Title: King Soopers, Inc and UFCW Local
MEDICAL LEAVE OF ABSENCE,
Chris Balke, Grievant
Grievance Nos. 99-0486, 99-1304
FMCS No. 000223-06332-7
THOMAS L. WATKINS, Arbitrator
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.
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.
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.
SECTIONS OF THE LABOR AGREEMENT
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 . . .
Section 72. Demotion for Just Cause. Except under the provisions of Section 75, no employee shall be demoted from a higher classification without just cause.
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.
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:
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:
[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.
 Section 75 addresses layoffs and recalls and is not relevant here.
 King Soopers, Inc., v. UFCW Local 7 (Bardwell, April 16, 1985), Cindy Mathews, Grievant, p. 13-14.
 UFCW Local 7 v. Albertson’s, Inc., (Rappaport, July 22, 1997), Richelle Spinuzzi, Grievant, p. 9.
 “Facing” is the process of pulling merchandise from the back of the shelves toward the front to accommodate retrieval by customers.
 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.
 UFCW Local 7 v. King Soopers, Inc. (Sass, April 22, 1993), Christine Dominguez, Grievant.
 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.
 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.
 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.
 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..
 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).
 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.
 Brief of the Employer, p. 29.
 It is unreasonable and unacceptable for the Checker to suggest that the customer do the lifting.
 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).
 Consentino’s Brywood Price Chopper v. UFCW Local 576 (Thornell 1995), 104 LA 187, 190.
 Marc Jacobs in comments reprinted in Arbitration 1996: At the Crossroads, Proceedings of the Forty-ninth Annual Meeting, National Academy of Arbitrators (BNA, 1997).
 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.