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Title: Safeway Stores, Inc and UFCW Local 7
Date: December 4, 2000
Arbitrator: Thomas Watkins
Citation: 2000 NAC 119

 

In the matter of arbitration between:

 

SAFEWAY STORES, INC.

Denver, Colorado

 

                        and

 

UNITED FOOD AND COMMERCIAL WORKERS, Local 7

 
            

 

 

                                                                                                      TERMINATION

 

                                                                                                            Jeanne Hickey-Hansen

 

                                                                                                     Case No. 99-1197; Store #935

 

 

 

 

 

                                                                        THOMAS L. WATKINS, Arbitrator

 

 

APPEARANCES:

 

            FOR THE COMPANY:

 

                        Holland & Hart, Attorneys, by Gregory Eurich

                        Lauri Dykstra, Store Manager; Witness

                        Elaine Karantounis, Human Resources Representative; Witness

                        Gloria Miller, Assistant Store Manager; Witness

                        Gary Pickel, Labor Relations Manager

 

            FOR THE UNION:

 

                        John P. Bowen, Associate General Counsel

                        Jeanne Hickey-Hansen, Grievant; Witness

                        Peggy Schmidt, Business Agent; Witness

 

 

 

 

HEARING HELD: September 13 and November 14, 2000 at the offices of Holland & Hart, 555 Seventeenth Street, Denver, Colorado.

 

 

THIS PROCEEDING in arbitration was authorized under Article 45 of the Agreement between the parties effective 1999-2004.  The Arbitrator was selected by the parties.

 

 

POST-HEARING BRIEFS were timely submitted by the parties on November 27, 2000.


 

INTRODUCTION AND ISSUE

 

The case presented herein for decision involves the termination of the Grievant, Jeanne Hickey-Hansen.  While many of the elements of this matter are in question as noted below, a few basic facts are not in controversy. 

The Grievant was hired by the Employer (or Company), Safeway Stores, Inc., on Friday, August 6, 1999, having worked for the Company previously from 1975-1986.  There was a general understanding that she would eventually be at the Employer’s new store, which was not yet opened.  In the interim she was to work and be trained at Store #935, and she began on Thursday, August 19th, working normally the following week.  Then followed a week of “checker school,” and two rather unusual work weeks.

On Saturday, September 18th the Grievant reported to work but was told not to clock in.  When Dykstra arrived about 9:00 a.m., she asked Hickey-Hansen into her office and terminated her employment.  Believing the termination was without just cause, a grievance was filed on September 24, 1999.  [Jt. Ex. 2]  It was routinely processed through the negotiated procedure, denied by the Employer throughout, and is now stipulated to be properly before this Arbitrator for a decision on its merits.  The parties further stipulated to the following issue to be decided:

Was the Grievant terminated without good and sufficient cause?  If not, what is the appropriate remedy to be provided by the Company?


RELEVANT SECTIONS OF THE AGREEMENT

ARTICLE 42

DISCHARGE AND NO DISCRIMINATION

 

Section 115.  . . . no employee who falls within the bargaining unit shall be discharged without good and sufficient cause. . . .

 

Section 116.  The Employer and the Union agree that each will fully comply with the applicable laws and regulations prohibiting discrimination against any employee, or applicant for employment, because of such person’s race, religion, color, national origin, sex, physical disability, mental disability or age.

Discrimination on the basis of physical or mental disability shall be deemed to include the failure to make or agree to reasonable accommodation to the known physical or mental impairments of an otherwise qualified individual with a disability.

 

FACTS ACCORDING TO THE EMPLOYER

Testimony of Company witnesses at the hearing indicated that the Grievant applied for a position with Safeway in early August of 1999 and interviewed with Debby Grosfield.  Although the Grievant believed she was offered a position of Head Clerk at the time, Grosfield later called to state that she would not have been authorized to hire Hickey-Hansen in a Head Clerk position, and that this was a position to which she could aspire at the new store when it opened.  In any event, Hickey-Hansen called Store #935 stated that she was to be trained to become a Head Clerk.  Dykstra scheduled her for August 19th, and she was assigned to routine duties such as running the till, managing the counts, bookkeeping, handling customer service, etc.  Dykstra told the Grievant she  would have to successfully complete checker school before she could be qualified as an All Purpose Clerk (APC), which in turn was a necessary step to becoming a Head Clerk.  The following day, August 20th, Dykstra began a vacation of two weeks.

In the middle of the school week of August 29th, the Grievant learned of her failure on two checker tests.  She knew she would be eligible for retraining and retesting within thirty days.  Gloria Miller, the Assistant Store Manager, recalls discussing this entire matter with Hickey-Hansen by telephone on August 31st.  According to Miller, the Grievant was upset and wished some time off.  They also discussed the duties that Hickey-Hansen could perform given the test failure: GM or Courtesy Clerk.

During the week of September 5th Hickey-Hansen was assigned to the booth as a GM clerk.  Dykstra returned on September 7th and learned of Hickey-Hansen’s failing the tests.  They had a discussion about the test, and the timing of a retest.  Later that day Dykstra intervened between Hickey-Hansen and a customer over a “very difficult interaction.”  According to Dykstra, in a follow-up meeting, Hickey-Hansen apologized for her behavior, attributing it to a failure to take her medication for “bi-polarism.”  Dykstra explained that she had few options, and assigned the Grievant to do stocking and facing of shelves.  The following Saturday, August 11th, was Hickey-Hansen’s next scheduled work day, but she called in to say that she had no transportation and would not be able to come to work.

The Grievant worked normally on Sunday, August 12th in GM.  On that date as well Hickey-Hansen apologized to Miller about the incident with the customer the prior Tuesday.  On Monday, September 13th, Dykstra worked in the store with Hickey-Hansen for only the third time (the others being August 19th her first day, and Tuesday, September 7th).  Dykstra had occasion to tell Hickey-Hansen on the 13th that she could not have a bottle of water with her when she was working on the floor.   During a later discussion in Dykstra’s office, Hickey-Hansen stated that the GM work was too hard for her, that there was too much bending, lifting, and twisting involved: she had a 10-pound weight restriction and limited motion as a result of a car accident several years prior which resulted in a lower back operation.

In the course of this conversation, Elaine Karantounis, a Company human resources representative, happened by the office and sat in on the conversation at Dykstra’s invitation.  Karantounis specifically recalls hearing that Hickey-Hansen could not lift more than ten pounds, could not twist or bend, and needed to regularly alternate between standing and sitting.  According to both Company witnesses, Hickey-Hansen stated that she could not do the work of Courtesy Clerk, or GM, or even that of APC, because of her physical limitations; indeed, she could only be a Head Clerk, which she understood was the position for which she was hired.

Dykstra testified that she explained to Hickey-Hansen that she must first pass the checkers test, then become an APC, then become a Head Clerk.  At the end of the conversation Dykstra called Susan Hitchcock, Safeway’s Human Resources Director, about options.  In the ensuing days Dykstra called Hickey-Hansen at home several times to request that she come in to complete necessary forms related to her medical condition.  The two did not connect.  Karantounis also testified she tried to reach the Grievant, but also without success.

Dykstra concluded that Hickey-Hansen was unable or unwilling to do the jobs of Courtesy Clerk or GM, and she was unsuited to work in the Customer Service booth.  She had provided no documentation about her physical limitations other than a note indicating she needed regular water intake due to a dry mouth.  Since Hickey-Hansen had not passed the checker test there was no available work for her to do.

Dykstra called Hickey-Hansen into her office on Saturday, September 18th and told her she was terminated because there was no position for her.  Hickey-Hansen expressed her disappointment and asked about a position in the division office.  Dykstra was unaware of such a possibility and Hickey-Hansen said she would explore it on her own.

 

FACTS ACCORDING TO THE GRIEVANT

The Grievant testified she had her initial employment interview with Debbie Grosfield, who told her that because of her background and prior experience she could be hired as a Head Clerk.  Grosfield offered the Grievant two vacant Head Clerk positions, but both were too far for the Hickey-Hansen to travel.[1]  Grosfield then stated that working at Store #935 might work in the interim until the new store opened in several weeks.  Hickey-Hansen was confident she could perform all Head Clerk duties, but she was aware that she would have to qualify as a checker (APC) before she could

become a Head Clerk.[2]

The Grievant thought she was to begin work on August 14th, but actually reported on the 19th as requested because, apparently, her paperwork had gotten “messed up” and it was necessary to delay her start.  Once there, she did a variety of tasks: collecting buggies, re-learned checking, helped with customer service, stocking, etc.  She experienced no physical difficulties whatsoever, other than her need to frequently drink water for dryness in her mouth because of taking two medications, one each for depression and anxiety.  To document this need for water, Hickey-Hansen brought a doctor’s note to Gloria Miller the following week.  [Un. Ex. 2] 

A week after that was the checkers school.  Hickey-Hansen was extremely upset by her failing scores on two parts of the exam; and she was told she would have to wait thirty days to retest unless there were “extenuating circumstances.”  The week of September 5th Hickey-Hansen worked as a GM clerk.  She had her first office discussion (regarding her test failure) with Dykstra on Tuesday, September 7th.  She recalls no confrontation with a customer on that date.  That Friday Hickey-Hansen filed a “Request for Accommodation” [Un. Ex. 8] on which she sought to retake the exam because she was disadvantaged by virtue of having to sit for an extended period of time when taking it the first time.  She stated that she had a “Need to alternate standing and sitting time due to a permanent back injury disability.  I am on medication for a bi-polar disorder.  Had recently changed medication and it is a conflict with my ability to

concentrate until medication is leveled.  This rarely occurs, but it did occur in August of 99. . .”  The form states that it is “strictly confidential,” and Hickey-Hansen had called to make sure it would be treated as such.

Hickey-Hansen met with Dykstra for the second time on Monday the 13th at the latter’s request.  Dykstra sought from Hickey-Hansen doctor’s notes about her bad back and about her need for water, since the first note given to Miller was apparently misplaced.  It was clear to Hickey-Hansen that Dykstra knew of the back matters (and her bi-polarism) because of the information that had been put on the Request for Accommodation.  Hickey-Hansen testified she gave both notes [Un. Exs. 3, 5] to Dykstra on the 17th or 18th, but Dykstra tossed them back to her saying, “I’m sick and tired of your notes.”  The Grievant does not remember Karantounis being at that meeting.

In brief, prior to the 13th, Hickey-Hansen never had a discussion with Dykstra about her physical limitations or of her medications, nor at any time, including the 13th, did she indicate that she could not perform all of the tasks of a GM or Courtesy Clerk.   About that same time, Dykstra began making “snide comments” about Hickey-Hansen’s physical restrictions, especially about whether the Grievant had a debilitating back injury.  Dykstra also made inappropriate remarks about the need for water.

On Saturday the 18th Dykstra told Hickey-Hansen she was being terminated because of her disability, but the Grievant never received any written statement explaining or justifying the Employer’s action.  The Grievant believes that Dykstra could have learned of Hickey-Hansen’s physical situation only if someone breached the confidentially of the Request for Accommodation and told Dykstra of its contents.

 

ARGUMENTS OF THE PARTIES

The Employer contends this case is simply a matter of credibility and that the Grievant cannot be believed.  On September 13th the Grievant told Dykstra of her severe physical limitations on the work she could perform in the store, and Dykstra acted on that information.  There can be no question Hickey-Hansen’s limitations were discussed that day: they were confirmed by the notes of Karantounis.  Hickey-Hansen had a difficult time working with customers in the booth as a GM clerk, and she was by her own admission unable to perform any other available jobs within the store.

Hickey-Hansen stated she gave doctors’ notes to Dykstra on September 17th (a day Dykstra says she was not working), but noted on one of them [Un. Ex. 5] that it was “to validate that I had been telling the truth.”  This establishes that Dykstra’s version of


the discussions of September 13th are accurate, i.e., that Hickey-Hansen told Dykstra then that she could not perform stocking and checking duties because of a back problem, and Hickey-Hansen felt the need to bring a doctor’s note to confirm this contention.  At the arbitration hearing, the Grievant raised for the first time that she had no physical limitations whatever.  In brief, Hickey-Hansen states that she had never mentioned any physical limitations to Dykstra, then that she brought in doctors’ notes to clarify her limitations, then that she had no such limitations.  She simply cannot be believed.

Hickey-Hansen also denies that any incident occurred with a customer on September 7th, which contradicts the clear testimony of both Dykstra and Miller.  And her explanation of the events of September 18th immediately prior to her termination is incredulous.

In sum, Hickey-Hansen was properly terminated after she eliminated every job in the store from those that she could physically perform, and the grievance must be denied.

 

The Union contends that this is not a case of credibility but of a failure by the Company to establish any reason for a termination meeting the test of “good and sufficient cause.”  Indeed, the Company neither demonstrated nor documented any cause at all, for there is no paperwork indicating why the Grievant was terminated.  Among its other failures are the Company’s lack of proper investigation (both its quality and its fairness), its failure to provide the Grievant an opportunity to respond to allegations, and its apparent disinterest in any medical evidence that might have helped clarify the situation.

There is no indication that anyone from the Company sought to obtain medical information which would allow it to reach proper conclusions about the Grievant’s abilities.  There is no evidence that the Grievant was ever told to provide documentation or failed to provide documentation after she received such a request.  Indeed, the Company has no evidence that the Grievant is unable to perform any of the duties to which she had been assigned.

Much of this might have been clarified by an investigation by Karantounis, an expert in this field, but she offered only a “sticky note” of her participation in the meeting of September 13th.  At no time thereafter did Karantounis have a conversation with Hickey-Hansen.  Karantounis’s job is to investigate situations where employees believe they have been discriminated against or where there are problems related to their employment that go to matters such as disabilities, yet she has no documents regarding this employee that explain any of the details of what has occurred.

In sum, the Company cannot establish that it had good and sufficient cause to terminate the Grievant because (1) no coherent position was ever advanced as to why the Grievant was terminated, and (2) even if, as now, the contention is that there is no work that Hickey-Hansen could physically perform, the Company has not done the proper job of establishing factually and procedurally that the Grievant was or is unable or unwilling to perform the duties to which she was assigned.

Therefore, the grievance should be upheld and Hickey-Hansen should be reinstated with all lost pay and benefits.

 

ANALYSIS

            This is a case made complicated by the total disharmony of testimony between the witnesses.  One frequently gets the feeling these people were working in entirely different stores.

            On the one hand, there is much lacking in the testimony of the Grievant, a great deal of which is addressed by the Company, both in its case and its brief.  Hickey-Hansen is not a very credible witness in her own behalf.  In addition to the many points made earlier, I am struck by her (1) failure to even recall the September 7th incident with the customer, (2) failure to remember Karantounis ever entering the meeting of September 13th or any details of the conversation, (3) inability to explain why it took two weeks to petition for another test based upon her special needs, (4) inability to remember any particulars about Dykstra’s alleged “snippiness,” (5) inability to explain, in the absence of a discussion she claims she did not have, what prompted her to bring in the doctors’ notes, (6) inability to recall her schedule and her absences with clarity, and (7) failure to return any of the phone calls made to her by Karantounis or Dykstra.  And finally, like the Employer, I find her explanation of the events of September 18th to be unbelievable.

But having said all of that, this case is not about credibility.  It is about proof, and the failure of the Company to establish with clear and convincing evidence that it had good and sufficient cause to terminate the Grievant. 

First, the Company cannot establish why the termination occurred.  It argues in its brief, as did Dykstra in her testimony, that the Grievant was terminated “because she was physically unable to perform the duties of her position as a Courtesy Clerk,” and was also, apparently, unsuited for a position of GM clerk.  Unrebutted testimony established that District Manager Doug Case believed Hickey-Hansen was terminated for lying on her application (which she had not); and Labor Relations Manager Gary Pickel didn’t know why she was discharged but denied that it was because of her disability.  There is not so much as a note, memo or letter indicating the reason for the termination, so the cause is, at best, ephemeral, and fails to meet the test of “good and sufficient” specified by the Agreement.

Second, even if one accepts for the sake of argument the “inability to perform” position, there is insufficient hard evidence to support it.  To terminate an employee, even a short term one, requires evidence that is both clear and convincing.  That is the standard generally expected in matters such as the one here.[3]  There should be meaningful documentation about the substance of the meetings of September 7th and 13th, about the events occurring on the days Dykstra worked with the Grievant,[4] about the Grievant’s schedule, her attendance and her behavior at work, and about the handling of medical information.

One would expect that Dykstra would (1) extensively question and document what duties the Grievant could and could not perform, preferably having her sign an acknowledgement to that effect; (2) seek qualified opinion about the Grievant’s disabilities or restrictions, if any;[5] (3) explore the prospects of “reasonable accommodation” with members of the central staff if it could be established that the Grievant was otherwise qualified for the position; and (4) withhold a decision on the Grievant’s employment until such determinations could be properly made.  Yet all we really have is oral testimony: Dykstra and Karantounis heard Hickey-Hansen state that she could not perform certain work, statements that the Grievant denies making.[6]

However, the Employer cannot claim that termination was proper due to Hickey-Hansen’s physical inability to perform any available work, while also claiming that no one in the Company had ever seen any doctors’ notes (or other evidence) to that effect.  What the record does establish is that the Grievant never refused to perform or failed to perform any duties because of physical disabilities.  In the absence of meaningful evidence and proper documentation it is impossible to raise the case evidence to the threshold level required.

There are, candidly, other troubling elements in the case.  But ultimately none of those matter in light of the conclusions stated above.  The Company simply failed in its obligation to establish with clear and convincing evidence that a good and sufficient cause existed for its decision to terminate.  Therefore, that decision must be vacated.

 

DECISION

The grievance of Jeanie Hickey-Hansen is upheld.

1.      The Grievant is to be offered within ten days of this award a Courtesy Clerk or General Merchandise position within the Company at a location which does not present an unreasonable commuting burden.

2.      If the Grievant accepts reemployment, the Company is directed to restore all lost back pay and benefits to the Grievant, at Courtesy Clerk rates, from the date of termination though reemployment, less any interim earnings.  Further, the Grievant is to be permitted to retake the Clerk’s test at the parties’ mutual convenience under the “Accommodation” request of September 10, 1999.

3.      Should the Grievant refuse reemployment for any reason, her personnel records shall be modified to indicate that she voluntarily terminated her employment.  Further, the Company is directed to reimburse her for all lost pay and benefits, at Courtesy Clerk rates, from the date of termination through the date of this award, less any interim earnings.

4.      The Arbitrator retains jurisdiction of this matter only to the extent the parties are unable to determine the proper amounts due.

 

 

__________________________________  

THOMAS L. WATKINS, Arbitrator

 

December 4, 2000

Frisco, Colorado

 



[1] Grosfield was not called as a witness in the hearing.

[2] As noted, Grosfield did call the Grievant on Saturday, August 21st (the Grievant’s third day of work) to clarify any misunderstanding: she, Grosfield could not appoint Hickey-Hansen to a Head Clerk position, i.e., such a decision was the sole responsibility of store managers.

[3] Elkouri and Elkouri, How Arbitration Works, 5th ed., BNA 1997, pp. 905-8.

[4] It would have also been helpful to know why they did not work on the same days more often.

[5] There was some debate at the hearing about whose responsibility it was to obtain and pay for medical tests or opinions.  It would seem the Grievant has the obligation to back up her claims, if any; and the Employer has a right to seek its own medical opinions if necessary, and to ultimately rely on them.

[6] Dykstra testified she lost her daytimer and had no documentation.

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