Company Loses Despite Winning Termination Arbitration

File this under “Unions can Make Life Difficult”.

A company’s attendance policy tallies points for an absence that an employee accrues, regardless of the reason for the absence. Any employee who accumulates 10 points under the absenteeism system in a rolling 12 month period is terminated.

An employee telephones his supervisor and informed him that he was not going to be able to report to work because he had been arrested. The absence resulted in the employee receiving one attendance point.

On the following day, he failed to notify his superiors  he was not able to work his shift, which resulted in a “no call, no show” absence, bringing his total points to nine. Later the same day, he called his supervisor and said he was out of jail but needed an additional day off. The company deemed that absence as a personal unscheduled call off, resulting in two more points for a total of 11 points.

The union grieved the termination arguing that termination was a severe penalty for the incident. It said that the grievance was unaware of the ramifications of his actions. If he had been fully aware, he would have used his allotted vacation days or personal days, which were available to him. The union stated the decision to terminate the grievance, in light of the extenuating circumstances, related to his temporary incarceration, was “excessive.”

The company prevailed. The attendance policy clearly provided management with authority to terminate an employee who exceeded the allotted maximum number of point, the termination did not result in disparate treatment between the grievant and others in similar situations, and the union failed to offer any proof to support its claims.

In summary, the union forced the company to spend time, energy, and money on an employee who was close to pointing out, got arrested, missed work, no-called no-showed the next day, and accumulated points requiring termination despite the union having no proof to support its claims.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at

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