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February 1998
Vol. 1 No. 5 Page 3

Discipline For Attendance

by Mary Martinez

It is established through arbitration that employees have a responsibility to be regular in attendance. As we all know, and have often witnessed, management frequently issues discipline for absenteeism. Often this is nothing more than a mis-use of discipline to deal with an employee they view as having an "attendance problem".

While there is a requirement to be regular in attendance (ELM 666.81), there is also a promise by the employer to continue the leave program (Article 10.5), including sick leave. The leave program expressly states that the purpose of sick leave is to provide protection from loss of income when the employee is incapacitated by injury or illness for the performance of their official duties. So even if the employee might through illness, be less than perfectly regular in attendance, there is no automatic right for management to issue discipline for the employee availing themselves of one of their express contractual rights.

When an employee is disciplined for attendance, the dispute is usually whether the level of attendance of the employee is unsatisfactory as alleged by management. Any rule establishing a fixed amount or percentage of sick leave usage that would trigger discipline is in conflict with the National Agreement and applicable handbooks and manuals. Each case should be examined independently in light of all the fact circumstances to determine if the discipline was an appropriate corrective action, for a demonstrated violation of a legitimate rule. There should never be a set amount of usage of leave that is considered unacceptable, thereby justifying issuance of discipline.

One of management's favorite charges in attendance cases is, that there is a pattern of abuse of sick leave, because the record shows the employee uses sick leave in conjunction with a non-scheduled day. Often times, such a pattern can't be avoided unless you use no sick leave at all. If the employee is on a rotating scheduled day off, it is mathematically impossible to not set a pattern on 57% of days when sick leave is used. The percentage increases to a minimum of 76% of the time if the employee happens to be ill two days in a row. For carriers with fixed days off, the percentages of setting a pattern next to days off, for one day of leave is 40%, and 60% for two consecutive days of illness. Consider the chart below made by one of our members (Venkhateshwarlu Thubaateey);

Day Off Day next to Sunday or
Day Off Other Days

Sun Mon Tue, Wed, Thur, Fri
Mon Sat, Tue Wed, Thur, Fri
Tue Sat, Mon, Tue Thur, Fri
Wed Sat, Mon, Tue, Thur Fri
Thur Sat, Mon, Wed, Fri Tue
Fri Sat, Mon, Thur Tue, Wed

Total days 17 13

17 + 13 =30

17/30X100=57% 13/30X 1 00= 43%

This shows that over a six week period through a whole rotation of your schedule, 17 days (57%) are next to days off, and 13 days (43%) are not. Hence it is plain that when management claims an employee abused their sick leave by setting a pattern of sick days in conjunction with non-scheduled days, we should be pointing out that the odds are such that it is more difficult than not to do otherwise.

As always, when evaluating a case of discipline, attendance or otherwise, determine if management had met the tests of just cause. To do this the Steward asks a series of simple questions to determine if management did the right thing, the right way for the right reason. Did the employee know the rules and the consequences of violating them? Are the rules reasonably related to our work and the running of the company? Did management investigate to determine if the employee is guilty of violating those rules? Next Column

Was the investigation fair and objective? Was there evidence to support the charge of violation of the rules? Are the rules applied consistently? Did the "punishment" fit the "crime"? If there are "no" answers for these questions, management hasn't met the requirement of only issuing discipline for just cause. Management has agreed to this requirement as evidenced in its inclusion in Article 16.1.

Based on the facts of the particular case the Steward begins defining the issues beyond the just cause arguments. Is the employee incapable of providing regular and dependable attendance? Has the employee reached a level of leave usage that management has predetermined is unacceptable? Is the amount of absence so serious the employee is rendered undependable? Was the employee forewarned of the consequences of a continued level of absences?

Additional arguments that should be considered include, but shouldn't be limited to, arbitration cite in parentheses; the level of absences does not indicate irregularity of attendance (C#2099). The employee's absences were approved by management (C#9766). The employee was not forewarned of possible discipline for excessive unscheduled absences (C#3231). The discipline is not corrective (C#8386).

The discipline was not progressive (#C0557). The employee was due reasonable accommodation (C#9548). The employee was held to a different standard (C#1 0907). Discipline too harsh considering the employee's length of service, and record (C#03587).

Also if the employee is impaired by alcohol or other substance abuse problems and avails themselves of help, it may mitigate the level of discipline. Article 35.1 of the National Agreement states that an employee's voluntary participation in EAP for help with substance abuse will be considered favorably in disciplinary action proceedings. Therefore the Union makes the argument that the employees are making an effort to rehabilitate themselves.

The steward should also look carefully to determine if any of the absences cited in the discipline were due to Family Medical Leave Act (FMLA) covered conditions. This is of importance because it is illegal for management to discipline an eligible employee for use of leave covered by the FMLA. This scrutiny should include whether management complied with their obligations under the law regarding FMLA. (if the supervisor has the requisite knowledge to determine leave is for an FMLA reason and fails to designate it as FMLA, the absence cannot retroactively be designated as FMLA leave, but the employee is entitled to full protection under the ACT, although the absence is not counted as part of the 12 weeks of FMLA leave.)

Discipline for attendance seems to be issued in increasing numbers in many areas across the nation judging from articles in Branch newsletters. It is important that not just stewards and branch officers, but all members familiarize themselves with the provisions that outline their responsibilities, and management's responsibilities to protect the rights of all letter carriers. The information contained in this article has been shared with me by a variety of sources, locally, regionally and nationally. I appreciate the mentoring I've received and the opportunity to pass some of it on, even if it is only the bare basics on this topic. The greater the knowledge of our rights the larger the umbrella of protection for us all!

Mary Martinez is a member of NALC Branch 79, Seattle, WA. Mary has been a Letter Carrier since 1982. She has been a Steward, Trustee, Assistant Secretary-Treasurer, LBA arbitration advocate, and various other positions. Since 1995 Mary has been a full time Vice President and also serves as a State-wide Trainer for the WSALC.

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