1997 NAC 106 Cabot Corporation and Chemical Workers Union Local 619

Title: Cabot Corporation and Chemical Workers Union Local 619
Date: September 9, 1997
Arbitrator: Perry Zirkel
Citation: 1997 NAC 106

The 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

(C-1),the 7/2/96 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 bargaining unit.

On 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.

On 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."

On 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.

On 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.

On 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 termination.

After his return on the 4 pm to 12 midnight shift, Mitchell had an acceptable although not unblemished attendance record for July and August.[1] 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 circumstances."

Mitchell 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.[2]

On 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 meeting.

On 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."

On 10/25/96, after a four-person management review,[3] the Company sent Mitchell a letter of termination.

He 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.[4]

(a).All 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.

(a) An employee shall be removed from the seniority list and his employment terminated for the following reasons:

(e) 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 reason....

Step 2.... The designated Company representative will give his decision within two (2) work days after Step 1 is initiated.

Step 3.... A decision will be given within two (2) work days after Step 3 is investigated.

The 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.

In dealing with lateness and absenteeism, the Company will take into consideration all the facts applicable to each individual employee.

Whether 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.[5] 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 and adjustments.

This 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.

First, 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 understanding.

The 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.

Second, 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.

The 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,[6] 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 the meeting.

Despite 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.

Finally, 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,[7] 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;[8] 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.

The other purported mitigating factor, post-discharge conduct, is generally only relevant to what the Employer should have known at the time of discharge.[9] 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.[10]

Thus, although regrettable, the decision was inevitable that the Company did not violate the CBA's requirement for "just cause" in terminating the grievant.

[1] In July, he had one lateness. In August, he had one lateness and two absences with excuses for illness.

[2] 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.

[3] The participants were the human relations director, the director of operations, the employee relations director, and Mitchell's supervisor.

[4] 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."

[5] See, e.g., FRANK & EDNA ELKOURI, HOW ARBITRATION WORKS 578-80 (1985).

[6] The interim step, as specified in the "Facts" section, was a serious meeting, with Union representation, were the addiction and treatment were identified.

[7] See, e.g., ELKOURI & ELKOURI, supra note 5, at 684-87; OWEN FAIRWEATHER, PRACTICE AND PROCEDURE IN LABOR ARBITRATION 503-04 (1983).

[8] Rather than attendance problems, the Company terminated Albitz for insubordination, and Smith's infraction was a safety violation for which he may only have been suspended.

[9] ELKOURI & ELKOURI, supra note 5, at 676-77.

[10] Rather, it is, in terms of possible leniency, a matter for the Company's discretion. Id. at 69-73.