The Claimant holds a regularly assigned bid position at the Carrier's Waterville Shop in Waterville, Maine. On November 20, 1998, the Carrier notified the Claimant to attend an Investigation on the charge that he had been excessively absent during the period January 1,1998 through October 31,1998. The Hearing took place on December 9, 1998. The Claimant was subsequently notified that he had been found guilty as charged and was issued a formal reprimand.
The Carrier argues that the record fully supports the imposition of discipline. It points to the evidence at Hearing which established that the Claimant's record of absenteeism was $4% higher than the shop average during the first ten months in 1998. Compared to the shop average of 33 and one quarter hours of lost work time, the Claimant missed 61 hours. The Carrier contends that such a record is clearly excessive. It submits that it is entitled to take into account even legitimate absences and contractually authorized sick days in calculating an employee's absenteeism rate. Moreover, the Carrier argues, the record shows that the Claimant had previously been given opportunities to correct his excessive absenteeism. When he did not do so, the Carrier maintains that it was fully justified in issuing a reprimand.
The Organization defends this claim on various grounds but there is one point that determines the outcome here. In the Organization's view, the Claimant's contractually paid sick days should not have been included or counted in computing his absenteeism rate. We agree.
Under Rule 16, negotiated and agreed upon by the parties, employees are provided compensation for absence due to legitimate illness up to a maximum of four days per year, based on seniority. By including contractually authorized sick days in its absenteeism rate, the Carrier's utilization of the "shop average" collides with Rule lti. Where the Agreement and the Carrier's attendance policy address the topic of sick days in different ways, one must yield to the other. Since the policy is inconsistent with the Agreement, the Board must enforce the Agreement.
The Carrier's position does not directly address this inconsistency. Instead, :it relies on a number of earlier cases which cite the general principle that absenteeism, whether legitimate or not, can become excessive. If an employee cannot comply with management's legitimate expectations regarding attendance, then discipline is fully warranted, it argues. That principle is based on the notion that an employee may develop an absenteeism history that effectively renders him unable to provide full-time Form 1 Award No. 13614
employment. When that occurs, and all leave time and authorized absences have been exhausted, separation from employment is recognized and upheld not as a punitive action but because he simply cannot come to work on a regular basis, no matter what the reason.
We have no quarrel with that general proposition, as far as it goes. However, the argument raised by the Organization brings into sharper focus what may be considered in determining excessive absenteeism and the relationship between an attendance policy and an agreed upon scheme for sick leave compensation. Just as employees are not penalized under the "shop average" for taking contractually provided vacation days, they should similarly not be disciplined for exercising their contractual sick leave benefit. In both instances' work is not being performed by the employee. In neither instance should an employee be disciplined for exercising a contractual right. Recent Awards of this Board have sustained claims originating on this property where employees have been disciplined under the Carrier's "shop average" absenteeism policy which included contractual sick days. The thinking of the Board on this point is perhaps best summarized in Second Division Award 13445, where it is stated:
Concluding as we do that the foregoing Awards are persuasive, we have no alternative but to find that the Carrier has failed to meet its burden of proving the charges against the Claimant. The record as presented does not permit us to parse through and determine whether the Claimant's absenteeism would still be considered excessive if the shop average omitted consideration of contractual sick days. Accordingly, we have no alternative but to sustain the claim.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimants) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
Carrier Members' Dissent
to Awards 13614, 13615 (Dockets 13512, 13513)
Referee Kenis
Claimants Bennet and Delano had absenteeism rates 84 and 31% respectively,, above and over the average at the Waterville shop between January and October 1998_ Such excessive absenteeism is not disputed. Claimants were absent on dates that their services were needed at the shop. Unlike vacation, which is planned in advance, these absences were not. In the case of Mr. Bennett he had used FMLA before without causing a problem and could have continued to do so without running afoul of the absenteeism policy. It was acknowledged on the property that there were ways and means available to him to avoid having his absences counted against him but he failed to avail himself of that action. Each individual was issued a formal reprimand for his absenteeism.
The Majority states, "By including contractually authorized sick days in its absenteeism rate, the Carrier's utilization of the `shop average' collides with Rule 16,'" and cites Second Division Award 13445 that such is improper. In our Dissent to that decision we noted that:
The difficulty with these decisions is the apparent presumption that it is OK to just absent yourself when your services are expected. And it is also OK when there are other means available but it is too much trouble to follow the rules.