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Arbitration and No-Fault Attendance Policies

Saturday, July, 27, 2013


If employers are concerned about absent workers, a no-fault attendance policy or employment cause can help to address the issue.  These policies have been extremely effective in union labor situations, where conflicts tend to be elevated to an arbitrator. 

 

When arbitrators are called in to review attendance concerns, it’s usually to determine whether or not the employer had any “just cause” in dismissing an employee with a history of absenteeism.  The use of no fault attendance policies makes the expectations clearer and sets the ground for a consistent approach to handling these issues. 

 

It’s important for employers to understand that there are two sides to every coin, and this is certainly true with respect to no fault attendance policies.  As recent cases like Veritas Health Servs., 359 NLRB No. 111 *86 from April demonstrate, the National Labor Relations Board usually takes the perspective that a no fault attendance policy is a mandatory subject of bargaining, which doesn’t give employers the right to implement brand new policies or alter existing contracts when employees are unionized. 

 

Although the National Labor Relations Board (NLRB ) has come down on one side of the issue, arbitrators see it from another view.  Some arbitrators have held that an employer’s adoption of this type of policy is protected under management’s responsibility to generate and adopt “reasonable work” policies that are not in opposition with existing agreements. 

 

What’s happened in the past when these issues arise is that when a union files unfair labor practice charges regarding a universal policy, the NLRB will usually defer the entire case to arbitration, so it’s clear that arbitrators will play a key role in determining the outcome of these cases and the ultimate consideration of this issue.  In situations where the arbitrator has settled the issue, the trend has been for the NLRB to back up those findings.