Phil Cohen ‘War Stories’: ‘Jessie’ Fight Corruption in Workers’ Comp System - Part 3 - Leverage!
WAR STORIES By Phil Cohen
Editor’s Note: In case you missed it, here’s Part I and Part II of this special “War Stories” series.
On February 21, I attended a labor management meeting with plant manager Justin Scarbrough and the Local 294-T committee to discuss Jessie’s situation. Sometimes, it’s easier to resolve certain issues during an informal meeting before the polarizing impact of a grievance hearing.
Seated at a long, wooden table in a conference room, I presented the union’s legal position: The company either had to reinstate Jessie’s benefits or allow her to bump one of the less-senior workers who’d filled a creel hand job she’d bid on.
Justin surprised me by responding he’d met with the committee prior to the downsizing, and they’d agreed to suspend the contract language regarding recall of employees on layoff. “We agreed any open positions would be filled by people still in the plant.”
I gazed around the table, saw committee members shaking their head, and called for an immediate caucus.
“This is all a bunch of bullshit,” said the local vice president. “We never agreed to any such thing, and if we were even thinking about it, we’d have called you first.”
The others readily agreed. I summoned management back into the room and once seated, looked Justin in the eyes. “The committee says this never happened, but I’m sure you have a signed memorandum of agreement that documents your recollections. I’d like to see it.”
“We didn’t sign anything,” said Justin. “We simply agreed.”
“There’s no such thing as agreeing to modify the terms of a union contract without a signed memorandum,” I answered, remaining polite but with an edge in my voice. “There isn’t an arbitrator in the world who would buy your argument. Besides, the only person in this room who would be authorized to sign such a memorandum is me, because the contract is between the corporation and union international.
“I understand you’re being scripted by the company attorney because even you know better. Make sure she understands I’ll file for arbitration five minutes after you reject the grievance.”
I made a handwritten information request for all creeler hand-bid sheets during the past three years.
Justin didn’t respond to my request until nearly three weeks and multiple phone calls had passed. During one of these discussions, I asked him straight-up why the company was refusing to reinstate Jessie and he answered, “Because we’re afraid she’ll injure herself.”
“Doesn’t that rather contradict the employer’s motion to terminate her benefits?” I asked.
I reviewed the collection of bid sheets several times, but couldn’t find one from Jessie. Isn’t that convenient, I thought.
I spent the afternoon of March 9, texting with an emotionally shaken Jessie.
“They fucking with my life and I’m tired of being jerked around and lied to,” she said. “Why does the company want to deny my rights?”
I told her it was all about money, and they weren’t after her personally.
Later that day, following a strongly-worded email, I received the missing document that management had “forgotten” to include.
The Industrial Commission hearing finally took place via conference call on March 10.
A week later, the Republican-appointed tribunal upheld the termination of Jessie’s benefits, retroactive for six weeks. She was now in serious danger of losing the house she shared with three children — let alone being unable to feed them.
Hank immediately appealed the ruling, initiating a long, complicated process that began with mediation. If the parties didn’t reach accommodation, the case could be litigated in court and finally appealed to the state Supreme Court.
On April 2, I further upped the ante by filing a charge with the EEOC, alleging discrimination pursuant to the Americans with Disabilities Act. My strategy in labor disputes is to overwhelm companies on every front. Management comes to feel like they’re trapped in a medieval castle, surrounded by Vikings.
Hank arranged for Jessie to be examined by an orthopedist the next week. Following an extensive examination, Dr. Vincent Paul thoroughly repudiated Yates’ report, giving Jessie a 35% permanent disability rating, based on nine untreated aspects of the injury, supported by a detailed diagnosis. He said Jessie should be “considered OUT OF WORK for any job using her right arm” and might well be a candidate for further surgery.
The grievance hearing about Jessie’s job status finally took place on April 9, after several company delays based on the “travel schedule” of the corporate human resource director. The pandemic was now in high gear and we met in a larger conference room filled with small round tables situated several feet apart. Jessie sat beside me, looking very professional in a smart pants suit with her hair pulled back.
“There are some very complicated legal issues at stake here,” I told Justin. “I represent Jessie and all questions need to be directed to me.” The plant manager nodded his head.
About halfway through the meeting, Justin suddenly asked Jessie how she was feeling and if she would be able to do her job. She started to respond until I squeezed her arm.
“I told you all questions need to be directed to me!” I barked at Justin. “Your own doctor said she was fit for duty without restrictions. I’m not a doctor, so I won’t debate his findings. That’s up to the courts. But the company obviously supports the doctor because your lawyer filed a motion to stop her benefits. Under the contract and workers comp statutes, you need to allow Jessie to bump into a creeler hand position immediately. That’s the only matter open to discussion today.”
Management denied the grievance ten days later, citing my “incorrect understanding of the contract” supported by their lawyer’s double talk. I immediately filed for arbitration.
The mediation was useless, as expected. The company offered to pay Jessie $5,000, minus the $7,000 she’d received in benefits, in exchange for her resignation. Hank countered with a demand for $100,000. There was no room for middle ground.
The EEOC investigation became increasingly complex as it unfolded over the next several months. I remained in constant contact with the agent in charge, Jessie, and two of our lawyers. This was exactly what I wanted. The situation demanded equal effort and a lot more expense from the company. It was a card I hoped could be played during the endgame.
The trial was scheduled for July 28. I continued regular discussions with Hank and Jessie, alternating between offering advice and translating. Jessie was becoming increasingly frantic. She was several months behind in her mortgage and receiving foreclosure letters, with no end in sight to the legal process.
Hank was also growing nervous about trials that could drag on for a couple of years, and that the employer would exploit Jessie’s desperate circumstance, continuing to play tough and ultimately present her with a low-ball settlement she couldn’t refuse. He suggested reaching out to management about discussing a compromise.
“It’s too early,” I said. “Let’s hold back and let them blink first. We’re hitting them in multiple venues. You and I are both known for our tenacity. There’s a price they’ll pay to make all this go away.”
“This has become one of the most difficult and complicated cases of my career,” Hank acknowledged. “I think at this point, they’re more afraid of you than me.”
Jessie Dodson’s workers’ comp case was settled on the courthouse steps. The insurance company agreed to pay her $75,000. She had to resign from a job she couldn’t have worked anyway. The union agreed to withdraw the EEOC charge and pending arbitration.
The Industrial Commission approved the settlement six weeks later. Hank took a much lower cut than most attorneys. It included expenses for medical appointments, leaving Jessie with $65,000 clear.
“It was fate and your guardian angels that made you come to the picnic two years ago,” I told her. “What are you going to do with the money other than get caught up on your mortgage?”
“I’m going to get me some medical insurance and have the surgery done right this time. I can’t go through life with one arm. After that, I’m thinking about going to community college and maybe becoming a paralegal.”
“You’d make a damn good one,” I said.
Phil Cohen spent 30 years in the field as Special Projects Coordinator for Workers United/SEIU, and specialized in defeating professional union busters. He’s the author of Fighting Union Busters in a Carolina Carpet Mill and The Jackson Project: War in the American Workplace.