28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: King Soopers, Inc and UFCW Local 7
Date: September 14, 2000
Arbitrator: Thomas Watkins
Citation: 2000 NAC 121

In the matter of arbitration between:

 

KING SOOPERS, INC.

Denver, Colorado

 

 

                         and

 

 

UNITED FOOD AND COMMERCIAL WORKERS,   Local 7

 
 

 

 

 


                                                                                                MEDICAL LEAVE OF ABSENCE,

                                                                                                                SEPARATION

 

                                                                                   

                                                                                                          Chris Balke, Grievant

                                                                       

                                                                                                Grievance Nos. 99-0486, 99-1304

                                                                                                      FMCS No. 000223-06332-7

 

 

 

                                                                        THOMAS L. WATKINS, Arbitrator

 

 

APPEARANCES:

 

            FOR THE COMPANY:

 

                        Sherman & Howard, Attorneys, by Raymond M. Deeny

                        Stephanie Bouknight, Manager of Labor Relations; Witness

                        Terri Capra-Wathier, Assistant Store Manager #29

                        Dimitri Clark, Assistant Manager of Employment; Witness

                        Bob Hernandez, Manager Store #7; Witness

 

            FOR THE UNION:

 

                        Michael Belo, General Counsel

                        Chris Balke, Grievant; Witness

                        Noeneli Balke, Mother of Grievant

                        Steve Dominguez, Union Representative

 

 

 

HEARING HELD:  June 30, 2000 at the offices of the Union, 7760 W. 38th Avenue, Wheat Ridge, Colorado.

 

THIS PROCEEDING in arbitration was authorized under Article 43 of the Agreement between the parties dated June 30, 1996.  The Arbitrator was selected by the parties.

 

POST HEARING BRIEFS were timely filed by both parties on August 18, 2000.


INTRODUCTION AND ISSUES

The case presented herein for decision involves the employment of Chris Balke, who had worked for the Employer, King Soopers, Inc., a grocery chain, for nearly 29 years, serving as an all-purpose clerk (APC) continuously since 1974.  In the late 1980s or early 1990s he developed a hernia, a non-work related injury for which he had four surgeries.  This condition resulted in a 10-pound lifting restriction that was still effective in March 1999.  Balke also has diabetes, which causes neuropathy, a numbness of the legs and lower extremities; and he suffers from crushed vertebrae in his back, particularly in the L3, L4 areas, and from degenerative discs in his neck which cause chronic headaches and limited range of movement in his neck.  [Co. Ex. 2] 

As a result of these conditions he has been limited, since about 1994 or 1995, to working at a fast lane checkstand, which does not have the same lifting requirements as a regular checkstand; and he has been working exclusively at a right-hand checkstand.  Because of the neuropathy, he has used a custom-made chair at the checkstand since 1995, which allows him to sit at least 75% of the time while checking the merchandise being purchased by customers of the store [Un. Ex. 3].  

The Grievant testified that on most mornings he would work in a regular checkstand 30-45 minutes until the second Checker came into work, then he would move to the right-hand fast lane and sit on the chair for the rest of the workday.  The Company accommodated these restrictions and this arrangement for over four years.  Balke apparently performed the APC job satisfactorily under those circumstances during this period, as there were no complaints from management or other employees to the contrary, even receiving a “100%” from a Secret Shopper evaluation. 

In August 1998 the Company began conducting an audit to determine whether any of its stores had employees working with medical restrictions.  Dimitri Clarke, then assistant manager of risk management, met with the Grievant and the assistant manager of his store in March 1999.  During the assessment, Balke told Clarke that he could not do any stocking work, and that retrieving cigarettes caused him discomfort.  Balke confirmed that he had a 10-pound weight restriction and could only check in a right-hand, fast lane checkstand.  Clarke suggested that he might transfer to the night stocking crew, but he replied that it would violate his lifting restrictions.  Clarke then indicated the Company would review the situation and make a decision. 

In brief, Balke had three types of restrictions in March 1999: a ten-pound lifting limit, he needed to be sitting 75% of the time, and he could rotate properly only in a right-hand checkstand.  The Company concluded that he was unable to perform the essential duties of his job classification.  On March 18th, Store Manager Bob Hernandez informed Balke that the Company was putting him on a leave of absence effective March 25th, because he was “unable to perform essential duties of classification” [Co. Ex. 5].

A grievance was filed on March 24, 1999 contending that the Company had forced Balke onto an “unjust medical leave of absence” and subjected him to disparate treatment [Jt. Ex. 2]. 

Testimony as to subsequent events is somewhat conflicting.  Balke testified that about two weeks later he had a phone conversation with Clarke in which she said the Company did not have any jobs that met the Grievant’s restrictions.  Balke also stated that he submitted internal applications through the store secretary for two positions (pharmacy technician and camera operator) which appeared to meet his restrictions.  He added that Hernandez told him about two days later the two applications had been turned in.  In any case, the Grievant did not receive a response from the Employer about these positions.  Hernandez denied that he had received applications from Balke for other positions, and Clarke testified that she could find no record of them.

Clarke stated she urged the Grievant to call her every week to discuss current job openings.  She further testified that on or about April 30, 1999 she called Balke about a pharmacy billing clerk job in the Company’s main office, but he turned down the position because it did not pay journeyman APC wages.  She stated that she nevertheless faxed him the job announcement [Co. Ex. 1].  Balke said he neither discussed such a position with Clarke, nor received any faxed announcement.

On July 14, 1999 the Social Security Administration denied Balke’s application for disability benefits [Un. Ex. 6], yet in it stated that he was unable to perform his previous work.  On July 19th Dr. Jeffrey Jensen provided a letter supporting the Grievant’s disability application, but also indicating the Grievant required a job “where he is not on his feet a great deal.”  [Co. Ex. 3]

On September 23, 1999 Balke went to Dr. Rik Santaguida, a general practitioner.  At Balke’s request, and apparently without testing, Santaguida issued a revised “Report of Maximum Medical Improvement and Impairment” [Un. Ex. 4] which removed the lifting restriction but retained the condition of working only in a right-hand checkstand.  (The Grievant admits he still needed the chair so that he could sit while checking.)  Balke gave the report to Hernandez. 

On October 13, 1999 Dr. Jensen wrote a second letter stating that Balke could not stay on his feet for the amount of time required for Checkers, as set forth in the job description, and that he must sit 50-75% of the time [Co. Ex. 8].  That same day Balke requested a continuance of his leave of absence [Co. Ex. 9].  He acknowledges that by doing so he was certifying he was unable to properly perform his job due to his back, neck and carpal tunnel syndrome, as well as the restrictions indicated by Dr. Jensen.

Hernandez informed Balke on October 2nd that the Company would not return him to work irrespective of the note from Dr. Santaguida.  This precipitated the filing of a second grievance [Un. Ex. 1] on October 20th which protested “disparate treatment” and the Company’s failure to return Balke to work even after the weight restriction was lifted by Dr. Santaguida.

The grievances were processed through the negotiated procedure, denied by the Employer throughout, and are now before this Arbitrator for a decision on their merits, although the Company protested the inclusion of the second grievance: the Employer argued it took no action in October that would provide a basis for a grievance, and even if it had, that grievance would have to be heard in another hearing.  The Union contended that the two grievances were inextricably linked, and that even if the Company did not violate the Agreement in March 1999, it still had done so in October.

At the hearing the Arbitrator ruled that the grievances would both be heard because (1) the grievances are so closely intertwined, and it would result in unnecessary time and expense to hear them separately; and (2) both parties had stipulated at the outset that “the matter was properly before the Arbitrator for a decision on its merits,” and the “matter” involves both the issuing of the leave and the Company’s later refusal to rescind it.  Finally, in none of the correspondence with the Arbitrator does the Company indicate that the hearing shall be confined to consideration of the first grievance only.

Unable to agree on the wording of the issues to be decided, they are framed as follows:

Did the Company violate the Agreement in March 1999 when it discontinued offering the Grievant a right-hand fast lane position and placed him on an involuntary leave of absence?  Did the Company violate the Agreement in October 1999 when it refused to reinstate the Grievant after he reported a change in his medical restrictions?  If either of these is answered in the affirmative, what is the appropriate remedy?

 

In April 2000 the Grievant resigned from the Company because he needed the money from his 401(k) plan which he could not withdraw without terminating his employment.  He remains unemployed despite numerous efforts to find a suitable position.

 

 

RELEVANT SECTIONS OF THE LABOR AGREEMENT

 

ARTICLE 6

RIGHTS OF MANAGEMENT

 

            Section 14.  The Employer retains the right to manage the store or stores, to direct the working forces, and to make necessary reasonable rules and regulations for the conduct of business, providing that said rules and regulations are not in conflict with the terms of this Agreement in any way . . .

 

ARTICLE 27

SENIORITY

 

            Section 72.  Demotion for Just Cause.  Except under the provisions of Section 75,[1] no employee shall be demoted from a higher classification without just cause.


ARTICLE 32

LEAVES OF ABSENCE

 

            Section 81.  Sickness, Injury or Pregnancy.  Leaves of absence shall be granted for up to eighteen (18) months without pay when an employee with three (3) months of continuous service is unable to work because of bona fide sickness, accident, disability, or pregnancy.  However, in the event such an employee is unable to return to work at the end of eighteen (18) months of his/her leave period, he/she shall be entitled to an additional leave of six (6) months if he/she submits satisfactory medical evidence that he/she will be able to return to duties within his/her classification within the said additional period.

 

ARTICLE 40

DISCHARGE AND NO DISCRIMINATION

 

            Section 115.  The Employer and the Union agree that each will fully comply with the applicable laws and regulations regarding discrimination against any employee or applicant for employment, because of such person’s race, religion, color, national origin, sex or age.

 

 

 

RELEVANT COMPONENTS OF THE APC JOB DESCRIPTION

 

II.  ESSENTIAL DUTIES AND RESPONSIBILITIES OF THIS JOB

3.      Provides customer service

6.      Scans, weighs and enter prices of merchandise

7.      Bags groceries and loads into shopping cart

8.      Unloads groceries to scan and checkout (excluding a shopping cart)

 

III.  SECONDARY OR OTHER DUTES/RESPONSIBILITIES OF THIS JOB

3.      Performs duties of APC stocker

4.      Performs duties of APC Produce stocker

 

V.  JOB QUALIFICATIONS

     G.  WHAT ARE THE PHYSICAL DEMANDS OF THIS JOB?

1.      Standing:  67-100% [of the time]

2.      Bending from the waist:  34-66%

3.      Sitting:  0-33%

4.      Lifting 0-10#:  67-100%

5.      Lifting 11-25#:  34-66%

6.      Lifting 26-40#:  0-33%

 


 

THE “BURDEN OF PROOF” MATTER

 

At the hearing both parties contended that the other shouldered the burden of proof, a matter extensively argued further in their post-hearing briefs.  The Arbitrator directed that the Union proceed first in the interest of clarity without prejudice as to the burden of proof.  Following consideration of all facts, submissions and arguments, I am persuaded by the position advanced by Arbitrator George Bardwell in a case between these same two parties:[2]

For all intents and purposes the Company had suspended [the Grievant] for the period October 11 through October 17, 1985, on grounds a second medical opinion was needed to evaluate Grievant’s condition.  There is no language in the current Labor Agreement pertaining to “involuntary” personal leave.  There is no language in the current Labor Agreement whereby the Company can deprive a bargaining unit member of work without proper cause. . . . The action taken by the Company is tantamount to a suspension . . .

 

This rationale was adopted by Arbitrator Michael Rappaport in similar case involving this Union:[3]

[It] first must be noted that the Grievant did not request the leave of absence, but instead it was forced upon her over her objections by [the store director].  Thus essentially the Grievant was given involuntary time off without pay which in one sense could be seen as akin to a disciplinary suspension.  While clearly it was not the equivalent of a disciplinary suspension, it does suggest to the Arbitrator that the Company at least has the burden of showing to the Arbitrator’s satisfaction, since it took the action in question over the Grievant’s protests, that the Grievant could not perform the essential functions of her job and therefore it had the right to put her on leave of absence.

 

Because the action taken here has the same effect on an employee as a suspension, it is the Company’s burden to establish with clear and convincing evidence


that the Grievant could not perform the essential duties of the position, especially where that Employee has nearly 29 years of service and had been working with the same restrictions for at least four years. 

 

POSITION OF THE UNION

The Union argues that (1) an employee need only be able to perform the essential tasks of a position, not all the tasks, (2) for more than four years Balke had performed the essential tasks without complaints from customers or management, (3) the Company is unable to show that Balke’s use of a chair ever caused any reduction of his efficiency in performing his job or otherwise caused any undue hardship on the business, (4) the Americans with Disabilities Act imposes the duty to reasonably accommodate employees with disabilities, (5) the Company had reasonably accommodated the Grievant’s restrictions prior to March 1999 and has an obligation under both state and federal statutes to continue doing so, (6) the Company cannot show that Balke is no longer able to perform the essential functions of the APC job, (7) indeed, since October 1999 he had the 10-pound weight restriction removed to make him even more able to perform the job, (8) therefore the Employer cannot now argue that continuing to accommodate the Grievant would place an unreasonable burden upon the Company, (9) half the checkstands are right-handed so being limited to those is hardly an unreasonable restriction, and (10) even if this store did not require a full-time, right-hand fast lane to be open full time, such positions were available at other of the Employer’s stores to which the Grievant could have been transferred.

For each and all of these reasons, the Union asks that the grievances be upheld: the Company violated the Agreement initially by discontinuing the accommodation of Balke and forcing him onto a leave of absence; it violated the Agreement again when it refused to return him to work after the doctor eliminated the lifting restriction.  Therefore, the Union asks that the Grievant be made whole for losses suffered from the wrongful action on March 18, 1999 until his resignation on April 25, 2000, plus interest on the monies due.

 

POSITION OF THE EMPLOYER

The Company contends that the Grievant is unable to perform the essential duties of the APC job [Co. Ex. 10].  Specifically he is unable to provide adequate customer service because he cannot lift items from customers’ carts, nor is he able to stand for the amount of time necessary to perform the essential duties.  While it is common in the fast lane for customers to remove items from their baskets or carts and place them on the counter, it is not uncommon for the Checker to load items for customers.  Balke is unable to do this.

There are no sub-categories for APCs, i.e., there is no such thing as a right-handed Checker position or a fast lane Checker.  Thus all APCs are expected to fill in for any other APC during lunches and breaks.  The Grievant is unable to perform this function since he is limited to a right-hand fast lane.

In addition, (1) this store did not need a checker in the fast lane except for short periods experiencing high volume such as the lunch hour or late afternoons, (2) the Grievant refused to operate in anything but a right-handed fast lane, and (3) he was unable to stock or “face”[4] shelves. 

That Balke has a letter from Dr. Santaguida lifting the weight restrictions is of no merit: the Company has a policy requiring employees to return to the workers’ compensation physician who imposed the restrictions in order to have them released or changed.  Nothing was ever received by the Company in this regard.

Balke repeatedly rejected or refused to apply for positions that paid less than what he had been making, and there is no evidence he actually applied for the camera operator or pharmacy technician positions, as he testified.  After a thorough search of the Employer’s application system, it was determined that Balke never applied for these positions.[5]

An employee must be able to perform the majority of the tasks required by his/her position, and be able to perform all of the essential tasks.  The evidence in this case clearly establishes that Balke does not meet either of these tests.  The Company was within its rights under those circumstances to place the Grievant on a leave of absence: the Agreement places no restriction on management’s right to take such action, and this right was reinforced in a decision between these same two parties.  In the Dominguez case, Arbitrator Sass determined that the Employer did not violate the Agreement when it forced the grievant to choose between a demotion and a leave of absence.[6]  Nor is the employer obligated to create a position for the employee or place him on “light duty.”[7]

For each and all of these reasons, the grievances must be denied.

 

ANALYSIS

The parties did a remarkable job researching the sensitive matters at issue here, and documenting dozens of arbitration and court cases which support their respective positions.  It is a complex environment, but when stripped to its essence, the picture clarifies.

First, the matter before us is certainly one contending a contractual violation, as all grievances must.  Yet by its nature this case touches upon familiar language of the Americans with Disabilities Act.  Arbitrators are split as to whether they wish to ignore or consider those provisions in rendering a decision on the grievance.[8]  It would seem this dilemma can be resolved by noting that whether or not it is specifically referenced in Article 40 or elsewhere in the Agreement, the Company is expected to comply with the provisions of the Americans with Disabilities Act (ADA): a non-discrimination provision prohibiting certain bases is inclusive but not exclusive; i.e., it does not automatically exclude forms of discrimination which may subsequently be held intolerable by legislation, court decisions, arbitration or reason.

That is, an employer may not take adverse action against an employee for a


characteristic that could not be shown to have at least some effect upon the operation of the business. There simply must be, as hundred of arbitrators have held, a job-related rather than a capricious basis for the employer’s action: this is inherent in the just cause provisions of the contract.  In brief, this or any employee is entitled to be free of unreasonable discrimination irrespective of whether the element identified as the basis for the job action is specifically identified in the Agreement. 

Second, it is clear that the Company is within its rights to establish the qualifications and expectations of its jobs, and to assess whether an employee possesses the necessary skills, knowledge, capacity, and other relevant elements to perform it satisfactorily.  It is also clear that upon finding that a particular employee does not, there is no obligation to create a position for the worker, to place him/her into a light duty situation, or to maintain him/her in a particular classification or at a particular wage level.[9]  And, consistent with the Sass decision, id., it is within management’s right to place an employee on medical leave where his/her physical conditions render the person unable to perform the tasks required of the position.  Indeed, where such benefits are not available, there is no obligation to retain the employee at all.[10] 

In the instant case this means that the Employer is not obligated to maintain an

open fast lane solely to accommodate the Grievant, where the store did not need, and would not normally have, a fast lane open more than a few hours per day.  With those observations as a background, let us turn to the essential questions of the case before us.

1.  What must an employee be able to do to be “qualified” for the position?  S/he must possess the abilities, characteristics or attributes necessary to perform all essential job functions, with or without accommodation.  This finding is consistent with Arbitrator Sass’ Dominguez decision, id., which both parties presented.  Sass held that an employee need not be able to perform all of the tasks of a position in order to be qualified for it; but it was as clear then as it is here that s/he must be able to perform all essential job tasks.[11]

The job description of the APC position [Co. Ex. 10] in Part II specifically identifies the “Essential Duties and Responsibilities of This Job.”[12]  Sixteen are listed.  An employee must be able to perform all of the essential duties to be qualified:  it is not enough to perform the majority, or even most of them.  The description additionally lists several characteristics an employee would normally need to possess in order to perform those essential job functions: education, training, skills, and experience, as well as physical and mental abilities.

The Employer contended that an APC must also be able to restock merchandise and “face” the shelves; but these are notably absent from the section on essential duties.  Rather, they appear as “secondary or other” duties and responsibilities, and they must, by their omission from the earlier section, be considered non-essential.  Nothing in any of the cited cases, in court or arbitration, embraces the necessity of being able to perform such duties.  Therefore, the inability of an individual to perform all of these duties would certainly not render the person “unqualified.”

Under this analysis, is the Grievant qualified for the position?  The Union contends that since Balke was working as an APC for many years he was clearly qualified for the position.  The Employer argues with equal vigor that he was not  qualified; rather, he was being accommodated by the Employer, beyond any reasonable obligation, for a period of more than four years, but still could not perform all essential job functions; and such accommodation does not entitle him to stay.

Two different time periods are relevant.  Until October 1999 there seems little question that Balke was disabled in the normal sense that term would be used, even if one does not adopt the strict standard of the ADA (an impairment that substantially limits a major life activity).  He may not have been so completely disabled as to qualify for SSA benefits, but he was certainly disabled in the sense that because of his physical limitations he could not, without significant assistance or accommodation, perform tasks routinely undertaken by an average human being.  Indeed, if Balke had no disability, would there have been any reason to have placed him on a medical leave of absence?  He clearly is or was “significantly restricted in his ability to perform [the activity] when compared to the average person in the general population.”[13]

The Grievant was unable to stand for long periods of time, he could operate only right-handed checkstands because of his back, and his hands shook.  In addition, Balke was unable to lift more than ten pounds, whereas it is clear from the job description that in order to perform several of the essential duties identified, a Checker must be able to handle 11 to 25 pounds frequently (34-66% of the time), and 26 to 40 pounds occasionally (up to 33% of the time).  Balke was restricted from doing this, and it is a restriction that could not be reasonably accommodated.[14]  It is this restriction that originally caused the Employer to place the Grievant exclusively in a fast lane: less lifting is required.  But even there, some lifting is required to perform the essential duties of the APC position. 

During this period the Employer showed both patience and flexibility.  The Company accommodated all of Balke’s special needs, by providing a customized chair and by allowing him to work a right-hand fast lane for nearly his entire shift.  In brief, the Company has established with its evidence that Balke was not qualified but he was permitted to maintain his position.  He was not, therefore, entitled to the accommodation he was receiving, and just cause existed for the Company action.

2.  Once begun, must an employer continue an accommodation?  Even where the employee is and remains qualified, arbitrators differ on this matter.  In the Agrico decision previously cited, Arbitrator Eyraud stated:

The Labor Agreement does not limit the Company in any fashion in the area of working or not working employees on light duty, or in placing or not placing employees on authorized Medical Leave of Absence.  There is no contractual right to go on light duty.  Once on, there is no contractual right to stay on light duty.  There is no contractual right to transfer from light duty to Medical Leave of Absence, nor not be transferred.  Instead, these are areas reserved to management.

 

But in a similar case between the parties at bar Arbitrator Aisenberg, id., stated,

Admittedly, the Company had bent over backward to this point in time to accommodate the grievant in permitting her to work evenings and permitting her to work the express register.  But having done so, it had the obligation to attempt to continue to accommodate her, if this were possible.  [Emphasis added.]

 

To reconcile these two positions one must hold that the Grievant had no right to expect continuance of the fast lane accommodation: given the needs of the store it was inefficient and impractical to continue doing so.  In other words, I subscribe to the Aisenberg position when the last word is changed to “reasonable:” there is an obligation to continue if it is reasonable to do so.  Or to relocate the adjective, there is an obligation to continue providing reasonable accommodation for a qualified individual if it is possible to do so.  As noted, Balke was not qualified at this time, and the Employer was within its rights to remove him from the job and place him on leave.

This situation was exacerbated in April 1999 when the Grievant failed to respond positively to an offer of the pharmacy billing clerk position.  The evidence presented supports the Employer’s contention that such an offer was made, and that, at the very least, Balke did not respond positively to it.  He should have. 

An employer may properly offer an alternative assignment or accommodation, other than that proposed by the disable individual, so long as it is reasonable.  If the employee rejects it, s/he loses the status s/he may have as a qualified individual, and the employer is under no obligation to continue offering other reassignments.[15]  As Arbitrator Thornell phrased it,

Neither the contract nor the ADA give Grievant the right to pick and choose what [the] accommodation will be.  So long as a reasonable accommodation is provided, an employee may not dictate the terms of what work [s/he] will or will not accept.[16]

 

Balke relinquished any claim he may have had in March by his actions in April. 

The Grievant contends he submitted two applications for other positions, and that he checked in regularly to see if other positions were available.  Perhaps he did, and perhaps the Employer did not do all it could to assist in his efforts:  the Company stated it does not search for other positions for its workers unless they express specific interest.

This seems a poor procedure especially given the 29-year history between the Grievant and the Employer.  The Company could have proactively explored additional alternatives: it could have determined if a full-time fast lane position existed in another store; it could have conducted an assessment to determine if there were other positions for which this Grievant was qualified; and it could have discussed with Balke the possibility of working at the Service Desk.  But it has no obligation under the Agreement (or the ADA) to take such additional actions.

3.  Did the situation change in October 1999 when one physician lifted the weight restriction?   No, but only because the weight restriction was not the only element causing the Grievant to be unqualified.  Balke went to his own doctor to obtain a release letter.  He believed that would resolve the matter.  The Employer says it has a policy that an employee must return to the doctor who originally imposed the restriction in order to have it removed.  The record contains no indication who the original doctor was.  In fact, the only reference to this aspect of the case is a statement from the Labor Relations Manager, Stephanie Bouknight.  She stated she communicated the policy to the Grievant’s mother, but no Employer representative told Balke directly.  All the Grievant apparently knew is that the Company would not accept the validity of the letter from his doctor, Santaguida.  Let us not be unclear: it is the employee’s job to produce the proof of fitness required by the employer:

. . . the employee must provide necessary information and, if necessary, submit to an appropriate medical evaluation so that the parties engaged in the process of determining a reasonable accommodation have full and complete information relevant to the issue.[17]

 

However, where, as here, the Employer has the burden to show that the employee was not qualified for the position which he held for over 29 years, there is an obligation to establish that (1) the Grievant knew and understood the policy, and (2) he willingly failed to comply with it.  This it did not do; it simply dismissed Santaguida’s letter and contended that it communicated the policy to the Grievant’s mother.

Without proof, one must conclude that as it relates to the lifting restriction, Balke was qualified for the APC position beginning in October 1999.  That finding, however, is not dispositive of this case, as we are still left with the “standing” issue.

4.  Aside from the lifting restriction, is there proof the Grievant is not qualified for the APC position?  Yes.  By his own admission, the Grievant must be in a job where he can be sitting 50-75% of the time.  One examining doctor, Jeffrey Jensen, stated that Balke cannot be in a job which requires standing 67-100% of the time (as the APC job does), if there is to be any prospect for a reduction in complications [Co. Ex. 8].  There is no medical evidence to contradict this.  Even if Balke’s customized chair could be adapted to other checkstands, the Grievant could not regularly be sitting on it if he is properly doing his job by standing 67-100% of the time.

As the Employer notes, “[E]ven with Grievant’s lifting restriction released, he still is not qualified for the Checker position because there is no reasonable accommodation that would enable him to perform the essential function of standing constantly and working any checkstand as assigned. . . . Although Grievant was using a chair in the


fast lane, it is impossible to use the chair in regular checkout lanes because Grievant would still have to stand to unload the groceries from the shopping carts and, most likely, to bag the groceries as well.  Accordingly, a chair would be of little use in the regular checkstand.”[18]

In sum, the Grievant was and is not qualified for the APC position even with reasonable accommodation.  Further, he has lost his status to contest the Company action by his failure to respond positively to an offer of a job for which he was qualified.  Thus, while I believe the Employer could and should have done more to retain a 29-year employee, it did not violate the Agreement in either March or October 1999.  Just cause existed for its actions.

 

DECISION

The grievances of Chris Balke are denied.

 

 

 

 

                                                                        ______________________________ 

                                                                        THOMAS L. WATKINS, Arbitrator

 

 

September 14, 2000



[1] Section 75 addresses layoffs and recalls and is not relevant here.

[2] King Soopers, Inc., v. UFCW Local 7 (Bardwell, April 16, 1985), Cindy Mathews, Grievant, p. 13-14.

[3] UFCW Local 7 v. Albertson’s, Inc., (Rappaport, July 22, 1997), Richelle Spinuzzi, Grievant, p. 9.

[4] “Facing” is the process of pulling merchandise from the back of the shelves toward the front to accommodate retrieval by customers.

[5] There were apparently no openings for the camera operator position in any case; and the Grievant was not qualified for the pharmacy technician position because it required standing.

[6] UFCW Local 7 v. King Soopers, Inc. (Sass, April 22, 1993), Christine Dominguez, Grievant.

[7] This position was stated by Sass, id., and reinforced in the subsequent decision of Arbitrator MacLean: King Soopers, Inc. v. UFCW Local 7 (May 17, 1995), Cheryl Staats, Grievant.

[8] For an example of refusal to consider, because the Agreement did not specifically reference the ADA, see Shell Oil Co., Inc. v. OCAW Local 4-367 (Baroni, 1998), 109 LA 965; for an opposing example see City of Tampa v. ATU Local 1464 (Hoffman, 1998), 111 LA 65.

[9] See Arbitrator Aisenberg in Albertson’s, Inc. v. UFCW Local 7 (July 1, 1994), Helene Kieffer Burton, Grievant.  Also see Marlin Volz, Proceedings of the 31st Meeting (NAA), BNA, 1978, p. 80; the Sass and Bardwell decisions, id., and Agrico Chemical Co. v. ICWU Local 33 (Eyraud, Jr., 1985), 86 LA 799.

[10] Ball Corp. v. UAW Local 129 (Goodstein, April 8, 2000); Gennesee County Road Commission v. SEIU Local 79 (Allen, 1995), 105 LA 747; Shell Oil, id.; City of Tampa, id..

[11] ADA § 101(8), 42 U.S.C. § 12111(8)(Supp. II 1990).  See also the EEOC interpretation at 29 C.F.R. § 1630.2(o).

[12] It is noteworthy that the description does not use the term “primary duties,” since the issue is one of essential/non-essential, not primary/secondary.

[13] Brief of the Employer, p. 29.

[14] It is unreasonable and unacceptable for the Checker to suggest that the customer do the lifting.

[15] 29 C.F.R. Pt. 1630, App. §1630.9 Kuehl, 909 F. Supp. at 803; and Smith v. Midland Brake, 180 F.3d 1154 (10th Cir. 2000).

[16] Consentino’s Brywood Price Chopper v. UFCW Local 576 (Thornell 1995), 104 LA 187, 190.

[17] Marc Jacobs in comments reprinted in Arbitration 1996: At the Crossroads, Proceedings of the Forty-ninth Annual Meeting, National Academy of Arbitrators (BNA, 1997).

[18] Employer Brief, pp. 33-34.  However, it should be noted that the “right-hand checkstand” issue adds nothing to the resolution of this case: the argument was simply that there was no such sub-classification, which is irrelevant.  If the Grievant was qualified by virtue of having no lifting restriction and by being able to stand the necessary periods of time, it would be reasonable to require the Employer to allow the Grievant to work only in right-hand checkstands: half of those in the store are right-handed.  To permit the Grievant to work at one is an accommodation that could easily be made without any adverse impact on the Company.

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 



LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028