ATTENDANCE, AVAILABILITY & ABSENTEEISM POLICIES
Source Text for Power Point Presentation – 2013 IWC & SWM LC Workshops

Preface:
Attendance, availability and/or absenteeism policies are designed to minimize the unit expense of maintaining the operating workforce. They exist in a variety of iterations, but common to them all is the arbitrary identification of employees who exceed certain unilaterally established metrics for availability, attendance and/or absenteeism. They are blind to mitigation(s), and are classically applied in a mechanistic, formulaic fashion by supervisors who are required to manage by rote and not allowed to evaluate employees on an individual basis. Thus, these policies frequently drive disciplinary decisions that are not supported by just cause and are reversed in labor arbitration for that reason.

Background:
While carriers have the right to establish policies as part of their managerial prerogative, those policies do not rise to the level of Schedule Agreements, and cannot conflict with them. Unfortunately, this principle offers little real time comfort to the employee faced with the immediate application of the policy, who will have to wait for possible vindication in arbitration. When employees report for work and read some new attendance, availability or absenteeism policy bulletin, they tend to equate it with the Schedule Agreement, and may even speculate that the Union consented to it, or somehow “gave something else away.”

When these policies first started to appear fifteen years ago, attempts were made to have them declared invalid on their face. In the case of the BNSF, litigation over this issue led to a 1999 arbitration case involving both BLE and UTU that resulted in the “Kasher” Award, wherein the arbitrator ruled that while BNSF had the right to promulgate an availability policy, issues involving its potential conflict with Schedule Rules would have to be tested on a case by case basis:

“Simply stated, the BLE has raised colorable claims that the Availability Policy, either the version of Policy which BNSF intended to implement effective 1, 1999 or the modified Policy which BNSF presented to Board on October 14, 1999, conflicts with several provisions in the BLE' s various agreements on different segments of BNSF's merged property. However, as noted in the Section above in which the Board addressed the reasonableness of the Policy, the issues of whether the Policy conflicts with certain provisions of the BLE's agreements are not, in this opinion, before us on the merits. Absent any specific cases in controversy, it is Board's opinion that, at this time, some of the meritorious issues raised by the BLE will have to await justiciable disputes at the time the Carrier implements and then applies the Policy in matters involving individual employees.”

The Bad News - Since the Kasher Award, there has not been a successful effort to globally overturn any attendance, availability and/or absenteeism policies on a significant scale. This presents problems for the Organization and you as representatives because the immediate effect of the application of a policy, and the lag involved in correcting discipline that is not assessed with just cause, can make the Organization appear weak and ineffective in the eyes of the employees.
The Good News - There have been, however, many Awards rendered in various discipline cases that are beginning to mark out both the bounds of reasonableness as well as instances where the policy in dispute violates Schedule Rules. Understanding these various Awards and applying them to related attendance, availability and/or absenteeism disciplinary situations will go a long way towards overcoming the disadvantage placed upon us by the imposition of these policies.

TAKE AWAY – While we will probably never see a millennial invalidation of an entire absenteeism/attendance/availability policy, we can successfully challenge outcomes based on unreasonable applications of policies or aspects of them that conflict with Schedule Agreements.

Arbitral Analysis:
Our research has uncovered a significant body of arbitration Awards, most involving the operating crafts, where discipline stemming from the application of these policies has been overturned or reduced. Some of these Awards have been based on due process violations directly related to these policies; many of them address the reasonableness of the policy as applied to a given situation; finally, some of them find that the policy in dispute violated (a) discreet provision(s) of the applicable Agreement. All of the Awards referenced in this presentation are available for download at www.nmb.gov by selecting the “Knowledge Store” and using the dialogue box to insert the particular citation you wish to retrieve.

Due Process/Procedurally Based Awards:
The two principal issues that have arisen here are those of the timeliness of the Notice of Investigation and that of Double Jeopardy. • The timeliness issue arises when the misconduct charged predates the charging window prescribed in the applicable discipline rule. • Double jeopardy involves discipline being assessed twice for the same alleged misconduct.

Timeliness Issues:
Generally, the relative timeliness of a Notice of Investigation will hinge on what point in time the arbitrator determines the carrier should have acted. For many years, this was understood to be the last day of absence that the carrier took exception to. More recently, this has evolved to be the point at which the carrier regularly reviews attendance records, with the Carrier bearing the burden of establishing, if challenged, precisely when this review took place, as found by Referee Hargrove in First Division Award 26619:

“…As other awards have noted, the governing rule "states an absolute time which must be followed." We agree with the logic of Arbitrator Lynch in PLB 6059, Award 37, where we find that Carrier's reliance on a process that permits the arbitrary and inconsistent review of employees' records, in essence, makes the ten (10) day limitation moot. The evidence on the record is that Carrier's three-month review of attendance records is routinely culled on the 8th or 9th of the following month. Notwithstanding that the Carrier, in fact, has actual knowledge of each and every employee absence as they occur, it has sole discretion and chooses when to review employee attendance records for the three-month review. We take no issue with this right as a premise. Nevertheless, Carrier has the burden to demonstrate when it, in fact, received first knowledge. Its failure to do so is to its detriment. Failure to provide substantial evidence of first knowledge, when the information is solely in Carrier's control, renders the notice of investigation limitation useless. We agree with the Organization that it would frustrate the purposes of requiring timely charges to allow the Carrier to internally manipulate the review of Carrier generated information in order to preserve the timeliness of a charge. That being the case, it is only appropriate that the Carrier provide reliable evidence, free of scrutiny, of when a review was made, if for no other reason than to ensure each employee receives proper, timely notices of investigation and a fair and impartial hearing.”

Another variant of the timeliness issue can be found where part of the charge involves events that took place prior to the review period on which the charge was based, as determined by Arbitrator Eischen in Award 20 of PLB 6885:

“…But it is our responsibility to determine whether the Collective Bargaining Agreement was violated when the Carrier waited half the year before monitoring the Claimant's attendance compliance and then assessed a disciplinary penalty based on alleged offenses, most of which were five to six months old. A majority of this Board is persuaded that the "First Offense" citation to Engineer Curtin on August 25, 2004, for alleged past unjustified absences far outside the "90-day" period which the Carrier typically monitors for Attendance Policy, must be voided violation of the first sentence of 3 of the System Agreement-Discipline Rule.”

Double Jeopardy Issues:
Generally, “Double Jeopardy” involves disciplining an employee more than once for the same alleged offense. This has been found in situations where serially assessed discipline for consecutive review periods involves overlap between the review periods, as determined by Arbitrator Benn in Award 6 of PLB 5625:

“…we cannot consider the instances of absences which led to prior discipline as the basis for determining that by missing one more date Claimant was again excessively absent. Claimant has already been disciplined for those prior dates. To again count those dates along with the October 24, 1992 absence would amount to disciplining Claimant twice for the same misconduct. Such would amount to double jeopardy.”

See, also, Arbitrator Quinn’s findings in Award 34 of PLB 6932:

“Switchman J.M. Maxwell is charged with a violation of Carrier's attendance policy because of his work record from January 23, 2006, through April 23, 2006. The record indicates that on February 19, 2006, Claimant accepted "first offense" discipline under the Company's attendance policy. On May 26, 2006, he was assessed a "second offense" discipline for a period starting January 23, 2006. The record discloses that the Claimant was being disciplined twice during the same time frame. The Carrier has failed to meet the burden of proof to establish a second offense.”

As well as Arbitrator Easley in Award 4 of PLB 7026:

“The Board holds that the method of applying the rolling three month period to determine a potential violation of the Attendance Policy was flawed. The Claimant had previously been censured for the months of June and July therefore August should start a new three month period.”

Sometimes, Double Jeopardy is patently obvious without the cloak of overlapping review periods, as found by Arbitrator Binau in Award 78 of PLB 6719:

“…The Board after reviewing the record agrees with the organization that the investigation was not fair and impartial. The charges covered the same period as the June 16, 2004 investigation except for the July 4, 2004 holiday. The carrier's chief witness stated as much in the investigation and stated similar exhibits were used. The claimant was clearly subject to double jeopardy as he was charged twice for the same absences during the same period of time.”

TAKE AWAY: Remember - always scrutinize the charge letter to see if there is evidence of double jeopardy. This objection must be raised at the opening of the Investigation and be maintained throughout handling.

General Policy Issues:
Arbitrators tend to hold that attendance, availability and/or absenteeism policies must be reasonably applied. For example, Arbitrator Darby held in Award 4 of PLB 6711 that:

“…The Carrier has the right to expect its employees to be available for service and to discipline employees who demonstrate a disregard for the Carrier's reasonable attendance policies. It properly exercises this right by closely monitoring employees' attendance records and, as in this case, establishing certain attendance thresholds employees must meet to assist the Carrier in determining whether employees are protecting their positions. However, it was not reasonable in the instant case to apply these thresholds in a rigid manner, after informing the Claimant he would only be considered in violation of the GCOR if his absences were unjustified, and where there was evidence that at least some of his absences were for valid reasons. In light of the foregoing, the Board sustains the instant claim.”

Arbitrators also tend to believe that once a carrier promulgates a policy, it is then bound to follow the policy in administering discipline, and its failure to do so can be viewed as fatal to its case against the charged employee. See, for example, Arbitrator Nash’s findings in Award 54 of PLB 6833:

“…Given the evidence of record - particularly Carrier's acknowledgement it was out of compliance with its own published policy - we find the assessment of discipline to be capricious and arbitrary; accordingly, it must be set aside.”

See, also, Award 25 of PLB 6711 (Darby).

As a subset of the above, several arbitrators have held that where discipline is based on the use of review “windows” or measurement periods, those windows must be consistently applied. As Arbitrator Binau determined in Award 16 of PLB 6753:

“…The Board agrees with the Organization that the Carrier should use consistent measurement periods.”

Arbitrator Quinn followed Arbitrator Binau in Award 53 of PLB 6932:

“…The Carrier erroneously extended the normal 90 day window of review for attendance to 163 days. The Carrier must use consistent measurement periods for attendance review. See PLB 6753 Award 16.”

See, also, Award 72 of PLB 6719 (Binau), Award 134 of PLB 6778 (Binau), and Award 118 of PLB 6932 (Quinn).

TAKE AWAY – Look for instances of the carrier’s failure to adhere to its own policy. Highlight any such failures as part of your defense.

Burden of Proof Issues
Of course, we must always remember that the carrier owns the burden of proof in any discipline case, and that the charged employee is under no obligation to mount a defense unless and until the carrier establishes a prima facie case against the charged employee. In order to prove a charge of excessive absenteeism, the carrier must do more than just amass a collection of statistics and have them read into the record by a cipher. Award 143 of PLB 6778 (Binau) presents a good example of an Arbitrator’s critical analysis of the statistics relied on in such a case. Other Awards dealing with general proof issues are:

• Charged employees not counseled prior to being charged with absenteeism. Award 113 of PLB 6719 (Binau) and 81 of PLB 6778 (Binau). • Discipline focused more narrowly than encompassed in the charge in an attempt to make the employee appear worse. Award 11 of PLB 6888 (Richter) and Award 88 of PLB 6712 (Richter). • Discipline of actual time off simply inappropriate for a first offense. First Division Award 26513 (Newman).

Carrier’s Duty to Properly Define Absences
As one would imagine, carriers frequently mischaracterize absences (aka “missed work opportunities,” “instances of unavailability,” ad nauseum), in order to falsely and negatively distort the charged employee’s work record. If we can debunk these errors, we undercut the carrier’s burden of proof. The following are examples of various mischaracterizations disallowed by arbitrators:

• Absences approved by local supervision. Award 197 of PLB 6778 (Binau). • Day an employee works his own assignment. Award 70 of PLB 6719 (Binau). • Regular rest days. Award 84 of PLB 6719 (Binau). • Absence due to the HOS. 1st Division Award 27597 (Miller). • Mark off on day worked. Award 55 of PLB 6778 (Binau). • Absences predating letter of counsel. Award 75 of PLB 6719 (Binau).

What Constitutes Excessive Absenteeism?
It can be frustrating to understand what constitutes “full time employment” or, conversely, “excessive absenteeism.” This is so because people are individuals, and affording people individual consideration is fundamentally at odds with management’s innate desire to manage by rote. Also, carriers are reluctant to publicize a minimum level of acceptable attendance/absence/availability because they fear this will set a floor they will have to bargain against. Classically, attempts to have carrier witnesses define either will be met with opacity and circular logic. Various Awards are beginning to chart a rough outline of reasonableness in this regard. Some disputes seem to focus on the amount of time an employee was absent, while others appear more concerned with the amount of time the employee worked or was available. :

Focus On Absences – Levels Deemed Not Excessive: • 2 mark offs in 4 months. Award 118 of PLB 5916 (O’Brien). • 2 personal mark offs in 3 ½ month period. Award 6 of PLB 6764 (Easley). • 2 weekend absences in 91 day period. Award 83 of PLB 6719. • 3 sick mark offs in 30 day period. Award 36 of PLB 6778 (Binau). • 4 days absence/month during 91 day period. Award 14 of PLB 6932 (Quinn). • 6 absences in 90 day period. Award 26 of PLB 7332 (Camp). • 8 sick mark offs in 118 day period. Award 15 of PLB 7224 (Easley). • 1 day of absence. Award 6 of PLB 5625 (Benn).

Availability/Work:
In Award 185 of PLB 6468, Arbitrator Lynch noted that when evaluating an employee’s work record, the carrier must credit the employee for the time they have actually worked, and not focus solely on instances of absence or unavailability:

“…It appears to this Board that the Company policy here involved merely requires its "Crew Availability Specialists" to look at the calendar dates when making a decision as to whether or not a given employee has, or has not complied with the Policy. The Board must take the position that more than looking at the calendar is required before a given employee can be charged and found guilty of failure to comply; that is, just how many days and hours has the employee actually worked during the workweeks involved in the test period. Certainly if an individual has worked excessive hours in the work week, he is entitled to time off, whether it be on so-called weekends or in the days preceding or following the weekends…

….In the dispute before us, the record is quite clear that in the period involved in this particular dispute; that is, from October 3, 2005 through November 13, 2005, Claimant actually worked an average of 50 to 60 hours per week (see claimant's testimony at transcript page 26) or as he also testified (transcript page 80) he actually worked 82 to 84% of the time. Based on such record, which Carrier has not disputed, the question before this Board is whether or not Claimant should have been penalized for not being "available" for additional service. Based on the record in its entirety, which indicates Claimant performed considerable service during the period involved, the Board cannot uphold Carrier's decision to discipline him in this instance. This claim must be sustained.”

The following measures of availability or actual work have all been determined to not support a charge of excessive absenteeism: • 83.5% work/availability. Award 73 of PLB 6719 (Binau). • 85% availability. Award 24 of PLB 6573. • 87.88% availability. Award 14 of PLB 7250 (Gonzalez). • 89.38% availability. Award 20 of PLB 7250 (Gonzalez). • 91% availability. Award 43 of PLB 6932 (Quinn). • 23 days/month with holiday pattern mark off. Award 70 of PLB 6778 (Binau). • 71 out of 80 days. Award 13 of PLB 6888 (Richter). • 78% availability on GEB. Award 74 of PLB 6719 (Binau). • 49/58 weekend days & 75 trips/ 91 days. Award 118 of PLB 6719 (Binau). • 71/91 days & 13 days in a row. Award 18 of PLB 6778 (Binau).

TAKE AWAY – When analyzing the facts of your case, make sure that the complete picture is being portrayed, so that the true facts of the complete work record are portrayed in the light most favorable to the charged employee.

Allegations of Failure to Improve Attendance
Most absenteeism/attendance/availability policies have a provision requiring the employee’s supervisor, when counseling the employee about their absenteeism/attendance/availability, to “instruct” them to improve their attendance, usually over the next review period. The purpose of this letter is to provide a basis for an additional subsequent charge of failing to improve per previous instructions. Where there is evidence of an improvement, such should be credited by the arbitrator, as determined by Arbitrator Ilvicky in Award 66 of PLB 6983:

“…While Smith understandably did not have specific information from which to respond, he did however, clearly indicate that although Claimant's availability had not succeeded in meeting his required threshold availability at the time, his record nevertheless, had substantially improved...”

See, also, Arbitrator Binau’s findings in Award 76 of PLB 6719:

“…The Board finds that the record contains evidence to show that the claimant complied with the instructions he received in a March 9, 2004 letter. The claimant's attendance record showed that his mark offs improved after March 9…”

TAKE AWAY – Even the slightest measure of improvement can help to blunt the potential impact of an absenteeism/attendance/availability based charge.

General Mitigations:
Employees sometimes undergo tragedies in their lives that make it temporarily impossible for them to work. Unfortunately, carriers frequently view these absences formulaically and refuse to extend any consideration for the circumstances surrounding these unfortunate occurrences. A perfect example of how arbitrators should credit such mitigations is found in First Division Award 27161, wherein Referee Kohn considered absences occasioned by a house fire:

“…At the time of the Investigation, there was no evidence that the Claimant’s attendance problem was anything but a temporary situation due to the immediate impact of the house fire. There were no prior attendance violations on his record. The Carrier had no reason to believe that the Claimant’s attendance pattern following the fire would continue once the house was rebuilt and his life had settled down. According to the Claimant, it had taken five months, or until early November 2007, to rebuild his house. Under these circumstances, it was unreasonable for the Carrier to charge the Claimant with a First Offense Attendance Violation for the period of August 16 through December 3, 2007. Accordingly, the Board finds that the "First Offense" should be removed from the Claimant’s record.”

See, also, First Division Award 27227 (Camden), which involved absences attributable to serious family relations issues; Award 97 of PLB 6444 (O’Brien), involving a seriously ill newborn infant; and Award 46 of PLB 7214 (Easley), which credited dependent care obligations.

TAKE AWAY – Where an employee has been absent more than usual, and some type of life trauma is the underlying cause, document the circumstances as extensively as possible.

FMLA Related Absences:
Arbitrators appear to understand that it is illegal for carriers to discipline employees when they are exercising their rights to be absent pursuant to FMLA. While arbitrators do not have jurisdiction over FMLA based complaints, which must be handled separately with DOL, they may take “arbitral notice” of FMLA when considering whether or not an absence is properly chargeable for disciplinary purposes, since it would be manifestly wrong to ratify discipline based on a legally protected absence. These disputes usually address the issue of whether or not the disputed absence was also FMLA protected, often where the carrier’s FMLA compliance staff had denied FMLA coverage to the charged employee. Let’s look at how several Arbitrators have dealt with these issues.

In Award 131 of PLB 6778, Arbitrator Binau disallowed discipline assessed in connection with approved FMLA:

“…The Board agrees with the Organization that the claimant attendance issues were due primarily to unavoidable family circumstances that resulted in approved Leave under the Family Medical Leave Act. Therefore, under the circumstances existing in this case the Board finds that the discipline assessed was inappropriate and excessive.”

As he did also in Award 155 of PLB 6778:

“…The Board after examining the record in this case agrees with the arguments set forth by the Organization. The claimant's absences were due to taking care of his wife for which he had FMLA. The Carrier did not meet its burden of proof.”

In Award 21 of PLB 6711, Arbitrator Darby addressed a situation where a carrier refused to approve a charged employee’s request for FMLA, despite his obvious entitlement. In refusing to view that situation artificially, Arbitrator Darby held that:

“…The Organization contends the Carrier placed the Claimant in "no-win" situation, because although the Claimant made an effort to submit the appropriate Family Medical Leave Act (FMLA) documentation to the Carrier to justify his time off to care for his ailing wife, the Carrier continuously rejected the forms…….There is insufficient record evidence establishing that the Claimant's absences between November 18, 2003 and February 16, 2004, were for reasons other than legitimate family illnesses. The Organization presented evidence demonstrating that a large number of the absences were related to the Claimant's direct involvement in taking care of his wife, who is suffering from a long-term, serious illness. Additionally, it established that the Claimant otherwise made a good faith, honest attempt to comply with Carrier FMLA policy in order to have his time off properly approved in advance. Given these circumstances, this Board cannot conclude that the Claimant failed to follow instructions or failed to protect his employment. In light of the record evidence reflecting that the Claimant's wife's health condition will continue to require the Claimant to obtain time off in order to care for her, this Board strongly urges the parties to meet to resolve whatever remaining disputes or problems exist regarding the Claimant's alleged deficiencies in complying with the Carrier's FMLA reporting requirements. The Claimant must understand that the legal right to unpaid time off in order to care for a sick family member is not unlimited, and that the Carrier has a legitimate right to impose restrictions in this regard that are consistent with the FMLA. In light of the foregoing, the Board sustains the instant claim.”

In Award 54 of PLB 6778, Arbitrator Binau credited the underlying reasons behind the charged employee’s technically unsuccessful request for FMLA leave:

“…The Board had reviewed the record and finds that more than half of the claimant's absences were for family leave or sickness. It is also clear from the record that the claimant thought he was covered under FMLA during this period.. The Carrier's own documents including the November 28, 2004 letter, which the claimant stated he did not receive, stated that the claimant's leave was conditionally approved if he provided the necessary documents. The claimant stated that he had sent both forms. The only document denying the claimant's leave is the January 28, 2005 letter to the claimant which is after the 104 day period in question. The record does prove that the claimant was not diligent in fully documenting the basis for his FMLA request, which is the claimant's responsibility to fully provide and the Carrier's right to request. However, the record also showed that the claimant's record markedly improved in December and January when his wife was not sick. Under these circumstances, the Board finds that the discipline assessed was not appropriate.

In Award 85 of PLB 6778, Arbitrator Binau considered a case where the disputed absences had been the subject of an unsuccessful attempt by the charged employee to attain FMLA leave, where the carrier never articulated why the leave had been denied. Arbitrator Binau placed great stress on the carrier’s failure to articulate for the record why the FMLA leave was denied in crediting the charged employee’s stated reasons for being absent, and disallowed the discipline assessed:

“…The Organization stated that the claimant used his layoff prerogative to take care of his wife's pregnancy complications. The Organization further noted that the claimant was granted Family medical leave in 2004 but was denied FMLA in 2005. The Organization concluded that the claimant's record did not justify the assessment of any discipline. The Board finds that the Carrier did not meet its burden of proof in this case. The claimant's supervisor testified that he told the claimant to apply for Family medical leave to take care of his family problems. The record further showed that the claimant applied for FMLA but was denied. The record however did not develop the reason for the denial. Under these circumstances, the Board finds that the discipline assessed was not warranted.”

TAKE AWAY – Arbitrators do not enforce or administer FMLA; however, they will take notice of approved FMLA leave and also, in cases where FMLA leave has been denied, want to know the reasons for the denial. Where the denial of FMLA was based on a technical reason, such as a filing error by the employee, arbitrators seem willing to continue to consider, and quite possibly credit, the reason the employee sought FMLA leave.

Medically Based Cases
It comes as no surprise that many cases involving discipline assessed under the various absenteeism/attendance/availability policies involve employees who face serious health issues. Employees may miss substantial amounts of work due to actual infirmity, chronic illness, surgery, doctor visits, and the like. Complicating matters is the disconnect between the “railroad lifestyle” (i.e., 24/7/365) and the more normal hours kept by much of the medical community. The following is a collection of Awards that all disallow discipline based on absences attributable to legitimate personal and/or family health issues:

Award 84 of PLB 7250 (Radek) Chronic illness.
Award 50 of PLB 6916 (Ross) Documented illness.
Award 105 of PLB 6764 (Easley) Documented medical condition.
Award 81 of PLB 6166 (Quinn) Personal/family health issues.
Award 82 of PLB 6166 (Quinn) Personal/family health issues.
Award 74 of PLB 6616 (Quinn) Personal/family health issues.
Award 2 of PLB 7166 (Ilvicky) Illness.
Award 6 of PLB 7166 (Ilvicky) Illness.
Award 21 of PLB 7166 (Ilvicky) Illness.
Award 71 of PLB 6879 (Ross) Valid medical absence.
Award 78 of PLB 6879 (Ross) Valid medical absence.
Award 81 of PLB 6879 (Ross) Valid medical absence.
Award 91 of PLB 6879 (Ross) Valid medical absence.
Award 81 of PLB 6719 (Binau) Valid medical absence – even over weekend.
Award 146 of PLB 7187 (Hays) Outpatient surgery.
Award 167 of PLB 6778 (Binau) Post DUI Twelve Step meetings.

Arbitrators also disallow discipline assessed where the disputed absences involved employees marking off to attend doctor appointments:

Award 77 of PLB 6444 (O’Brien) Doctor visit.
Award 111 of PLB 6719 (Binau) Post surgery follow up.

TAKE AWAY – The common thread running through all of these Awards is the Arbitrator’s acceptance of the charged employee’s assertion of a legitimate medical explanation for the disputed absence. Proper documentation is vital.

Medical Documentation Issues:
Carriers frequently try to undercut employee defenses based on medical factors by attempting to impeach or otherwise discredit the medical information furnished by the employee or attending medical personnel. This is because arbitrators tend to excuse medical absences that are buttressed with legitimate medical evidence, such as valid doctor’s notes, as found by Arbitrator Ross in Award 36 of PLB 6916:

“…The record shows that the Claimant documented the absences under review with valid notes from his personal physician. Although the Claimant's excused absences caused him to fall short of the applicable attendance standard for working or being available for work, on this specific record, his failure to meet the standard did not constitute a violation of the Carrier's Attendance Policy…”

The following several Awards are additional examples of instances where medical documentation was credited in the charged employee’s favor:

Award 10 of PLB 6932 (Quinn) “…Review of the record indicates Claimant provided medical documentation for his absences…”

Award 4 of PLB 6932 (Quinn) “…Review of the record indicates Claimant provided medical documentation and court supported explanation of extraordinary family crisis…”

Award 116 of PLB 6932 (Quinn) “…Claimant Conductor .T.S. Bower was charged with violation of Carrier's attendance policy. However, the record establishes that he provided medical documentation for his absences - all within the guidelines of Carrier's policy. Based on the record, we conclude that the Carrier has not met its burden of proof and that the claim must be sustained…”

Carrier Challenges to Employee Provided Medical Documentation:
Arbitrators appear to have adopted the same approach to the handling of medical evidence in these cases that they apply to other evidentiary disputes and exchanges in Section 3 matters, i.e., they apply the principle that unrefuted or unchallenged assertions, especially when buttressed with unchallenged documentary evidence, stand in the record as fact. Examples of this principle in action follow:

Award 103 of PLB 6719 (Binau) “…the record showed that the claimant provided timely medical evidence prior to being cited to the investigation. If the Carrier questioned this documentation, the Carrier should have contacted the claimant as stated in their policy…”

Award 130 of PLB 6778 (Binau) “…The record showed that the claimant provided medical documentation to the Carrier at the time of his absences. If the Carrier determined that the medical documentation was inadequate, they should requested additional documentation at the time the original documents were presented. The record further showed that the claimant had three different conversations with MOP Cathey and kept him apprised of his situation, Mr. Cathey testified that he had seen the documents prior to the investigation and for the most part the claimant kept him apprised of his absences. There is no evidence that Mr. Cathey or any other Carrier officer took exception to the claimant's documentation prior to the appeal of his suspension…”

Award 8 of PLB 6953 (Easley) “…The Carrier produced no record of any previous meetings concerning his work record. The Policy states that frequent lay off for sickness without documentation is a violation, however, the Claimant provided documentation that has gone unchallenged. The Board holds that the Carrier has failed in their burden to show that the Claimant violated their Attendance Policy…”

Award 81 of PLB 7250 (Radek) “…While the Carrier takes issue with how or when Claimant's doctor's excuses were obtained, the facts are that they document Claimant's illness on the critical days, they bear the doctor's signature attesting to the information contained therein, and they are the only competent medical evidence in the record going to the question of Claimant's illness on those days. In short, the Board must accept the validity of them…”

TAKE AWAY – Medical evidence not factually challenged by the carrier stands in the record as fact, and should be credited by a fair arbitrator. This highlights the importance to the employee of thoroughly documenting and supporting medical explanations for absences.

First Absenteeism Driven Discipline Should Not Be Based On Illness:
Award 71 of PLB 6719 (Binau) “…The Board finds that the record showed that the claimant did not have a previous absence problem in his thirteen-year career. The claimant admitted that he did not inform any supervisor of his medical problems or request a leave of absence. The Board finds that this investigation could have been avoided if the parties had communicated with each other. Under normal circumstances the claimant's record would support the assessment of discipline. However, in view of the claimant's medical problems, this discipline should be removed…”

Award 13 of PLB 7058 (Easley) “…There is no doubt that the Claimant had a health problem and that should have been considered prior to initiating a formal hearing. Under these circumstances the "First Offense" violation will be set aside…”

Award 1 of PLB 7166 (Ilvicky) “…The Board finds the Organization's contention that the issues arising concerning the difficulties of understanding the Policy, have validity. The foregoing is clearly expressed in the testimony of David McPherson ("McPherson"), Trainmaster, Houston, Texas, whose responsibility it is to administer the Policy but who failed to evaluate the instant case on the basis of a bone fide illness for which a narcotic was prescribed which barred Claimant from performing his job. McPherson either misunderstands how the Guidelines are to be enforced or failed to read the entirety of Rule 612 which requires that conditions such as those presented by Claimant, mandate that specific consideration of the facts be given which was not done in this matter. The decision to discipline lacks evidence of any degree of common sense being part of the decision-making process.

Illness Should Not Be Allowed To Trigger Policy Driven Dismissal:
Arbitrators have recognized that when an employee who is otherwise “on the bubble” pursuant to an attendance policy falls ill, that absence should not should not result in permanent dismissal.

Award 25 of PLB 7020 (Simon) “…While the Carrier's policy, on its face, would support Claimant's dismissal, the Carrier has an obligation to administer its policy reasonably. This may mean that consideration should be given to the reasons for an employee's absences, and whether the employee is capable of reversing his or her attendance record. It is the Board's understanding that Claimant's attendance problems were the result of unusual and dire medical situations that have since been resolved. Under the circumstances, we will direct that Claimant be reinstated to service, but without compensation for time lost.”

Award 124 of PLB 6879 (Ross) “…In these circumstances, the Board finds that the discipline of permanent dismissal was too severe. We find that although the Claimant was charged with being absent on several dates, such absences in fact represented a single period of documented illness (flu). Although the record shows that the Claimant has been afforded progressive discipline for previous infractions under the Carrier's Availability Policy, we find that the discipline of dismissal on the current record was too harsh.”

Progressive Discipline Issues
Arbitrators apply the principles of progressive discipline to absenteeism based discipline cases. While most of these policies attempt to create an appearance of being progressively based, managers often “jump the gun” and apply serially assessed discipline too close together for the employee to have any meaningful opportunity to react to the earlier assessed discipline and correct his behavior before the next level of discipline is assessed. The following Awards apply this principle favorably to the charged employees involved:

• Award 54 of PLB 6719 (Binau) • Award 35 of PLB 6778 (Binau) • Award 38 of PLB 6778 (Binau) • Award 94 of PLB 6444 (O’Brien)

TAKE AWAY – Where discipline is assessed in a seemingly progressive fashion regarding escalating penalties, but little or no time elapses between assessments, progressive discipline does not exist, and the carrier cannot justify the escalation of punishment on that basis.

Discipline Found In Conflict With Schedule Agreement
As we mentioned in the introduction, policies cannot drive disciplinary outcomes that violate the Schedule Agreement. In absenteeism cases, this most commonly occurs where the disputed absence is a function of an agreement provision contemplating the absence.

Probably the most obvious example is vacation, which Referee Miller had to point out could not be the basis of disciplinary charges for absenteeism in First Division Awards 27579 and 27595. Equally obvious are the cases of personal and sick leave, which are addressed in the following Awards:

• Award 23 of PLB 6753 (Binau) Personal Leave. • First Division Award 27228 (Camden) Personal Leave. • Award 87 of PLB 6712 (Richter) Personal Leave. • Second Division Award 13614 (Kenis) Sick Leave. • Second Division Award 13615 (Kenis) Sick Leave.

Agreement Contemplates Sickness
Where the Schedule Agreement explicitly contemplates that employees will not be expected to work when they are legitimately sick, this has been interpreted by Arbitrator Fischbach in Award 5 of PLB 6890 to bar the carrier from assessing any discipline in connection with such absences:

“…This so-called rationale raises the collateral issue of whether the Carrier's unilaterally implemented Policy can override the commitment to which the parties here previously acquiesced and memorialized in the August 31, 1973 letter of understanding coveting absences when employees justifiably mark off sick In significant part, that letter of understanding (which management initiated) states that the Carrier "does not expect, nor does it want its employees to work when they are actually sick, even when there is a shortage of men; however, the use of sickness under false pretenses is recognized as being absent without permission and may be [dealt] with according/y."4 (Employee's Exhibit I) Yet the Carrier's incongruous administration of the Availability Standards Policy, as evidenced by the instant case, curtailed the Claimant's right to mark off sick in accordance with the August 31, 1973 letter of understanding and the applicable provisions of the Schedule Agreement. The curtailment of this right prompted the Carrier to ignore a legitimate illness as a factor mitigating any lack of preclusion on the Claimant's part to satisfy the minimum availability requirements under the Policy. Consequently, the Carrier's misapplication of the Availability Standards Policy in this instance resulted in the imposition of discipline which contravened the Claimant's right to mark off sick without adverse ramifications.”

Absences Resulting From Operation of GEB
In Awards 86 and 116 of PLB 6719, Arbitrator Binau found that exercising the right to certain GEB mark off days and exceeding the GEB guarantee did not produce chargeable absences.

Mileage Regulation and Absenteeism
In First Division Award 27226, Referee Camden considered the case of an employee disciplined for excessive absenteeism during a period in which the charged employee exceeded the maximum mileage, finding that exceeding the mileage was certainly a demonstration of full time employment, and disallowed the discipline.

Time Off To Place
Most Schedule Agreements provide that displaced employees can take a stipulated period of time before selecting a new assignment. Of course, many employees have faced absenteeism charges based on their taking this time. In First Division Award 27153, Referee Kohn disallowed discipline assessed in this fashion, and rejected the carrier’s argument that the charged employee had somehow manipulated the displacement time rule to avoid working; however, she did further say that if a carrier could establish such intent on the part of a charged employee, the outcome would be different. In Award 204 of PLB 6778, Arbitrator Binau disallowed discipline assessed to a young seniority employee whose absences were a function of being displaced frequently during the check period. The following Awards hold generally that to place time is not chargeable:

Awards 10, 14, 25, 29, 30 & 187 of PLB 6468 (Lynch)
Award 75 of PLB 6616 (Quinn)
Award 75 of PLB 7250 (Radek)

TAKE AWAY – Whenever any absenteeism charge implicates any Schedule Agreement provision, prepare to raise that provision in the charged employee’s defense.