Death Takes A Holiday ... And Then Some

In Adams v. Verizon New York Inc., et al., 04 Civ. 4314 (S.D.N.Y. - Decided: May 13, 2008), the court granted summary judgment dismissing Plaintiff’s claims as against the employer for breach of a collective bargaining agreement, and as against the Union for violating its duty of fair representation.

The Plaintiff was the administrator of the Estate of her son, a deceased employee of Verizon and a union member. During the course of his employment, the son developed an absentee problem, resulting in numerous, prolonged, and unapproved absences. He was disciplined on several occasions, but to no avail. Indeed, in 1999 he was absent for a total of 59 days. In 2001, he was absent for a total of 177 days. WOW! He was eventually placed in the employer’s Absence Control Program, but continued his absenteeism, albeit to a lesser extent than before. Ultimately, after being advised by his Supervisor that he was going to be suspended for yet another unapproved absence, the son announced that he was leaving and walked out. He left the company premises and did not return.

The Plaintiff alleged, among other things, that the employer breached the collective bargaining agreement by terminating her son’s employment without just cause. She further alleged that the Union violated its duty of fair representation. In granting summary judgment, the court held that the employer reasonably interpreted the son’s actions as an abandonment of his job, constituting just cause for the termination. The court further held that the Union had represented the son fairly in his grievance proceedings and acted within its discretion in declining to bring his claims to arbitration.

It never ceases to amaze me. Here, the employee was absent for 177 days in one year alone, and still there was an allegation that such excessive absenteeism failed to constitute just cause for discharge. Sheesh! In situations such as that in the Adams case, a reality check is in order for both Plaintiff and counsel.