United States District Court, D. Kansas
INTERNATIONAL CHEMICAL WORKERS UNION COUNCIL, LOCAL 278C, Plaintiff,
NORTH AMERICAN SALT COMPANY, Defendant.
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
This is an action filed by plaintiff International Chemical Workers Union Council, Local 278C, against defendant North American Salt Company, requesting confirmation and enforcement of a labor arbitration award and seeking remand to the arbitrator for resolution of disputed facts and remaining remedial issues. (Doc. 1.) Both defendant and plaintiff have filed motions for summary judgment (Docs. 13 and 14, respectively). For the reasons stated below, the court denies the summary judgment motions and remands for further clarification.
The facts giving rise to the arbitrator's award are as follows. Defendant produces food grade salt for food processors, table salt for sale to consumers, and salt blocks for livestock consumption. Patrick Guldner was employed by defendant and, beginning in October 2007, he became a laborer, where he spent most of his time painting at defendant's Lyon, Kansas facility. In December 2009, Guldner injured his back while at work and eventually underwent back surgery in October of 2010. After he recovered from the surgery, Guldner was examined by a doctor. The doctor authorized Guldner to return to work without restrictions on December 13, 2010.
After Guldner returned to work, he was assigned to cleaning up eighty-pound bags of salt, during which he testified he re-injured his back. On December 17, 2010, Guldner saw a surgeon of his own choosing, who issued restrictions prohibiting Guldner from lifting (1) any object weighing fifty pounds more than twice per day; (2) objects weighing forty pounds for more than one-third of the day; and (3) objects weighing thirty pounds for more than two-thirds of the day. After being placed on these new lifting restrictions, Guldner's plant manager placed Guldner on a leave of absence and encouraged him to apply for workers' compensation benefits. Guldner applied for benefits, which defendant challenged. Guldner's workers' compensation claim was granted by an administrative law judge.
On April 11, 2011, Dr. Paul Stein, Guldner's personal physician, issued permanent restrictions to avoid lifting more than forty pounds occasionally and thirty pounds more often, no continuous lifting, and to avoid repetitive lifting from below knee-height or above chest-height. During the time Guldner was on leave, the plaintiff repeatedly demanded that Guldner be returned back to work as a laborer or painter. Defendant claims that the painter position no longer existed and that Guldner was still incapable of performing all the essential functions of the laborer position. As a result, defendant refused to return Guldner back to work. On December 22, 2011, exactly one year after Guldner was sent home, the defendant terminated Guldner's employment.
Plaintiff challenged Guldner's discharge and, when the grievance was not settled, it was referred to binding arbitration. On August 1, 2012, arbitrator Richard Potter (the "Arbitrator") conducted an evidentiary hearing. On September 20, 2012, the Arbitrator issued an award (the "Award"), stating:
The Grievance is granted. The Grievant is to be allowed to attempt to perform duties of the Laborer position, making reasonable accommodations for the restrictions on the weight he can handle. The Company may have him examined by a physician of its choice to confirm those restrictions. His seniority will be restored as though he had not been discharged and he will receive any benefits for which he is eligible because of his restored seniority. He is to be compensated for the straight time wages he would have received from the date of his termination to the day he is called to report, less earnings from any other jobs or unemployment compensation.
(Doc. 12-2 at 6.)
On October 9, 2012, defendant filed with the Arbitrator a motion for reconsideration. The Arbitrator did not grant defendant's motion for reconsideration but instead issued a clarification (the "Clarification"), in which he stated in pertinent part:
At the hearing when the Company introduced the Laborer position description, I inquired as to which examples of tasks listed would require a person to lift up to 80 pounds, a listed physical requirement of the position. Ms. Schmidt (with the assistance of Mr. Burgess) was able to identify only one task that would require lifting that kind of weight - cleaning up 80 pound broken open salt bags. Since that task wasn't specifically listed, it would be included under the "other tasks as assigned, " included in all job descriptions to be performed infrequently, but nonetheless part of the job. Later there was testimony that 80 pound bags represented only about 5% of the plant's production. Assuming there was a relationship between the containers spilled and number produced, I concluded that lifting this kind of weight was a minor part of an infrequent task performed by a laborer. I further concluded that while he could participate in cleaning up such spills (such as shoveling and sweeping up product, pushing rolling containers of product, etc.) within the limits of his restrictions, the actual lifting of such weight could be done by the other Laborers.
(Doc. 12-4 at 2.)
It was my intent, however, that the Company give the Grievant a good-faith opportunity to perform what is essentially a custodial job within the limits of his restrictions.
This may require the Company and Union look at the required tasks to determine how some may be performed differently. For example, when I toured the plant on an earlier visit, I noticed there were several levels where employees work. If to perform some tasks a Laborer is required to carry supplies or custodial equipment weighing more than 40 pounds between levels, he may need to repackage them in smaller amounts or, if not too expensive, the Company might purchase additional equipment to have at different levels. In other cases, a Laborer may normally carry weights when they could be moved on hand trucks or carts or store materials at heights that preclude them bending over to ...