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Title: Safeway Stores, Inc. and Teamsters, Local 435
Date: February 15, 2002 
Arbitrator: Thomas L. Watkins 
Citation: 2002 NAC 101

 

In the matter of arbitration between:

Safeway Stores, Inc.
Denver, Colorado

                            and

TEAMSTERS, Local Union No. 435

TERMINATION:

ATTENDANCE

Eric Adams, Grievant

Grievance No. 76276

FMCS No. 01-15446-7

THOMAS L. WATKINS, Arbitrator

                                                                                            


APPEARANCES:

             FOR THE COMPANY: 

Holland & Hart, Attorneys, by Gregory Eurich
Doug Finkelmeyer, Director of Labor Relations
John Gillespie, Manager, Fresh Food Warehouse; Witness
Don Grambusch, Director of Distribution; Witness
Rick Rodriguez, Produce, Meat & Cheese Warehouse Mgr; Witness

    FOR THE UNION:

Martin Buckley, Attorney
Eric Adams, Grievant; Witness
Ron Cash, Business Agent; Witness
Michael Smalley, Steward; Witness

HEARING HELD:  December 10, 2001 in the offices of Berenbaum, Weinshienk & Eason, Attorneys, 370 17th Street, Suite 2600, Denver, Colorado.

THIS PROCEEDING in arbitration was authorized under Article 19 of the Agreement between the parties dated September 17, 2000.  The Arbitrator was selected by the parties through the procedures of the FMCS.  All testimony was taken under oath or affirmation.

POST HEARING BRIEFS were timely filed by both parties on January 16, 2002.

BACKGROUND

The Employer, Safeway Stores, Inc., maintains an absence (or attendance) policy the essential parts of which have been in effect for a number of years  [Jt. Ex. 3]. It distinguishes between unexcused occurrences such as tardiness and routine absences, which carry points in the system, and excused or excluded occurrences, which may require evidence but carry no points and do not count toward personnel action.  Thereafter the system has two essential elements: a points schedule which automatically triggers disciplinary penalties in an escalating format,[1] and “total attendance evaluation” which is based upon percentage of time missed.  The points system is not at issue in this case.  The latter element, overall attendance, is defined in one paragraph:

Should your total occurrences of unexcused and excused absences as defined above become excessive so that you are unable to be an effective employee, you will receive verbal and written counseling that a continuance of such a rate of absenteeism may result in your termination.  [Emphasis in original.]

This part of the system is managed as follows.  Each time a worker is late or absent, a notation is made indicating among other things, (a) the date, (b) the number of hours involved, (c) whether or not the occurrence was excused, (d) the reason, (e) whether the employee was charged with an absence,[2] (f) a running points total, and (g) the percentage of “available time missed.”  This last item is calculated by dividing the number of charged hours in a year by the total number of work hours available in a year, 2080. 

When this figure reaches 3.5% and the number of occurrences reaches five, a “#1 Letter” is triggered, along with counseling by the supervisor.  The letter contains the following warning: “Based on this review, we have decided that your absences have fallen outside the acceptable range for an unreasonable period of time.”  It also provides to the supervisor guidelines for counseling the employee.  Should five more occurrences occur while the percentage remains above 3.5%, another “#1 Letter” would be called for.  This might happen several times.

However, if the percentage at any point exceeds 7%, a “#2 Letter” is triggered, which contains an additional paragraph to a “#1 Letter” as follows:  “Please be advised that should you fail to substantially reduce your absentee rate within the next 30 days, your record will be reviewed again to determine if you should continue to be employed by Safeway.”  In other words, an automatic 30-day review occurs for persons under a “#2 Letter.”  A “#2 Letter” will continue to be reissued every 30 days until the rate drops below 7% (but remains above 3.5%).  Thus, several “#2 Letters” are also possible.  But if on the date of the review the percentage has increased (for example from 7.29% to 7.98%), the Employer will automatically review whether or not the employee should be terminated.  This review also considers the number of occurrences since more frequent absences, in contrast to fewer but longer ones, are more difficult for the Employer to manage. 

The review normally includes an analysis of the history of an employee’s absenteeism, the reasons for absences, and a review of the employee’s entire work record including prior warnings, other disciplinary issues, etc.  A determination is then made as to whether the employee will be able to improve her/his absence record on a sustained basis, and if not a decision is made to terminate the worker.  That is exactly what happened to the Grievant, but with one additional complicating factor that is part of the system.

Certain reasons for absence cause an “extension” of the year, resulting in a distinction between a calendar year and the “record retention period.”  A medical leave of absence or a personal leave would be illustrations.  Thus, if for example a car accident resulted in a 30-day medical leave of absence, the record retention period would be extended by 30 days, to embrace 13 calendar months.  The 2080 denominator would still be used, but the “charged” hours would be all of those during the 13-month period (except, of course, for the medical LOA, during which no “charged” hours would have occurred).  The reason for this distinction is to prevent persons from having their percentage improve while they are not at work.  Under this system, the calculations transpire as if the medical leave simply did not occur.

FACTS

The Grievant, Eric Adams, was employed full-time at the Company’s frozen food warehouse since June 4, 2000.  On the record of relevance [Jt. Ex. 7] Adams had two charged personal days off (16 hours) on August 3 and 4, 2000.  In the ensuing year, he suffered the loss of his mother and his father-in-law, eye surgery for his daughter, and personal bankruptcy resulting in court appearances.  By his own admission, his attendance record was poor.  He received three “#1 Letters” [Co. Exs. 1, 4, 5] and six “#2 Letters.”[3]  [Co. Exs. 7, 9, 10, 11, 12, 14]  These letters, along with the normal counseling, occurred on or about the seventh day of each month beginning in February 2001.

When his percentage increased prior to the May 2001 review (from 7.31% to 7.49%) his record was summarized and reviewed by Rick Rodriguez, the Warehouse Manager.  He and Adams had a counseling session on May 8th.  Notes of that meeting [Co. Ex. 18] show, among other information, the following paragraph:

He [Adams] understands that his attendance has reached a very critical stage and must be corrected immediately, failure to correct this problem will result in termination. He was advised that he would be placed on another #2 letter, termination would not take place this time, problem has to be corrected.  Eric stated that he knows that he has a poor record and is not anticipating on missing any more work.  He understands the consequences should he continue to miss and his percent increases between reviews.

By the time of the seventh review, on August 5, 2001, Adams’ record retention period was 370 days.  This was due to having taken 26.9 hours of FMLA[4] leave for his daughter’s eye surgery and necessary follow-up during June and July.  Because a 370-day window of potential work was considered, the personal days of August 3-4, 2000 remained in his “record retention period.”  And because those days were included, his percentage was 7.98 on his regular 30-day review period ending August 1, 2001.  This was an increase over his July review (7.29%), which itself had been an increase over his June review (6.97%).  On August 9th, Rodriguez again met with Adams [Co. Ex. 19], and this time the Grievant was terminated.

            Believing the termination lacked just cause, the Union filed a grievance on behalf of Adams on August 9, 2001.  [Jt. Ex. 2]  It was routinely processed through the negotiated procedure, denied by the Employer throughout, and is now stipulated to be properly before this Arbitrator for a decision on its merits.  The parties further stipulate that the issues to be decided are,

Was the Grievant, Eric Adams, discharged for just cause?  If not, what is the proper remedy?

 

RELEVANT SECTIONS OF THE LABOR AGREEMENT
ARTICLE 3
SENIORITY
3.2  Seniority shall be terminated for any of the following reasons:
1.      Discharge for just cause.

ARTICLE 18
MANAGEMENT RIGHTS

18.3     No employee shall be disciplined or discharged except for just cause.

ARTICLE 33
LEAVES OF ABSENCE

            33.1  The Employer and the Union agree to abide by the provisions of the Family Medical Leave Act. . . .

ARTICLE 46
MUTUAL COOPERATION

            46.1  The Employer recognizes the right of the Union to represent its members in all  matters relative to wages and working conditions.   The Union and its members recognize the right of the Employer to conduct its business in a manner which will be of benefit to the Company, its employees and the Union.  To that objective, both parties agree diligently to communicate and work together to make the Employer’s business a success with mutual consideration and fairness to all parties concerned.  Management and Union will be guided in their efforts with a sense of justice and fair play.  The Employer is entitled to and the employees agree to provide efficient, diligent, honest and productive service as a consideration for the Employer’s remuneration.

 ABBREVIATED POSITIONS OF THE PARTIES

The Employer notes that (1) Adams had “an inadequate attendance record that gradually deteriorated over time.”  In less than a year and a half of employment he had no less than nine unexcused absences, not including absences for attending court, funeral leave and FMLA leave.  (2) The problems increased in severity over the course of his employment.   During the 12-month period ending with his discharge on August 9, 2001, his absence rate increased to 7.98% reflecting 21 separate occurrences of absenteeism as well as an increase from 37 to 73 unexcused absence points.  (3) He received eight separate instances of counseling during this time period.  (4) His absence record was among the worst in the Distribution Center.  Of the seven other employees (of 430 total) that had rates equal to or greater than the Grievant’s, one had missed work early in his employment but had a clean record thereafter; all of the remaining six were at various stages of written counseling.  (5) The reasons for Adams’ absenteeism provided little hope for improvement in the future.  None of his personal misfortunes explain his inability to get to work on a regular basis.  (6) The FMLA does not affect the outcome here.  The Company excludes such absences totally from the attendance calculation, neither allowing the absence to benefit or penalize the employee.  (7) Whether Adams worked overtime on those days when he was at work is irrelevant.  In sum, his absence rate was outside the acceptable range for an unreasonable period of time and there was little likelihood it would be improved in any meaningful way in the foreseeable future.  He was therefore properly terminated and the grievance should be denied.

            The Union advances five reasons why the grievance should be sustained.  (1)  The threshold levels for determining what constitutes “excessive absenteeism” (3.5% and 7%) are completely arbitrary; (2) the Company applied the program in an inflexible, mechanistic manner that considered primarily, if not solely, his absence rate; (3) the Employer violated the principle of due process that an employee must have clear notice of disciplinary rules and clear notice that his job is in immediate jeopardy; (4) the Company violated the principle of due process which requires speaking to the employee and hearing his side of the story before making the decision to discharge him; so, among other things, it could not reasonably determine the prospects for improved attendance; and (5) the base period was improperly extended because of Adams’ having taken 26.9 hours of FMLA leave, which the Company improperly converted through its formula into five days of extension time, having the effect of penalizing the Grievant.  For each and all of these reasons the Union asks that the grievance be upheld, and that the Grievant be returned to his former position and made whole.

ANALYSIS

            Controversy over absenteeism has a long history between these parties.  The central issue in most of them arriving at arbitration involves the right of the Company to terminate employees on non-disciplinary grounds for excessive, even if excused, absenteeism.  As Arbitrator MacLean put it twenty years ago,

            The concern of the Company is economic –its growth and profitability require an effective and efficient workforce, and this requires employees whose attendance is generally regular and predictable.  The concern of the Union is that any policy dealing with excused absences must be fair and equitable and must be applied with due consideration to all of the individual circumstances involved in each case.[5]

            It is an issue that will not go away because it cannot: the Employer has an obligation to consider and weigh all relevant factors when applying an absenteeism policy formula, which calls for judgment; and the Union has a right to challenge that judgment especially when it feels it has been exercised improperly or inequitably.

 As a beginning point for analysis of any particular absence situation, MacLean cited principles articulated by Arbitrator Lawrence in two 1979 cases.  These principles, widely supported by the arbitration literature and embraced implicitly or overtly in virtually all of the cases between these two parties as submitted in their briefs,[6] may be summarized as follows:

1.            The Company’s right to manage the business and direct the workforce includes the right to terminate an employee whose absences have fallen outside the acceptable range for an unreasonable period of time.

2.            In making the above determination, the Company must consider not only the pattern of absences, but also the probability that the employee will in the future return as a regular, reliable member of the workforce.

3.            In making the judgment required in (2) above, the Company must consider the individual circumstances of each case: i.e., a decision made solely on the basis of application of a mechanical formula violates the principle of just cause.

4.            While the percentage absenteeism rate may be legitimately used to trigger counseling, for discipline or job loss consideration of other elements should include the employee’s (a) seniority, (b) work record, (c) attitude and attempts to improve attendance, (d) reasons for the absences, (e) frequency and duration of absences.

            In brief, to paraphrase McLean, the Company must demonstrate that it paused at some point in the process prior to termination to consider the other circumstances involved and weighed them in conjunction with the percentage absence rate.[7]  Let us examine these principles as they affect the matter before us, and in so doing address the arguments of the parties.

            Do the standards which trigger letters and warnings, as unilaterally adopted by the Company, violate a reasoned interpretation of “acceptable range/s”?  No.  While the testimony of Company witnesses at best may be characterized as “sketchy” in explaining how the thresholds of 3.5% and 7% were determined, it is clear that they are widely known, consistently applied, and not unreasonably harsh.  While they have changed over time, in any given period they are fixed and have their bases in average absence rates across the workforce.  Nothing in that determination is arbitrary.  The program has been in existence without substantial change since 1987 [Jt. Ex. 3].  Further, the Agreement clearly provides that the Employer may create reasonable rules and policies not in conflict with the remaining provisions, and the creation of such threshold standards for absenteeism violates no other provision.  This is a position wide accepted in the arbitration community.[8]

            In examining the pattern of absences and determining the probability that Adams will be a regular, reliable member of the workforce, did the Employer properly consider and weigh circumstances other than the absentee rate?  Here, of course, is the heart of the matter, and in this respect the Union raises several points.

            (a) The Union first posits that Adams was unaware his job was in jeopardy if he did not improve his attendance.  Yet the record shows he received six “#2 Letters” each of which stated unequivocally that “should you fail to substantially reduce your absentee rate within the next 30 days, your record will be reviewed again to determine if you should continue to be employed by Safeway.”  The first one stated plainly, “you could be terminated.”  [Co. Ex. 7]. The next three letters used the word “critical” in relation to the level his absenteeism had reached [Co. Exs. 9-11].  At the counseling session of May 8, 2001 between Adams and Rodriguez, uncontested documentation established that the Grievant was told “failure to correct this problem will result in termination. . . . He [Adams] understands the consequences should he continue to miss and his percentage increases between reviews.”  [Co. Ex. 18]  During the fifth and sixth counseling sessions in June and July he was again warned, and he was asked if he understood the severity of his situation; he stated that he did [Co. Exs. 12, 14; Un. Ex. 2]. 

            In essence the Union’s point regarding all these warnings is that they are a bit like “crying wolf:” since persons are not discharged after receiving “#2 Letters,” sometimes several of them, the warning that job loss is imminent is lost.  As Arbitrator Allen phrased it, “This situation is analogous to the lax enforcement of Company rules.”[9]  Allen reversed his grievant’s termination for this reason, but in doing so he held that “management representatives apparently did not give the impression that she would be terminated if she did not improve,” and gave her “very mixed messages. . . . . A series of form letters clearly does not provide the unequivocal notice to which employees are entitled under the tenets of just cause that termination will occur if attendance does not improve.” 

            In my judgment, Allen somewhat misses the message of the Employer’s system.  It is not the number of  “#2 Letter” warnings that the worker receives (his grievant had also received six), but –as the documents themselves clearly state –whether, while one remains above 7%, the rate is increasing or decreasing: if it is decreasing (but still remains above the 7% threshold) more letters can be expected; but if it increases, termination will follow if there are insufficient mitigating circumstances when consideration is given to the elements outlined on pages 9-10 above. 

            Of course, this did happen to the Grievant from April to May 2001: his percentage increased from 7.31% to 7.49% and he might have been terminated.  Indeed, Rodriguez met with Adams and his immediate supervisor John Gillespie on May 8 for counseling and for the purpose of determining his future employment [Co. Ex. 18].  Rodriguez clearly demonstrated his acceptance of the principles: termination was not to occur mechanically, but had to consider individual circumstances and the prospects for improvement.  Adams expressed a very “positive attitude” toward improvement.  Rodriguez decided to give Adams another chance; and over the next 30 days the Grievant’s rate did fall (to 6.97%).

            The “final warning” so passionately sought by the Union is contained in each “#2 Letter:” termination is probable if the rate increases.  In short, the rationale of Allen cannot by itself sustain this grievance (regardless of the number of “#2 Letters”) if the absence rate increased after the letter was issued.  But, as Allen noted, all of this puts management ‘between a rock and a hard place’ in seeking to balance a clear, final warning of imminent termination, with proper consideration of the special circumstances required by the principles.  The Union may wish it, but cannot have it both ways: the Employer cannot issue a single “last chance” notice to employees while also being in compliance with the requirements articulated by Arbitrator MacLean.

            The problem comes the following month: between early June and early July A’s percentage did increase, from 6.97% to 7.29%.  At a minimum this should have triggered a second thorough review by Rodriguez, as even he testified.  Because of oversight, the review and meeting never took place.  Thus, the situation is that the Grievant admits his record was poor, he fully understood during his counseling that he was on the threshold of termination, and that if his absence record did not improve he would at a minimum be subject to another “possible termination meeting” with Rodriguez.  But it did not happen; and he received only the usual “#2 Letter.”  The contention that Adams was unaware his job might be lost should his record not improve is without merit; but at the same time, if the warnings are to have meaning, the Employer must convene a counseling session when the percentage rises even if it is then determined to give the employee yet another chance.

            (b) Second, it is contended that no one in management spoke directly with Adams before his termination.  Due process requires that an employee faced with discipline or job loss be provided an opportunity to explain his behavior.  Failure to do so prohibits an employer from determining whether there are reasonable prospects for improvement, which again is an obligation of management under the principles.  Unfortunately the record on this point is mixed.

            Adams testified that he asked Gillespie if he, Adams, could meet with Rodriguez before the decision was made, but that his request was denied; i.e., Adams and Rodriguez had no conversation before the Grievant’s termination: Rodriguez only reviewed the Grievant’s record.  But Rodriguez testified that he spoke with Adams again during the August review.  In the arbitration hearing the Union did not ask Rodriguez directly if he had had a meeting with Adams on August 9, and if so, what was its substance.  What we do know from testimony is that Rodriguez failed to make a determination as to why Adams was sick or late during the month of July.  This leads to a shaky, if indeterminative, conclusion that the Grievant could and should have been provided a fuller hearing if the Employer was preparing to terminate him.  Otherwise, the Company cannot convincingly show that it was not mechanically applying the policy in violation of the principles.

            At the same time, this is not by itself determinative since I subscribe wholly to the reasoning advanced by Arbitrator MacLean in the Castro matter in which he stated,

. . . the failure to interview an employee is not as egregious as it might be in a more typical disciplinary situation, such as where the employee is accused of theft, fight or on-premise drug or alcohol use.

            This is due to the fact that with respect to absenteeism, hard data exist.  In our case it is also applicable since Adams did have at least one prior opportunity to present his case to Rodriguez during which he committed to more regular attendance because, he stated, his circumstances had changed.

            (c) Third, the Union contends that the “record retention (or base) period” was improperly extended because of FMLA absences.  The record establishes that Adams took 16 hours of FMLA leave in June and 10.9 hours in July in conjunction with his daughter’s eye surgery.  The Company converted the 26.9 hours into a weekly equivalent by means of a formula (hours/8 x 1.4) which resulted in adding five days to the base period for determining his absence rate, bringing it to 370 [Jt. Ex. 6].  No one disputes that the FMLA prohibits employers from “interfering with, restraining, or denying the exercise of any rights guaranteed by the Act,”[10] or that employees rights “shall not be diminished by any collective bargaining agreement or any employment benefit program or plan,”[11] or that counting FMLA leave under “no fault” attendance policies is prohibited.[12]  The questions are only whether the Company policy, or its formula which operationalizes the policy, violate those principles.  They do not.

            The Company’s policy, as detailed in both testimony and written documentation [Jt. Ex. 6] is to treat FMLA leave, as well as certain other excused absences such as medical and military LOAs, as completely neutral.[13]  That is, those days are treated “as though they did not exist” in that they neither help nor hurt the employee in the calculation of absences.  And because they are so treated it must follow that the base period considered in determining the absentee rate, i.e., the record retention period, must be longer than 365 days.  This is in complete compliance with the law, a conclusion which is reinforced by a U.S. Department of Labor decision regarding this same issue and same Grievant [Co. Ex. 20].

            Let us take the alternative.  If the days on FMLA were included, an employee would actually improve his/her absence record while on leave, which would have the effect of encouraging one with a poor attendance record to remain away from work.  The DOL clearly recognized this incongruity in concluding,

A careful analysis of your leave record showed that FMLA was not included in either the percentage levels or the points totals.  Although you had taken FMLA leave in the two proceeding months, it did not affect that [sic] fact that your percentage had continued to rise and your pattern of excessive absenteeism had continued.

Therefore, we do not find Safeway in violation of the Family Medical Leave Act when you were terminated.  [Co. Ex. 20]

            Further, it must be noted that this neutral treatment of FMLA absences was known to the Grievant, even though he did not agree with it (and therefore took his protest to the DOL) [Co. Ex. 14].

            In addition, there is no violation caused by the Company’s calculation to convert FMLA hours into equivalent days for the purpose of extending the “record retention period.”  The number of hours on leave (say 26.9, the precise number of FMLA hours used by the Grievant) is divided by 8 (the number of hours in a normal work day), and multiplied by 1.4 (=4.7, rounded up to 5).  “Five” would then be the number of days added to the base period, i.e., the record retention period would become 370 days.  The multiplier 1.4 is the exact equivalent of the number of normal days worked (5) to number of available days (7): 7/5=1.4.  Only by using this calculation is it possible to convert hours missed in relation to the entire calendar year of 365 days.  And by using it, the neutrality of the excused days off due to, for example, FMLA leave, is maintained and the absenteeism rate is completely unaffected: Adams’ use of FMLA leave did not in any way affect his rate over the prior 370 days.[14] 

            In addition to the FMLA leave which neither hurt nor helped his rate, he had three occasions of tardiness (car problems, meeting attendance, overslept) and eight hours of sickness from July 10 to August 5 [Jt. Ex. 7].  Even still, the calculation would show that his rate was coming down (to 7.21%) except that because of the extension of the ‘year’ to 370 days due to FMLA leave two absences on August 3-4, 2000 (for “personal” reasons) were still included, and this made the rate 7.98%.  The issue is not whether the record retention period is changed by the days taken as FMLA leave, but rather whether the employee’s absence record is adversely (or positively) affected by the leave. 

            This is a sophisticated and cumbersome system, perhaps not easily understood; but it comports entirely with the requirements of law.  In short, the use of a “record retention period” as currently employed by the Company is proper.

            (d) The fourth element cited by the Union to show that the requirements of the “MacLean principles” have not been adhered to is that the Grievant’s absenteeism rate on day of discharge was coming down.  Company Exhibit #3 shows that the Adams’ absenteeism rate was “7.98% at termination” but his actual record [Jt Ex. 7] shows this was his rate on August 1.  Had the absence rate been calculated on the date of discharge (August 9), the 16 hours from August 3-4, 2000 would have been excluded, and the rate would have been 7.21%.

            This may fall into the category of what Arbitrator MacLean had in mind in the Castillo case when he stated “This is simply playing it too close.”[15]  However, I disagree with the conclusion that the Company cannot have a date specific on which it makes its calculations, and take action on that basis.  Notwithstanding Castillo, the decision to discharge an employee might very well be decided on the basis of whether s/he is sick this week or next: the record may have tolerated no more sickness this week, but might have been sufficiently cleansed by next.  The alternative is to have a moving target: is the sickness to be tolerated if this month?  This year?  The Employer must be able to draw the line in the sand, and communicate it to the employee, and on that date make a determination, after considering all the relevant additional information required under the principles, as to whether to terminate.  Had the absence been a week later, so that the threshold was not reached this week, is of no moment.

            Such an analysis, while important from the standpoint of principle, ignores the facts of the matter before us.  The calculation was done on August 1, and the termination did not occur until August 9, more than a week later.  This is truly crucial because the Company cannot hold on the one hand that the five days on the front end of the record retention period matter (August 3-4, 2000), while the eight days on the back end (August 1-9, 2001) do not.

            Rodriguez knew or should have known on August 1, 2001 that Adams absenteeism rate, already above the 7% threshold, had increased.  Under its own policy, such a change results in an automatic review for possible termination by the Employer.  Yet it waited over a week during which no communication was occurring with the Grievant and which was unnecessary for the preparation of the review information [Co. Ex. 19].  There may be reasonable explanations as to why the meeting with Adams was delayed a week, but the Company offered none.  Instead it contends that the August 1 review date is the date of importance, with the apparent belief that the actual termination could occur anytime thereafter at its convenience.  It cannot be so.

            It clearly takes some time for the Company to gather and consider all of the information expected under the principles to avoid a mechanistic application of its standard and any appearance of hasty resolution.  But fundamental standards of due process require that the Employer must act as soon as practicable on the information it has: in the case of absenteeism perhaps a day or two.  There is no evidence that it did so since it cannot explain the delay.  In the meantime, the Grievant’s absenteeism rate fell from its July level (of 7.29%) to 7.21%.  Such a decline would not have triggered a review for termination.

Given the complexity of this issue, and the probability that it will arise again, let us summarize the findings.

            1.  The Company may establish reasonable standards for attendance and absenteeism and it has done so.  The current thresholds are reasonable, and the Employer has every right to expect regular attendance from its employees.  It may terminate an employee whose absences have fallen outside the acceptable range for an unreasonable period of time.[16]

            2.  The current Company policy, of issuing multiple letters each containing an admonition that failure to improve could result in termination, does not violate any principles of due process.

            3.  The Company may identify a date specific for a review of an employee’s record and enforce its standards.  As Arbitrator Goodman put it so pithily, “In the final analysis, this Company is not an eleemosynary institution which is charged with continuing to employ those who are unable to commit to regular and consistent attendance at work.  Simply there comes a point in time, when after numerous warnings and counselings, a company is within its right to say in effect that enough is enough –you have failed to abide by this time-honored commitment” and our commitment to continue your employment is over.[17]

            4.  The treatment of FMLA leave within the current absentee policy does not conflict with the Agreement or the law as presented in this hearing, with respect to both the “neutrality” of such leaves or the specific formula used by the Company; i.e., an employee’s FMLA rights are not in any way diminished by the Employer’s absenteeism policy.

            5.  The Employer must enforce its stated policy which holds that an employee will be automatically reviewed if his/her rate is above the acceptable threshold and has risen.  Failure to conduct this review session renders the admonitions meaningless, and risks unenforceability.

            6.  The Employer must act promptly upon receiving information that a violation has occurred.  Failure to do so constitutes a violation of due process.  “Promptly” would normally be a day or two, absent unusual circumstances.

            7.  The counseling session identified under #5 and 6 would normally include the employee so that s/he may present her/his own version regarding the absences and the prospects for future regular, reliable attendance, along with other factors identified in the principles.  Failure to hear from the employee at the point of termination might well constiture a violation of due process unless s/he has “had her/his day in court” in earlier conversations with the Employer.

            None of the above may by itself be fatal to the Company’s position.  But here the effect is compounding: the Employer failed in three respects

            This leaves us only with the matter of appropriate remedy.  As in so many arbitration cases, some fault exists on both sides.  As noted, the Employer is not without its share of error; at the same time, the Grievant by his own admission has a very poor attendance record, and his seniority was of short duration.  To paraphrase Arbitrator Allen, the Grievant contributed substantially to his predicament by failing to develop acceptable attendance behavior.  And candidly, very little here would suggest that he is a good candidate for an improved record.

            However, because of the Employer’s errors in the handling of his situation, as described in paragraphs 5, 6 and 7 above, he is entitled to be returned to his prior position without loss of seniority.  As to the matter of lost wages and benefits, 6+ months would seem like an extraordinary time period for the Grievant to be without income where the Employer shares the blame.  But in the Chevarria case, supra, decided by Arbitrator Allen, there was an even longer delay between termination and the award, yet Allen reinstated the grievant without remuneration.  In the interest of consistency, where the facts are so similar, equity demands that the instant situation be resolved similarly. 

DECISION

            The grievance is upheld in part.  Within ten (10) days of this award the Grievant, Eric Adams, is to be returned to his former or similar position, but without back pay or benefits.  Additionally, if Adams accepts the offer of reemployment, he will return to work on probation for one year from the date of reinstatement.  During this probation he must demonstrate he can satisfactorily comply with reasonable attendance standards, defined as maintaining an absence rate lower than that which triggers a “#1 Letter.”  Failure to do so will subject the Grievant to termination.

 

                                                            ________________________________ 

                                                            THOMAS L. WATKINS, Arbitrator

 

February 15, 2002

Frisco, Colorado


[1] Unexcused absences accumulate points during a “rolling” 12-month period according to a specified schedule, which then trigger progressive disciplinary penalties.

[2] An unexcused absence/tardiness is always “charged;” but an excused occurrence may or may not be charged.  For example, under the policy an illness, while excused, would be charged, but  time in court or a funeral leave would not be charged.

[3] He also received one oral warning, two written warnings, and one 2-day suspension because his point total automatically triggered those levels of discipline.  None of those are at issue here.

[4] Family Medical Leave Act.

[5] Safeway Stores, Inc. and Teamsters Local Union No. 435 (Diane Castillo, grievant), 1982.

[6] Winnograd, 1980 (75 LA 431); Rappaport (second Castillo case), 1986; Cohen (Martinez case), 1989; Allen (Chevarria case), 1995; MacLean (Castro case), 2000. 

[7] Castillo case, supra, p. 7.

[8] See, for example, Nicholas at 112 LA 248, Halter at 112 LA 673, Cohen at 112 LA 749, Sharpe at 113 LA 504, Allen at 113 LA 637.

[9] Allen, supra, p. 14-15.  In reaching this conclusion, however, Allen warns that in prevailing in the matter the Union makes it more difficult for the Employer to show compassion, understanding and tolerance.

[10] 29 U.S.C. § 2615,

[11] 29 U.S.C. § 2652(b).

[12] 29 C.F.R. § 825.220(c).

[13] Combining excused and unexcused absences in single system is not uncommon and is widely  held to be acceptable: Elkouri and Elkouri, How Arbitration Works, 5th (BNA, 1997), at 888, and  112 LA 1166, 113 LA 409.

[14] Although it clearly would have improved had only 365 days been included.

[15] Castillo case, supra, p. 13.  He went on to say that, “If the decision to terminate an employee turns on whether she’s sick two days this week or two days next week, then it has all the indicia of a mechanistic application of the policy.”

[16] This principle is so well established in employee relations it need not be expanded here, but see also the cases cited by Elkouri and Elkouri, supra, at 946 and 114 LA 1528.

[17] Goodman (Gillespie case), 1988.  See also Arbitrator Cohen (Martinez case), 1989.

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