Page 76

HR M at t e r s

By Richard Birdsall

Intransigent Consequences Indiana case illustrates losing situation


nflexibility in the human condition can breed unnecessary conflict. Strict adherence to tightly written policies, which cannot possibly address all workplace eventualities, can box you in. Have you, as a union member, ever been caught between your union and your management… and lost? Or have you, as an employee ever been the shrimp caught between two manager whales in a power struggle? Employer/union relationships are often adversarial, at best. This adversarial relationship results in tightly written collective bargaining agreements reducing flexibility in its application by both sides. Unions and employers ultimately insist on adherence to the letter of the agreement because exceptions made for a single employee’s benefit would constitute a waiver that, once granted, suggests a permanent amendment to the agreement. Much like collective bargaining agreements, the strict interpretation and adherence to employer policies can be similarly problematic.

A Conventional Scenario

When an unexpected event backs an employee into a corner, management, unions and employees need to work together. If they fight over the literal language of the collective bargaining agreement, or employer policies, they can ultimately harm all concerned. This story happens in many companies—and may have happened to you, just with different facts. An employee caught between his company’s management and his union or between two dueling managers applying different rules. In this story, which has a fix we could all learn from, is a long-haul truck driver with a pregnant wife. He wanted to stay close to home. So he asked for, and received, a transfer to a local route


hauling freight around the city. A month into his new work shift, he ran into a reality wall. The local hauls greatly increased his frequency of loading and unloading freight thereby aggravating his back. He tried to tough it out but couldn’t. A month after his transfer, he asked to return back to the long-haul route. This would seem to be a reasonable request with a simple solution. Instead, he ignited the perfect storm— because management and union hadn’t worked out how to work together for the benefit of the employee.

Who won here, and why?

No one won. The company lost time and money fighting a legal battle and lost a good long-haul trucker. The trucker lost work and sustained the rigors of a legal battle. The union failed to bring an effective result for its member. The lesson learned is that a little flexibility on the front-end, allowing a re-transfer within 12 months, would have been an ounce of prevention. q

A No-Win Situation

Because the union agreement restricted transfers to a maximum of one per year, management didn’t change his route, leaving the driver with an aggravated back driving an aggravating route. He continued but worked slower, earning a reprimand for his slow pace. Faced with progressive discipline, the driver took unpaid medical leave. After a lengthy leave, the driver tried to return to work. He gave his management a doctor’s note describing physical limitations, hoping to force his management to place him back on his long-haul route. The employer refused and insisted the driver couldn’t return to work until he could report without medical restrictions. The driver sued, citing the employer for violating the Americans with Disabilities Act (ADA) by not accommodating him. In Keith Powers v. USF Holland Inc., U.S. Court of Appeals, 7th Circuit, Dec. 15, 2011, the appellate court sided with the company and ruled that because the driver was able to handle long-haul trucking, he was “not substantially limited in the major life activity of working.”

©2012 Chris Arend

Richard Birdsall

About the Author

Richard Birdsall, B.A., J.D., is a senior consultant for The Growth Company. Birdsall uses his broad experience conducting training in legal compliance, investigation, risk assessment, team building, mediation and alternative dispute resolution. He is particularly adept at ferreting out troublesome HR problems ©2012 Chris Arend and then finding creative ways to solve them. If you have an HR question you would like addressed in a future column, send it in a pithy e-mail to Richard@the growth • Alaska Business Monthly • April 2012

April - 2012 - Alaska Business Monthly  

Alaska Business Monthly’s 2012 Corporate 100 annual special section begins on page 86. Top citizens of industry are highlighted in this annu...