Human Side – 2004-02-10 – 2004-02-10

By Raymond Dreyfack, Contributing Editor February 10, 2004

Smoke-free policy: How far can you go?

Long-time maintenance department Supply Room Attendant Rose Krause’s eyes were tearing, her nose and throat were becoming irritated, and she was getting a headache again.

There was no doubt in Krause’s mind regarding the cause. Cigarette smoke.

Sure enough, two employees were working on an electrical line no more than 30 feet away, both puffing away like smokestacks. She called out, “Please, put out those cigarettes. One man obliged. The other continued smoking. Krause angrily repeated her demand.

“Yeah, yeah,” the electrician called back.

“As soon as I finish it. Do you know how much butts cost these days?”

“That did it,” Krause thought. Smoking should be prohibited during working hours. She decided to protest to her boss. Again.

Maintenance Supervisor Jim Blount half closed his eyes when he saw Krause approaching his desk with that look on her face. He listened patiently to her complaint and replied as gently as possible. “Yes, Rose, I agree, employers are expected to make a reasonable accommodation for workers who are allergic to cigarette smoke. But in your case we’ve done the best that we can.”

Krause didn’t agree and threatened a grievance.

Question : How far is Krause’s employer expected to go in response to her hypersensitivity to cigarette smoke?

Belknap’s response : When informed of Krause’s threat, Plant Engineer Ralph Belknap told Blount, “It would be nice if we could construct a glass cubicle for Rose to work in to protect her from cigarette fumes. But so far as reasonably responding to her need is concerned, I think we’ve done our best.”

Belknap reeled off management’s efforts on his fingertips. “We got coworkers to sign voluntary agreements not to smoke in Rose’s presence. In recruiting an assistant to work with her, we specified an individual who doesn’t smoke. We even shelled out to upgrade the ventilation system. While it is true that she qualifies as a handicapped person under Section 504 of the Rehabilitation Act of 1973, there’s just so far an employer can be expected to go, and we’ve done our best to meet that requirement. It is up to Rose to accept it or not.”

Training: Is it an affirmative-action obligation?

When an opening for Instrument Repairman Junior Grade was announced, Arthur Gomez was one of the first to apply. Gomez was a Latino employee with a better-than-average performance record as a mechanic grade two. Maintenance Manager Pete Schiffo decided to give him a crack at the job. A few days before the end of his trial period, Schiffo appeared in Personnel Manager Tom Hendrick’s office.

“Who died?”

Schiffo dropped a form on Hendrick’s desk. “I’m recommending that Arthur Gomez be bumped back down to mechanic two.”

The personnel executive wasn’t happy with the response. The company’s Affirmative Action Program favored advancing, not demoting, minority workers. Hendrick waited for an explanation.

“The job’s too demanding. Gomez doesn’t have the education for it. He lacks the language and draftsmanship skills in particular.”

The personnel executive asked, “Is there some way you can give him a little extra help?”

“I’ve already gone overboard in giving him a shot at the job. I waived the Skills Test, and overlooked his poor math score.”

Hendrick expelled a sad breath.

Question : Might special training be called for in this case?

Hendrick’s decision : As both managers realized, “preferential treatment” for minority employees does not imply special training when a probationary period results in failure “Bump him down to his former job,” Hendrick said, “but offer to enroll him in the appropriate training classes, and tell him he’ll be reconsidered for promotion when he upgrades his qualifications.”

Schiffo nodded agreement.

Don’t get tripped up by company manual

In helping to frame the Company Manual, it never dawned on Human Resources Manager Don Gulden when he inserted the phrase “permanent employee” that it would come back to haunt him.

Gulden rued the day that Maintenance Department Welder Frank Costello unwittingly demonstrated the importance of checking and double-checking employee communication whether in writing or oral. Costello long had been a bone stuck in Foreman Cliff Howard’s craw. The welder liked his beer and more than once had been warned about returning from lunch smelling from alcohol. Inevitably, it reached the point when Howard decided that enough was enough. One day when Costello showed up at his workstation 15 min late from a liquid lunch, Howard presented him with a termination notice along with instructions to get his final pay from Personnel.

The worker put on a great show of being stunned.

“You were warned more than once,” Howard said.

Costello stalked off to return minutes later with his unit representative Jerry Hanson in tow. Hanson had the Company Manual in hand.

“According to this provision here,” he told Howard, “Frank is classified as a permanent employee. You can’t fire him on a whim.”

“Whim nothing,” the foreman retorted. “Costello was warned repeatedly about being boozed up on the job.”

Hanson refused to settle for that and threatened a grievance in response.

Question : Can Howard make the dismissal stick?

Berner’s verdict : When the case was called to Plant Engineer Bill Berner’s attention, the executive instructed Howard to reduce the discipline to a 5-day suspension and strong warning notice. The supervisor was flabbergasted.

“Relax,” Berner said, “Was Costello given a breathalyzer test?”

Howard reluctantly shook his head.

“That’s what I thought. Hanson’s ‘permanent employee’ presumption may seem weak but from the Manual’s wording it could be construed as feasible. It also states that an employee can only be terminated for serious misconduct. Without producing test results as evidence, serious misconduct could be hard to prove. A policy handbook or manual can serve as a powerful communications tool. But all it takes is a seemingly harmless statement to work against instead of for the company.”

Asked to report two hours early

Carpenter Grade II Lou Golden worked on the day shift. One day, an hour after returning home, he received a call from his boss.

“Lou, do me a favor. We’re jammed up with work and two guys are out sick. Do you mind coming in two hours early in the morning?”

“No problem,” Golden replied.

Golden put in the extra two hours. On payday he scanned his check and made a beeline for Maintenance Supervisor Fred Ritchie’s desk.

“My check’s short,” he announced.

“How do you figure that?”

“All I got paid was time-and-a-half for the day I came in two hours early.”


“So, according to the contract, if an employee is called in he’s entitled to a minimum of four hours pay at time-and-a-half. All I got was two hours.”

“You got that all wrong. The call-in provision only applies if a person is asked to come back after clocking out for the day.”

The explanation didn’t satisfy


Question : Do you think the carpenter has a valid gripe?

Paulson’s verdict : “No additional pay for Golden,” Plant Engineer Harry Paulson ruled after being filled in on the case. “As you explained, the purpose of the four-hour rule is to compensate an employee for the time and trouble of having to make an extra trip. This doesn’t apply in Golden’s case. He would have had to make the trip whether he reported early or at his regular time. No inconvenience was involved. Case dismissed.”

Cell phone use, distractions, and accidents

Truck drivers (along with construction workers) are the employees most at risk for on-the-job fatalities. Cell phones don’t help the cause. As HR Matters E-Tips , published by Personnel Policy Services, Inc., points out, “It’s no surprise that cell phone use while driving contributes to automobile accidents.”

All one need do is observe how some users pay more attention to their conversations while driving than they do to the road, to realize how easy it is for accidents to occur.

This realization bore fruit when Shipping Department Supervisor John Oliver got a phone call from Jim Romano that he had been in an accident while making a delivery to a customer. The driver had been engaged in a cell phone conversation with his wife at the time. Fortunately, the only injury was to the vehicles involved, a car and the truck. The financial liability wouldn’t bankrupt the company. But the incident alerted Oliver to the importance of developing a policy that deals with the dangers and vulnerabilities of distracted driving. When he brought his concern to Plant Engineer Greg Hammer’s attention, his boss couldn’t agree more.

Question : What action if any has been taken in your company in an effort to minimize the dangers of distracted driving?

Hammer’s response : As suggested by Personnel Policy Services, Inc., the plant engineer and Communications Director Howard Taft devised a program that included:

  1. A written policy that addressed distracted driving.

  2. A training session that spelled out and encouraged safe driving habits.

  3. The screening of all employees, and drivers in particular, to assess driving records and make sure insurance coverage was up to date.

  4. A discussion of causes, aside and apart from cell phone use, that trigger distracted driving. These include reaching for objects in the vehicle, talking with passengers, and playing with radio and CD player dials.

    1. Can she refuse an assignment due to an unsafe job?

      It was another one of those days. Maintenance Foreman Joel Danzig should have listened to his mother, he thought, when she had urged him to go to college and become a lawyer or doctor. Anything but a supervisor. Not only was the department behind schedule on a half dozen projects, but the crew was shorthanded in the bargain.

      Danzig ran his eye down the list of priority jobs to be done. A notation that 18 cartons of machine parts sitting for two days on the loading platform were waiting to be moved glared back at him. Two materials handlers were out sick, and one was on vacation. That left Mary Joblonski as the only handler available. Danzig summoned her to his desk and gave her the assignment.

      Fifteen minutes later Jablonski was back at his desk. “You have got to be kidding,” she said. “Those cartons weight 50 lb each. Give that job to one of the men.”

      “There’s no one available,” Danzig replied. “You’re elected.”

      “No way!” she snapped. “I’m not working on a job that could give me a rupture or hernia.”

      Jablonski was a big strapping woman with bulging muscles. She weighted in at 165 lb.

      “That’s up to you. Either do what you’re told or clock out and take the consequences.”

      “We’ll see about that.” She returned minutes later with Shop Steward Andy Anderson in tow.

      “An employee has the right to refuse an assignment she thinks might endanger her health,” Anderson said.

      “Merchandise handlers hustle heavier objects than that every day. When Mary applied for this job, she asserted that she could hold her own with the best of them. Those are her very words.”

      Question : Can Jablonski be compelled to take on the job or else?

      Brewer’s verdict : “She either follows instructions or subjects herself to dismissal due to insubordination,” Plant Engineer Dan Rucker ruled. “More demanding jobs than this have been performed by handlers, male and female, in the past. When a man is available for heavy work, he normally gets the assignment. In this case no man is available. The time has come for Jablonski to put her money where her mouth is.”

      Think twice before firing “Old Kelly”

      Electrician Joe Kelly may not be the best worker in the maintenance department, but he’s not the worst either. In Maintenance Supervisor Harry Rich’s opinion, however, he’s the most rambunctious. Or as Rich himself states the case, “He’s a royal pain in the butt. The sooner I get rid of this guy,” he groused to his assistant, Tom Rucker, “the happier I’ll be.”

      “Joe Kelly isn’t exactly defiant; he just gives that impression,” Rucker replied. “His concern is confined to one person only, and that’s Joe Kelly. He doesn’t care squat about the department, whether we meet our work goals or not.”

      One day the department was in a deeply dug hole, behind schedule on a half dozen key work orders. Kelly had been assigned to a wiring job in the lab. It was important that the work be completed so that the lab could operate effectively in the morning.

      When the 5 p.m. quitting buzzer sounded, Kelly packed up his tool kit and headed for the washroom.

      “Where do you think you’re going?” Rucker wanted to know. “You have to finish up that wiring job.”

      “No way!” the electrician replied. “This is my bowling night. I’m not working overtime.”

      “We’ll see about that.” Rucker headed for his boss’s desk.

      When Rich was cued in on the situation he blew a fuse. “That does it!” he told Rucker, and typed out a dismissal slip.

      Since Kelly had already clocked out, Rucker presented him with the slip in the morning.

      Kelly gave a good imitation of being stunned. “You aren’t getting away with this,” he snapped, and charged his boss with age discrimination.

      Rucker and Rich had a good laugh over this. “He’s losing his marbles,” Rich said. “The guy’s only 42 years old.”

      Question : Do you think Rich can make the termination stick?

      Parker’s verdict : “Tear up the dismissal notice,” Plant Engineer Ralph Parker instructed the supervisor. “However uncooperative Kelly may be, his work record isn’t bad enough to warrant dismissal, and the federal Age Discrimination In Employment Act has been framed to protect employees 40 and older from being discriminated against. Forty-two does qualify as old according to the Act.”

      Can you fire a regular employee and keep a temp?

      When layoff time rolled around, Carpenter Grade II Frank Shea was stunned to find his name on the list.

      “You screwed up,” he complained to Maintenance Foreman Howard Young. “My name’s on the layoff list, and Jerry Braxton’s still working.”

      “You’re the guy that screwed up, not me,” Young retorted. “If you measured up on the job you wouldn’t have been laid off.”

      “Bull flop! Check the labor agreement. It states that when layoffs are announced, preference goes to regular employees over temps and probationaries.”

      “Normally, that holds true. But when promotions, merit increases, or layoffs are involved, performance is a key factor. You’re lucky you weren’t given the gate a long time ago.”

      “We’ll see about that.”

      Question : Can Young terminate Shea and keep Braxton on the payroll, or does Shea have a legitimate gripe?

      Dannon’s decision : “Shea goes, Braxton stays,” Plant Engineer John Dannon told Young. “The record speaks for itself. Braxton is a competent, dependable employee. Shea’s a dud who should have been fired months ago. Making that judgment is a basic management right.”