Title: Kellogg (Mountaintop Baking) Company and
USWA, AFL-CIO, CLC, Local No. 12593
THE MATTER OF ARBITRATION
D. SAMBUCO, ARBITRATOR
USWA, AFL-CIO, CLC, LOCAL
FMCS CASE NO.:
Robert Smith – Discharge
DATE OF HEARING:
December 15, 2004
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.
The Company’s fourth step answer to Grievance No. 02-123 reads in
pertinent part as follows:
The grievant violated the Company’s attendance policy by accumulating a
sufficient number of absences to warrant termination.
/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.
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
The “no-fault” attendance policy (Joint Exhibit No. 3) reads in
pertinent part as follows:
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
To lower the absenteeism rate and reduce the added burden to employees,
while increasing productivity.
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
Discharge when the accumulated number of events exceeds 9 events.
Events (With Proper Documentation):
of December 2004, the foregoing policy has been in effect for three (3) years.
December 10, 2002, Grievant Smiiith was terminated in accordance with the
Company’s absenteeism policy for having accumulated 9.5 events (Joint Exhibit
Grievant Smith’s statement (Joint Exhibit No. 6) in response to his
discharge on December 10, 2002 is as follows:
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
The Grievant’s absence record is memorialized in documents labeled
Joint Exhibit No(s). 5-A, B, C and D as follows:
Exhibit No. 5-A
Date Issued 2-4-02
Supervisor Notification Form for 3 Events
Exhibit No. 5-B
Date Issued 3-11-02
Department Manager Notification Form for 5 Events
“Joint Exhibit No. 5-C
Name: Robert Smith Date Issued: 3-20-02
Human Resources Mgr. Notification Form for 7 Events
Exhibit No. 5-D
Date Issued 10-15-02
Human Resources Mgr. Notification Form for 7 Events
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
3 events, 5 events and 7 events.
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).
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:
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 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?
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.
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.”
Let the record show that the Company’s Absenteeism Policy (Joint
Exhibit No. 3) is not at issue in this instant case.
let the record show that the Grievant was, during the period of his work
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).
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;
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
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
with regard to employee absenteeism (see Joint Exhibit No. 3, Absenteeism
12, Management Rights, reads in pertinent part as follows:
establish and enforce reasonable rules of conduct …”
provides authority for the Company to establish and implement the Absenteeism
record will show that the Absenteeism Policy established by the Company
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,
“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
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
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
Joint Exhibit No. 6 dated 12-10-02), the Grievant chose not to file a grievance.
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.”
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.
That Facts Reported in Unchallenged Prior Disciplinary Warnings Are Correct:
Whitley McCoy stated in his decision in support of this proposition as follows:
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
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.
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.
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
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)
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.
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
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)
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)
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.
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)
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.
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.)
Joint Exhibit 5-B the event dated 3-7-02 immediately follows the event dated
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.
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.
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.
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.
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.
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.
September 3, 2002 the grievant was documented with a “perfect attendance”
also reduces his accumulated total of 8.5 events by one (1) to a total of 7.5
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.
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.
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.
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?”
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.
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)
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.
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.
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.
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)
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.
the Company, based on a “no-fault” absenteeism policy charges an employee
with a violation of the policy, it is a form of discipline.
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.
previously stated, “facts reported in unchallenged disciplinary warnings are
Union argues that on March 18, 2002, the grievant was charged with an event for
calling in nine (9) minutes late.
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
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”
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.
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
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.
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.
Scheduler Christine Rae testified that the Grievant called in at 6:34 a.m.
Guard, Victor McCann testified in rebuttal, that no calls were received from the
Grievant either on March 18, or March 25, 2002.
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.
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.
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.
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.”
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
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
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.
Union offers no defense for 7.5 charged events on the other dates recorded on
Joint Exhibit No.4.
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.
rendered in Maricopa County, Arizona, on February 15, 2005.
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
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028