Human side – 2004-05-10

By Raymond Dreyfack, Contributing Editor May 10, 2004

Accommodating disabilities

Can demands be unreasonable?

Bert Kriegman, a service mechanic with a badly crippled leg incurred in an automobile accident a year before, complained that the company was not doing enough to accommodate his disability. He contended that as a long-time employee he deserved more consideration.

Maintenance Supervisor Max Redlich sympathized with Kriegman’s problem, but disagreed with his contention. “I’ve been bending over backward to make life as easy for you as possible.”

“If that’s true,” Kriegman replied, “you would have constructed those two ramps I requested a few months ago.”

“I looked into that,” Redlich said, “but it would have been prohibitively expensive to build those ramps.”

Redlich pointed out as he had in the past that he went out of his way to assign the mechanic jobs that were as conveniently accessible as possible, and to avoid assignments where Kriegman would have to climb steps. He also made plant vehicles available to the worker whenever possible. He had even offered to transfer the mechanic to another building where getting around would be easier, an offer Kriegman refused.

Kriegman was persistent in his complaint. Under the Americans With Disabilities Act (ADA), he contended “it was management’s responsibility to build those ramps” for him.

When Redlich was equally persistent, Kriegman threatened to sue.

Question: Do you think the employee has a viable case?

Russo’s response : Plant Engineer Bob Russo supported Redlich’s stand when informed of the case. “For one thing,” he said, “Kriegman is able to perform his job competently under the conditions that exist. For another, the ‘reasonable accommodation’ proviso under ADA does not imply accommodation beyond practical and reasonable limitations.”

Jury duty

Does it deserve priority over departmental duties?

Decision makers are sometimes called upon to pass judgment on the weirdest situations. Instrument Repairman Tom Kramer’s jury duty notice couldn’t have come at a worse time. The maintenance department was up to its neck and beyond in a backlog of high-priority work.

Maintenance Foreman Murray Rosen closed his eyes in dismay when Kramer broke the news.

“There’s no way I can spare you now,” he told Kramer.

The repairman shrugged. “Duty calls. I have no choice.”

“Let me see about that.”

Rosen telephoned the judge and explained the situation.

“No problem,” the judge replied. “I can arrange to have him serve at a later date.”

When Rosen told Kramer about the postponement, the worker balked and insisted on serving the day he was called.

His boss couldn’t believe his ears. “The department’s in a jam. I need you now.”

Kramer refused to back down and took off to serve on the scheduled date.

To say that Rosen was furious would be understating the case.

On payday following Kramer’s return to work he was back at his boss’s desk to complain that his jury duty pay was missing from his check.

“Tough luck,” Rosen replied. “Under the labor agreement jury duty pay entitlement only applies when an employee is required to attend. Since the judge was willing to postpone your service, no requirement was involved, hence no pay. Next time maybe you’ll keep other obligations in mind.”

“No way am I sitting still for this,” Kramer threatened. “This isn’t fair.”

Question: Is Rosen justified in denying the mechanic his jury duty pay?

Jolson’s verdict : “Murray, I can appreciate the way you feel,” Plant Engineer Phil Jolson told the supervisor when the case was called to his attention. “But the word ‘required’ in the contract is defined to mean called upon to serve. Under the circumstances Kramer is entitled to the pay. The best you can do at this point is mark it down as a psychological demerit in his file.”

Can you let a persistent harasser get away with it?

Electrician Grade II Jerome Shea filed a grievance after having been fired for sexual harassment. When, after undergoing arbitration he was reinstated, it appeared to some that the arbitrator had harassment tendencies of his own. Shea had repeatedly patted the rear end of a female coworker and attempted to hug her despite vehement protestations.

What made the ruling particularly hard to take was that the arbitrator had failed to consider evidence of other harassment incidents brought to light on the grounds that they had been revealed subsequent to Shea’s dismissal.

Plant Engineer James Lacrosse had no choice but to comply with the order to reinstate the electrician, but had no intentions of letting the employee off that easily.

Question: Does Lacrosse have any recourse making Shea pay for his behavior?

Lacrosse’s response : Shea’s reinstatement didn’t last long. Soon after he was fired again for the multiple incidents referred to above. Within minutes another grievance was filed. This time he didn’t fare so well.

At another hearing the second discharge was upheld. “Management complied with the requirement to reinstate the worker the first time,” the arbitrator ruled. “But no law restricts the company from initiating a second case stemming from the new evidence that was disclosed.”

On occasion justice does triumph.

Rules only work when they have teeth

Rule 114 B reads: “Drinking on the job, or coming to work under the influence of liquor, is inconsistent with productive enterprise. The imbibing or possession of alcoholic beverages on the premises of this plant is strictly forbidden and will result in discharge.”

So stated management’s policy.

One day Maintenance Manager Ken Carpenter was tipped off by a supervisor that he had spied a couple of guys “guzzling beer” in the company cafeteria on a rest break. Carpenter checked it out and found Perry Wilson and Vince Abruzzio with half-finished bottles of beer.

“That does it!” he told the twosome. “You guys know the rule concerning the drinking or possession of intoxicants in this plant.”

Carpenter typed up a discharge notice which he handed to the men, who stalked off in search of help.

Minutes later, accompanied by Morris Stewart, their unit representative, Wilson and Abruzzio appeared at Carpenter’s desk.

“We’re filing a grievance,” Stewart charged. “You can’t fire these guys for drinking or possession.”

“Says who? You know the rule as well as they do.”

“Maybe so, but for one thing they aren’t under the influence of liquor. They’re doing a competent job. For another thing, drinking on the premises has been disregarded more than once in the past. Suddenly clamping down on these men for what was overlooked in the past is unfair and unwarranted.”

Carpenter disagreed. “The terminations stand.”

“We’ll see about that.”

Question: Is discharge too harsh in this case?

Wong’s decision : “Reduce the discipline to a suspension,” Plant Engineer Lee Wong instructed Carpenter. “In view of the fact that the enforcement of Rule 114B has been lax in the past, it lacks the teeth to be enforceable now. Along with the suspension, inform the men that a repeated offense will result in dismissal, and post a notice to this effect on the bulletin board to alert the rest of the crew.”

Can an embarrassing environment constitute grounds for litigation?

Maintenance department clerical employee Rose Malkowitz, after once having dated Group Leader Hank Kurso, subsequently rejected all his further advances. After a while Kurso gave up on Rose and set his sights on Sally Rich, an attractive air conditioning mechanic. Before long a hot affair developed between Kurso and Rich.

Forgive the cliche, but Rose was fit to be tied.

Referring to Kurso as “that jerk,” she failed to win the sympathy of her female coworkers. According to the plant scuttlebutt, one claimed she was jealous; others dismissed her as simply being angry. “If he’s such a jerk,” one employee wanted to know, “how come you dated him?”

Whatever the case, Rose’s anger was barely restrained. She accused Kurso of being a ‘lush’ and complained to Maintenance Foreman George Ripley that the couple’s shameless behavior produced a hostile work environment.

Ripley took her gripe with a plum-sized grain of salt.

“What do you expect me to do about it?”

“Their behavior is embarrassing and undermines productivity,” she claimed. “They should both be fired, or at least transferred out of the department.”

When Ripley refused to take her complaint seriously, Rose threatened to sue.

Question: Does Rose have a viable case?

Berman’s response : “She can sue all she wants,” Plant Engineer Ben Berman told Ripley, “but her case is as weak as a house of cards for the simple reason that it involves Kurso’s behavior and has no bearing on her personally or on her relationship with Kurso. Tell Rose that if she wants to transfer out of the department I may be able to swing it.”

Can sick leave double as a job-seeking opportunity?

Joe Mancuso, a maintenance department welder, presented Maintenance Supervisor George Van Delft with a doctor’s note recommending that he take two weeks off to recover from a throat operation. The employee’s sick leave was approved without question.

When two weeks later Mancuso returned to work fully recovered, he found his time card missing from the rack.

The worker marched up to Van Delft’s desk. “Where’s my time card?” he demanded.

“In the archives,” Van Delft replied. “You’ve been terminated. Your final check will be mailed to you.”

Mancuso was stunned. “What the heck!”

“Don’t act so innocent. The word came back that you were out looking for another job while on sick leave.”


“The ‘how’ isn’t important. Do you deny that you were job-hunting part of the time?”

“Well, no. But whoever said that was a crime?”

“The labor agreement. That’s who.”

“I’m not sitting still for this.”

Question: Is Van Delft within his rights to discharge Mancuso?

Dunlap’s verdict : “Mancuso stays fired,” Plant Engineer John Dunlap ruled. “For whatever good it may do you can refer him to Clause 136 in the contract. ‘An employee who seeks or applies for other employment while on sick leave without the company’s consent shall be regarded as having resigned.'”

Must you give him severance pay?

From a performance standpoint Mechanic Grade II Marcel Drummond left much to be desired. From a human decency standpoint he fared even worse. He had a foul mouth, was disrespectful of coworkers in general, and women in particular.

One day, after receiving a complaint from Storeroom Attendant Ellen Glover that Drummond had been abusive and insulting, Maintenance Supervisor John Kowalsky told Ed Moyer, his assistant, “That does it. I’m getting rid of this guy.”

“It’s about time,” Moyer said.

When Drummond got the news he put on a convincing act of being shocked.

“What about my severance pay?”

“You have got be kidding,” the supervisor replied.

“That’s a rip-off. Employees who are laid off receive severance pay.”

Question: Is Drummond entitled to severance pay?

Jarmin’s response : Plant Engineer Jack Jarmin remarked, “A clause in the labor agreement specifies that severance pay is not a fixed benefit, but optional at the election of management.”

Employee FMLA

Do you know what to do when an employee on medical leave has used up her 12-week FMLA entitlement? The question is posed by HR Matters E-Tips published by Personnel Policy Service, Inc. The answer is, it depends.

The question cropped up at a New England tool manufacturing company when maintenance department clerical worker Anna Leavit developed complications following her pregnancy. Leavit was a marginal performer at best, so that when she called Maintenance Foreman Al Selikoff to inform him that she would have to extend her legally authorized 12-week FMLA leave by four weeks, he figured this would be a good chance to get rid of her.

Ordinarily, says Personnel Policy Service, you may terminate an employee seeking to extend her leave if “the termination is consistent with the treatment of similarly situated employees who have taken FMLA or other extended leave.”

But if the medical condition qualifies as a disability under the Americans with Disabilities Act (ADA), you may have to extend the leave beyond the FMLA requirement.

Question: What action would you take?

Dorf’s decision : “Where a serious health condition is involved,” Plant Engineer David Dorf said, “under the ADA a reasonable accommodation is called for if the employee is expected to be able to resume her normal duties following the extension. In Leavit’s case the requirement is that you treat her condition caused by pregnancy the same as any other employee who suffers a temporary medical disability.”