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Title: Kellogg (Mountaintop Baking) Company and USWA, AFL-CIO, CLC, Local No. 12593
Date: February 15, 2005
Arbitrator:  Richard D. Sambuco
Citation: 2005 NAC 115

 IN THE MATTER OF ARBITRATION 

BEFORE 

RICHARD D. SAMBUCO, ARBITRATOR 


 USWA, AFL-CIO, CLC, LOCAL NO. 12593                   )          OPINION
                                                                                              
)
and the                                                                                  )          and
                                                                                               )
KELLOGG (MOUNTAINTOP BAKING) COMPANY        )          AWARD 


 FMCS CASE NO.:                04-06599

GRIEVANT:                           Robert Smith – Discharge

REPRESENTING THE
UNION:                                  Alan R. Whicker
                                                Staff Representative
                                                USWA, AFL-CIO, CLC - District 8

REPRESENTING THE
COMPANY:                           Daniel P. Stratton
                                                Attorney
                                                Stratton, Hogg & Maddox, P.S.C.

DATE OF HEARING:                       December 15, 2004 

RECEIPT OF
POST-HEARING BRIEFS:              January 31, 2005 

DATE OF DECISION:                      February 15, 2005


STATEMENT OF THE CASE

            This matter comes before the Arbitrator as a result of Grievance No. 02-123 dated December 13, 2002 (Joint Exhibit No. 2), which reads in pertinent part as follows:

            “Nature of Grievance:  Grievant was discharged wrongly over the 9 event policy.

 

            Settlement requested in Grievance:  Reinstatement and to be made whole, lost wages.

 

            /s/Robert Smith                                 /s/Jeff Jones

            Grievant                                           Union Representative”

            The Company’s fourth step answer to Grievance No. 02-123 reads in pertinent part as follows:

“02-123 Robert Smith

            The grievant violated the Company’s attendance policy by accumulating a sufficient number of absences to warrant termination.  Grievance Denied.

 

            /s/Timothy M. Albright

            Human Resource Manager”

 

BACKGROUND OF THE CASE 

            The Mountaintop Baking Company is owned by the Kellogg Company.  The production plant is located in Pike County, Kentucky and operates non-stop, around the clock, seven (7) days per week, producing “Pop Tarts” and “Nutra Grain Bars”. The plant is an assembly line production facility employing approximately 450 employees.

A supervisor on the production line is responsible for supervising about forty-five (45) employees per shift.  The production line is over a quarter of a mile in length, extending throughout multiple rooms, with the production employees (45) stationed at strategic points along the length of the production line.  The supervisor is responsible for coordinating the work activities of these employees over an extended distance.  During shift change, employees relieve one another (i.e., a smooth hand-off) so that production is continuous and does not stop.

            Prior to January 2002, the Company was experiencing a serious attendance problem.  Absenteeism exceeded twenty-five percent (25%).

            Effective January 2, 2002, the Company instituted what is characterized as a “no-fault” attendance policy.  Since the policy has been in effect, the absenteeism rate has dropped to less than five percent (5%).  Approximately thirty-five (35) employees have been terminated since the policy was implemented.

            The “no-fault” attendance policy (Joint Exhibit No. 3) reads in pertinent part as follows:

“ABSENTEEISM POLICY
Effective 1/02/02

Absenteeism, tardiness, and leaving work early disrupt the operation of our business and have a detrimental effect on the success of our plant.  We rely on our trained and qualified employees to be present on the job in order for us to meet our plant objectives.  When employees are not present on the job, our ability to meet production and the burden that is created for other employees greatly diminishes the team’s success.

 

Objective:  To lower the absenteeism rate and reduce the added burden to employees, while increasing productivity.

 

Attendance Tracking:  Employee attendance will be tracked on a “rolling year” basis.  The term “rolling” refers to the date of the month the absence occurred to the day of the month one (1) full year later.  The “rolling year” will be extended for time spent on company-approved leaves of absence greater than two weeks; in such case, the employee will be notified.  It is the employee’s responsibility to take an active roll in their attendance; therefore, tracking information will be supplied only at the employees request.

 

Procedure:  Discharge when the accumulated number of events exceeds 9 events.

  • When an employee reaches three (3) events in a rolling 12 month period, the Department Manager along with a union steward will have a documented visit with them regarding their absences, the frequency; the reasons; and what help can be provided.

  • When an employee reaches five (5) events in a rolling 12 month period, the Department Manager along with a union steward will have a documented visit with them regarding their absences, and to determine what help can be provided.

  • When an employee reaches seven (7) events in a rolling 12 month period, the Human Resources Manager along with a member of the Union Executive Committee will have a documented meeting with them regarding their absences, and to determine if the employee wants to work at Mountaintop Baking, and determine what help can be provided. 

Calculated Events: 

  • Not coming to work as scheduled (Each day is an event).

  • Starting work more than 5 minutes after scheduled start time     (1/2) event provided the employee works ½ their scheduled shift)

  • Leaving work before scheduled quit time (1/2 event provided the   employee works ½ their scheduled shift)

  • Not calling the call-in line 30 minutes prior to the start of your shift, if the employee is going to be absent.

  • One (1) event will be given for absences due to an employee’s illness on successive days (2-7), provided a valid doctors excuse is given to Human Resources the day the employee returns to work.  The doctor’s visit must take place by day three (3) of absence placing the employee off work.

  •          The daily maximum number of events is limited to two (2).

 Non-Calculated Events (With Proper Documentation):

  • Workers’ Compensation Absences

  • Approved Paid Medical Leaves (After 7 days of illness/injury)

  • Approved FMLA

  • Holidays

  • Scheduled Vacation

  • Jury Duty

  • Funeral Leaves per Collective Bargaining Agreement

  • Military Leaves

 Call In Procedures: 

  • Employees must call in through the call in line each day of absence at least 30 minutes prior to the start of their shift until proper documentation has been received by the Human Resources Department.

  • Employees must call in each day for all absences including Jury Duty, FMLA, Workers’ Compensation, Funeral Leave, and Medical Leave.

Miscellaneous:

 

  • If an employee has been off work for an extended absence (more than 5 calendar days), they must notify Human Resources the Thursday of the week prior to the week of their anticipated return to work.  If you fail to notify Human Resources, you will not be assigned on the weekly schedule, thus not permitted to work that scheduled week.

  • Three (3) no call in within a “rolling year” is automatic suspension pending discharge.

  • Mountaintop Baking’s phone system and time clocks are the only clocks which govern this policy.

  • An employee completing a sixty (60) calendar day period with perfect attendance will have the oldest event reduced from their absenteeism record.  Perfect attendance is defined as being at work and on time every scheduled workday and working the full scheduled shift.  These reductions must be used during the course of one (1) “rolling year”.

  • To assist with day-to-day needs to be off of work, employees can use one (1) week of vacation to break up and use on a daily basis.  These days must be requested and approved before Thursday of the week prior to the day of vacation.”

As of December 2004, the foregoing policy has been in effect for three (3) years.
            Grievant Robert R. Smith was employed by the Company on January 19, 1998.  

Effective December 10, 2002, Grievant Smiiith was terminated in accordance with the Company’s absenteeism policy for having accumulated 9.5 events (Joint Exhibit No. 6).

            Grievant Smith’s statement (Joint Exhibit No. 6) in response to his discharge on December 10, 2002 is as follows:

“I disagree with late call-in events over 3-25, 3-18 (4 minutes, 9 minutes late (3-25) call-in on FMLA on way to work for uncontrollable situation. (1-18 snow day

 

/s/Robert R. Smith                             12/10/02”

 

            The Grievant’s absence record is memorialized in documents labeled Joint Exhibit No(s). 5-A, B, C and D as follows:

“Joint Exhibit No. 5-A

 Name: Robert Smith                                                                  Date Issued 2-4-02

Supervisor Notification Form for 3 Events
Events:            1-06-02      (Absence) 1 event
1-18-02           (Tardy)            .5 event
1-19-02           (Absence)       1 event
2- 3-02             (Absence)       1 event”

“Joint Exhibit No. 5-B

Name: Robert Smith                                                                  Date Issued 3-11-02

Department Manager Notification Form for 5 Events
Events:            1-06-02             (Absence)       1 event
1-18-02 (Tardy)            .5 event
1-19-02  (Absence)       1 event
2-03-02  (Absence)       1 event
2-17-02  (Absence)       1 event
3-07-02  (Left early)       1 event”

“Joint Exhibit No. 5-C

 Name: Robert Smith                                                                  Date Issued: 3-20-02

            Human Resources Mgr. Notification Form for 7 Events

Events:            1-06-02  (Absence)       1 event
1-18-02  (Tardy)  .5 event
1-19-02  (Absence)       1 event
2- 3-02 (Absence)       1 event
2-17-02  (Absence)       1 event
3-18-02 (Absence)       (late call) 2 events
3-25-02              (Late call)  1 event”

 “Joint Exhibit No. 5-D           

Name: Robert Smith                                                                  Date Issued 10-15-02            

Human Resources Mgr. Notification Form for 7 Events

Events:            +1-06-02 Abs                3-25-02  Late Call
1-18-02 Td  5-24-02 Perfect Att.
1-19-02 Abs  6-09-02 Abs
2-3-02 Abs 7- 1-02  Abs
2-17-02 Abs 9- 3-02  Perfect Att.
3-18-02 Abs 9-14-02   Abs
3-18-02 Late Call  

Each one of the above Joint Exhibits (5-A through 5-D) was signed by the Grievant, the appropriate supervisor, and the Grievant’s Union Steward.  The Grievant is counseled, with regard to his absenteeism record, with the appropriate supervisor

after 3 events, 5 events and 7 events.

The information taken from Joint Exhibits 5-A through 5-D, as indicated above, was entered in handwriting ostensibly by the particular supervisor that signed the document (i.e., supervisor, Department Manager and Human Resource Manager).

The Grievant’s absence record is also memorialized in another document (Joint Exhibit No. 4) that appears to be a computer printout dated December 9, 2004 titled Kronos Timekeeper – “Employee Exception Maintenance” and reveals in pertinent part the following information:

Date                Exception               Code      Description               Points         Hours
1/01/02 Absences                    HO       Holiday                           .00  6.50
1/06/02  Absences                    AB        Full Day Absence       1.00  12.00
1/18/02 Tardies                        TD        Tardy                               .50  5.20
1/19/02 Absences                    AB        Full Day Absence       1.00 12.00
1/20/02 Early Out Punches     AQ       Approved Early Qu        .00  2.47
2/03/02 Absences                    AB        Full Day Absence       1.00 12.00 
2/17/02 Absences                    AB        Full Day Absence       1.00 12.00 
3/03/02 Absences                    NS        Non Scheduled Day      .00  12.00
3/07/02 Early Out Punches     FM       FMLA                             .00  9.80
3/07/02  Early Out Punches     FM       FMLA                             1.00     9.80
3/18/02 Absences                    AB        Full Day Absence       1.00     12.00
3/18/02 Absences                    LC        Late Call In                   .00  12.00
3/25/02 Absences                    LC        Late Call In                   .00  12.00
3/25/02 Absences                    FM       FMLA                             .00  12.00
3/29/02 Absences                    FM       FMLA                             .00  12.00
3/31/02 Absences                    HO       Holiday                           .00  12.00
4/04/02 Early Out Punches     FM       FMLA                             .00  3.80
4/08/02  Absences                    FL        Funeral Leave               .00 12.00
4/09/02  Absences                    FL        Funeral Leave               .00 6.50
4/12/02 Absences                    FL        Funeral Leave               .00 12.00
5/11/02 Absences                    PD       Personal Day Off           .00 12.00
5/24/02 Perfect Attendance    PA        Perfect Attendance     1.00-
5/26/02 Early Out Punches     AQ       Approved Early Qu       .00 9.50
6/03/02 Absences                    VA        Vacation                         .00 12.00
6/04/02 Absences                    VA        Vacation                         .00 6.00
6/07/02 Absences                    VA        Vacation                         .00 12.00  
6/08/02 Absences                    VA        Vacation                         .00 12.00  
6/09/02 Absences                    AB        Full Day Absence 1.00 12.00
7/01/02 Absences                    AB        Full Day Absence       1.00 12.00
7/21/02 Early Out Punches     AQ       Approved Early Qu       .00 2.50
Date                Exception              Code       Description             Points          Hours
8/18/02 Early Out Punches     AQ       Approved Early Qu       .00 2.50
8/26/02 Absences                    VA        Vacation                         .00 12.00
8/27/02 Absences                    VA        Vacation                         .00 6.00
8/30/02 Absences                    VA        Vacation                         .00 12.00
8/31/02 Absences                    VA        Vacation                         .00 12.00
9/03/02 Perfect Attendance    PA        Perfect Attendance     1.00-
9/14/02 Absences                    AB        Full Day Absence       1.00   12.00
9/26/02 Absences                    AB        Full Day Absence 1.00   12.00
9/27/02 Early Out Punches     AQ       Approved Early Qu       .00     .92
9/28/02 Early Out Punches     NS        Non Scheduled Day      .00   12.00
9/29/02 Absences                    NS        Non Scheduled Day      .00   12.00
11/25/02 Absences                    PA        Perfect Attendance     1.00-
11/28/02 Perfect Attendance    HO       Holiday                           .00  12.00
12/05/02 Absences                    AB        Full Day Absence       1.00 12.00

            On the basis of the Grievant’s work record and in response to the Company’s absenteeism policy (Joint Exhibit No. 3), the Company discharged the Grievant effective December 10, 2002.

THE ISSUE

Given the Grievant’s absence record, did the Company have just cause to terminate the Grievant under its Absenteeism Policy?  If the answer is no, what is the remedy?

CONTRACTUAL LANGUAGE

            The contractual language relating to this issue is drawn from the Collective Bargaining Agreement (Joint Exhibit No. 1) effective July 22, 1998 through July 22.

 “ARTICLE 12
MANAGEMENT RIGHTS

Section 1.      Except as specifically limited by an expressed provision of this agreement, all of the employer’s rights, prerogatives and authority are retained and remain solely and exclusively within the rights of management, except for those rights covered under this agreement.  These rights include, by way of example only and not in limitation thereof, the management, operation, and maintenance of facilities, the right to select, hire, discipline for just cause, terminate employment for just cause, establish and enforce reasonable rules of conduct, direct the work force, schedule work, determine what methods and means of production are to be used, and to determine the size of the work force.”

  DISCUSSION ON THE MERITS

            Let the record show that the Company’s Absenteeism Policy (Joint Exhibit No. 3) is not at issue in this instant case. 

Also let the record show that the Grievant was, during the period of his work

record in question (1/06/02 through 12/05/02), working under a Company-approved “intermittent” leave, pursuant to the Family Medical Leave Act (see Article 33, Special Leaves and Pay, Section 6 of Joint Exhibit No. 1).

JUST CAUSE

Although the term “just cause” is not defined in the Collective Bargaining Agreement, its meaning has been well established by arbitral precedent.

            All arbitrators employ two principles that are central to just cause;

 due process and progressive discipline.  Due process, as it is used in determining just cause, has its origins in both constitutional and criminal law.  Progressive discipline has its origins in both collective bargaining and shared notions of fairness.  Some collective bargaining agreements specify the steps an employer must take before disciplining or discharging an employee.  Even in the absence of bargained-for steps, however, arbitrators have generally asserted that an employee must be given some warning that his behavior is unacceptable and some opportunity to conform his behavior to the employer’s legitimate expectations.1

            The principles of just cause allow an employee to be terminated in two types of situations: a single incident of very serious misconduct, or the final step in the progressive disciplinary process.

            The record will show that the Company has established a very detailed set of

rules with regard to employee absenteeism (see Joint Exhibit No. 3, Absenteeism Policy).

Article 12, Management Rights, reads in pertinent part as follows:

“… establish and enforce reasonable rules of conduct …”

which provides authority for the Company to establish and implement the Absenteeism Policy.

The record will show that the Absenteeism Policy established by the Company

has been challenged and ruled upon.  The expressed rules of the Absenteeism Policy are not at issue in this instant case.

            These rules are not implied. These rules are prima facie evidence of the discipline that can result for violating these rules.  Adolph Koven and Susan Smith in Just Cause, the Seven Tests, state:

            “It is broadly recognized that contractual disciplinary rules, coupled with stated penalties, usually override broader just cause requirements.  This is an entirely proper way for arbitrators to interpret contracts.  Just cause is an amorphous term which lacks a concrete definition.  When its principles control the outcome of a dispute, an arbitrator is vested with broad authority – much broader than in any kind of “rights” grievance.  Rulings on just cause cases routinely call for application of an arbitrator’s concepts of fairness, justice and equity.  By negotiating rules and penalties, parties express their intent to circumscribe arbitral authority.  In effect, their agreement defines what is just cause for disciplining an identified breach of employment responsibilities and narrows the issue.  It does away with the more speculative decision-making implicitly licensed by a just-cause standard.2

            The record will show that the Grievant (Robert Smith) has a history of violating one or more of the rules contained in the Absenteeism Policy.  The record will show that the Grievant has been afforded the accepted practice of counseling to address his absenteeism.  The record will also show that the Grievant, when counseled, was put on notice with regard to his record of absenteeism

What is interesting in this instant case is that, given such a history of absenteeism, tardiness and late calls, there was no evidence presented in the form of a grievance that challenges were made to contest the Company’s disciplinary action.

In the two instances (3-18-02, four minute late call and 3-25-02, nine minute late call) in which the Grievant disagreed with the Company’s description of the violation,

(see Joint Exhibit No. 6 dated 12-10-02), the Grievant chose not to file a grievance.

When questioned why he chose not to file a grievance at the time he was charged with these violations, he answered, “I felt I could make them up (have the violations removed) by having good attendance.”

And yet, the Grievant had four (4) more absences (6-09-02, 7-01-02, 9-14-02 and 9-26-02) subsequent to his disagreement with the Company over charges of “late call” on 3-18-02 and 3-25-02.

Presumption That Facts Reported in Unchallenged Prior Disciplinary Warnings Are Correct:

Arbitrator Whitley McCoy stated in his decision in support of this proposition as follows:

 

“Some companies have a system of personnel reports on employees that go into their personnel file.  For example, if a man does a negligent piece of work, for which he ought to receive a warning, do you make out a slip, and give him a copy, and send a copy to the labor relations office?

I have ruled in other arbitrations that where a company does have that system, they cannot bring into evidence any previous offenses to help justify a subsequent disciplinary layoff or discharge unless a written record was made of the previous offense.

 

In addition, if under such a system a man has a chance to file a grievance to take such a reprimand off his record then the employee cannot claim that he did not engage in the conduct reported in the reprimand warning, unless he has filed such a grievance.  In other words, if a man deserves a warning and is given it and is given a slip reporting the offense and doesn’t protest it with a grievance, then at a subsequent hearing it must be taken as an admitted offense.  In such a case, there is no need for testimony about the prior incident.

 

This is the only way that I can see to keep a hearing concerning a discipline or discharge from becoming a hearing about a thousand other incidents.”3

ABSENTEEISM POLICY – COMPANY’S INTENT

            The intent of the Company in implementing its Absenteeism Policy is expressed as follows: “To lower the absenteeism rate and reduce the added burden to employees, while increasing productivity.”

            The purpose clearly sought by the Company in this instant case is to prescribe a set of procedural rules that will convey a distinct method of application when a rule is violated.

            The detail in which these rules have been expressed leaves very little doubt as to what the Company intended when they wrote them.  The language as expressed in this instant case, conveys the message to this Arbitrator that the Company intended to circumscribe the authority of the Arbitrator to apply a just-cause standard.

            The only avenue left for the Arbitrator is to examine the relevant language to ascertain whether or not it was correctly applied given the evidence presented.

A close examination of Joint Exhibit No. 4 reveals the Grievant’s first charged absence (1.00 point) occurring on January 6, 2002. According to the Company’s Absenteeism Policy (Joint Exhibit No. 3), this date of January 6, 2002 represents the beginning of the “rolling year” of employee (Grievant’s) attendance.  This “rolling year” extends to the day of the month one full year later (i.e. January 6, 2003).

            The Absenteeism Policy became effective on January 2, 2002 and the Grievant accumulated 2.5 points (events) toward the total number of events leading to discharge (exceeds 9 events) during the month of January 2002. (See Joint Exhibit No. 4)

During the month of February 2002, the Grievant was charged with two (2) more points (events) for being absent.  This amounts to 4.5 events in a two-month period (January and February) since the implementation of the Absenteeism Policy.

            One (1) of the absences in February occurred on February 3, 2003. This event added to the 2.5 events charged in January 2002 totals 3.5 events.

            The Absence Policy calls for a documented visit (counseling session) when the employee reaches three (3) events. Joint Exhibit No 5-A issued February 4, 2002 reveals a documented visit (counseling session) with the Grievant, a supervisor and the Grievant’s Union Steward.  This documented visit ostensibly puts the Grievant on notice regarding his absenteeism and comports with the requirements of the Absence Policy.

A second absence (one event) in February occurred on February 17, 2002 which taken together with the 2.5 events charged in January and the event charged on February 3, 2002 now totals to 4.5 events.  At the end of February 2002 the Grievant

had accumulated 4.5 events toward a total equating to discharge (exceeds 9 events) as expressed in the Company’s Absence Policy.  (Joint Exhibit No. 3)

Joint Exhibit No. 5-B, dated March 11, 2002, documents a Department Manager Notification Form for 5 events, which includes all of the previous events (4.5 total) plus one additional event charged on March 7, 2002 for “left early”. (Emphasis added)

This documented visit (counseling session) on March 11, 2002, with the Grievant, a Department Manager and the Grievant’s Union Steward, comports with the Absenteeism Policy requirements and was triggered by the event charged on March 7, 2002, which placed the Grievant’s charged event total at 5.5 events.  However, the March 7, 2002 charged event (left early) as expressed in Joint exhibit No. 5-B issued on March 11, 2002 was subsequently corrected from a charged event to an “Early Out Punches for FMLA” with 00 points. (Emphasis added)

Joint Exhibit No.4 reveals on March 7, 2002, an “Early Out Punches” for FMLA” and 00 (charged) points.  Joint Exhibit No. 5-B reveals one (1) charged event on March 7, 2002.  The conclusion here is that the March 7, 2002 event was changed (corrected) to 00 points (event) due to “Early Out punches for FMLA.” This correction (00 points) returns the Grievant to a total of 4.5 charged events even though a documented visit (counseling session for five (5) events) was held on March 11, 2002. (See Joint Exhibit No. 5-B.)

With the Grievant at a total of 4.5 charged events he received three (3) additional charged events as follows:  (See Joint Exhibit No. 4)

Date              

Exception               Code            Description                               Points         Hours
3/18/02 Absences              AB            Full Day Absence      1.00  12.00
3/18/02 Absences              LC            Late Call In                1.00  12.00
3/25/02 Absences              LC            Late Call In                1.00  12.00
3/25/02 Absences              FM               FMLA                                       .00 12.00

These three (3) charged events in March taken together with the previous total of 4.5 events places the Grievant at a total of 7.5 events.

Joint Exhibit No. 5-C (Human Resource Mgr. Notification Form for 7 events) was issued on March 20, 2002.  However, the event (late call in) that caused the Grievant to be charged with a total of 7.5 events did not occur until March 25, 2002. (Emphasis Added.)

On Joint Exhibit 5-B the event dated 3-7-02 immediately follows the event dated 2-17-02.

On Joint Exhibit 5-C there is a blank space on the notification form immediately following the date of 2-17-02.  This blank space appears to have been “whited" out which I conclude to have been eliminated (the date of 3-7-02) with a type of typing correction fluid that is common in most offices.

It appears to this Arbitrator that the previously recorded and charged event of March 7, 2002 was discovered to have been an “Early Out punch for purposes of FMLA” and thus was eliminated with “white-out” on Joint Exhibit No. 5-C.

This would explain why Joint Exhibit 5-C (documented visit) was issued on March 20, 2002, prior to the triggering event that occurred on March 25, 2002.

To express it another way:  the events of 1-06-02, 1-18-02, 1-19-02, 2-3-02, 2-17-02, 3-7-02 and 3-18-02 (two events) triggered a documented visit (counseling session) dated March 20, 2002. (See Joint Exhibit No. 5-C).  When it was discovered that the event charged for March 7, 2002 was corrected from a “left early” to a “FMLA”, the entry for 3-7-02 was eliminated but the date issued on Joint Exhibit No. 5-C remained at 3-20-02.  (Emphasis added)

Even though the documented visit (counseling session) for 7 events was issued on March 20, 2002, prior to the Grievant’s accumulation of the seventh event on March 25, 2002, the Grievant still had accumulated 7.5 charged events as of March 25, 2002.  (See Joint Exhibit No. 5-C).  With the elimination of the March 7, 2002 charged event, the grievant had accumulated 7.5 charged events for the months of January, February and March 2002.

From March 26, 2002 through June 8, 2002, the Grievant did not receive any charged events.  From March 26, 2002 to May 24, 2002 (a period of sixty (60) days) the Grievant was documented with a “perfect attendance” which also reduces his accumulated total of 7.5 charged events by one (1); to a total of 6.5 events.  The Grievant was charged with one (1) event on June 9, 2002 and one (1) event on July 1, 2002.  This brings his total charged events to 8.5 as of July 1, 2002.

On September 3, 2002 the grievant was documented with a “perfect attendance”

which also reduces his accumulated total of 8.5 events by one (1) to a total of 7.5 charged events.

The Grievant was again charged with one (1) event on September 14, 2002 and one (1) event on September 26, 2002.  This brings his total charged events to 9.5 charged events as of September 26, 2002.

Based on the information provided in Joint Exhibit No. 4 and my analysis of that information, it appears that the Grievant’s total accumulated charged events exceeded nine (9) events on September 26, 2002.

The Grievant however, continued to work and was granted a “perfect attendance on November 25, 2002,which reduces his total charged events by one (1) to a total of 8.5 events.

However, on December 5, 2002 the Grievant was charged with one (1) event, which brings his accumulated total back to 9.5 events.  According to the Company’s Absenteeism Policy, discharge results when the accumulated number of events exceeds nine (9) events.  Following a four (4) day suspension, the Grievant was discharged on December 10, 2002.

            `The Company’s Absenteeism Policy (Joint Exhibit No. 3) satisfies the number one question in determining just cause and that is: “Did the Employer give the Employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?”

The fact that the policy provides for a documented visit after three (3) events, five (5) events and seven (7) events satisfies the requirement of “did the Company put the Employee on notice of the possible consequences of his conduct?”  The fact that these documented visits (counseling sessions) were held on February 4, March 11, and March 20, 2002, and a fourth documented visit on October 15, 2002 demonstrates the company’s patience in this matter.  (Emphasis added)

Although the purely mathematical character of no-fault plans make them appear to be arbitrary from one perspective, in another sense, they actually eliminate arbitrary individual supervisors from making subjective decisions about which absences should be excused and which should not.  (Kinnear Corp., 56 LA (Seinsheimer, 1971)

This case turns on the interpretation of circumstances surrounding two (2) specific charged events. (March 18 and March 25, 2002).  The events charged to the grievant on these two (2) dates placed the Grievant only about half way toward the benchmark that triggered his discharge.  The Grievant still had to accumulate five (5) additional events, which he did, between April and December 10, 2002, the date of his discharge.

Much of my analysis of the Grievant’s record is based on Joint Exhibit No.4.  Notwithstanding the fact that my analysis concludes that the Grievant exceeded nine (9) events with the charged event occurring on September 26, 2002; it was the Company’s decision to discharge the Grievant based on the December 5, 2002 absence.

The intent of the Absenteeism Policy is to correct excessive absenteeism within the employer-employee relationship.  The fact that I came up with a different conclusion than the Company does not negate the fact that the Grievant’s absence record was compiled by the Grievant in the face of a “no-fault” absenteeism policy.

Based on my analysis, the facts worked in favor of the Grievant and he was provided an additional seventy-six (76) days (September 26, 2002 through December 10, 2002) of employment.

The facts speak for themselves and the Union’s entire case revolves around two (2) charged events; March 18, 2002 and March 25, 2002.  Neither of which were challenged through the grievance procedure at the time the events were charged.

When the Company, based on a “no-fault” absenteeism policy charges an employee with a violation of the policy, it is a form of discipline.

Every employee knows, or should know, that he/she has the right, under the Collective Bargaining Agreement, to challenge, through the grievance procedure, the Company’s imposition of discipline.

As previously stated, “facts reported in unchallenged disciplinary warnings are correct.”

The Union argues that on March 18, 2002, the grievant was charged with an event for calling in nine (9) minutes late.

The Union contends that due to snow causing his (Grievant’s) driveway to be slippery and the Grievant having problems connecting to the call-in number, it took approximately nine (9) minutes before he could get through to the answering machine. 

This Argument is not persuasive for two (2) reasons.  Snow may cause you to be late for work, but it should not cause you to miss an entire day of work, particularly when faced with a “no-fault” absence policy.

Scheduler, Christine Rae, testified that the Grievant called in at 6:39 a.m.  If, as the Union contends, it took approximately nine (9) minutes to connect to the answering machine, the conclusion is that the Grievant did not initiate the call until approximately 6:30 a.m.; much too late in offering snow as the problem that he could not control.

The Absenteeism Policy states that an employee must call in thirty (30) minutes prior to the start of his/her shift, if they are going to be absent.  With your shift starting at 7:00 a.m., snow and a slippery driveway is not a situation out of your control for calling in at 6:39 a.m.  The March 25, 2002 event resulted in the Grievant, while on his way to work, receiving a telephone call from his home, advising him that his grandfather was very ill and he needed to return home.  On this occasion, the Grievant was charged with a late call event of four (4) minutes.

The Union argues that the Grievant, upon hearing of his grandfather’s illness, immediately attempted to place a call to his Employer from his cellular telephone in his car, but could not get the call in to the plant because the plant’s answering machine would not accept his call.

The Union also argues that during this period, March 25, 2002, the Grievant called the Security Guard, Victor McCann, and was told to keep trying the call-in number.  After approximately four (4) minutes, the Grievant was able to connect with the call-in number according to the Union.

Again, Scheduler Christine Rae testified that the Grievant called in at 6:34 a.m.

Security Guard, Victor McCann testified in rebuttal, that no calls were received from the Grievant either on March 18, or March 25, 2002.

Union Grievance Chairman, Michael Malloy, testified that he had himself experienced difficulties, in the past, with the call in number answering machine not functioning properly.  However, no specific dates were offered in testimony.

Chairman Malloy also testified that there had been only one grievance filed contesting a charged event because the phone system had not operated properly.  The employee involved produced a phone number that was identified on the Company’s main phone switch and the event was removed (corrected) because the employee produced evidence that he had tried to call.  (Emphasis added).

Grievant Smith in this instant case produced no phone records, (cellular or land line) to support his claim that he tried to call in at an earlier time than that attested to (6:39 a.m. and 6:34 a.m.) on either March 18 or March 25, 2002.

The record will show that the Grievant did make a phone connection with the Company’s voice mail system at 6:39 a.m. on March 18 and 6:34 a.m. on March 25, 2002.  This confirms that the voice mail was working only minutes after the Grievant alleges that it was not working, or that it “kicked him out.”

The record (Joint Exhibit No.4) will also show that on March 25, 2002 (grandfather’s illness), while the Grievant was charged with a “late call” event, he was excused for being absent and not charged for a second event, due to FMLA.

The Union argues that the two (2) charged events (late calls) on March 18, 2002 (nine minutes late) and March 25, 2002 (four minutes late) for a total of thirteen (13) minutes are an overreaction by the Company in discharging the Grievant.

These two (2) late calls amount to two (2) charged events (out of a total that exceeds nine events) on two different occasions, according to my analysis.

The Union offers no defense for 7.5 charged events on the other dates recorded on Joint Exhibit No.4.

As previously stated, the existence of a “no-fault” absenteeism Policy, while still subject to the just cause requirements, places limitations on an Arbitrator’s authority.  This limitation taken together with the language expressed in ARTICLE 30, Step 6 of the Grievance Procedure (“shall not have the authority to add to or to subtract from or to modify any terms of this agreement”) authorizes the Arbitrator to examine the language and administration of the Absenteeism Policy and determine whether or not the Company was justified in discharging the Grievant, given the evidence presented.

DECISION ON THE MERITS

On the basis of the record as a whole and for reasons as stated above, I find that the Company did have just cause to discharge the Grievant, Robert Smith.  The grievance is denied. 

Decision rendered in Maricopa County, Arizona, on February 15, 2005.

                                                                         _________________________
         
                                                                         Richard D. Sambuco, Arbitrator

SOURCES CITED

1Brand, Norman, Discipline and Discharge in Arbitration, ABA Section of Labor and Employment Law, The Bureau of National Affairs, Inc., Washington, DC, p. 29-30.

2Koven, Adolph M.; Smith, Susan L.; Just Cause, the Seven Tests, BNA, Inc., Washington, DC, 2nd Edition, p. 9.

3Fairweather, Owen, Practice and Procedure in Labor Arbitration, BNA, Inc., Washington, DC, 1973, p. 220.

Elkouri and Elkouri, “How Arbitration Works”, Fifth Edition, BNA, Washington, D.C.



+ Arbitrator’s Note:  Abs = Absence; Td = Tardy; Perfect Att. = Perfect Attendance

 

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