's Justice and Dignity argument.
AWARD
27/ The grievances are sustained. The Company is ordered to reinstate Grievant and make him whole.
Findings and Award recommended
pursuant to Article 5, Section
I-6 of the Agreement, by
Approved by the Board of Arbitration
BOARD OF ARBITRATION
Case Nos. USS-45,194
-45,195
May 30, 2007
ARBITRATION AWARD
UNITED STATES STEEL CORPORATION
Gary Works
and Grievance Nos. WGa-06-0325 -06-0414
UNITED STEELWORKERS
Local Union No. 1066
Subject: Discharge – Failure to Complete Work Assignment – Insubordination
Statement of the Grievances: USS-45,194 (Gr. WGa-06-0325):
"The Company unjustly discharged [Grievant] effective on 5-03-06 for the following alleged offense: Insubordination – Failure to complete work assignment.
"Remedy Requested: Remove this unjust discharge off of [Grievant's] record. Grant J&D for this alleged offense until full and final settlement of this grievance."
Statement of the Grievances: USS-45,195 (Gr. WGa-06-0414):
(Cont'd) "The Company has unjustly discharged [Grievant] effective 6-27-06 for the following alleged offense: Failure to complete work assignment on your scheduled turn.
"Remedy Requested: Grant J&D for grievant until full and final settlement of this grievance. Remove this discharge and bring [Grievant] back to work. Pay all monies lost and make him whole."
Contract Provision Involved: Article 5, Sections I-9 and J of the May 20, 2003 Basic Labor Agreement
Grievances Data: Date
Grievances Filed:
USS-45,194 (WGa-06-0325): May 5, 2006
USS-45,195 (WGa-06-0414): June 27, 2006
Step 2 Meeting: August 16, 2006
Appealed to Arbitration: October 12, 2006
Cases Heard: December 21, 2006
Statement of the Award: The grievance in USS-45,194 is sustained. The grievance in USS-45,195 is denied.
BACKGROUND USS-45,194
-45,195
1/ These cases from Gary Works concern Grievant's discharge for failing to complete his work assignment on his scheduled turn. Both cases allege the same infraction, although on separate days. Grievant had about 29 years of service at the time of his discharge on June 27, 2006.
2/ On May 1, 2006, Grievant was assigned to work as a burner (Utility Technician II) in the slab slitting area of the Hot Rolling Department. Burners cut slabs into various widths, using a torch-like device called a bug, that runs along the top of the slab and cuts through it at the rate of about five inches per minute. Slab sizes vary, although the longest is 479 inches. It takes approximately 96 minutes to cut a slit the length of the slab.
3/ On April 27 and 28, management met with employees and informed them that production standards would be increased from 8 slabs per turn to 12 slabs per turn. The employees were told they could be subject to discipline if they did not finish twelve slabs in the turn. Grievant attended one of these meetings and there is no contention that he was unaware of the new standard.
4/ Sherry Balakir, Coordinator for Slab Handling and Processing, described the process, which involves cutting four slabs at a time. She said the shipper measures the slab and gives the burner the dimensions needed. The burner measures the slab, chalk-marks the area to be cut, and then sets up tracks and the bug. The burner lights the bug and monitors the process while the bug cuts the slab. While the bug cuts the first set of four slabs, the burner is supposed to measure and mark the next set of slabs. This process is then repeated while the second set is in process.
5/ On April 30, Grievant's first day under the new standard, he finished only eight slabs; all of the other burners on the turn did twelve slabs. Grievant was given a five day suspension subject to discharge for, "Insubordination – failure to complete work assignment." The next two days, May 1 and 2, Grievant cut twelve slabs. At his 9B hearing on May 2, 2006, Balakir said Grievant claimed he had been working safely and following procedures. He said he had not taken any breaks and that the bug was always burning. In response to a question, Grievant said he had no physical disabilities. Grievant also asked that someone from management secretly watch him work to confirm he was not taking extra breaks or working slowly. The Company converted the suspension to discharge on May 3, but Grievant was allowed to continue working under Justice and Dignity.
6/ Balakir observed Grievant on May 3. Grievant's shift was to begin at 6:00 a.m. He arrived at the gate at 5:58, and then had to travel about a mile or two to the work site. Grievant's slabs were ready to be worked at 6:45 a.m. At 7:00 a.m. Grievant asked for a copy of the SJP. Grievant had submitted a copy of this SJP as a defense in his 9B hearing the previous day, but he was given another one on May 3. Grievant began cutting his first set of slabs at 7:45 a.m.; the set was completed at 9:28. Grievant did not measure and mark the second set of slabs while the first set was burning.
7/ At 9:40 a.m., Grievant turned off the bugs and went to the shanty. He returned and completed some work on the first set at about 9:50. At 10:00 a.m., Grievant went back to the shanty and turned off the light; at 10:06 he came out, retrieved his clipboard, and then went back to the shanty and turned on the light. He left the shanty again at 10:19 and finished setting the tracks and placing the bugs on the second set of slabs. At 10:30, he lit the bugs and started the process. He then went to the shanty. He emerged at 10:40 and went to a different work area. He continued to spend the next hour-and-a-half walking around, checking the progress of the burn, and visiting other work areas. He did not measure and mark the third set of slabs. The second set was finished at 12:10.
8/ Grievant began work on the next set right away, but Balakir said he did not work efficiently and continued to take breaks. Grievant elected to burn a slab with a double bug, which cuts the burn time in half. Balakir said employees should not do this when they have four slabs to cut. Later, he cut the other three slabs. In all, Grievant finished ten slabs in the eight hour turn and had to stay over to complete the other two. Balakir said she thought Grievant was deliberately wasting time; she said Grievant would light one bug at a time and then walk away. He also moved only one track at a time and he spent time walking around the area or taking breaks. As a result of his actions on May 3, the Company again suspended Grievant for five days subject to discharge. The 9B hearing was postponed until June 27 because Grievant was ill. The Company converted the suspension to discharge on June 27. Following that discharge, he was not given J&D, which is not an issue in this case.
9/ On cross examination, Balakir said Grievant did not mention any physical ability problems at the 9B hearing, and Grievant said he had worked to the best of his ability. Balakir agreed that burners have to clean the slabs after they are cut, but she said this takes only five minutes and can be done while the other slabs are burning. She also said she did not follow Grievant into the shanty and she acknowledged it was not improper for employees to use the shanty. Balakir also said she didn't ask Grievant why he lit the last three bugs one at a time, or why he was working slowly. She also said there were other employees who did not finish twelve slabs and they were disciplined, but not discharged. Unlike Grievant, those employees did not have previous discipline for the same offense. Finally, Balakir said she knew Grievant had asked to learn another job and he had been given the opportunity to train as a scarfer.
10/ Jeff Dudak, Area Manager for Slab Processing, said he attended Grievant's 9B hearing and asked Grievant if he had any physical disabilities. Grievant said he did not. Grievant said he worked safely and followed the SJP. Dudak asked Grievant to point to a provision of the SJP that slowed him down and Grievant could not. In both 9B hearings, Grievant claimed that he had not taken any breaks and that he was burning the slabs the entire shift. He also said there were no equipment issues on either day. Dudak said the May 3 tape showed that Grievant did take breaks.
11/ Laura Kocel, Labor Relations Manager for Finishing Operations, said she was at both second step meetings, and that Grievant said nothing about a physical disability at either one. She also identified a 2B Health Screen from April 4, 2006, that showed no problems and contained no physical limitations except working at a job that required "above average visual acuity." Kocel said Grievant filed a grievance contending that he should be able to train as a scarfer. The Company gave him the opportunity, but Grievant changed his mind and decided he did not want to be a scarfer. Donald Payne, Department Manager of Labor Relations for the Gary Complex, testified that he was the Company representative at the third step meeting and that Grievant said nothing about a disability, an assertion Payne said he had not heard prior to the arbitration hearing.
12/ The Chairman of the Grievance Committee testified that at the second step hearing, he brought up getting Grievant off the burner job, although he did not mention Grievant's physical ability. However, the Chairman said he had talked about physical ability "many times" prior to the discharge, including Grievant's concern that as he got older, he would not be able to keep up. In addition, Grievant asked for training on the scarfer at the 9B hearing. The Chairman said there was still an active grievance over Grievant's attempt to work as a scarfer. The Chairman contended that the Company had moved Grievant for scarfer training for a week, but, contrary to Company testimony, he said Grievant had been returned to the burner job involuntarily.
13/ Grievant said he worked to the best of his ability on both days. He said he had no slabs when he arrived at his work area at the start of his 10:00 p.m. to 6:00 a.m. shift on April 30, and the craneman was not finished with the set up until 10:45. Grievant said he was finished with the first four slabs about 2:05. The shipper had not given him the sizes for the second set of slabs, so he couldn't get started until about 2:30. He finished those at 5:50, and his shift was scheduled to end at 6:00 a.m. Grievant said he never refused to cut twelve slabs, or claimed that he was unable to do so. He said he had medical problems, and he identified a packet of medical excuses running from May 5, 2006 through June 26, 2006.
14/ Grievant said he didn't feel well prior to his April 30 shift. He went to the doctor on May 5 and said his stomach bothered him and that he was "stressed out." The doctor's report attached to his initial application for sickness and accident benefits, dated May 26, 2006, diagnosed Grievant with a "major depressive disorder," and said he had experienced "several episodes." The onset was listed as May 5, 2005. The doctor said Grievant could return to work on June 5. A Company medical examination on June 2, 2006, listed Grievant as "Medical Class III," a category that was not explained at the hearing, although Grievant said it meant the Company would not allow him to work.
15/ Grievant had a colonoscopy on June 1 and he said the doctor told him there were "holes in his stomach." He was put on sick leave, he said, until the end of July. However, the June 22 sickness and accident claim form says nothing about a stomach disorder. Rather, it says Grievant had "anxiety disorder," although at the time the doctor signed the form, he noted, "There's currently no psychiatric disorder." He also said Grievant had been unable to work from May 4, 2006 through June 22, 2006. The date Grievant would be able to return to work, the doctor said, was "undetermined."
16/ Grievant said as his condition began to worsen, he asked the Company to move him to another job. He was not able to do so, which prompted the grievance concerning the scarfer job. Grievant said he is 47 years old and that he could not work as fast as he had when he was younger.
17/ Grievant said he arrived at the department at 5:56 a.m. on May 3. He received the sizes at 6:45 and then began the set up, which included sweeping the slabs. He also checked for debris and checked the bugs, hoses, and tracks. He said he started burning the first set at 7:45 and was finished at about 10:05. He started the second set no later than 10:40 and it was finished at 1:15 to 1:30. Grievant said he did not take a lot of breaks, although he was having stomach problems, so he went back and forth to the restroom. He also said he took a 20 minute lunch break. Grievant said he started the third set and was finished at 2:15, about 15 minutes after the shift ended. This is consistent with Balakir's observation notes, although she said Grievant had some other duties to perform and that he did not clock out until 3:34.
18/ On cross examination, Grievant acknowledged that he did not go to the doctor for treatment for stress until May 5, which was after his initial discharge and his second five day suspension subject to discharge. He also agreed that the medical notes he submitted concern depression or anxiety and do not mention any physical ailments.
19/ On rebuttal, Payne testified the Company had a video of part of Grievant's May 3 shift, taken because coworkers complained that Grievant was working slowly and would slow down production for the day. The Company introduced a summary of the video which covers 10:04 a.m. until 12:35 p.m. Payne said he compiled the summary by the times Grievant left the area or took a break, and the times he returned and started to work. In the time period covered by the summary, Payne said Grievant was actively working for 49 minutes and idle 104 minutes. There was one break lasting 29 minutes and another that lasted 42 minutes. Payne said Grievant sometimes talked to coworkers when he wasn't working and that he did not seem to be sick or in pain; rather, he "seemed jovial".
POSITIONS OF THE PARTIES
20/ The Company argues that it had the right to increase the standard from eight to twelve slabs and that Grievant had no right to refuse to comply. There was no reason, the Company says, why Grievant could not do twelve slabs in an eight hour turn, except that he did not want to. This was evident, the Company argues, because Grievant would not work on one set of slabs while the bug was burning the other one. Moreover, the recording showed that Grievant was idle much of the time when he could have been preparing the next set.
21/ The Company points out that these instances were not Grievant's first offenses for a failure to perform assigned work. He was given a written warning for the same offense on October 15, 2005; a one day suspension for failing to perform his work on October 15, 2005; and he was suspended for three days on October 25, 2005, for failing to perform assigned work on October 23. The offenses at issue here occurred less than seven months after the three day suspension.
22/ The Company says it had not heard any claim of physical disability until the arbitration hearing, and that even the evidence submitted at the hearing relates only to psychiatric problems; it says nothing about any physical limitations. The Company also notes that the Board has said previously that after-the-fact excuses are inherently suspect.
23/ The Union says even though the medical excuses are dated following Grievant's first discharge, the conditions they describe did not develop overnight. Grievant had complained that he was not able to keep up, which is why he asked to train as a scarfer and why the grievance over that refusal is still active. The Union also said there was evidence of colon problems, as well as psychiatric problems.
24/ April 30, the Union points out, was the first time Grievant tried to do twelve slabs in an eight hour turn. He met that standard the next two days and on May 3 he missed it by only a few minutes. Not every job takes the same amount of time, which could have accounted for the short delay. The Union argues that Grievant's failure to complete the job was due to inability, not to an unwillingness to do the work.
FINDINGS
25/ There is no question that Grievant did not complete his assignment on either April 30 or May 3. The May 3 observation indicates that Grievant did not work particularly hard – or at least very efficiently – during that shift. It might be assumed that he had the same work practices on April 30, although it is also worth noting that April 30 was Grievant's first attempt at the new standard. The Company's principal argument about April 30 was that the other employees were able to finish twelve slabs in an eight hour shift. There was also testimony that other employees have been disciplined for not completing twelve slabs, although apparently not on April 30.
26/ The Board cannot give any weight to Grievant's claim that his work was affected by a stomach ailment. Contrary to the Union's claim, there is no evidence of colon problems in Grievant's medical records. There was evidence he had a colonoscopy, but those are not always the result of physical complaints. In addition, Grievant's claim that the colonoscopy showed holes in his stomach was not credible. A colonoscopy is, as its name suggests, an examination of the colon (the large intestine), which does not include the stomach. In addition, Grievant's testimony in arbitration was the first mention of any stomach problems.
27/ There is, however, evidence of anxiety disorder and depression, and the documentation indicates that Grievant had psychotherapy and medication management. It may be possible to conclude, as the Union argues, that these conditions did not develop between May 3, when Grievant's initial five day suspension was converted to discharge and when he received his second five day suspension, and May 5, when he first saw the doctor. But Grievant did not explain what effect, if any, depression or anxiety disorder had on his ability to finish the required number of slabs. His testimony mentioned only his alleged stomach problems, and did not address any psychiatric condition.
28/ The Board has held that failure to finish a work assignment is insubordination and proper cause for discharge, see e.g., USS-18,052. In that case, an employee refused a face-to-face instruction, as was also true in USS-32,468; 32,554. There was no such confrontation in USS-41,070; 41,259, where the employee ignored a relief policy and left the plant contrary to a work procedure. Like this case, that employee had been disciplined on three previous occasions for violation of the same rule.
29/ In each of the cases cited above, the employees' actions were in deliberate defiance of either a direct order or a work procedure. The Board cannot make that same determination concerning the April 30 incident at issue here. This was Grievant's first night under the new standard, and the fact that other employees completed the work is not evidence that Grievant was unwilling to do so, which would require an intent to disobey. Moreover, the fact that Grievant completed twelve slabs the next two workdays is some evidence that he was not refusing to cut twelve slabs, although as the Company points out, it is also proof that Grievant could cut twelve slabs in eight hours. Accordingly, the grievance protesting his first discharge, for failing to complete his work assignment on April 30, is sustained.
30/ The May 3 incident is more troublesome, principally because of Balakir's observation and the video. Grievant obviously wasted time, worked inefficiently and took too many breaks, which is surprising for an employee who knew he was subject to discharge, and who had invited secret observation. It is true, as the Union claims, that Grievant finished burning the last slabs only 15 minutes after the end of his shift, but he apparently had other duties to complete because he did not leave the plant until 3:34 p.m. Balakir's observation notes also indicate that the shipper complained about having to stay late to complete his work – apparently because of Grievant's delay – and that the team leader also had to stay.
31/ Unlike the employees in the cases the Company cites, Grievant was not confrontational, defiant or obstinate. However, at the very least, Grievant's work habits on May 3 reflect an indifference to the production requirement, an odd attitude for an employee who had already been suspended subject to discharge for not meeting standards, who had invited secret observation, and who had been disciplined three other times for failing to perform assigned work about six months previously. Grievant's long service is a mitigating factor, but it is outweighed by his previous discipline for the same offense. In these circumstances, the Board finds that the Company had proper cause to discharge Grievant for failing to complete his work assignment on May 3, 2006.
AWARD
32/ The grievance in USS-45,194 is sustained. The grievance in USS-45,195 is denied.
Findings and Award recommended
pursuant to Article 5, Section
I-6 of the Agreement, by
Approved by the Board of Arbitration
Prescription Drug and Benefit Program
BOARD OF ARBITRATION
Case No. USS-45,165
March 22, 2007
ARBITRATION AWARD
UNITED STATES STEEL CORPORATION
Prescription Drug
and Benefit Program
Dispute
UNITED STEELWORKERS
Subject: Prescription Drug Benefit Program
Statement of the Grievance: N.A.
Contract Provisions Involved: May 20, 2003 Insurance Agreement,
PIB-700.
Grievance Data: Date
Grievance Filed: N.A.
Appealed to Arbitration: N.A.
Case Heard: October 24, 2006
Statement of the Award: The matters in dispute are
resolved as set forth in the above Findings. The Company is directed to modify the current administration of the prescription drug benefit program in Section 4 of PIB-700 to conform to these Findings.
BACKGROUND USS-45,165
1/ The parties submitted the present dispute directly to the Board by agreement. The dispute involves the Prescription Drug Benefits program (the "Program") set forth in Section 4 of the Program of Insurance Benefits, effective May 20, 2003, ("PIB-700") between the Company and the Union.
2/ Most of the relevant facts are not in dispute. Effective January 1, 2006, the Company entered into an agreement with Express Scripts, Inc. ("ESI") pursuant to which ESI administers the Program as the Pharmacy Benefit Manager ("PBM"). Previously, Medco Health Solutions, Inc. ("Medco") served as the PBM.
3/ Relevant provisions of Section 4 of PIB-700 (ESI has now replaced Medco) include the following:
How Does the Program Work?
4.2 Whenever you or an eligible dependent requires a prescription drug, you have the following options for getting your prescription filled:
&bull Mail Order (through Medco By Mail)
You can order up to a 90 day supply of medications prescribed for treatment of chronic or long-term illness (such as arthritis, diabetes, high blood pressure) through the mail from Medco By Mail.
&bull Retail Pharmacy
You can purchase up to a 30-day supply of your prescription medications from any retail pharmacy of your choice. However, there are certain advantages if you obtain your medication from a participating retail pharmacy.
* * *
Covered Prescriptions
4.5 The Program covers prescriptions written by licensed physicians for medications which require a prescription pursuant to Federal or State law including insulin, disposable insulin syringes (when dispensed with insulin), blood glucose testing agents and strips. Each prescription for a "controlled substance" (including Schedule II drugs) must be written by a licensed physician on a separate prescription blank.
4.6 Prescriptions for smoking cessation drugs such as Zyban, Wellbutrin, and certain nasal sprays are covered when purchased at a local retail pharmacy. Coverage is limited to two courses of treatment per person per lifetime. These medications are not available through Medco By Mail.
What is a Formulary?
4.7 This Program follows a select drug list or formulary. The formulary is an extensive list of Food and Drug Administration ("FDA") approved generic and brand-name prescription drugs selected for their quality, safety and effectiveness. The formulary is the Medco Rx Selections Formulary. It includes products in every major therapeutic category and is maintained by Medco. The medications on the formulary have been selected by an independent group of doctors and pharmacists for safety and efficacy, and only FDA approved medications are included. Medco, on behalf of the Plan Administrator, may remind your doctor when a formulary medication is available for a medication that is not on your formulary. This may result in a change in your prescription. However, your doctor will always make the final decision on your medication.
* * *
What Prescriptions Are Not Covered?
4.9 Except for insulin, this Program does not cover any drugs or medicines that can be purchased over-the-counter without a prescription, nor does it cover:
&bull drugs not medically necessary to treat a condition of illness or injury (such as drugs prescribed for cosmetic purposes or nicotine skin patches and nicorette gum), except that the following prescription drugs are covered:
1. FDA approved prescriptions for
oral contraceptives, and
2. Smoking cessation drugs (such as
Zyban, Wellbutrin and certain nasal sprays) when purchased at a local retail pharmacy (but not through mail order). Coverage is limited to two courses of treatment per person per lifetime;
&bull experimental drugs;
&bull drugs prescribed for weight loss;
&bull growth hormones;
&bull drugs prescribed for treatment of infertility;
&bull allergy serums;
&bull refills of any prescription older than one year; and
&bull home infusion therapy drugs.
In addition, the following are not available through the mail-order pharmacy:
&bull drugs for acute, short-term illnesses
as determined by Medco even though prescribed for 30 days or more; and
&bull drugs which may not be legally
provided through mail service.
Generic Substitution
4.10 A brand-name drug and its generic equivalent must be the same chemically and also have the same therapeutic effect. Generic drugs are also subject to the same rigid FDA standards for quality, strength and purity and are as safe, efficient and effective as brand-name drugs. Although only 30% of all drugs are available generically, generic drugs are usually less costly. Therefore, ask your doctor to authorize generic substitution when an approved generic is available. The Program covers both brand-name and generic equivalent drugs. However, generic equivalents will be substituted where permissible by law.
4.11 If your physician prescribes a brand-name drug that can legally be filled with the generic equivalent and indicates that generic substitution is not permitted, your initial prescription will be filled and Medco will send you a form entitled "Explanation for Use of Brand-Name". If your physician determines that a generic equivalent will not be acceptable for your specific need and if you wish to continue using this Program to purchase this particular drug, your physician must complete and return to Medco the appropriate form providing the medical reasons a brand-name drug is required. Any subsequent refills and prescriptions authorized by your physician will be filled by Medco only if Medco determines, on the basis of the physician's explanation, that use of the brand-name drug is required in accordance with accepted standards of medical practice.
* * *
What Are the Quality Standards?
4.21 All prescriptions dispensed by Medco By Mail under the Mail Order option or at a participating retail pharmacy under the Retail Pharmacy option meet the highest pharmaceutical standards of quality, safety and effectiveness. Each prescription will be filled by qualified licensed pharmacists and checked to assure that the quantity, quality and potency are accurate. Also, under the drug utilization review program, prescriptions filled are examined for potential drug interactions based on your personal medication profile. A drug interaction occurs when certain drugs acting together result in an adverse effect on the body. The drug utilization review is especially important if you or your covered dependent(s) take many different medications or see more than one doctor. If there is a question about your prescription, your pharmacist may contact your doctor before dispensing the medication.
4/ The Program set forth in PIB-700 provides for co-payment by participants at varying amounts depending on the type of drug (generic, formulary, or non-formulary) and the dispensary method (retail or mail order). Prescriptions filled at non-participating retail pharmacies are subject to a higher co-pay and require the participant to pay the pharmacy and obtain reimbursement from the PBM. ESI's formulary, which is somewhat different from Medco's formulary, is not at issue here.
5/ In this case, the Union contends that four procedures or programs established by ESI constitute changes in the Program that violate Section 4 of PIB-700. The Union maintains that the Company could only implement these changes by bargaining with the Union. The four procedures or programs in issue are the following:
&bull Prior Authorization ("PA")
&bull Prior Authorization Options ("PA Options")
&bull Quantity Level Limits ("QLL")
&bull Special Pharmacy/CuraScript ("SP")
Prior Authorization
6/ The Company describes the PA procedure, which applies to both retail and mail order, as follows:
Prior Authorization ("PA") programs are designed to reduce potential abuse or misuse of medications that have a high potential for abuse/misuse. These programs ensure that medications have been prescribed per the FDA-approved indications and/or standards of good medical practice. As part of its PA program, ESI has established a "Prior Authorization required" list containing certain drugs that have more than one possible use.... For example, Byetta, a drug included on the formulary because it treats a serious form of diabetes, may also be used simply to promote weight loss. In this example, the Prior Authorization process is meant to ensure that Byetta is medically necessary to treat the patient's diabetes and is not for weight loss promotion. It requires the patient's doctor to provide information establishing medical necessity before coverage will be provided for that prescription medication....
Company-provided statistics indicate that in the first two quarters of 2006, the approval rate under the PA procedure (not including prior authorizations under the QLL and SP procedures) was 82%, and that 159 prescriptions were denied.
7/ The Union points out the PA procedure applies to at least 24 separate drugs or types of drugs, and limits participants in obtaining prescription medicine either by causing real delay or by denying coverage.
Prior Authorization Options
8/ The Company describes the PA Options procedure as follows:
Under its Prior Authorization Options (PA Options) Mail Order program, ESI has established logic to review a patient's history to determine whether a drug that is included on a targeted list of drugs is medically necessary for that patient. PA Options applies only to prescriptions filled through the mail service. The drugs that are targeted under the PA Options program are long-term use, health maintenance drugs (e.g., used to treat high blood pressure or to lower cholesterol) that represent a higher risk of inappropriate use and/or medical complications.... PA Options is a form of what is known in the PBM industry as "Step Therapy".
The PA Options program targets specific brand-name medications. Because several therapeutically equivalent medications often exist within a class of medications, the majority of patients can be treated with one of the formulary medications within the class as effectively as they are treated with a non-formulary medication. These formulary drugs are referred to as "first-line" medications. First-line drugs may be either generic or brand-name drugs. Under the PA Options program, a targeted drug will be covered under the Program for a patient if: (1) the patient has a history of an unsuccessful trial on a first-line formulary medication; or (2) if there is no such history, it is otherwise determined through the PA process that the targeted medication is medically necessary for the patient.
...It should be noted that of the 30,614 USW-represented active participants, less than 3% received a PA Options edit during [the first and second quarters of 2006]. (An "edit" is a check of the prescription; it does not mean a change to the prescription.)
...(In the case of non-formulary brand-name HMG drugs (i.e. Lipitor), a trial use of a second-line formulary HMG drug (i.e. Crestor or Vytorin) is also encouraged before coverage for the non-formulary drug will be approved.)
9/ PA Options does not apply to retail, but participants have a higher co-pay for retail than mail order. In order to avoid having to first try a first-line formulary (or first- and second-line formularies in the case of HMG cholesterol lowering drugs such as Lipitor) a doctor must convince ESI that the participant meets ESI's protocols, which are based on "industry standards".
10/ The Company points out that typically it takes only a few days for ESI to contact a doctor -- to either approve a change in the prescription to a formulary or to establish the prescribed non-formulary drug is medically necessary -- although delays may be longer in some instances. If need be, the participant in the interim can obtain the drug at retail. The Company points out that use of generic formulary drugs -- for example first-line generic formularies for lowering cholesterol -- can be beneficial because of greater experience with side effects. The Company acknowledges that ESI considers cost in establishing its formulary, but only when other factors are basically equal.
11/ The Union points out that 175 different medications are subject to PA Options, including some of the most frequently prescribed drugs for high blood pressure, lowering cholesterol, inflammation, pain, insomnia, allergies, erectile dysfunction and acid reflux.
12/ The majority of PA Options edits in the first two quarters of 2006 involved various high blood pressure and HMG medications, in particular Lipitor, which had been included in Merck's formulary. The PA Options approval rate for non-formulary HMG medications was only 22%.
Quantity Level Limits
13/ QLL sets limits, applicable at both retail and mail order, on the quantity of doses and the time period for which coverage will be provided for 12 categories of medications (nearly 60 drugs), including antidepressants, insomnia medication and anti-nausea agents. The purpose of QLL, according to the Company, is: "to ensure the prescribed medication is being dispensed in a manner consistent with FDA-approved manufacturer prescribing guidelines and/or standards of good medical practice." Prior approval by ESI, based on a showing by a doctor of medical necessity, is required to obtain coverage above the established limits. These limits are not imposed by law, and participants can obtain greater quantities at cost outside the program.
Specialty Pharmacy/CuraScript
14/ The Company describes the Specialty Pharmacy program as follows:
Specialty drugs include injectable and non-injectable drugs and are defined as drugs that have one or more of several key characteristics, including: (1) Requirement for frequent dosing adjustments and intensive clinical monitoring to decrease the potential for drug toxicity and increase the probability for beneficial treatment outcomes; (2) Need for intensive patient training and compliance assistance to facilitate therapeutic goals; (3) Limited or exclusive product availability and distribution; (4) Specialized product handling and/or administration requirements; and/or (5) Cost in excess of $500 for a 30-day supply. These drug therapies treat complex and potentially life threatening illness (e.g., cancer or multiple sclerosis) that require personalized care and ongoing patient support. ESI uses the services provided by one of its subsidiaries (CuraScript Specialty Pharmacy) to provide some of the specialty drugs....
CuraScript has been in the specialty pharmacy business since 1989 and has been part of ESI since 2004. When using CuraScript, the participant first communicates with a Patient Care Coordinator, who is a professional caregiver who serves as the point of contact for the participant and understands the disease and specific needs of the patient. Patient Care Coordinators are personal advocates who are dedicated to making sure the patient receives the best possible treatment. They work with a team of nurses to ensure optimum care is received. Additionally, they proactively call to coordinate and customize the convenient delivery of each refill every 30 days. The involvement of the Patient Care Coordinator and nurse specialists is in addition to the relationship between the prescribing physician and the patient....
Such intensive patient care typically is not available at local pharmacies or through a traditional mail order pharmacy. CuraScript has found that dispensing a 30-day supply ensures that each patient is in contact with a professional caregiver on a regular basis. This high-touch, patient-focused care model has achieved some of the best clinical outcomes in the industry.
Although CuraScript is in fact considered a retail pharmacy, participants who receive a specialty drug from CuraScripts are charged a co-pay equal to less than one-third of the 90-day supply Mail Order co-pay ($13) for a 30-day supply of maintenance specialty prescription, instead of the higher cost ($20) 30-day supply Retail co-pay.
15/ Before ESI became the Company's PBM, the Union points out, the 177 drugs included in SP were provided at retail or mail order. The Company notes that to the extent some of these drugs are not now available at retail or mail order, Medco, the prior PBM, would have had to institute some program to get these medications to participants.
* * *
16/ The Company asserts that prior to January 1, 2006, Medco utilized a number of prior authorization and quantity limit programs, of the sort at issue in this case, in administering the Program. The Union maintains that it had no knowledge of any mandatory programs utilized by Medco. Medco's formulary was preferred, not closed.
17/ The Company presented several exhibits to show that the ESI programs in issue are similar to programs that Medco had utilized prior to January 1, 2006. According to Company Exhibit 1, which was prepared by the Company's Benefits Administration staff, Medco's Traditional Prior Authorization (TPA) program corresponds to ESI's PA program, and Medco's Smart Prior Authorization (SPA) program corresponds to ESI's PA Options program. Company Exhibit 1 states that Medco's TPA and SPA programs applied pre-defined benefit criteria to determine whether a participant qualified for coverage for use of a particular drug. Company Exhibit 1 analogizes ESI's QLL program to Medco's QLL and Dose Optimization programs. Company Exhibit 1 also lists those drugs subject to ESI's PA, PA Options and QLL programs and indicates that in most instances these same drugs were targeted by Medco's TPA, SPA, QLL or Dose Optimization programs.
18/ It is not at all clear, however, how these Medco programs actually worked. It appears that with the possible exception of TPA, the other Medco programs may not have required a patient's doctor to justify use of a particular drug or dosage or require utilization of Step Therapy, but rather sought to provide information and to encourage doctors to make changes in their prescriptions. Dose Optimization evidently worked in that fashion. Company Exhibit 1 refers to Company Exhibit 8 for further details on Medco's TPA, SPA and QLL programs. Company Exhibit 8 is a description of Medco's Program distributed to eligible Union-represented employees. This description essentially tracks Section 4 of PIB-700. It includes paraphrases of Sections 4.7 (formulary) and Sections 4.10 and 4.11 (generic). It refers to covered and excluded medications, tracking the language of Section 4 and setting forth as examples only those exclusions/limitations actually contained in Section 4.9 and Section 4.4(b). The portion of Medco's program description relating to "Coverage management and prior authorization," states:
Some medications are covered by your plan only for certain uses or in certain quantities. For example, a drug may not be covered when it is used for cosmetic purposes. Also, the quantity covered may be limited to certain amounts over certain time periods. In these cases, your doctor may need to provide more information.
This paragraph also appears essentially to restate what is in Section 4 of the PIB.
UNION POSITION
19/ The PIB-700 is part of the May 20, 2003 Insurance Agreement between the parties. Paragraph 7 of the Insurance Agreement provides:
...Prescription Drug Benefits shall be provided by such method and through such carriers, if any, as the Company in its sole discretion shall determine. Any contracts entered into by the Company with respect to the benefits of the Program shall be consistent with this Agreement and shall provide benefits and conditions conforming to those set forth in the booklet....
Benefit elements are negotiated by the parties at the bargaining table. Later, the Company prepares a draft PIB that incorporates those elements. The parties then go through the draft meticulously, culminating in an agreed PIB booklet, such as the current PIB-700. The Union stresses that these parties have engaged in highly detailed and specific negotiation of all aspects of prescription drug coverage.
20/ The Union contends that a reasonable reading of the drug coverage provisions in Section 4 of PIB-700 does not allow the changes protested by the Union in this case. As set forth in Section 4.5, the Program covers those drugs which require a prescription. This is confirmed in Section 4.9, which describes those prescriptions which are not covered. Section 4.9 includes an extensive list of specific types of drugs that are not covered by the Program.
21/ The Company relies on the statement in Section 4.9 that "drugs not medically necessary to treat a condition or illness or injury" are not covered. The Union stresses, however, that this provision is followed immediately by specific terms which serve to narrow what is meant -- "such as drugs prescribed for cosmetic purposes or nicotine skin patches and nicorette gum." Even the continuing comprehensive list of other drugs not covered (experimental drugs, growth hormones, weight loss drugs and so on), gives no hint that the parties intended to subject any non-formulary medication used to treat any condition to review prior to dispensation. If the "medically necessary" portion of the provision is to have any meaning, it must be that the Program does not cover prescriptions of the type listed which are not useful in the treatment of disease. The Union insists that the Company's argument that the "medically necessary" provision enables the Company both to conduct an invasive review, and to apply that review to drugs outside those enumerated, cannot be defended. The Union also points out that the Company in the past consistently interpreted this language as allowing each drug it now restricts.
22/ The Union maintains that the participant's sole responsibility under the Program is to provide a valid prescription for medication useful in the treatment of disease and not subject to one of the enumerated exclusions. Upon presentation, the obligation of the Program, whether through mail order or retail, is to cover the prescription subject to the applicable co-pay. Under the Company's interpretation, the burden has shifted to the participant, and the participant's doctor, who must now affirmatively demonstrate that this particular drug not only is the best, but also the most cost effective medication to treat a particular condition. That is not what the Program says, and not what it permits. In support of its interpretation of the drug coverage provision, the Union cites a 2006 decision by Arbitrator Diane Dunham Massey under the Alcoa/USW Master Agreement, which involved issues similar to those in the present case.
23/ The Union points to provisions in Section 3 of PIB-700, covering medical benefits, which provide for a broad, mandatory prior authorization procedure for non-emergency and emergency hospital admissions. Under Section 3, the medical benefits administrator "reserves the right to determine, in its sole judgment, on behalf of the Program, whether a service is Medically Necessary and Appropriate." The Union argues that the absence of any similar procedure in the drug benefit Program clearly demonstrates that the parties did not intend a virtually identical procedure for receipt of prescription drugs. There is no language in Section 4 that remotely suggests that the prescription drug administrator has been delegated the authority to conduct invasive review of a participant's medical information and physician determinations or that the participant is obliged to wait for treatment pending the outcome of such a review.
24/ The Union also asserts that other provisions in Section 4 suggest the parties did not intend to allow procedures which require prior approval. For example, the description in Section 4.7 of "formulary" states:
[The PBM]...may remind your doctor when a formulary medication is available for a medication that is not on your formulary. This may result in a change in your prescription. However, your doctor will always make the final decision on your medication.
Furthermore, the parties have agreed to a very limited procedure for substituting generic medications for brand-name drugs in Sections 4.10 and 4.11. Having negotiated such a specific prior authorization type of procedure with respect to generic substitution of chemically identical drugs, the parties would not, in the absence of specific negotiation, allow the Company to implement a much broader program requiring substitution of chemically different brand-name or generic drugs. Nor would they permit the outright denial of prescription coverage as is done in ESI's prior authorization and QLL programs.
25/ As to CuraScripts, the Union argues, Section 4.6 states that certain specified medications "are not available through Medco By Mail." Similarly, Section 4.9 provides that certain categories of drugs "are not available through the mail-order pharmacy." The Union maintains that if the parties had intended to exclude specialty pharmaceuticals like those covered by the CuraScript program, they would have negotiated a specific exclusion, like they did for these other drugs.
26/ The Union maintains that the economic impacts of the changes implemented by the Company are not some mere accident of a necessary procedural component. Instead, they form the underlying purpose of the design of each of these programs. The programs were designed to cut costs and have been successful in doing so. The Union stresses that the impact of this reduction in benefits can be significant. Some participants must make do with medicines of lesser effectiveness and will suffer from needless pain or side effects. Some may be at risk for more serious complications. In addition, every patient who is subjected to these new programs will be forced to experience delay not contemplated by the parties. A system which adds such delay, a system which requires the cooperation of third parties as a mandatory condition, is inherently a substantive benefit which must be negotiated by the parties. The Union is not saying that all of the strategies adopted by the Company are invalid, but it insists that they are strategies that must be bargained with the Union.
27/ The Union agrees that it has not challenged the addition of a limited prior authorization requirement for a small number of drugs as implemented by Medco, the prior PBM. However, the Union denies it was notified of this change by the Company and denies that it was ever aware of the imposition of this requirement for these drugs until well after January 1, 2006. The Union points out that there is only nebulous evidence as to what Medco did before ESI became the PBM and no evidence that it was similar to the programs established by ESI that the Union challenges in this case. Moreover, even if it were assumed, quite wrongly, that the Union was on notice of the limited application of a limited Medco prior authorization program, that would be insufficient to bind the Union to the expansion of such a program, both as to the basic concept and as to specific affected drugs. The Union may well have had compelling reasons for not objecting to prior changes, including the limited impact on a smaller number of affected individuals. The scope of the Company's new program is greater than anything previously implemented and the Company has instituted new programs which are conceptually different from the limited program in place prior to January 1, 2006.
28/ The Union recognizes that a changing health care environment sometimes calls for different benefits or altered procedures, which, in certain circumstances and if done in the proper manner, can help to conserve limited resources in directing the use of health services. The appropriate place for the open discussion and problem solving necessary to the development of the best possible solutions, however, is the collective bargaining process, not unilateral action. The Union seeks an order directing the Company to cease and desist from forcing participants to obtain approval from the Company prior to obtaining prescription drug coverage and from denying coverage until participants or their physicians have provided medical information.
COMPANY POSITION
29/ The Company asserts that under Section 4.9 of PIB-700 only drugs that are "medically necessary to treat a condition of illness or injury" are covered under the Program. The term "medically necessary" imposes a stringent standard for coverage. A particular non-formulary brand-name drug is "medically necessary" and, therefore, eligible for coverage only if a formulary drug would not be safe and effective in treating the participant's condition. The mere fact that a brand-name drug has been prescribed by a physician does not by itself establish that the particular drug is medically necessary to treat the patient's condition of illness or injury. Section 4.7 does state that: "your doctor will always make the final decision on your medication." But Section 4.9 is controlling as to whether the prescription is covered by the Program.
30/ The determination of "medically necessary" is made after historical claims data and/or input from the prescriber is reviewed using management tools maintained by the PBM, which include quantity limits, prior authorization for certain drugs, and, in the case of certain drugs provided through mail order, PA Options. The Company insists that ESI is doing what the parties intended in agreeing to a formulary. Under Paragraph 7 of the Insurance Agreement the tools and methods used by the PBM need not be bargained with the Union. The Company also points out that participants can choose to obtain the non-formulary medication through a retail pharmacy if they do not wish to go through the PA Options or their PA request is denied at mail order.
31/ The Company strongly objects to any suggestion that it is trying to make participants use inferior drugs. The Company insists there is nothing in Section 4 which prohibits the PBM from utilizing drug industry best practices when applying the "medically necessary" provision, including subjecting prescriptions for certain non-formulary drugs, or certain categories of formulary drugs, to greater scrutiny than other drugs. Moreover, there is nothing in Section 4 which prohibits the PBM from applying different scrutiny for drugs received via mail order, rather than retail, in the administration of this provision.
32/ In addition to Section 4.9 and Section 4.7, which establishes the importance of the formulary in the administration of the Program, the Company considers Sections 4.10 and 4.11 to be the next most important provisions with respect to this case. These provisions reflect a strong bias in favor of generic drugs. They state unequivocally that prescriptions will be filled with generic equivalent drugs where permitted by law unless the PBM determines, on the basis of a physician's explanation, that use of a brand-name drug not only is consistent with, but "is required in accordance with accepted standards of medical practice." The Company insists that the PBM's administration of the Program has been consistent with these provisions.
33/ The Company argues that standards of good medical practice and FDA-approved manufacturer prescribing guidelines establish quantity level limits for many drugs, including those covered by QLL. ESI applies those limits in administering the Program, as did prior PBMs. QLLs are not applied in such a way that patients are deprived of their needed medications. The Company points out that throughout Section 4 of PBI-700 (4.2, 4.3, 4.4, 4.12, 4.15, 4.17), the term "up to" is used to define the quantity (in days) of a drug that may be ordered or dispensed. The Company states that the established QLLs reflect a quantity appropriate to treatment of a patient for the corresponding 30- or 90-day period.
34/ The Company sees the required communication with CuraScript patient care coordinators as a benefit enhancement at no additional charge to the patient. The 30-day supply benefit provision for specialty drugs ensures that each patient is in contact with a professional caregiver on a regular basis. If the specialty medication were not provided by CuraScript, the participant would need to obtain the drugs through retail, if available, and the drugs would be subject to a higher co-pay and a 90-day supply would not be provided because the drugs would be subject to the retail 30-day supply provision.
35/ The Company contends that it is clear Medco, the prior PBM, used many of the same prescription drug management programs that currently are being administered by ESI, such as requiring prior authorization before approving coverage for certain drugs, establishing quantity level limits for certain drugs, and reviewing drug history before approving coverage of certain drugs. In addition, Medco denied coverage for brand-name prescriptions based on the "medically necessary" standard. The Company asserts that some of these tools have been used since at least 1999 with the knowledge of participants and the Union. The more important point, the Company stresses, is that Medco's practices are not determinative of what is required or prohibited by the PIB-700. ESI's administration of the program has been consistent with the controlling language of Section 4 of PIB-700. The Company also contends that the Alcoa/USW decision cited by the Union is not precedent for the Board, and that it was based on language in the Alcoa PIB that is quite different from that in PIB-700.
FINDINGS
36/ The parties have carefully negotiated a very detailed prescription drug benefit Program in Section 4 of PIB-700. This Program is part of their collective bargaining agreement. As set forth in Paragraph 7 of the May 20, 2003 Insurance Agreement, which incorporates PIB-700, the Company has sole discretion to select the PBM. As the Company asserts, the tools and methods used by the PBM need not be bargained with the Union, but any arrangement between the Company and the PBM must "provide benefits and conditions conforming to those set forth in [PIB-700]." Neither the Company, nor the PBM can unilaterally change the "benefits and conditions" agreed to in PIB-700.
37/ Section 4.5 of PIB-700 addresses "Covered Prescriptions," and provides: "The Program covers prescriptions written by licensed physicians for medications which require a prescription...." Section 4.9 addresses "What Prescriptions Are Not Covered?" Section 4.6 also places limits and conditions on coverage for certain types of drugs.
38/ Sections 4.10 and 4.11 address "Generic Substitution." These provisions specifically authorize generic equivalents to be substituted where permissible by law, and, significantly, grant the PBM the sole authority to determine whether use of a brand-name drug "is required in accordance with accepted standards of medical practice." Sections 4.7 and 4.8 address "What is a Formulary?" Section 4.7 specifies:
[The PBM]...may remind your doctor when a formulary medication is available for a medication that is not on your formulary. This may result in a change in your prescription. However, your doctor will always make the final decision on your medication.
Other provisions in Section 4 impose higher co-pays for non-formulary drugs.
39/ The provisions in Sections 4.7, 4.8, 4.10 and 4.11, relating to formulary and generic drugs, do not explicitly or implicitly authorize or support application of any of the four ESI programs or procedures at issue in this case, namely, PA, PA Options, QLL and SP. Sections 4.10 and 4.11 do reflect a strong bias in favor of use of generic drugs, but permit substitution only where permissible by law. Such substitution is not at issue in this case. Sections 4.7 and 4.8 authorize the use of a formulary. The importance of the formulary is reflected in the co-pay differentials agreed to by the parties and by the provision in Section 4.7 allowing the PBM to encourage a patient's physician to switch a prescription from a non-formulary to a formulary drug. Other educational tools or incentives designed to increase the use of formulary drugs are not inconsistent with the Program. But Section 4.7 makes it clear that "your doctor will always make the final decision on your medication." And Section 4.8 plainly states: "The benefits under this Section include coverage for both formulary and non-formulary drugs."
40/ The Company's argument that while the patient's doctor "makes the final decision," that does not mean that the Program must provide coverage for the drug the doctor decides is appropriate is unpersuasive. It would make the statement in Section 4.7 essentially meaningless, because the Program has nothing to do with what a doctor prescribes except in the context of providing coverage for the cost of the drug.
41/ The Company places its primary emphasis on the language in Section 4.9 which states that the Program does not cover:
&bull drugs not medically necessary to treat a condition of illness or injury (such as drugs prescribed for cosmetic purposes or nicotine skin patches and nicorette gum), except that the following prescription drugs are covered:
1. FDA approved prescriptions for
oral contraceptives, and
2. Smoking cessation drugs (such as
Zyban, Wellbutrin and certain nasal sprays) when purchased at a local retail pharmacy (but not through mail order). Coverage is limited to two courses of treatment per person per lifetime;
Clearly, this provision does allow the PBM to institute a limited PA procedure. In order to police this provision, and to ensure that drugs which may be prescribed in some instances for weight loss or some other purpose for which coverage is excluded or not provided under the terms of the Program, the PBM is entitled to obtain necessary information from the patient's doctor before providing coverage. This applies to the PA example cited by the Company, the prescription drug Byetta, which can be used to treat a serious form of diabetes or simply to promote weight loss. This provision in Section 4.9 does not, however, give the Company or the PBM a broader right to require prior authorization in order to permit the PBM, rather than the patient's doctor, to determine whether a particular medication not only has been prescribed to treat a condition of illness or injury, but also comports with the PBM's determination of FDA-approved indications and/or standards of good medical practice.
42/ As the Union argues, the wording of this portion of Section 4.9 serves to define what the parties meant by excluding coverage for "drugs not medically necessary to treat a condition of illness or injury." The examples provided show that their focus was on the purpose for which the drug was being prescribed or used. If the parties had intended this subset of drugs or medicines which the parties have agreed are not covered by the Program to authorize a broader PA program and greater control by the PBM, it is reasonable to conclude they would have spelled this out in a manner similar to Section 4.11, which states that coverage will be provided for non-generic drugs (where substitution is legally permissible) "only if [the PBM] determines on the basis of the physician's explanation, that use of the brand-name drug is required in accordance with accepted standards of medical practice." Similarly, in Section 3 (Medical Benefits) of PIB-700, the parties explicitly granted the program administrator the authority to determine whether services or supplies provided by a health care provider are "Medically Necessary and Appropriate," and set forth the factors to be applied in making that determination, including "in accordance with standards of good medical practice."
43/ ESI's PA Options program is designed to promote use of formulary (including formulary generic) drugs instead of brand-name drugs by requiring the patient first try the formulary drug unless the doctor convinces ESI that the brand-name medication is "medically necessary." PA Options is not premised on the brand-name drug being medically inappropriate. It appears to be primarily cost-driven, since it applies only to mail order (the patient can get coverage for the brand-name drug without going through the procedure by paying the higher retail co-pay) and ultimately provides coverage for the brand-name drug, without any showing of "medical necessity", provided the doctor first tries the preferred formulary, which in most instances is less costly. The Program includes specific provisions, including Section 4.7 and financial incentives, designed to encourage use of formulary drugs, which Medco, the prior PBM, applied, but ESI's PA Options does not conform to the benefits and conditions set forth in Section 4.
44/ The Program specifies certain quantity limits for coverage of particular types of drugs. It also does not preclude the PBM from suggesting that doctors revise the quantity of drugs -- doses or days -- to comport with what the PBM has determined are standards of good medical practice and FDA-approved manufacturer prescribing guidelines. That is what Medco apparently did as part of its dose optimization program. But Section 4.9 does not authorize the PBM to disallow quantities prescribed by doctors, provided they are legal and not subject to a specific limit in the Program. The Company points out that quite a number of provisions in Section 4 use the term "up to" to define the quantity (in days) of a drug that may be ordered or dispensed under the Program. But those limits apply to how many days' supply of a drug may be obtained at retail and how many at mail order, or apply to only specified drugs. They do not otherwise limit prescribed quantities of drugs that are covered by the Program. If the parties had intended to permit additional limits to be mandated by the PBM presumably they would have said so.
45/ Prior to January 1, 2006, the drugs now included in ESI's CuraScript SP program, or many of them, apparently were provided at retail or mail order. To the extent that no longer is possible -- as the Company has indicated is true for some of the drugs -- ESI obviously has to establish some other method of supplying these drugs to the affected patients. The Board does not understand the Union to object to that. What are in issue, besides PA required for some specialty medications, are the 30-day supply limit for drugs that previously were available at mail order, provided that is still feasible, and the "involvement" of CuraScript Patient Care Coordinators and, in some instances, nurse specialists in addition to the doctor-patient relationship.
46/ To the extent the CuraScript SP prevents participants from obtaining a 90-day supply at mail order, even though the co-pay is equivalent, it limits a benefit provided by the Program. As the Union points out, Sections 4.6 and 4.9 specify that certain medications are not available at mail order. The Company and the PBM are not enti
