Mr. Brown,
The most obvious issue is enforcing the program's retroactivity, and placing many fleet agents on a Level 3 from the first day! Now that may not be in the contract for starters, but a reasonable person would consider retroactive enforcement to be a suspect violation of due process in the termination of employees who are covered under a CBA. Where were the REQUIRED notifications of Levels when an employee was unknowingly on their way to Level 3? That's in the company policy, and yet, it was not done, but agents were getting Level 3 warnings from Day One? In essence, the Company violated its own rules!
How many people lost their jobs eventually because they were on a Level from the first day this program was announced? Once someone is on a Level, it is difficult to get off of it, and even a Level 2 which allows no more than 1.5 points (one sick day equaling 1 point and each late day equaling 1/2 point) during the next 12 months leads to Level 3 and starts a whole new 12 month probationary period of near required perfection to get back down to Level 0. Employees are being punished, even though there was no known violation of a policy which was not offered for either employees or the unions to be informed until after the fact!
Next issue becomes one of earning sick days, but unable to legitimately use them due to one being subject to termination, even if they were never late? What is the point of earning sick days, but unable to use them? Outside of FMLA providing the proper notification, if one is on a Level, then one is highly unlikely to use their sick days if it is at all possible. A reasonable arbitator can not only see it is an afront to the practice of Constitutional law as it violates ex post facto restrictions as it relates to criminal code, but the lack of dealing in good faith as required in Federal labor law with collective bargaining agreements by offering "benefits" for which cannot used!
My point being is that not everything needs to be stated in the CBA to be a grounds to overturn a Company policy or action, but rather there are other legal protections, not to mention, plain common sense which would provide the basis to a favorable ruling.
So Offers Jester.