Title: Cabot Corporation and Chemical Workers Union
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INTERNATIONAL CHEMICAL WORKERS, LOCAL 619 *
FMCS Case No. 97-11956
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The discharge for James Mitchell was
for just cause.
grievance is denied.
_September 9, 1997
hearing in this matter was held in Pottstown, Pennsylvania, on July 29, 1997.
The Company was represented by attorney Michael Soltis. The Union's spokesperson was international representative
Edward Rock. The witnesses for the
Company was retired employee relations director Terry Mest and director of
organizational effectiveness Bruce Olin. Testifying
for the Union were chief shop steward Ricky Marburger, and the grievant, James
Mitchell. The joint exhibits were
the collective bargaining agreement (J-1) and the grievance packet (J-2).
The Company's nine exhibits included the 5/25/95 written warning
return-to-work letter (C-3), the 6/20/94 Swavely trial agreement (C-7), and the
11/26/96 Smith suspension explanation (C-8).
The Union's four exhibits included the 7/9/97 request for information
(U-1), the 7/23/97 response (U-20), and the Arbor, Inc. recommendation and
certificate (U-4). The parties
submitted posthearing briefs by their mutually agreed upon deadline of 9/2/97.
The Company manufactures tantalum and
niobium for capacitors. At the time
of the grievance, it had approximately 500 employees, including 300 in the
8/4/94, the Company hired James Mitchell as a janitor.
His attendance problems began during his probationary period; he had 3
latenesses and 3 absences during this 60-day period.
This supervisor orally counseled him toward the end of this period, with
a Union representative present.
5/24/95, after a meeting with him and Union representatives, the Company gave
him a written warning for a continuing and documented "pattern of
unacceptable absenteeism," including calling in late and then calling off
after the specified deadline. The
letter ended with this statement: "If absenteeism should continue it could
lead to a more severe level of discipline up to the loss of employment."
or about 7/17/95, he took a nine-month workers' compensation leave.
Soon thereafter, specifically on 7/18/95, the Company sent him a letter
expressing concern about his continuing attendance problems, which included 4 no
shows after calling in late and 2 absences without calling in.
6/13/96, Company officials met with Mitchell and Union representatives to
discuss his unacceptable attendance, which had recurred repeatedly since his
return to work on 4/15/96. He attributed the problem to alcohol addiction and further
informed the Company that he was scheduled to be admitted to the Reading
Hospital for a program of treatment. The
Company put him on suspension until he received a "clean bill of
health," at which time there would be a discussion establishing guidelines
for return to work.
7/2/96, after Mitchell's treatment counselor informed the Company, with his
consent, that he was ready to return to work and that he had arranged for
transportation, which would not be a problem, he signed return-to-work
guidelines. The guidelines
specified that: 1) he would be under probation for the next year; 2) any
absences must have a written excuse; 3) absences must be reported off at least
one hour prior to the scheduled start time; and 4) the first incident of a
failure to report off will result in immediate suspension, pending a review for
his return on the 4 pm to 12 midnight shift, Mitchell had an acceptable although
not unblemished attendance record for July and August.
However, in September his unacceptable pattern recurred.
Specifically, on 9/5/96, he called in late and then was a no show without
another call; on 9/6/96, he called off absent due to a car problem; on Monday
9/9/96, which was his next scheduled work day, he came in to make sure his
supervisor had processed the vacation request slip that he had given him during
the weekend, whereupon his supervisor instructed him that in light of the
circumstances he needed to get approval from the employee relations director; and
he did not return for the rest of the week except to pick up his paycheck on
Thursday. On that Thursday, 9/12/96, the
employee relations director sent him a letter stating: "I have been unable
to reach you by telephone. Please
contact [the human relations office secretary] or myself as soon as possible.
Based upon your failure to properly report off from work last week; I am
considering you suspended and need to have a meeting to investigate the
did not call in to the human relations office until 9/26/96, asserting that he
had been suffering from asthma problems for the prior two weeks and scheduling
the requested meeting for 10/1/96 at 10 am.
10/1/96, however, he did not appear for the meeting, instead leaving a message
at 10:04 that he had car trouble and that he would call back to reschedule the
10/4/96, after not getting any call back, the Company sent Mitchell a letter
stating that "[i]f you fail to report to my office within the next forty-eight
(48) hours you will be removed from the payroll."
10/7/96, Mitchell called in to schedule the meeting for the next day.
10/8/96, the Company held the meeting to investigate the matter.
10/25/96, after a four-person management review,
the Company sent Mitchell a letter of termination.
timely filed a grievance. The matter was processed through the contractually prescribed
steps to the present arbitration. The
operations director, Bruce Olin, signed the Steps 2 and 3 answers.
1.02. Equal Treatment
employees shall receive equal treatment as provided by the provisions of the
agreement without discrimination on account of sex, age, marital status, race,
color, creed, religion, national origin, disability or union membership.
3.07. Removal from
An employee shall be removed from the seniority list and his employment
terminated for the following reasons:
If the employee is discharged for just cause....
VACATIONS AND VACATION PAY
4:02. Vacation Period
The supervisor may grant daily vacation with one (1) day's notice for good and
sufficient reason. Up to three (3)
days of vacation may be taken in one-half day increments with twenty-four (24)
hours notice. The supervisor may
approve a one-half day vacation with less notice for good and sufficient
ADJUSTMENT OF GRIEVANCES AND ARBITRATION
8:01. Grievance and
Step 2.... The designated
Company representative will give his decision within two (2) work days after
Step 1 is initiated.
3.... A decision will be given
within two (2) work days after Step 3 is investigated.
LETTER OF UNDERSTANDING
March 4, 1980
Company understands that the Union does not recognize the Company's guidelines
dated January 9, 1979 and will not recognize any future Attendance Guidelines
generated by the Company.
dealing with lateness and absenteeism, the Company will take into consideration
all the facts applicable to each individual employee.
the discharge of the James Mitchell was for just cause?
If not, what shall the remedy be?
Arbitral authority is well
established that excessive absenteeism, even when due to illness, generally
constitutes just cause for termination of an employee.
The same applies for related
attendance problems, such as lateness and failure to call off in timely fashion,
inasmuch as an employee's failure to show up for work not only regularly but
also reliably is harmful both the Company and the employees; it infringes on the
mutual interest in a productive and profitable enterprise and, unlike vacations
and leaves, burdens co-workers by not providing predictability for substitutions
generalization, however, is not absolute and requires an examination of the
individual circumstances, such as 1) pertinent policies and contractual
provisions; 2) the duration and degree of attendance problems; 3) prior warnings
and discipline, if any; and 4) mitigating factors, such as length of service.
in this case the only overriding guidance in the collective bargaining agreement
(CBA), other than the brief just cause clause, is the incorporated letter of
understanding, recognizing the Union's resistance to a fixed policy, such as a
"no fault attendance system, and agreeing that each individual case of
lateness and absenteeism will be dealt with on an ad hoc basis, or totality-of-
the-circumstances approach. The
Union argues that the Company's Step 1 answer, which alluded to its attendance
policy, and its response to the request for information, which appears to deny
such a policy, are contradictory and help prove that the Company's investigation
was not conducted fairly and objectively. However,
the off-hand statement in the 7/9/97 response that "the Company does not
have a discipline or attendance policy but look [sic] at each case
individually" is reasonably understood to mean, under the circumstances,
including the contractually-appended letter of understanding, that the mutually
agreed approach is an ad hoc, rather than rigid, policy.
Semantics aside, the Union's chief steward admitted on cross-examination
that the Company dealt with the grievant in accordance with this letter of
rest of the Union's basis for its claim of an improper investigation was that
management representative signed both the Step 2 and the Step 3 answers.
However, Article VIII of the CBA, as excerpted above, only requires that
"the Company's designated" provide a timely answer at Step 2 and that
a timely decision be given at Step 3 after investigation.
Thus, the CBA does not prohibit the same management representative from
signing both answers, and this evidence obviously is far from per se proof that
the investigation was not fair and objective.
The Union failed to adduce any other material evidence to support this
claim; consequently, it must be rejected.
the proof is ample and unrefuted that the grievant persisted in attendance
problems from his probationary period through to his ultimate termination.
This finding must be reviewed in tandem with the third factor.
third and interrelated factor is that the Company provided the reasonable range
of progressive discipline, starting with oral counseling at the end of the
grievant's probationary period, a written warning less than eight months later
when the problems persisted in the interim; suspension upon repetition of the
problems; and, after the grievant pointed to alcohol addiction,
reasonable return-to-work guidelines signed by the grievant. The
key condition in these guidelines was that the "first incident of a failure
to report off will result in immediate suspension pending a review for
termination." When the
grievant did just that, failing to report off on 9/6/96, he subjected himself to
such a suspension. He merely
compounded the problem by 1) being absent on 9/5/96, which alone would have been
excusable but in combination with the rest of the pattern contributed to the
excessiveness; 2) failing to obtain the approval for vacation on 9/6/96 as
reasonably directed by his supervisor under the circumstances;and 3) failing to
come in to work for the rest of the week despite a contractual limitation on
daily vacation. In any event, the
9/12/96 suspension letter made clear that its basis was his failure to report
off properly. During the ensuing
investigation period, the grievant in effect nailed his own coffin shut by his
successive, subsequent failures to timely schedule the requested meeting in
response to this notice, to show up at the meeting, and to promptly reschedule
its vigorous efforts, the Union was not able to undo the fatal damage.
Even if its argument that he properly took his vacation is accepted along
with its undeniable claim that he cannot be faulted for not coming to work after
his 9/12/96 suspension, the evidence is unrefutable that the grievant did not
fulfill the key condition in the return-to-work document and during the
investigation period otherwise confirmed the justifiability of his termination.
the Union mounts arguments that the termination decision was not even-handed in
relation to other similarly situated employees and was not just in terms of his
post-discharge conduct. Although even-handedness is a valid consideration in
terms of just cause,
it was not controlling in this case for the following cumulative reasons: 1) the
parties mutually agreed approach is individualized; 2) two of the three other
employees' were not similarly situated;
and 3) the Company reinstated the third employee, after a termination for
excessive absenteeism, under a nonprecedential agreement.
Unlike these employees, the grievant did not have significant seniority
as a mitigating factor.
other purported mitigating factor, post-discharge conduct, is generally only
relevant to what the Employer should have known at the time of discharge.
Here, in any event, the grievant's rehabilitation record is not of such
timing, nature, and quality to serve as a mitigating factor to require reduction
of the Company's action.
although regrettable, the decision was inevitable that the Company did not
violate the CBA's requirement for "just cause" in terminating the
 His only documented calls was a voice-mail message on 9/16/96 that he would be late, which only resulted in a no show, and a call to the security guard about contacting the Union about his pay checks.
 At Step 1, he answered that the Company determined, after investigation, that his actions were not in conformity with Company policy. At Step 2, he answered that Mitchell had not provided any new pertinent information and that although recognizing that he "is working on his personal problems, he did have a final warning which was not followed."