Collective Bargaining

Case 52

Company: Multi Clean Inc. Division of Hako Minutemen, Inc., Shoreview, Minnesota

Union: International Association of Machine and Aerospace Workers

- The company manufactured and distributed chemical cleaning and coating products for use with cleaning commercial floors, carpets, and other surfaces

- In 1984, Hako, Minuteman Inc. acquired The Multi Clean Division from the H.B Fuller Company.

- The grievant in this case, Roger Robek, was originally employed by H.B. Fuller on March 18, 1964 and was retained after the 1984 acquisition.

- At the time of his grievance in 1992, he held the position of leadman in the Chemical Processing Department, which was also a bargaining unit position.

- Over the years, Robek had incurred certain back injuries at work with the most serious occurring in 1987 from a fall off the roof of the plant that left him with a 10.5 percent permanent physical disability.

- Despite this injury, he continued to work in the plant in the position of leadman on a full time basis.

- On Feb 26, 1992, Robek aggravated his back while cleaning a chemical spill.

- After finishing, he came back to the plant and while walking up the steps to enter the plant his back gave out and he eventually fell to his knees.

- He proceeded to report the incident to the company Operations Manager at 9:30 Am and finished his shift

- He returned to work the next day and complained of severe back pain and was directed to seek medical attention

- He was receiving Workers Compensation and attending physical therapy 2 times a week until April 6, when he was referred to a specialist.

- The specialist diagnosed Robek with a degenerative disk, prescribed appropriate medical treatment, released him to work with a weight and lifting restriction, and could not work more than an 8-hour day.

- He informed his managers that he was released to return to work with some restrictions but they felt he was not ready to return to work.

- Robek, then informed them that his Workers Compensation was being terminated and the company intervened and got his Compensation extended until June 5 and on that date Robek was again refused work.

- On Aug 6, the specialist determined that Robek had reached maximum medical improvement and told him that he could return to work with strict lifting and bending restrictions.

- The restriction stated that Robek should not exceed a 50-pound lift at waist level with no repetitions, and the lifting of up to 40 pounds only on occasion.

- On Sept 29, the company, through its Vice President of Finance, issued a termination letter to Robek. The letter stated that he was being terminated because he was physically unable to perform the duties associated with his position because of his degenerative disc disease in accordance with the collective bargaining agreement.

- Robek then filled a grievance on Oct 7, protesting his termination and the case eventually wound up in arbitration.

- In addition, after his termination, he continued to receive medical treatment and just before the arbitration hearing he performed a Functional Capabilities Evaluation. This evaluation revealed that Robek still was physically incapable of lifting any weights beyond 35 pounds on an occasional basis, or pulling or pushing 100 pounds on more than an occasional basis and was restricted from sitting, standing, or walking for more than 6 hours in an 8-hour day.

Position of the Company

- Robek was terminated for just cause because he was no longer physically capable of performing his job.

- A review of the evidence showed that lifting of weights over 40 pounds was a continual integral daily part of the job and was verified by the arbitrator.

- There was no job in the chemical processing department, which did not include much lifting.

- Under Section 7.7 of the collective bargaining agreement, the company was not required to retain Robek in another position for which he might be physically capable.

- Regardless, at the time of his dismissal, there was no vacant job available anywhere in the plant that he was capable of performing.

- They stated that the company's obligation was to protect its employees from danger and provide a hazard free workplace that can only be accomplished by having employees that are physically able to perform their jobs.

- In addition, they contend that neither the contract nor the Americans with Disabilities Act require the company to retain an employee who could not perform the job duties that existed in the plants operation.

Position of the Union

- The Union argued the company had not complied with the "reasonable accommodation" requirement.

- The company never gave Robek an opportunity to work with any reasonable accommodations in which the company has done in the past when he was injured.

- The company never discussed modifying the workstation or modifying the leadman's job description to fit his restrictions.

- Robek should be given a chance to perform job duties, which existed prior to his latest injury by utilizing reasonable accommodations in order to determine if he could perform the job with average speed and ability.

- The company did not make any efforts to determine if there