In a stunning victory for UE members who work for Aramark, an arbitrator issued an Opinion and Award on January 14 that protected the employees’ bargained-for right to paid sick leave without being assessed no-fault attendance points for using them.
Since at least 2003, Aramark has enforced a no-fault attendance policy for the plant that was based on a point system. Under the policy, if employees called in sick they were assessed points and docked pay. Two points were assessed for a one day absence. Workers who accumulated eight points during a 12-week period were fired.
When bargaining for a successor contract in 2017, Local 1121 proposed paid sick days with relief from the point system. Throughout negotiations, the bargaining committee proposed several alternatives to their paid sick leave proposal, repeatedly stating that these days should not be subject to the no-fault point system. The union’s arguments were met with icy silence from the company. Finally, at the eleventh hour, the committee successfully negotiated two paid sick days in the contract! This was the first time in the memory of Aramark workers that they were entitled to paid sick leave without points – or so they thought. The agreed upon contract language stated:
Employees with one year of service shall additionally receive two (2) paid sick days annually which do not carry over from year to year and which must be called in at least one hour in advance.
At the employer’s request, this language was placed into the same article of the contract where all other paid leave without points was located.
Two days after Local 1121 and Aramark signed the contract, union member Jeanette Beske took a paid sick day due to illness. The company paid her for the time, but it issued her a final written warning because of the points she accumulated for the absence. The union quickly filed a grievance asserting that the paid sick days were not subject to the no-fault attendance policy; the company retorted that paid sick days were, indeed, subject to the policy. When the parties did not resolve the grievance, the union demanded arbitration.
The arbitrator phrased the issue as whether the paid sick leave language limited the company’s right to apply its current no-fault attendance policy on employees who take sick leave. Finding the language to be open to more than one interpretation, the arbitrator proceeded to interpret the agreement. The arbitrator observed that the general manager flatly denied that attendance points were brought up in negotiations. But the arbitrator credited the testimony of all five union witnesses. He was impressed by the fact that all union witnesses testified consistently about how union representatives at the bargaining table talked about points not being assessed for use of paid sick leave.
In ruling for Local 1121, the arbitrator, relying on contract law principles, ruled that because of the company’s silence during negotiations on whether it intended to assess points to the paid sick leave, the union did not know that the employer believed that paid sick leave was subject to the point system. But, he found, the company knew of the meaning attached to the language by the union. Therefore, the arbitrator found that the company did not meet its duty of good faith and fair dealing by attaching a different meaning to the language than the one expressed by the union throughout the 2017 negotiations, and by assessing attendance points when employees use their paid sick days.
The arbitrator ruled that the employer violated the agreement when it assessed attendance points against the grievant under the company’s no-fault attendance policy after she used a paid sick day, and for his remedy ruled that the company shall immediately cease and desist from assessing attendance points when employees use their paid sick days, and that the company “shall immediately expunge the files of grievant Jeanette Beske and all other possible employees who have been assessed points for taking their paid sick days under the agreement.”
On the day of the arbitration, many employees showed their support for the union’s position by wearing UE t-shirts to demonstrate the importance of this issue to them. “UE members, Local President Jay Jamesson, Charlene Winchell, and Gavin Wright, are to be commended for the hard work and dedication that they put into the preparation for this hearing,” said Irene Thomas, UE General Counsel. “An important part of this arbitration was credibility. I have no doubt that the serious attitude taken by these members did not go unnoticed by the arbitrator. Good job.”
“This win was a testament to a local policing its contract and then persevering even when the company refused to do the right thing,” said Western Region President Carl Rosen.