FEDERAL MEDIATION AND CONCILIATION SERVICE
For the Company
M. Darden, Attorney
Smith & Davis, LLP
Sunset Drive, Building B, Suite 201
City, Tennessee 37604
For the Union
Allied-Industrial, Chemical & Energy Worker International Union
No Pone Rd. N.W.
DR. PHYLLIS ALMENOFF, ARBITRATOR
DECISION AND AWARD
by the Company
John Keith Whitehead
by the Union
Janice Crawford, Grievant
grievance was submitted to Arbitrator Phyllis Almenoff pursuant to the terms set
forth in Article 5 of the Collective Bargaining Agreement between the parties
(Joint Exhibit 1) for a final and binding resolution of the issue.
The Arbitrator was jointly selected by the parties from a list submitted
to them by the Federal Mediation and Conciliation Service of the United States
grievance had been filed on August 13, 2003 and was appropriately processed
through the steps of the grievance procedure without a satisfactory resolution
(Joint Exhibit 2). The grievance
was properly before the Arbitrator.
hearing took place on April 6, 2003 at the Holiday Inn in Johnson City,
Tennessee. At that time both parties were afforded full opportunity to present
testimony, offer evidence and arguments in support of their respective positions
and cross-examine witnesses. The
Company and the Union each presented its closing arguments through post hearing
briefs postmarked May 10, 2004 and received by the Arbitrator on May 14, 2004 at
which time the record was closed. The
Federal Mediation and Conciliation Service of the United States Government
allows the arbitrator sixty (60) days to render a decision and award.
This time frame was acceptable to the Company and the Union although
Article 5 of the Labor Agreement provides a limit of thirty (30) days from the
receipt of the post hearing briefs, (Joint Exhibit 1)
OF THE ISSUE
Company and the Union did not agree on the issue to be determined. Each party submitted its own issue and it was agreed that the
arbitrator would frame the issue. The
issues submitted were as follows:
Statement of Issue:
the Company violate the Labor Agreement, Absenteeism control Policy and Past
Practice when it forced Ms. Janice Crawford to take vacation days for her nine
(9) days personal business absences in July and August 2003 (July 29, 30, 31,
August 1, 4, 5, 6, 7 and 8).”
Remedy: “That the Company be directed to provide Ms. Crawford with
vacation time it forced her to use.”
Statement of Issue:
the Collective Bargaining Agreement violated by the Company?
due consideration, the Arbitrator framed the issue as follows:
the Company violate the Collective Bargaining Agreement when the Grievant was
required to use vacation days to extend her leave of absence?
If so, what
shall be the remedy?
grievance (Joint Exhibit 2) dated August 13, 2003 states:
Article 4, Article 14, Article 21
State what happened:
11, 2003, the Grievant was informed by the company that she had not been given
an occurrence for her previous absence of 9 days personal business, but instead
was being forced by the company to take vacation days for the absence.
This is a ridiculous and flagrant violation of both the Contract between
the company and the union and the company’s absenteeism policy. The contract states that employees will not be forced
to take more than one week’s vacation. Under
the absentee policy, which is bound by the contract (Article 21), an employee
must have approved to take vacation, but may take an occurrence (excused or
unexcused) any day on which they are scheduled to work.
Such blatant disregard for the contract is destroying the company’s
credibility with the union as well as harmonious relations between the two.
demands that the company give grievant one (1) occurrence for the 9 days
absence, restore to the grievant her vacation days and make whole in all ways
supervisor’s answer to the grievance on August 18, 2003 was as follows:
Section 2, states that an employee will return to work at the expiration of a
Leave of Absence unless an extension is granted. No extension was granted.
Grievant had agreed to return to work at the end of her leave, but failed
to do so. It was communicated to
the employee that personal business would not be allowed and that if the
employee chose to remain off work they would be charged vacation.
Grievance is denied.
answer of the Company at the second step (2) dated September 17, 2003 was as
Section 2, states that an employee will return to work at the expiration
a Leave of Absence unless an extension is granted. No extension was granted.
The original grievant had agreed to return to work at the end of her
leave, but failed to do so. The
grievance is denied.
third step response by the Plant Manager was as follows:
case, the employee requested a 30-day leave of absence for an extended trip.
The company’s HR Manager granted a 10-day leave and told the employee
that they would need to cover the remaining time with vacation and the employee
agreed. It was the expectation of
the HR Manager that the employee was returning to work after a one-week shutdown
vacation period followed by the 10 (day) leave. The employee, at a later time contacted her supervisor
requesting personal business in an attempt to extend the time off.
The employee misrepresented their intentions to the Company and was
denied the personal business. I concur with the second step answer.
The grievance is denied.
Union demanded arbitration.
sections of the Collective Bargaining Agreement in effect 12/16/00 through
12/17/04 which relate to the issues are as follows:
2 – RECOGNITION
recognizes the Union as the exclusive representative of the employees at the
Johnson City Plant as defined in Section 2 of this Article for the purpose of
collective bargaining with respect to rates of pay, wages, hours of work and
other conditions of employment as contained herein and enumerated under the
collective bargaining agreement.
Whenever the term “employee” is used in this contract it shall mean
all production and maintenance employees as defined by National Labor Relations
Board Case No. 10RC10833 employed at the employer'’ Johnson City, Tennessee
operation, excluding all office clerical employees, professional employees,
guards and supervisors as defined in the National Labor Relations Act, as
* * * *
ARTICLE 4 – MANAGEMENT RIGHTS
recognize and agree that the rights to manage the plant and direct the working
forces are vested in the Company and that such rights are retained by the
Company except as they are modified by provisions of this Agreement.
Such management rights include the right to hire, discipline, discharge
for just cause, lay-off, assign and promote; to determine the starting and
quitting times and the hours to be worked; to establish reasonable production
standards….to establish or continue policies, practices and procedures for the
conduct of the business and, from time to time change or abolish such policies,
practices or procedures;….to make and enforce
rules; to plan, schedule and determine the work to be performed;….
will provide the Union President with a copy of any new plant rules, and/or
rules changes not less than three (3) working days prior to their adoption, not
including safety rules, and during that period the Union will upon request, be
given an opportunity to express its views regarding same….
ARTICLE 5 – GRIEVANCE PROCEDURE
* * *
Section 2: For
the purpose of this Agreement, the term “grievance is limited to any
disagreement between the Company and the Union, or between the company and
employee regarding the interpretation or application of the specific provisions
of this Agreement….
STEP 4 – ARBITRATION
* * *
shall not have the authority to amend, modify, nullify, ignore or add to the
provisions of this Agreement. He shall not have jurisdiction to determine that
the parties by implication or practice have amended or supplemented this
Agreement unless the parties shall expressly submit the issue as to whether such
an agreement, by practice or implication, was made.
* * * *
ARTICLE 11 – LEAVE OF ABSENCE
Section 1: A
leave of absence without pay shall be granted to an employee, upon application
in writing for personal illness, Union business, illness in the immediate
family, and disability.
* * * *
A personal leave of absence not to exceed 30 days may be granted if
legitimate reason satisfactory to the Company is provided to support the
request. Such leaves may be
extended an additional 30 days if approved by management when operational
A leave of absence is defined as a period of ten (10) or more consecutive
Employees will return to work at the expiration of a leave of absence unless an
extension is granted….
During a leave of absence of thirty (30) days or less,
the position may be filled on a temporary basis by a qualified employee
assigned by the Company. the
employee on leave will return to his position upon the expiration of the
ARTICLE 14 – VACATIONS
* * *
Vacations will be scheduled consistent with the requirements of efficient
The Company may
schedule a shutdown for the purpose of scheduling vacations consistent with
operational requirements. The
length of the vacation shutdown will be at the Company’s discretion.
Unless operational requirements dictate otherwise, the vacation shutdown
will be between June 1 and August 31. The
time of the vacation shutdown will be announced as early as possible but in no
event less than thirty (30) days prior to the shutdown.
Employees will not be required
to take more than one week of vacation during a shutdown of more than one week,
but they may if they so choose.
* * *
21 – MISCELLANEOUS
* * *
– Absenteeism Policy: The parties mutually agree to endorse the terms and
consistent enforcement of the present absenteeism policy.
* * * *
23 – ZIPPER CLAUSE
contract sets forth all the understanding and agreements existing between the
Company and the Union at the date of the signing of this Agreement, and it is
further agreed that the Company is not bound by any terms and conditions of
employment not included in this Contract, except when such terms and conditions
are reduced to writing in supplementary agreement form and thereby becomes a
part of this Agreement.
PRACTICE INSTRUCTIONS - ABSENTEE CONTROL
attendance is one of the most important aspects of each employee’s job at
Snap-on Incorporated. Perhaps the most adverse effect of absenteeism is the
unfairness to the majority of employees who are consistent in their attendance
and who carry the burden of schedule changes, temporary transfers, and the
confusion that results when other employees are not available to perform their
is a fundamental condition of the employment contract.
Each employee is hired as an important and necessary part of the
organization to do a job on a regular basis.
If that employee is not available for work, then the very reason for the
hire is negated.
has responsibility to the Company, and to all employees in the area of
absenteeism control. For this
reason, clearly defined attendance standards and a consistent policy for the
handling of excessive absenteeism are necessary.
– Any instance of missed time including tardiness, early departure or full
Occurrence – One day or two or more consecutive workdays missed for reason
such as self-illness, or illness in the immediate family.
Non-chargeable absence: An occurrence of absenteeism that is the result
of an…approved holiday or vacation and approved leave of absence….
Paper Allied-Industrial, Chemical and Energy Workers Union (Local 5-591),
hereinafter referred to as the “Union” is the exclusive representative of
the employees at the Johnson City, Tennessee Plant of Snap-on Tools Corporation,
hereinafter referred to as the “Company”.
The Company recognizes the Union as such exclusive representative. The
Union represents all production and maintenance employees. As a representative
of the employee, the Union is empowered to process, adjust or settle grievances
through the grievance procedure, including arbitration, in accordance with the
Tools is a Company that manufactures hand tools. The Johnson City, Tennessee
plant opened in 1974 and has
approximately 150 employees.
Crawford, the Grievant, has been employed by the Company for eleven years.
She currently works in the molding department of the Company. In a letter
dated June 4, 2003, the Grievant requested a leave of absence commencing on July
14, 2003 through August 11, 2003 to visit her son who is in the United States
Navy and is stationed in Hawaii. (Company Exhibit 1) Her son flies secret
missions to conduct radar surveillance. She stated that she saw him briefly in
2002 and has not seen him since. After
a rest period, he would be leaving for a six-month deployment to fly radar in
North Korea. His mother wished to visit with him and his family for as long a
period as possible since she has not seen him for a year and was concerned about
the danger he faces. The requested leave of absence was discussed at a meeting
on June 12, 2003 by the Grievant and the Human Resource Manager (HR Manager) who
is responsible for granting or denying requests for leaves of absence. At this meeting the Grievant was told that the Company would
authorize a leave of absence for ten (10) days rather than the twenty (20) days
she requested. The Company had
previously announced that there would be a plant shutdown from July 7 through
July 11, 2003 so that she would have three weeks to visit her son. The HR
Manager testified that he had consulted with the Plant Manager previous to this
meeting and it was determined that operational needs required her services.
After looking at the calendar, the Grievant indicated that ten days of
leave would be sufficient.
Grievant had not explained to the HR Manager that she had already purchased her
airplane tickets and would be leaving for Hawaii on July 8 and returning on
August 6 and that a leave of ten (10) days was insufficient to cover her trip.
(Union Exhibit 6) She did not
request an extension of her leave.
to the meeting with the HR Manager, the Grievant had met with CA, her
supervisor, and discussed various options to cover her trip to Hawaii including
vacation, personal business days, etc. Since this was to be a lengthy trip, CA
suggested that the Grievant make a written request for a leave of absence to the
HR Manager. This suggestion was
made because of the lengthy trip she wished to make.
Supervisor testified that she was aware that a ten-day leave had been authorized
rather than the twenty days that the Grievant had requested. She also knew that the Grievant would not be returning to her
job at the expiration of the leave she had been granted and would not be
returning until August 11.
the meeting with the HR Manager, the Grievant conferred with Union Officials
concerning her need for twenty days to cover her planned trip to visit her son.
They informed her that after the ten leave days that were granted she
could take an additional nine (9) personal business days with one occurrence.
DP, the Financial Secretary to the Union, suggested that she confer with CA, her
supervisor, to work things out. He
testified that he saw them looking at a calendar and writing.
The Grievant testified that she indicated to CA that she didn’t want to
be in any trouble. CA said that she
would take it day-by-day.
Grievant called CA from Hawaii on Monday, July 28th to tell her that
she was taking nine days of personal business.
This information was sent to the HR department.
On Tuesday, July 29 the HR Manager and his Assistant called CA to ask her
if the Grievant had returned from her leave of absence. When CA indicated to the
HR people that the Grievant had called and indicated that she wanted a vacation
day and nine days of personal business following the approved ten (!0) day
leave, they referred CA to the Contract language in Article 11, Section 2 which
states: Employees will return
to work at the expiration of a leave of absence unless an extension is granted.
CA was instructed to contact the Grievant in Hawaii and tell her that she could
not use personal business days following a leave of absence but would be
permitted to use vacation days if she chose not to return to work.
This arrangement had previously been authorized for another employee in
Grievant and CA, her supervisor had a phone conversation on July 31 (Union
Exhibit 7) during which she was told that she could not use personal business
days to extend the leave she had been granted and would be required to use
vacation days until her return to work. The
Grievant testified that she responded “Whatever, because I couldn’t do a
thing about it that may miles away.”
the Grievant returned to work, she filed a grievance because she was not allowed
to use personal business days to extend her leave.
2002, the Grievant visited her family in Hawaii for about a month and was
allowed to use a combination of vacation days and personal business days.
OF THE PARTIES
of the Union
Union contends that the Company could not force the Grievant to take vacation
days instead of allowing her to use personal business days and receiving an
occurrence under the Company’s Absenteeism Control Policy (Union Exhibit 1).
In support of its position, the Union offered the following arguments:
The Company can only require an employee to take one week’s vacation
during the plant shutdown.
The Grievant had already been required to take one week’s vacation
during the plant shutdown prior to her taking a leave of absence. She could not be required to take additional vacation time.
The Grievant wished to save her vacation days in case anything happened
to her son.
Employees are allowed to take up to nine days personal business and
receive one occurrence under the attendance policy.
All that is required by an employee to obtain personal business days is
notification to a supervisor about one’s intended absence.
The Grievant had taken nine (9) personal business days during the
previous year and had received an occurrence.
A partial list of employees who had taken nine (9) personal business days
for which an occurrence was received was presented at the hearing. (Union
The Grievant and her supervisor met and worked out the details concerning
the extended leave.
The Grievant followed the correct procedure by notifying her supervisor
CA that she was going to use personal business days.
of the Company
Company maintains that the Contract was not violated when it required the
Grievant to use vacation days to extend her approved leave of absence while she
was visiting her son in Hawaii. To
support its position, the Company asserted the following arguments:
The Grievance is a matter of contract interpretation in which the Union
has the burden of proof.
The Grievant requested a four-week leave of absence following a one-week
plant shutdown in order to visit her son who is serving in the military and was
stationed in Hawaii. She was
granted a two-week leave of absence that commenced July 14, 2003 and ended July
28, 2003. The HR Manager met with
the Grievant and explained that the company could not grant her the four-week
leave she sought due to production needs following a shutdown.
The HR Manager asked if the three weeks were sufficient to meet her
needs. She responded that it was
The Grievant had already purchased her airline tickets and knew that the
leave she had been granted would not accommodate her travel plans.
She did not provide this information to the HR Manager thereby
misrepresenting her situation.
The concept of “personal business” does not appear in the Contract or
in written policy.
The Contract states: Employees will
return to work at the expiration of a leave of absence unless an extension is
granted. (Joint Exhibit 1). The Grievant did not request an extension of her
leave from the HR Manager who was authorized to grant and extend leaves.
When the Grievant failed to report to work on July 28, 2003 she was in
violation of the Contract.
The Grievant could have been charged an occurrence for each day that she
was absent beyond her authorized leave of absence which would have resulted in
The Company asserts that “past practice” is not an appropriate basis
for an arbitration award and that the Union’s grievance did not assert “past
practice.” Additionally, Article
23 of the contract states: … the Company
is not bound by any terms and conditions of employment not included in this
Company contends that the Absenteeism Control Policy does not give employees the
authority to grant themselves a nine-day absence anytime they wish.
In fact, the policy endorses the concept of regular, reliable attendance
of employees and asserts that consistent attendance is one of the most important
aspects of an employee’s job. The
Policy states that if an employee is not
available for work, then the very reason for the hire is negated.
Collective Bargaining Agreement does not prohibit charging vacation days to
cover an absence.
the exception of the HR Manager, no other witness actually read the language of
the Grievant’s supervisor, did not have the authority nor did she authorize
leave beyond the ten days that the HR Manager approved.
The Company argued that none of the employees who took nine (9) days
personal business and received an occurrence had taken an approved leave prior
to taking personal business days. (Union Exhibit 2).
OF THE EVIDENCE
issue to be determined in this dispute is whether the Company violated the
Collective Bargaining Agreement when the Grievant was required to use vacation
days to extend her leave of absence. If so, what shall be the remedy?
parties recognize and appreciate the military service that the Grievant’s son
is performing for the country and sympathizes with the fears and concerns of a
mother in that situation.
this grievance is about whether the Contract was violated when the Company
required an employee to use vacation days rather than personal business days
when she did not return from an authorized leave.
us examine the Union’s major arguments. First, the Union asserts that the
Company can only require an employee to take one week of vacation to accommodate
a plant shutdown. However, a review
of Article 14 which pertains to vacations, states as follows: …Section
2: Vacations will be scheduled consistent with the requirements of efficient
operations… It also reads: …Employees
will not be required to take more than one week of vacation during a shutdown of
more than one week, but they may if they so chose. It is correct to assume
that the Company can only require employees to take one week of vacation to
accommodate plant shutdowns. The
Grievant was not required to take more than one week of vacation during the
plant shutdown. As a matter of
record, the Grievant requested a leave of absence of four weeks following the
shutdown to visit with her son in Hawaii. (Company Exhibit 1) The HR Manager authorized two weeks leave because of the
production schedule. Although she indicated to the HR Manager (after looking at
a calendar with him) that the leave she was granted in addition to the week of
the plant shutdown was sufficient to accommodate her travel plan, she did not
return to work at the end of her authorized leave. In response to her telephone
call to CA indicating she would be using personal business days at the
expiration of her leave, CA called her back, as instructed by HR. She informed
the Grievant that she could not use personal business days and would be required
to use vacation days until she returned to work.
Contract only speaks to required vacation periods during a shutdown.
It is silent on the issue of requiring an employee to take vacations at
other times. Company witnesses
testified that another employee in a similar circumstance was allowed to use
vacation days until she returned to work. To
sum up my finding on this issue: There is no prohibition in the Contract
regarding employees being required to use vacation days except to limit the
number to a week during a plant shutdown. What is more, another employee was
required to use vacation days in a similar situation.
the Union asserts that the Attendance Control Policy permits employees to take
up to nine personal business days and receive one occurrence towards
disciplinary measures. Union
officials testified that the only requirement to take personal days was to
notify one’s supervisor of one’s intended absence. Union Exhibit 2 provided
a list of employees (incomplete) who had taken nine personal business days and
received an occurrence in the last year. However, none of the employees on the
list had taken a leave of absence prior to using Personal Business Days.
The Union failed to acknowledge Article 11, Section 2 which clearly
states: Employees will return to work at
the expiration of a leave of absence unless an extension is granted.
The Grievant neither returned to work nor requested an extension to
the leave she had been granted.
the Union argued that following the granting of a ten-day leave of absence by
the HR Manager rather than the twenty days requested, the Grievant had worked
out the details with her supervisor, CA, to permit her to take an extended leave
of twenty days. The previous year CA had helped the Grievant to visit her son
and family for a period of a month using a combination of vacation days,
personal business days and additional vacation days.
At the hearing, the Grievant testified that CA was aware that she was
going to take nine days personal business at the conclusion of her leave and
expected to receive an
“occurrence.” When the Grievant
told CA that she did not want to get into trouble, CA responded that “she
would take it day-by-day.” CA
also testified that she was aware that the Grievant would not be back to work at
the expiration of her leave. When
cross-examined about whether she “coached” the Grievant on how to get the
time she needed for her planned visit, CA couldn’t remember.
Based on all of the evidence and testimony there is little question that
CA did coach the Grievant. It is
also clear that CA did not inform the HR Manager of the “plan.”
However, it is also clear that neither the Grievant, CA, or the Union
officials had read Article 11, Section 2 of the Contract.
Additionally, the Grievant and CA did testify that the HR
Manager was the person who was authorized
to approve leaves of absence and their extensions. CA testified that she recorded the use of but did not approve
the use of personal business days
concept of Personal Business Days does not appear in the Contract (Joint Exhibit
1) or in the Absentee Control Policy (Union Exhibit 1.)
Article 23 of the Contract reads: “…the Company is not bound by any
terms and conditions of employment not included in this contract.”
definition of “occurrence” in the Absentee Control Policy is - One day or two or more consecutive workdays missed for reasons such as
self-illness, or illness in the immediate family. Leave extensions do not qualify as a reason for
“occurrences” in the policy. Additionally,
the purpose of the Policy is to control absenteeism, not to condone it.
“Occurrences” are a disciplinary measure imposed as progressive
discipline that begins with a verbal warning for five (5) occurrences and ends
in termination of employment.
summary, the Union’s arguments are not convincing.
An arbitrator cannot ignore the clear language of Article 11.
The Grievant should have returned to work after her leave of absence
expired. When she was not granted
the twenty-days she requested for the trip to Hawaii, she could have explained
the situation to the HR Manager, she could have requested an extension to the
approved leave or she could have returned to work.
She should not have attempted to circumvent the denial of the four-week
leave. There would be no point in requesting leaves if employees could take days
off as they pleased.
the Grievant that she needed to return to work or would be charged vacation days
for absences until she returned was not forbidden under the contract and was in
reality an accommodation to her needs. She
could have been disciplined or even terminated for her action.
The testimony that the Grievant wished to save her vacation days
“Because I though maybe I might need it later on if something happened to my
son” is understandable. However, if unfortunately, that were to happen, I am sure the
Company would have accommodated her needs.
burden of proof in this case was on the Union. After giving due consideration to
all of the evidence and testimony, I have concluded that the Union has not met
grievance is denied in all respects.
Based on the evidence and testimony entered at the hearing, the Union’s grievance is denied.
State of New York
Phyllis Almenoff, do hereby affirm that I am the individual described in and who
executed this instrument which is my award.
Phyllis Almenoff, Arbitrator
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028