1998 NAC 107 Long Beach Public Transportation and Amalgamated Transit Union Local 1589

Title: Long Beach Public Transportation and Amalgamated Transit Union Local 1589
Date: August, 1998
Arbitrator: Jack H. Calhoun
Citation: 1998 NAC 107

IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

AMALGAMATED TRANSIT UNION, )

LOCAL 1589, )

) OPINION

and ) AND

) AWARD

LONG BEACH PUBLIC TRANSPORTATION )

COMPANY )

_____________________________________________________________________________

FMCS NO. 97-19233 CSR #2

BEFORE

JACK H. CALHOUN

ARBITRATOR

HEARING HELD

March 27, 1998

Long Beach, California

______________________________________________________________________________

REPRESENTATION

FOR THE UNION: FOR THE EMPLOYER:

Glenn Rothner R. Scott Johnson

Rothner, Segall, Bahan & Greenstone Johnson, Cebula & Rygh

200 E. Del Mar Blvd., Suite 200 115 Pine Avenue, Fifth Floor

Pasadena, CA 91105-2544 Long Beach, CA 90802-4446

Long Beach Public Transportation Company and Amalgamated Transit Union, Local 1589 are parties to a collective bargaining agreement that provides, among other things, that the company has the right to make reasonable rules and regulations governing its operations and the conduct of its employees. Prior to May of 1997, the company announced that a new attendance policy would be in place effective May 12, 1997. The union filed a grievance alleging the new policy was unreasonable and violated the agreement. The company rejected the grievance.

The parties did not agree upon the wording of the issue. Based on the evidence on the record and arguments made by counsel, I have determined that the issue is whether the new attendance policy violated Article 6 of the collective bargaining agreement, and if so, what should the remedy be.

The following provision of the collective bargaining agreement is relevant to the issue in dispute:

The company will continue to exercise exclusively the right to set its policy; to manage its business in the light of experience, good business judgment, and conditions; to determine the qualifications for and to select its managerial and supervisory forces; to determine the number of employees it will retain in its service at any time; and to make reasonable rules and regulations governing the operation of its business and the conduct of its employees, however, such rules and regulations shall not violate or be in conflict with any of the provisions set forth in the Agreement. The Company agrees to provide the Union written notice prior to posting any change of policy.

The old attendance policy that was in effect prior to May 12, 1997, was determined by the company to be causing employees to engage in excessive absenteeism. Rates of absence had grown substantially and was having a detrimental effect on the company’s business and the service it provided to customers. A study was done by management that resulted in the conclusion that employees were abusing their sick leave. The old policy encouraged employees to compile their counted absences in blocks of consecutive days and it discouraged or penalized employees who compiled non-consecutive absences. Under the old policy, employees who were absent for a number of days, but consecutively, were treated more leniently than employees who were absent the same number of non-consecutive days.

Under both the old attendance policy and the new policy, a distinction was made between “counted” and “uncounted” absences. Progressive discipline was applied based on the number of points an employee accrued within a moving 12-month period. Uncounted absences, e.g., vacation, holidays and jury duty, were not the focus of either policy. The polices were directed toward “counted absences,” which were all other absences not listed in the polices as uncounted. They were absences for illness, injury and doctor appointments, in essence.

Progressive discipline started under the old policy after an employee had four counted absences in a moving 12-month period. The discipline started with a verbal warning at four such absences and progressed incrementally up to discharge for 12 counted absences. Under the new policy, discipline started after five counted absences with verbal counseling and increased to discharge after 14 counted absences.

The old policy allowed employees who went 120 days without a counted absence to have all accumulated points removed from their records. The new policy allowed employees who went 120 days without a counted absence to have their accumulated points removed only once every two years. The new policy listed 16 types of absences that were considered uncounted absences: vacation, casual vacation, holidays, bereavement, jury duty, military duty, authorized union business, pre-approved doctor’s appointments, change of assignments, pregnancy disability leave, verified industrial injury, verified court appearance under subpoena, removal from service by company doctor, approved personal leave of absence, verified hospital stays, and family leave as prescribed by law. All other absences were considered counted absences.

The policy defined pre-approved doctor appointments, which are uncounted absences, as those where the employee submits written verification to the supervisor that the employee is required to have medical appointments for a specified time. The exception was only for employees who needed ongoing pre-scheduled medical treatments such as prenatal care, physical therapy and chemotherapy.

Verified hospital stays are not counted absences under the new policy. Verifiable medical absences just prior to the hospital stay and immediately following the stay are not counted absences when they are related to the hospital stay.

At the time the company implemented its new attendance policy, it removed all points for counted absences from all employee’s records. Each employee started with a clean record.

After the new policy was implemented, the company did another study to access the results of the policy. The study showed a significant reduction in the number of sick days used by employees.

The new attendance policy significantly modified the old policy in three areas: (1) the point counting method as it applied to the one through five day absences and the greater than 30-day absences; (2) the threshold for termination was changed from 12 points to 14 points; and (3) employees who used the 120-day provision to clear their attendance points could only use that provision once in a two-year period.

Both the old policy and the new policy state, “The progressive disciplinary procedures described herein are intended as guidelines and will be imposed on a case-by-case basis, giving consideration to all relevant factors.” After describing the method of determining counted absences, both polices state that varying degrees of discipline will be applied to employees with excessive absences. The language in the polices is mandatory as it relates to the imposition of discipline, including the language that states a twelfth (old policy) or fourteenth (new policy) counted absence will result in discharge.

A company official, Karen King, explained the company’s practice as it related to the actual application of the policy’s provisions. She stated, in response to a question on examination regarding application of the policy where an employee had an extended absence due to an off-duty injury, that the employee would not necessarily be assessed the points indicated by the policy. She said that although it is not written in the policy, it is an administrative practice to review each case independently and make adjustments where appropriate. She said it was difficult to write a policy that is clear and understandable and then apply it to human beings. The policy’s application requires that judgment be exercised in each case depending upon the specifics of each case.

Ms. King’s answer to the specific question of what were the relevant factors that the company considered in applying the policy on a case-by-case basis and her response to several follow up questions were:

King: We look at the policy and how the circumstances of this particular case relate to the policy. If it is straight forward, that’s pretty clear. We also look at family leave issues and other laws and things that may or may not be relevant to the particular case. We look at information provided by the individual employee that they feel is good cause not to have the points assigned, and we consider that information. And we also look at their previous attendance as it related to this particular occurrence so that we are considering chronic or other kinds of illnesses that may be ongoing that to this point have not been understood or considered that may then cause us to make a decision regarding how points would be assigned.

King: No. We look at their attendance in terms of other notation in their record of service; that’s not considered. We look at their attendance record for the purpose of assigning points.

Q: Okay. I guess my question wasn’t that carefully framed and so let me try again. In the scenario that I described to you of this poor person who had mononucleosis, came back to work for a month and then broke his or her leg, would it be a factor in your consideration that this person was either, example A, a 20-year employee with excellent attendance for those 20 years, or example B, a six-month employee who didn’t have an excellent attendance record?

King: It would be considered if this occurrence of absenteeism resulted in this employee reaching 14 counted or exceeding 14 counted absences which by the policy would call for termination, and yes, there — before any termination occurs, there is a review of that employee’s length of service, their employment record, and all of those things are taken into consideration before any decision to terminate applies.

Q: Okay. So tell me if you agree with me or not. I guess you don’t have to agree with me on the first part. To me when it says here’s how you count points, and when you get to 14 points, it will result in discharge and I was quoting from the policy. What you’re telling us is that in any such case there would still be the relevant determination of whether there was just cause for the discharge?

In March of 1985, Arbitrator Melvin Lennard, issued a one-paragraph award stating that the old attendance policy, as interpreted by the company, did not violate or conflict with any of the provisions of the extant collective bargaining agreement. The award was not accompanied by a reasoned opinion. In fact, the award noted parenthetically that the parties had waived findings of fact, conclusions and written opinion.

The union contends that the provisions of the new attendance policy are unfair and unreasonable and they violate Article 6 of the collective bargaining agreement. Unlike the old policy, the new policy provides that points continue to accrue when and employee is absent for an extended period of time just as it does for employees who take a series of short absences. A single occurrence of illness could result in termination of an employee without progressive discipline. The new policy is inherently unfair and should be overturned.

That the company uses discretion in its application of the policy cannot salvage the policy. The element of discretion does not make the policy reasonable. It may make management’s decision on discipline reasonable when the decision deviates from the provision of the policy, but it does not make the policy reasonable.

The policy is also unreasonable because it fails to exempt absences protected by state law. Employees may be assessed points for absences caused by engagement in certain civic activities protected by law.

The policy is unreasonable in its assessment of points for absences related to doctor appointments and removal from service by a doctor. It is unreasonable not to assess points for absences for doctor appointments for extended treatments over a period of time, but assesses points for absences for a single pre-scheduled doctor appointment. Such policy discourages employees from obtaining preventive care, which would reduce absenteeism caused by illness.

It is unreasonable to penalize employees for their medical treatment that resulted from an injury or sudden illness but to then exempt the ongoing treatments resulting from that very accident or illness. It is also unreasonable to exempt absences due to removal from service by a doctor only when the removal is ordered by a company doctor. There is no logical difference between removal by the company doctor and a personal doctor.

The company contends that there is no evidence that the new policy is unreasonable and not in compliance with the collective bargaining agreement.

The company argues that the doctrine of collateral estoppel bars the re-grievance over the classification of absences as counted versus uncounted. Arbitrator Lennard ruled that the old policy did not violate any provision of the agreement. The way absences are characterized has not changed from the old policy. The change was in the method points accumulated and the number of points required for discipline. When an issue has been fully arbitrated and decided, it should be final. Half of the union’s grievance is precluded from consideration. Even if the grievance is considered, the result should be the same so that interpretation of the agreement may be stabilized.

The union had the burden to prove the new policy was unreasonable and violated the collective bargaining agreement. The test for reasonableness entails a balancing between legitimate management objectives and fairness to employees. Satisfactory attendance is a legitimate management goal. Unions have argued that attendance rules that included approved absences involving absenteeism conflict with contract terms that provide sick pay. Most arbitrators have rejected such arguments unless the contract language expressly excludes sick leave from consideration. Paid sick leave policies and attendance control polices are separate and distinct.

The company had authority to establish a reasonable attendance policy under the terms of the contract. The new policy is reasonable in light of the high employee absenteeism on consecutive days and for large blocks of time. The data from the study done on absenteeism support the company’s position. Similar statistical reliance has been approved by arbitrators even when the absenteeism rate was lower than that found by the company.

The company study found that the old policy encouraged employees to compile their absences in large blocks of consecutive days, it punished employees with periodic absences. Under the old policy, employees accumulated only one point for an absence of one to five days. Employees were staying out the full five days regardless of whether they needed the time.

The study found that the 120-day clearance policy was being abused. In maintenance 60 percent of the employees used the provision at least once a year. In operations 58 percent used it. Some employees used it twice a year.

The old policy encouraged employees to stay out past 30 days in order to get their points eliminated. Under the new policy points cease to accumulate after 30 days, but the points up to then remain on the employee’s record.

The use of remote hypothetical situations is not a legitimate basis for invalidating the attendance policy. If a policy is fair on it face and its operation and other tests of reasonableness are satisfied, it should not be declared invalid based on the mere existence of a remote possibility that it could operate perversely in the indefinite future under hypothetical circumstances that have not yet materialized.

It is true that the new policy treats those employees who are out on one extended absence just as harshly as someone who had a series of one-day unjustifiable absences. The study determined that the majority of abuse was not in a string of one-day absences, but in “short vacations.” Thus, the new policy was the most effective means to prevent such abuses.

There was no practical difference between the way the parties framed the issue to be decided in this case. The essential question is whether the new attendance policy is reasonable. Article 6 of the collective bargaining agreement requires that company rules be reasonable.

As the company argues, arbitrators are reluctant to arrive at a different conclusion than that reached by another arbitrator on the same question under identical contract language if there is any ground for reaching the same conclusion. Where the prior award is not supported by a reasoned opinion, however, that general rule has no basis. Borsnetein, Gosline and Greenbaum, gen. ed. Labor and Employment Arbitration, Vol. 1 1997 §9.07[2][b]. One cannot gain an understanding of why and under what circumstances Arbitrator Lennard decided as he did. He ruled that the old policy on attendance did not conflict with or violate the collective bargaining agreement that was in effect in March of 1985. The issue here is whether the new policy is reasonable under Article 6 of the present agreement. It is also worth noting that one of the tripartite panel members dissented from Lennard’s decision and one concurred with it, but neither stated a reason for doing so.

The company argues that if an attendance plan is fair on its face and its operations on the concrete case at hand produced just results, and other common tests of reasonableness are satisfied, the plan should not be declared invalid based on the mere existence of some remote possibility that it would operate perversely in the indefinite future under hypothetical circumstances.

It should be noted that no employee was disciplined or discharged giving rise to this grievance. Rather, the union made a broad challenge to the propriety of the new policy itself. While the company did not resist the grievance on those grounds, it is significant to note that some authorities believe that fairness demands that a union be permitted to test the reasonableness of an attendance policy even though no employee was disciplined. Block and Mittenthal, Arbitration and the Absent Employee, Proceedings of the 37^th Annual Meeting of the National Academy of Arbitrators, BNA 1985 at 97.

The union had the burden of proving the company violated the collective bargaining agreement. To carry that burden, the union had to prove that the new attendance policy was unreasonable. If the policy is unreasonable, it is in conflict with Article 6 of the agreement.

Most arbitrators hold it is reasonable for employers to implement no-fault attendance control programs under which points are tallied against employees for each occurrence of absence regardless of the reason, or only for unexcused absences. However, the program must be consistent with just cause standards including progressive discipline and take into account circumstances and the employee’s record before discharging the employee, Labor and Employment Arbitration, Vol. 1, at § 17.02[1] and[3].

The new attendance policy formulated and implemented by the company as written does not meet the just cause standard. There is nothing in the written document that provides that individual circumstance of an employee’s case and an employee’s record, including years of service, will be considered in mitigation of the imposition of discipline as outlined in the policy. The company does, however, practice a case-by-case review of the application of the policy. According to Arbitrator Cox in Tokheim Corp. 96 LA 122 (1990), a similar no-fault attendance policy was inherently unfair because it penalized employees who were absent for a long period of time the same as employees who were off for several non-consecutive days. Thus, a single occurrence of illness could result in termination without progressive discipline. He reasoned as follows:

“There is an inherent unfairness in disciplining employees under a no-fault system based upon the number of days absent or tardy. For example, a single occurrence of 15 consecutive days would result in termination without any progressive discipline. It is widely recognized that discipline for absenteeism must be progressive. The company responds that they have the discretion, under the policy, to reduce a discharge for a single 15 consecutive day absence. (In this respect, the Plan is not completely no-fault.) There is no discretion expressed in the Plan, moreover, for a single, first occurrence of 14 days for which an employee would receive a suspension, followed a short time later (before he can earn a point reduction) by another single day absence occurrence. The element of discretion of management to change the plan does not make it reasonable, but only means that management may make a discipline decision in a particular case reasonable by deviation from the plan’s provision.” At p. 125.

Under the policy in question here, employees who are absent for long periods of time accumulate points the same as employees who are absent several times during a 12-month period. An employee who has two extended illnesses during the same 12-months period could accrue enough points to be discharged without progressive discipline. Although the company’s practice is to review such cases, that does not render the written policy itself reasonable. It only means the company may make a discipline decision reasonable by deviating from the written policy.

Even though the company’s study showed that the majority of abuse of the old policy was not in a series of one-day absences, but rather several consecutive days off, the new policy cannot stand up to a just cause examination. While it may very well have solved the problem identified by the company’s study, it gave rise to other significant concerns. Progressive discipline must be assured, not left to the discretion of individuals who may have varying notions of how it should be applied. No employee should be subjected to discharge for excessive absenteeism without having the opportunity to have the employer consider making exceptions to the automatic operation of a policy when it produces harsh or arbitrary results. The conflict between an employer’s desire to have objective standards in controlling absenteeism and adherence to just cause principles was expounded upon by Arbitrators Block and Mittenthal in Arbitration and the Absent Employee, supra, at pp. 103-104:

“We cannot give unqualified approval to the typical no-fault plan because of its potential for inequitable results in exceptional cases and because such results cannot be harmonized with “just cause” requirements. Management cannot expect blind arbitral support for a mechanical application of penalties up to and including discharge. It is precisely this rigid, unbending application of penalties which gives us pause. But arbitral insistence on an appropriate degree of flexibility does not mean the no-fault concept is rejected. We recognize that notice of realistic attendance standards can be beneficial to everyone. Such standards aid employees who are entitled to know what is expected of them; they aid supervisors who strive for uniformity in the enforcement of rules. In short, although the ordinary no-fault plan can provide a practical solution to the need for specific absentee criteria, it cannot fully comply with traditional notions of “just cause.”

However, as we have already noted, arbitrators who affirmed no-fault plans have often tempered those plans by, in effect imposing a ‘just cause” requirement in the case before them. The employer won approval of its plan with this single modification*, while the union won approval of its view that fault must be taken into account in appropriate situations. Such compromise may not be aesthetically appealing, for it enables the arbitrator to introduce the foreign element of fault into a pure no-fault system whenever he feels it proper to do so. But the end result seems sound. A rule calling for automatic enforcement of penalties is modified by a provision for equitable exception to the rule as a safeguard against perverse application. There is no reason why an employer, like the arbitrator, could not write such an equitable exception into its no-fault plan. That would be a major step in answering the objection raised to such a plan.

To summarize, we believe no-fault plan criteria can offer useful guidance to both employees and supervision and should be looked upon favorably by arbitrators provided the plan: (1) contained reasonable provisions for the customary absentee situation in a particular plant or office**, and (2) permits a “just cause” review when appropriate. All this simply means that the concept of fault cannot be completely eliminated from no-fault plans. The employer’s quest for absolute uniformity in enforcing absentee criteria can only be achieved at the cost of occasional but inevitable perverse applications. Legal history has taught us that if such absolute uniformity were possible, equity would become an obsolete branch of Anglo-American law.”

* One might argue that the employer won nothing given the arbitrator’s action. The answer to this argument is that the plan stands as a general statement of absentee policy and that an employee risks strict application of the policy unless he can show his situation calls for an exception.

** For example, a plan which called for discipline to commence at a 2 percent absentee rate would not be reasonable, or a plan which called for written warnings followed by discharge would not be reasonable.

The new attendance policy as written is also unreasonable in that it fails to exempt activities protected by state law. Although the company official who testified on the subject said these types of laws are taken into account when management decides whether to assign points for an absence, it is not expressed in the written policy. No discretion, regarding whether exempt activities protected by state law, should be permitted. A statement in the policy saying absences protected by state law are uncounted would make the policy comply with the company’s practice.

The company maintains that there is no conflict between the new attendance policy and the provision in the agreement covering paid sick leave. The union did not attempt to show such conflict. The union’s contention is that the policy is in conflict with Article 6 of the agreement because the policy is unreasonable. Paid sick leave polices and attendance control policies are separate and distinct.

The new policy is unreasonable in its assessment of points for pre-scheduled doctor appointments which are not ongoing. Fairness dictates that employees who have a single pre-scheduled doctor appointment not be penalized if employees who have on going pre-scheduled appointments are not assessed points. The policy as it is written discourages preventive medical care. If verification is presented in accordance with the language of the provision, one-time pre-scheduled doctor appointments should not be counted absences.

The policy exempts absences where an employee is removed from service by the company doctor. The same exemption should apply where an employee is removed from service by the employee’s doctor. There is no apparent difference between the two situations. If an employee’s doctor says the employee should not be performing the work the employee is assigned to perform, the resulting absence should not be counted. To penalize employees who are ordered not to serve by their doctor while exempting employees who are ordered removed by the company doctor is unreasonable.

In summary, I find that the attendance policy that was implemented in May of 1997 is unreasonable in four areas. First, it allows the company to discharge without progressive discipline an employee who had extended illnesses during a 12-month period. Second, it does not exempt absences protected by state law. Third, it assesses points for prescheduled doctor appointments that are not ongoing. Fourth, it does not exempt absences when and employee’s doctor orders that the employee be removed from service. Accordingly, I will order a remedy that will make the attendance reasonable.

The grievance is sustained. The company is ordered to amend its attendance policy as follows:

1. Add the following language to page one of the policy following “. . . giving consideration to all relevant factors.”: No employee will be discharged for excessive absenteeism without just cause. Delete the last sentence of the last paragraph on page three.

2. Add “Activities protected by state law” to the Uncounted Absences provision of the policy.

3. Add to the definition of pre-approved doctor appointments on page two of the policy the following: “Pre-approved doctor appointments that are not for ongoing medical treatment where they are verified in accordance with this provision will not be counted absences.”

4. Delete the word “company” from the phrase “Removal from service by company doctor” on page two of the policy, fourth line from the top.

Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.