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Title: Dairy, Bakery & Food Processors, Industrial, Tech­nical & Automotive, Local Union No. 305, a/w Teamsters and Toyota Vehicle Processors, Inc.
Date: October 15, 1994 
Arbitrator: Luella E. Nelson 
Citation: 1994 NAC 108

 

In the matter of arbitration between:


Dairy, Bakery & Food Processors, Industrial, Tech­nical & Automotive, Local Union No. 305, a/w International Brotherhood of Teamsters

                           and

Toyota Vehicle Processors, Inc.

Tammy McClune Refusal to Rein­state 

and Termination

 

LUELLA E. NELSON, Arbitrator

 

                                                                                            


ARBITRATOR'S
OPINION AND AWARD

            This Arbitration arises pursuant to Agreement between Dairy, Bakery & Food Processors, Industrial, Technical & Automotive, Local Union No. 305, a/w International Brotherhood of Teamsters ("Union"), and Toyota Vehicle Processors, Inc. ("Employer," "VPI," or "TVPI"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.

            Hearing was held on June 10, 1994, in Portland, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute.  Both parties filed post-hearing briefs on or about August 3, 1994.  The Union filed a Motion to Strike on or about August 15, 1994.

APPEARANCES:

            On behalf of the Union:

                        Paul Hays, Esquire, Carney, Buckley, Kasameyer & Hays, Suite 410, 1618 SW First, Portland, OR  97201.

            On behalf of the Employer:

                        Ralph Perez, Esquire, Toyota Motor Sales, U.S.A., Inc., 19001 S Western Avenue, Suite A300, Torrance, CA  90509.

ISSUES

            The parties were unable to agree on a statement of the issues in dispute.  Instead, they authorized the Arbitrator to formulate the issues to be decided after considering the parties' respective formula­tions of the issues, the Agreement, and the record in this case.  The Employer would formulate the issues as follows:

                        1.         Did TVPI violate the Agreement by not providing Grievant light duty work on August 23, 1993?

                        2.         Did TVPI violate the Agreement by terminating Grievant on September 10, 1993?

                        3.         Did TVPI violate the Agreement by refusing to hire Grievant as a shagger on or about April 1, 1994?

The Union would formulate the issues as follows:

                        1.         Whether the Employer, under the contract, properly refused to reinstate or reemploy Grievant Tammy McClune on August 24, 1994; and, if not, what should the remedy be?

                        2.         Whether the Employer, under the contract, properly terminated Grievant Tammy McClune on September 10, 1993; and, if not, what should the remedy be?

                        3.         Whether the Employer, under the contract, properly refused to reinstate or reemploy Grievant Tammy McClune on April 1, 1994; and, if not, what should the remedy be?

Having considered the proposed statements of the issues, the Agreement, and the record, the Arbitrator formulates the following issues:

                        1.         Did the Employer violate the Agreement with regard to Grievant's request for reinstatement on August 24, 1993; and, if so, what is the remedy?

                        2.         Under the Agreement, did the Employer properly terminate Grievant on September 10, 1993; and, if not, what is the remedy?

                        3.         Did the Employer violate the Agreement when it did not rehire Grievant on April 1, 1994; and, if not, what is the remedy?

RELEVANT SECTIONS OF AGREEMENT

                ARTICLE IV - LEAVE OF ABSENCE...

                                Section 2 - Medical Leaves.  Medical leaves of absence for off-the-job injury or illness will be granted to employees who are ill or injured and are unable to work for a period of up to one month.  Such leaves will be extended for a maximum of five additional periods of one month each when the disability is certified by a physician.  These leaves will terminate upon the employee's release as certified by a physician.  If the employee does not return within six months, the employee will be terminated, but will be given preferential consider­ation for rehire upon a physician's release.  ......

                                Section 4 - Return from Leave.  Employees returning from an authorized leave of absence or extension thereof, will be returned to the job held when the leave was granted.  If the position no longer exists, then the employee will be returned to an equal job.

                                Section 5 - Reinstatement From On-the-Job Injuries or Illnesses.  Employees on med­i­cal leaves of absence for thirty (30) days or less will be granted immediate reinstatement in accordance with the conditions listed below.  Employees on medical leaves of absence for more than thirty (30) days will be guaranteed reinstatement within thirty (30) days provided (1) a release is received from the employee's physician and, (2) application has been made to VPI for reinstatement within two (2) working days of their release....

                ARTICLE V - PROTECTION OF RIGHTS...             

                                Section 3 - Transfer to Shagger Classification.  Upon request by an employee for med­ical reasons, VPI will transfer an employee into the Shagger classification at the next available opening upon verification by VPI's physician and the employee's physician that the employee has a valid medical reason for the transfer....

                                Section 5 - Discharge and Disciplinary Procedure

                                (a)           VPI shall not discharge or suspend an employee without just cause. ...

                                Section 7 - Equal Opportunity Provision.  There shall be no discrimination of any kind because of ... handicap, against any employee or applicant for employment by VPI or anyone employed by VPI, and to the extent prohibited by applicable State and Federal law there shall be no discrimination because of age.

FACTS

            In April 1991, Grievant injured her left knee at work.  She continued to work until July 1991, when she had knee surgery.  In December 1992, she returned to light duty work.  She has not performed work at the Employer's facilities since the Employer removed her from light duty work in March 1993.  No grievance was filed over that removal from light duty work.  This case involves her later attempts to return to work and her discharge effective September 10, 1993.  At the time of her discharge, her seniority date was September 21, 1981.  She was ninth in seniority in her department and fourth in seniority in her job classification.

GRIEVANT'S INJURY AND WORKERS COMPENSATION CLAIM

            Grievant reported an injury to her knee on April 8, 1991.  The Employer's insurer accepted a claim for that injury, and closed the claim on June 12, 1991, with no award of temporary or permanent disability.  She later reported to her doctor that she had aggravated her knee while helping to install a swimming pool.  Surgery eventually followed on July 21, 1991.

            Grievant has a degenerative condition in her injured knee.  A dispute exists over the cause of the condition.  The Employer's physician, Dr. John Thompson, at­tributed it to the after-effects of a 1980 injury.  In 1980, Grievant had been placed in traction, which involved temporarily placing a pin through the back of her left knee.  Dr. Thompson was under the impression that the pin pre­vented Grievant from bending her knee for a lengthy period.  Grievant testified she could bend her knee while in traction, and did so as part of her physical therapy for the injury.  Grievant's physician, Dr. Roy Rusch, testified that, in a young healthy knee, even six weeks of immobilization would not ordinarily cause the condi­tion in Grievant's knee.  He attributed her condition to general wear and tear, or perhaps an irregularity or mechanical problem in the knee.

            The Employer contested Grievant's claim for knee surgery and other medical treatment and disability.  On February 24, 1993, the Workers' Compensation Appeals Board ("WCAB") issued an "Order on Review."  In that proceeding, there was no issue regarding the compensabil­ity of her initial injury.  The WCAB concluded that her later disability and need for treatment arose from a "combi­na­tion of the com­pens­able injury and a pre­existing condition."  However, it concluded the injury was not the "major contributing cause" of her disability and treatment.  It therefore denied benefits for her continuing disability and treatment.

THE SHAGGER AND LEAD SHAGGER POSITIONS

            At the time of her injury, Grievant held the position of "lead shagger."  The Employer uses "shaggers" to transport vehicles among various locations at its facility.  The lead shagger transports shaggers to areas where they are to pick up vehicles.  Lead shaggers are appointed without regard to seniority.  No job description for lead shagger is in evi­dence.  The job description for shaggers was prepared in October 1993 and revised in February 1994.  The physical demands for shaggers arguably relevant to a knee injury in that job description include:

            1.         Walk between vehicle and transfer shuttle or department a distance of 50-100 yards at 60 to 100 times per day.

            2.         Climb in/out of vehicle and climb 2 steps in/out of transfer shuttle.

            3.         Sit while driving vehicle or being transported by shuttle for a period of 1-5 minutes.

            4.         Stand while pumping gas or waiting for transfer shuttle pick up....

            6.         Twist or rotate while entering and exiting vehicle 60 to 100 times per day.  (6X number of hours = 48 vehicles per day on dock truck which is 60-100 to shag in PIO.)

            8.         Operate foot controls while depressing accelerator, brake and clutch (if applicable).

            9.         Flex while entering and exiting vehicle and transfer shuttle.  May enter/exit vehicle ever [sic] 1-1.5 minutes to process vehicles through car wash.

            11.        Sit while driving vehicle on to wash line and when driving vehicle to next staging area.

            As a lead shagger, Grievant operated the "top truck."  In that capacity, she drove shaggers between the shop area--also known as the PIO (Port Installed Options) area--and the rail and truck facilities.  Another shag truck, the "dock truck," drove shaggers between the dock and the shops.  Other lead shaggers performed "pull-away" work (transporting shaggers between the final quality assurance check and the rail or truck destination) and "traffic flow" work (coordinating out-of-the-ordinary vehicle movements, which involves a considerable amount of walking)

            Grievant testified the shag truck had an automatic transmission.  She did not need her left leg to drive the shag truck, and had to leave the shag truck only if she needed to examine damage to a vehicle.  Her duties did not require her to walk or climb stairs.  The dock truck driver usually went into the office to get print-outs with the day's instructions for the shaggers.  Grievant did not operate the dock truck.

            In the fall of 1993, the Employer briefly rotated lead shaggers among the four duty areas to train them to fill in for one another.  After a few weeks, Lead Shagger Claire Meldorf found the walking for the traffic control position aggravated her knees.  The Employer no longer rotates lead shaggers.  It has largely eliminated the need for a top truck by having employees take vehicles to one destination, then pick up another vehicle and take it to yet another destination, and so forth.  The remaining top truck work is divided primarily between the traffic flow and pull-away lead shaggers.

            In November 1988, the Employer promulgated written "Light-Duty Procedures."  Those pro­cedures made shagging the only light-duty work available, and limited it to employees with on-the-job injuries.  It required a physician's release and the concurrence of the company doctor.  In 1990, the Employer clarified that light duty work was only for temporary disabilities.

GRIEVANT'S POST-SURGERY HISTORY

            On December 4, 1992, Grievant tendered a phy­si­­cian's release from Dr. Rusch, allowing her to "return to a form of work that does not require the repetative [sic] and/or stressful use of her left leg."  That same day, Dr. Rusch reviewed the shagger and lead shagger job descriptions.  He concluded she should not be involved in "prolonged standing, walking on uneven ground, climbing and descending stairs, kneeling, or squatting," or "climbing in and out of a vehicle, using foot controls, or sitting for prolonged periods in a vehicle with her knee in a bent position."

            The Employer assigned Grievant to work in the office.  During her first two weeks, she watched training tapes on production methods.  The location of the training tapes required her to walk up and down two flights of stairs several times per day.  She suffered discomfort and swelling from that activity, and found it necessary to ice down her knee during the day and take medications.  Once she had completed the tapes, her duties no longer required climbing stairs, and her symptoms subsided.  Thereafter, she mostly performed light office work.  On one occasion, she filled in as lead shagger for two hours, with no difficulty.  At times, she drove a van on errands.

            On December 30, 1992, Dr. Thompson examined Grievant.  He noted her report of knee pain when she was required to climb stairs, and her report that her stair climbing had since decreased.  He concluded she could work under the following restrictions:

            ... [T]his patient probably should not lift or carry over 15 to 20 pounds on a frequent basis.  She can sit basically 8 hours without significant problem.  She should not walk more than about 10 or 15 minutes at a time, and in the course of an 8-hour day should not be on her feet more than an hour-and-a-half to 2 hours.  She should avoid stooping, crouching, crawling, kneeling, twisting, climbing and balancing.  There is no limitation on reaching or pushing and pulling.

Dr. Rusch concurred with the majority of Dr. Thompson's conclusions.  Unlike Dr. Thompson, he did not recommend that Grievant sit for eight hours per day.  In his view, prolonged sitting with her knees in a flexed position would aggravate her condition.

            The Employer removed Grievant from work in March 1993, after receiving the WCAB deci­sion.  Grievant testified she was cap­able of doing lead shag work at the time, but she did not ask about it because she had been told injured employees could not do lead work.  Only later did she learn other employees had been permitted to do lead work while disabled.

            On August 24, 1993, Grievant tendered a release from Dr. Rusch reading, "[Grievant] may re­turn to work with no repetative [sic] or stressful use of her left leg.  Restrict to 8 hrs/day."  Administration Manager Will Kolditz asked her if she could shag.  She responded she would have trouble getting in and out of the cars and shag truck all day.  She asked about office work.  Kolditz responded the Employer had been "beat up" on allowing unit employees to work in the office.[1]  She asked if there was any other work.  On cross examina­tion, she recalled discussing lead shag work.  Her recollection was that Kolditz told her the Employer did not let people do that work while on medical leave.  Kolditz testified that neither brought up the question of lead shagger work.

            Grievant filed a grievance seeking reinstatement to "any suitable position."  The Employer responded it had no "suitable employment for the Employee within the physical restrictions of her doctor's release."

            Dr. Rusch's chart notes show Grievant's knee continued to be symptomatic in August 1993.  He testified to serious doubts about her ability to perform lead shagger work.  At the time, she had daily pain.  He expected aggravation of her discomfort from sitting for lengthy periods, pivoting to get in and out of the truck, and using foot controls.  His concern would have been alleviated somewhat if the truck had an automatic shift and if she changed her left leg position occasionally.

            The Employer terminated Grievant effective September 10, 1993, noting she would receive prefer­ential consider­a­tion for rehire upon a physician's release.  On September 14, the Employer sent her to Dr. Douglas Bald for an independent medical evaluation.  Dr. Bald concluded she was "per­ma­nently precluded from frequently performing tasks such as bending, kneel­ing, stooping or climbing stairs or ladders."  He recommend­ed sedentary or light work, limiting her to standing or walking a maximum of two hours per day.

            On November 11, 1993, the Employer issued its third-step grievance response.  It argued that in four instances, it had briefly accommodated four employees (Char Harold, Madonna Delashmit, Dan Biscoe, and Rick Severson) with off-the-job disabilities.  It distinguished Grievant's lengthy medical leave of absence from these situations.  It rejected the Union's suggestion that Grievant return to her lead shag position.  It asserted that lead shag "could require repetitive use of her left leg," and had to be able to rotate among other lead positions and fill in for missing employees.

            Grievant filed a discrimination complaint with the Bureau of Labor and Industries ("BOLI") on November 19, 1993.  The BOLI complaint alleged her assignment to go up and down stairs violated her light duty restrictions; that she was treated disparately regarding attendance and rein­statement to light duty work; and that she was terminated.  No action was taken on her complaint.

            Grievant had additional knee surgery on December 28, 1993.  She received a full work re­lease from Dr. Rusch on March 31, 1994, and tendered it the next day.  She testified her knee felt "100% better" than it had in the spring and fall of 1993.  She testified Kolditz asked if she could shag, and she responded she could.

            The Employer referred Grievant to Dr. Thompson for an evaluation of her ability to perform the "essential functions" of the shagger job.  Dr. Thompson concluded she was unable to perform shagger work.  He expressed concern over the need to enter and exit vehicles 60-100 times per day and the walking necessary to move vehicles.  He predicted her symptoms would return within six months.  He discounted the long-term effectiveness of her most recent surgery.  Although she had improved, he suggested the improvement was a common temporary outgrowth of flushing the knee with saline solution during surgery.[2]  Dr. Rusch concurred in the finding that Grievant could not perform shagger work.  Based on these reports, the Employer again declined to return her to work.

            Dr. Rusch's chart notes indicate he had released Grievant for work on the assumption that she would be a lead shagger.  He testified that, as of April 1994, he discouraged repetitive and stressful use of her knee, such as from prolonged walking (i.e., walking more than three or four blocks at a time, or more than a mile in a day), walking on uneven surfaces, twisting, kneel­ing, or squatting.  If she sat for long periods, he encouraged her to move her knee frequently.

ACCOMMODATION OF OTHER EMPLOYEES' DISABILITIES

            Since 1986, the Employer has terminated three employees who were on medical leave for longer than six months due to non-industrial disabilities.  It has also terminated one employee who was on medical leave for over a year due to an "occupationally related physical inability to perform" his job.  It has since declined to reinstate the latter employee because it had no positions he could perform with his physical limitations--in that case, lifting over 25-30 pounds.

            The Employer has permitted employees injured at work to perform light duty work.  Kolditz tes­ti­fied the Employer finds work that contributes to productivity, such as training, checking tools, and inventory.  However, in some cases, the work is "make-work."  The Employer does not apply this policy to employ­ees injured off the job because it feels a greater responsibility toward employees injured on duty.  Kolditz further testified that lead employees must be able to work overtime, and are removed from lead duty if their condition prevents them from working overtime.  Three employ­ees have been tempo­rar­ily removed from lead duty in such circumstances.

            The record reflects numerous examples of light duty work for employees injured on the job.  One was allowed to work with one or both arms in a sling due to carpal tunnel syndrome.  While so hampered, he worked in the body shop and painted stripes in the parking lot.  Another performed light duty work in the PIO shop and parts shop because of carpal tunnel syndrome and other work-related injuries.  A third employee, Leo Weems, lost a leg, and for several years was assigned exclusively to calibrating torque wrenches and other light duty work in the parts room.  Weems left the Employer approximately a year before the hearing in this matter.  Grievant's husband, Emery McClune, did fuel intake and tool engraving while disabled.  A shagger did tool engraving and re-did the production board temporarily.  A PIO installer was allowed to do charts for PIO temporarily.  The Employer regularly has several uninjured PIO employees in the office doing similar work.  A shagger was permitted to do light office work in January 1994.

            Grievant testified to several instances of employees with non-industrial injuries who were given light duty.  Her sister, Shirley Nelson, broke her arm in 1986, and was allowed to work on truck beds while recuperating.  Gail Nishikawa had an arm in a sling, totally immobi­lized, and was not supposed to return to work; however, the Employer allowed her to work.  On another occasion, Nishikawa worked with a broken toe, performing lead shag work.  She wore only a sock on the affected foot.  Sharon Kalper is overweight and has difficulty walking.  Kalper washes windows on one side of the cars in the predelivery service area, which eliminates the need to walk.

            Charlotte "Char" Harold worked part-time for three weeks after major sur­gery.  According to the Employer, she performed her normal work during that time.  Kolditz testified she was second in plant seniority, and would have qualified for any voluntary layoff during that time.

            According to the Union's witnesses, Quality Assurance employee Madonna Delashmit injured her foot and was unable to wear a closed-toe shoe.  She also had difficulty climbing stairs and walking.  She was allowed to perform light office work while others in her department filled in for her.  The Employer's records show no medical release for her, but show a combination of sick leave and vacation time in late November 1992.  According to Kolditz, during that time, she wore an open-toe shoe while performing her regular work.

            Dan Biscoe broke his right thumb off the job in July 1993.  He worked by switching off tasks re­quir­ing use of his right hand; later, his co-workers switched duties to let him work exclusively in the parts area.  He also took off several partial or full days on voluntary layoff, sick leave, or vacation.  After having surgery on his thumb, he returned to work on August 11 with a release speci­fy­ing "minimal use right hand."  He rotated between two positions that did not require the use of his right hand, and con­tinued to take all or part of some days off.  Finally, on August 24, his regular supervisor returned from leave.  The Employer then put him on a medical leave of absence.  Biscoe testified he was aware there was no policy of providing light duty work for non-industrial injuries.  He expected to go on medical leave at some point, but simply did not volunteer to go on such leave.

            Rick Severson broke his ankle off the job.  After two weeks of sick leave, he returned to work wearing a walking cast with an open toe.  The Employer assigned him to his regular duties installing air conditioning.  By all accounts, he wore his cast less than a month.

            Kim Van Wyck was allowed to perform light duty in the PIO shop while she was pregnant.  Another pregnant employee, Edie Levitson, was permitted to limit her time in the wax department to no more than an hour at a time because the fumes made her ill.

POSITION OF THE UNION

            Under federal statutory requirements, administrative regulations, court interpretation, and ar­bi­tration precedent, the Employer is required to make a reasonable accommodation and reinstate Grievant.  The Arbitrator has the authority to apply substantive statutory law.  Article V, Section 7, specifically prohibits discrimination due to handicap.  Other arbitrators have incorporated state and federal statutes into the text of labor agreements to resolve similar disputes.

            Oregon law requires Grievant's reinstatement.  See ORS 659.415, 659.420, and 659.425.  Grievant had superior seniority to most of the lead shaggers.  The Employer continues to place employees in positions with minimal physical requirements--in the office, doing engraving, and observing fueling.  The Employer has accommodated a wide range of disabilities, regardless of whether they were caused by on-the-job or off-the-job injuries.

            Federal law also requires Grievant's reinstatement.  See Title I, Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"), the implementing rules promulgated by the Equal Employ­ment Opportunity Commission ("EEOC") at 29 CFR part 1630, and the Rehabilitation Act of 1973.  Grievant is a qualified disabled person.  She can perform all the essential functions of the lead shag job, as well as other positions in the unit.  The Employer can accommodate her without hardship, as it has other employees.

            The Employer can assign non-essential lead shag functions to other employees.  It cannot re­fuse to rehire Grievant as a lead shagger simply because it once rotated lead shaggers in 1993.  It has the obligation to recombine lead shag duties so Grievant's position consists of those essential functions she can perform.  It is required to review its job openings to find work for a disabled employee.  It has consistently refused to even consider employing Grievant.

            The Arbitrator should strike evidence of a complaint filed in court after the hearing in this case.  The Employer may not introduce new evidence after the record has been closed.  The filing of the lawsuit does not affect the applicability of the underlying laws in the arbitration proceeding.  The issue in this arbitration is just cause under the Agreement; that in the pending lawsuit is liability under state and federal anti-discrimination and defamation laws.  The ADA encourages the use of arbi­tration of disputes under that Act.  The institution of a lawsuit does not preclude consideration of the legal issues raised in arbitration.  Since each proceeding is separate and independent, the litigation imposes no restrictions on the Arbitrator to decide pursuant to state and federal statutes.  Finally, the documents are only initial pleadings, not final decisions, opinions, or rulings.

            Grievant is entitled to reinstatement with full back pay and fringe benefits, seniority, and other rights and privileges of employment, effective August 23, 1993.  She submitted timely releases from her physician, as required by Article IV, Section 5.  Even if she had not been injured on the job, the Employer has tolerated and encouraged reinstatement of other employees disabled by off-the-job acci­dents and illness.

            The Employer does not adhere to its formal policy or the Agreement in assigning light-duty work.  On numerous occasions, it has allowed employees with off-the-job injuries to work limited schedules, perform jobs with limited physical requirements, or work in casts which violate safety rules.  It has given virtually permanent restricted-duty employment to employees injured on the job.  It has gone to extraordinary lengths to keep some individuals working despite their off-duty related disabilities.  It does not require all employees to show an ability to return to their former position.

            Grievant was injured on the job, and this injury triggered her symptoms.  She received Workers Compensation for the injury.  The WCAB concluded she had suffered an on-the-job injury.  Only the Employer refuses to recognize her injury as work-related.  The treatment of employees injured on the job is relevant to this case.  The many examples in the record refute the Employer's position that shagger is the only light duty position provided.

            The Employer treated Grievant disparately while she was on light duty office work.  Its refusal to reinstate Grievant, and its discharge of her, also constitute disparate discriminatory treatment.  Grievant has shown her fitness to return to her original job and other productive duties in August 1993 and April 1994.  Any doubts about the type of work she sought in August 1993 is resolved by the remedy sought in the grievance.  Her physical condition would have permitted her to perform lead shag duties, office production work, fuel observation, parts handling and management, or tool engraving work--all duties performed by disabled employees.

            The Arbitrator should reject the speculative opinion of Dr. Thompson in April 1994 that the benefits of Grievant's final surgery would be short-lived.  This dire prediction has been refuted by five and one-half symptom-free months.  All the medical records show Grievant is fit to do sedentary work that does not require a great deal of walking.  Many other employees have been provided with such work.  The lead shag position gave Grievant the opportunity to stretch her left knee whenever she wanted, as recommended by Dr. Rusch.

POSITION OF EMPLOYER

            Absent a specific agreement or stipulation by the parties, the Arbitrator has no authority to consider external law.  Grievant should pursue such claims before the appropriate administrative agency, court, or other tribunal.  The Arbitrator should take notice of a state court lawsuit filed after this hearing, raising the same legal issues.  There is therefore no reason for the Arbitrator to decide those issues.  Any arbitral decision on those issues will create additional issues in the court pro­ceed­ing regarding the effect of the Arbitrator's findings of fact and conclusions of law.

            The parties had virtually no discussion about applicable law in processing this grievance.  The only allegation discussed was that four individuals were permitted to work light duty even though they were not injured on the job.  The Agreement does not incorporate handicap discrimination law.

            If the Arbitrator were to consider external law, she would have to decide issues falling under the jurisdiction of the Workers Compensation Board and BOLI.  She would have to determine to what extent she would be bound by the factual and/or legal conclusions of those entities, and to what extent her findings and conclusions would be final and binding in other forums.

            Grievant was not entitled to light duty work in August 1993.  She was on light duty from December 1992 to March 1993 only because the WCAB had not yet ruled on her claim.  The clerical portion of her light duty work was removed from the program by August 1993 because it was not unit work.  She did not file a grievance over her removal or seek to return to her lead shagger job in April 1993.  She did not challenge the determination that her injury was not work-related.

            Grievant's compensable knee strain did not entitle her to light duty work.  She returned to work after twisting her knee, and her claim for the knee strain was closed.  Since her later disability and treatment were not compensable, she was not entitled to participate in light duty.

            The Employer did not apply its light duty policy in a discriminatory manner.  The situations of other employees were distinguishable from Grievant.  None of the employees performed light duty work.  All performed their regular jobs, some with modifications.  All involved short periods of time.  One engaged in subterfuge to avoid being put on medical leave.  All were able to perform their jobs.  Char Harold could take time off through voluntary layoff whenever she chose to do so.

            The Employer did not violate the Agreement by not providing Grievant with the lead shagger position in response to her grievance.  Seniority is not a factor in selecting leads.  Such employees receive extra pay and enjoy superseniority.  They must be able to work overtime, and are key people.  Starting in July 1993, lead shaggers rotated in order to cross-train.  Grievant would not have been able to cross-train into other non-driving lead positions.  There is doubt whether she could have helped shaggers as required.  Finally, there were no open lead positions available.  Removing a lead shagger would have resulted in loss in pay and loss of superseniority for that person.

            The Employer did not violate the Agreement by terminating Grievant.  She was reclassified from an industrially injured person on light duty to a non-industrially injured person on a medical leave of absence in March 1993.  She failed to file a timely grievance over that reclassification and removal.  Her medical leave exceeded six months.  She was terminated consistent with Article IV, Section 2.

            The Employer did not violate the Agreement by failing to hire Grievant as a shagger in April 1994.  Although she had preferential rehire rights, the Employer could not disregard the unanimous medical opinions that she could not function as a shagger.

            The Employer did not violate Oregon Workers' Compensation laws.  Her continuing disability and surgery were not compensable.  She therefore is not an "injured worker" within the meaning of ORS 659.415 or 659.420, and is not entitled to reinstatement or reemployment.  Moreover, her doctor concluded she could not perform her duties as a lead shagger in August 1993.  She would not be entitled to other positions because all other jobs at this facility are more physically demanding than the shagger position.  Light duty work is not "suitable work" under ORS 656.420.  In failing to grieve her removal from light duty work, Grievant conceded she was not an "injured worker" and was correctly placed on medical leave.

            The Employer did not violate laws prohibiting discrimination against the disabled.  Grievant was an "individual with a disability" at all times.  However, she was unable to perform the essential functions of lead shagger in August 1993, with or without reasonable accommodation.  There prob­ably is not an easier unit job than the lead shagger position.  It would not be practical to make the lead shag position a part-time job.  All other jobs were more strenuous.  Moreover, all the lead shag jobs were filled.  The law does not require the Employer to create a new position to accommodate an otherwise qualified disabled person, nor does it require another employee to relinquish a job and lose pay or other privileges to accommodate a disabled person.

            The Employer was not required to create a permanent light duty position through job re­struc­turing.  Grievant might have been entitled to a temporary light duty position.  However, she and the Employer knew her injury was prolonged, severe, and probably permanent.  She did not ask for a temporary light duty job.  The only long-term light duty jobs were clerical jobs outside the bar­gain­ing unit, and thus no longer existed for Grievant.

            The Employer was entitled to send Grievant for a medical examination when she applied for preferential rehire.  It was aware of her disability and was attempting to determine if she could perform the essential functions of the job.  The examination revealed she could not do so.

OPINION

PRELIMINARY MATTERS

            The Union has moved to strike a complaint submitted with the Employer's brief.  An arbi­trator has discretion to admit such late-filed evidence if it is of material import, would probably affect the outcome, and was unavailable at the time of the hearing, and if its admission will not seriously affect any substantial right.  The document in question was unavailable at the time of the hearing.  However, it is not of material import and would have no effect on the outcome of this case.  Accordingly, the Union's Motion to Strike is granted.

            Arbitrators are not required to consider external law unless either the collective bargaining agreement or the parties' stipulation clearly vests such jurisdiction.  A considerable debate exists in the arbitral community over whether it is wise to exercise arbitral discretion to consider such evi­dence absent such authorization.  In this Arbitrator's view, the better practice is to limit review to the "four corners" of the Agreement absent a contrary agreement.  Issues of disability and discrim­i­na­tion require similar analysis regardless of whether they arise under a collective bargaining agreement or a statute.  However, the arbitral forum does not lend itself to the consideration of matters of public policy that underlie enforcement of state and federal laws.  The governmental forums remain available if application of the contract provides less relief than that required by statute.

            Although the Agreement prohibits types of discrimination that are also pro­hib­ited by state and federal law, it explicitly incorporates only age discrimination laws.  The parties did not stipulate to the consideration of external law.  Accordingly, the Arbitrator will not consider the extent of the Employer's obligation to accommodate Grievant's disability under state or federal law.  In particular, the Arbitrator will not determine what reasonable accommoda­tion, if any, might be available under the ADA or state law, including non-unit work that Grievant is quali­fied to perform.  Instead, her review will be limited to the Employer's obligations under arbitral principles and the language of the Agreement.

            It is unnecessary to decide whether the WCAB Order would have been dispositive of the issue of whether Grievant's disability was "on-the-job" within the meaning of Article IV, Sections 2 and 5 of the Agreement.  She did not grieve her removal from light-duty work and place­ment on med­i­cal leave.  If she believed the Employer should have continued to treat her disability as having arisen out of an on-the-job injury, the time to litigate that was at the time of her removal from work.  Accordingly, for purposes of this proceeding, Grievant was on medical leave due to an off-the-job injury when she sought reinstatement and when she was discharged.

            The Arbitrator must view the case in light of the information the parties had at the time they acted.  The Employer could rely only on contemporaneous medical opinion when it made its deci­sions not to bring Grievant back to work.  Her subsequent medical history has no bearing on the assessment of her physical abilities at the time.

THE MERITS

            The Agreement is clear and unambiguous.  Upon presentation of a physician's release, em­ploy­ees on non-industrial medical leave are entitled to reinstatement to the job held when the leave was granted or, if that position no longer exists, to an equal job.  The meaning of a physi­cian's release is well established in labor relations.  Such a release certifies that the employee is physically fit to perform the required duties of the position.

            The physician's release Grievant presented in August 1993 was a limited release, precluding repetitive and stressful use of her left leg.  It is unnecessary to determine whether her lead shag position existed at the time.  Both the company doctor and her own physician agreed she could not do lead shag work.  Her own doctor advised against work that involved sitting in a truck, getting in and out occasionally, and operating foot controls.  Those functions were inescapable elements of the primary function of the lead shag job--transporting shag­gers from one spot to another.  In short, she did not meet the contractual requirements for reinstatement to her former job or an equal job.

            The question remains whether Grievant nonetheless was entitled to reinstatement to another job within her physical limitations.  Such an entitlement could arise, e.g., out of the contractual obligation to treat employees without discrimination.  The burden rests on the Union to establish disparate treatment in this regard.

            To meet its burden, the Union must establish that the Employer accommodated similarly-situated employees.  It must also show that the Employer erred in August 1993 in concluding that it had no light-duty positions to which Grievant could be reinstated.  To do so, it must show that duties existed consistent with her physical limitations, for which she was qualified at the time she sought to return to work in August 1993.  This would exclude positions that required the activities pre­cluded by her physician at the time.

            On this record, the Employer has an exemplary record of accommodating both industrial and non-industrial disabilities, temporarily or permanently.  The requirement of equal treatment required a good faith attempt here, similar in scope to that afforded other employees with off-the-job disabil­i­ties.  However, nothing in the Agreement or the concept of equal treatment required the Employer to displace a disabled employee already being accommodated in order to make room for Grievant.

            As of August 1993, all the doctors who had examined Grievant deemed her disability to be permanent.  The most apt comparison therefore is with the long-term light-duty positions in evidence.  The primary distinction between those positions and temporary accommodations is in the productivity of the work.  On this record, the Employer has been willing to "make work" tempo­rar­­ily, particularly for on-the-job disabilities.  However, its long-term light duty positions have been pro­­ductive ones and, in all but one example in evidence (Kalper), for on-the-job injuries.

            Shagging is one form of light duty work at this facility.  Unfortunately, the particular physical require­ments of that job were incompatible with Grievant's physical abilities at the time she sought reinstate­ment.  It is possible that positions outside the shag department were more strenuous overall, but not in ways that would compromise Grievant's knee condition.  However, neither party identified such positions.  Throughout this grievance process, both parties focused on possible placement in only two areas--the shag department and light-duty positions similar to the temporary one Grievant held before the WCAB Order.  The long-term light-duty positions in evidence, on the other hand, arose out of modifications of employees' existing jobs or responded to other operating needs.

            The mere existence of other long-term light-duty positions does not establish that a similar po­si­tion existed for Grievant.  With the possible excep­tion of Weems, the named long-term light-duty employees remained as­signed to those tasks in August 1993.  No evidence exists that Grievant was qual­ified for Weems' former position.  Further, no evidence exists of other available jobs susceptible to the type of accommodation the Employer has made for other employees.  Thus, the record does not reflect the physical abilities required to do fuel observation, parts handling and management, or tool engraving work.  It also sheds little light on the skills and training required to do those tasks or office production work.  While considerable evidence exists of Grievant's physical abilities and limitations, none exists regarding her skills and training.

            For the reasons set forth above, the Union has not established that Grievant was qualified to perform light-duty functions available at this facility in August 1993.  Therefore, the Employer did not violate the Agreement in declining to reinstate her at that time.

            The Agreement also clearly authorizes termination if an employee does not return from a med­ical leave of absence within six months.  At the time of her dis­charge, the unanimous medical opin­ion was that Grievant remained unable to do lead shag or shagger work.  No other position had been identified within her physical limitations.  She was thus unable to return from her medical leave of absence.  Accordingly, the Employer properly terminated her after six months of medical leave.

            Under the Agreement, Grievant retains a right to "consideration for preferential rehire."  Unlike "reinstatement," in which a replacement can be displaced by a returning employee, "rehire" implies a vacancy.  The Agreement thus entitles her only to consideration for vacancies for which she is qualified, and explicitly conditions rehire on a physician's release.

            Both Grievant's doctor and the Employer's doctor agreed in April 1994 that she was unable to do shagger work.  Although she testified she could shag, the Employer was entitled to rely on the unanimous medical opinions.  Thus, even assuming a shagger vacancy existed in April 1994, the record does not establish that she was physically able to fill it.  She thus did not have the required physician's release for that position.  No evidence exists of other available positions that were within her physical limitations, or for which she was qualified.  Accordingly, the Employer did not violate the Agreement in declining to rehire her in April 1994.

AWARD

                        1.         The Employer did not violate the Agreement with regard to Grievant's request for reinstatement on August 24, 1993.

                        2.         Under the Agreement, the Employer properly terminated Grievant on September 10, 1993.

                        3.         The Employer did not violate the Agreement when it did not rehire Grievant on April 1, 1994.

            DATED:  October 15, 1994

                                                                              /s/ Luella E. Nelson               

                                                                             LUELLA E. NELSON - Arbitrator


[1]           Kolditz testified he had learned in April 1993 that he could no longer give non-unit work such as office work to unit employees.

[2]           Dr. Rusch testified this temporary benefit occurs with advanced degenerative osteo­arthritis, but that Grievant's knee is not arthritic.  In his opinion, the December 1993 operation had a curative effect.

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