## Facts

- Chicago Tribune Company (Tribune) and a union were parties to a collective-bargaining agreement (CBA) that required just cause for discharge and provided for grievance arbitration.
- Tribune applied an attendance policy under which an employee could be terminated for accumulating nine “tardy occurrences” within a calendar year.
- The policy counted a tardy as two occurrences if the employee did not notify a supervisor more than one hour before the scheduled start time.
- The policy also stated that time off for reasons qualifying under the Family and Medical Leave Act (FMLA) did not count as a tardy occurrence.
- W., a press operator, had accumulated seven tardy occurrences by December 2002.
- W.’s mother was seriously ill.
- On the day of the disputed incident, W. took her mother to the hospital for a medical issue and remained there until about midnight.
- After returning home, W. fell asleep with her one-year-old child.
- W. awoke about 10 minutes before her 6:00 a.m. shift, immediately called a supervisor, and was told to report to work.
- Tribune treated W.’s late call/late arrival as two tardy occurrences under the “one-hour notice” rule, bringing W. to nine occurrences and triggering discharge.
- Tribune provided W. FMLA forms regarding her mother’s condition; W. completed and submitted the paperwork and explained the circumstances surrounding the hospital visit and her resulting lateness.
- Tribune nonetheless discharged W., offering different explanations at different times, including that W. had no remaining eligible FMLA leave, that oversleeping was not FMLA-qualifying, and that W.’s documentation was insufficient.
- The union filed a grievance contesting whether the discharge satisfied the CBA’s just-cause standard given the FMLA-related carve-out from tardy occurrences.

## Issues

1. Whether Tribune had just cause under the CBA to discharge W. based on the attendance policy after counting the final late arrival as two tardy occurrences.
2. Whether W.’s late arrival, connected to caring for her seriously ill mother, should have been treated as FMLA-qualifying time that did not count as a tardy occurrence under the policy.
3. Whether Tribune properly applied the “two occurrences” rule for late notice when the underlying situation involved an unplanned medical event and notice was given shortly before the shift.
4. Whether Tribune’s inconsistent stated reasons for discharge affected the just-cause analysis.

## Decision

- The arbitrator sustained the grievance.
- The arbitrator found Tribune lacked just cause to discharge W. when the final incident was evaluated in light of the attendance policy’s FMLA exception and the circumstances tied to caregiving for a seriously ill parent.
- The arbitrator treated Tribune’s shifting explanations for the discharge as weighing against a finding of just cause.

## Legal Principles

- Under a CBA requiring just cause, an employer may use an occurrence-based attendance policy, but discipline must be supportable under the agreement as applied to the facts.
- If the parties’ agreement or policy excludes FMLA-qualifying time from attendance penalties, the employer must determine whether the event is FMLA-related before counting it toward a discharge threshold.
- In assessing FMLA-related attendance events, the timing and practicality of notice matters; rigid enforcement of an advance-notice rule may be improper where the underlying need for leave is unplanned and the employee gives notice promptly once aware of the need or inability to report on time.
- An employer’s inconsistent explanations for a termination can weaken its claim of just cause, especially where the stated basis alternates among eligibility, documentation, and the characterization of the event.

## Conclusion

In *Chicago Tribune Co., 119 Lab. Arb. Rep. 1007 (2003)*, the arbitrator set aside a discharge imposed under a nine-tardy rule after Tribune counted a final incident as two tardy occurrences even though it arose from W.’s late-night hospital visit to care for her seriously ill mother and subsequent late notice; given the policy’s FMLA carve-out and Tribune’s shifting rationales for termination, the arbitrator found the discharge was not for just cause.
