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BEFORE THE ARBITRATOR

In the Matter of the Arbitration

of a Dispute Between

INTERNATIONAL ASSOCIATION OF FIRE

FIGHTERS, LOCAL 400

and

CITY OF FOND DU LAC (FIRE DEPARTMENT)

Case 104

No. 44736

MA-6403

Appearances:

Mr. Bruce K. Patterson, Consultant, 3685 South Oakdale Drive, New Berlin, Wisconsin, 53151, appearing on behalf of the City.

Mr. Charles S. Buss, and Mr. Thomas Kania, International Association of Fire Fighters, Local 400, 346 North Main Street, Fond du Lac, Wisconsin, 54935, appearing on behalf of the Union.

ARBITRATION AWARD

International Association of Fire Fighters, Local 400, hereinafter the Union, and the City of Fond du Lac (Fire Department), hereinafter City or Employer, are parties to a collective bargaining agreement which provides for the final and binding arbitration of grievances arising thereunder.

The Union, with the concurrence of the Employer, requested the Wisconsin Employment Relations Commission to appoint a staff member as single, impartial arbitrator to resolve the instant grievance. On November 16, 1990, the Commission designated Coleen A. Burns, a member of its staff, as Arbitrator. Hearing was held on May 8, 1991, in Fond du Lac, Wisconsin. The hearing was not transcribed and the record was closed on June 11, 1991, upon receipt of post hearing written argument.

ISSUE:

The parties presented the following issue:

When the City issued the Grievant a letter relative to the use of sick leave dated June 20, 1990, did it violate the collective bargaining agreement?

If so, what should the remedy be?

RELEVANT CONTRACT LANGUAGE:

ARTICLE XIII

SICK LEAVE

Sick leave will be administered by the Chief or such Assistant Fire Chief as may be designated by the Chief.

All permanent full-time and probationary Fire Fighters of the City working a fifty-six (56) hour work week shall accumulate sick leave with pay at the rate of twelve (12) working hours for each month of service. Unused sick leave credits shall accumulate to a maximum of six (6) working days per year at the above rate. Total sick leave accumulation shall not exceed sixty (60) working days.

All permanent full-time and probationary employees working a forty (40) hour work week shall accumulate sick leave with pay at the rate of eight (8) working hours for each month of service. Unused sick leave credits may accumulate to a maximum of twelve (12) working days per year at the above rate. Total sick leave accumulation shall not exceed one hundred (100) working days. Employees transferring from positions assigned to work a fifty-six (56) hour work week to positions assigned to work a forty (40) hour work week or employees transferring from a position assigned to work a forty (40) hour work week to a position assigned to work a fifty-six (56) hour work week shall have their total hours of accumulated sick leave converted to a factor of .5556.

Employees who retire in accordance with the provisions of the Wisconsin Retirement System, or who are forced to retire due to a duty disability, shall be entitled to a cash payment of $10.00 for each day of unused sick leave in their sick leave bank at the time of their retirement. Employees may not receive payment for more than sixty (60) days of accumulated sick leave, or a total cash payment of no more than Six Hundred Dollars ($600.00) under this provision.

A Fire Fighter may use sick leave with pay for absence necessitated by injury or illness. In the event a Fire Fighter's wife, children or other members of his family living at his residence are injured or ill in such manner as to require the Fire Fighter's presence, such Fire Fighter may use up to one (1) day of his accumulated sick leave credits per incident. The latter provision is to allow the Fire Fighter time to make arrangements for the care of the injured or ill person or for the care of his children in case his wife is injured or ill and therefore is to be used only when such injury or illness occurs just prior to or during a Fire Fighter's work day.

In order to qualify for sick leave payments, a Fire Fighter must:

1) Report his absence to the Chief or his designated representative prior to the start of his work day.

2) Keep the Chief or his designated representative informed or his condition.

3) Submit a doctor's certificate for such absence if it is in excess of three (3) working days. The certificate must state the kind and nature of the sickness or injury and whether the Fire Fighter has been incapacitated for said period of absence.

4) Apply for and report such leave according to the procedure established by the City.

Sick leave should be regarded by all as a valuable free health and welfare insurance which, in the best interest of the Fire Fighter, should not be used unless really needed. Sick leave is not "a right" like vacation; it is a privilege to be used carefully.

All sick leave shall be subject to administration by the Chief or such Assistant Fire Chief as may be designated by the Chief. Serious cases of excessive abuse, as determined by the Chief and City Manager, will be grounds for disciplinary action or dismissal of the Fire Fighter concerned.

In the event a Fire Fighter has exhausted his accumulated sick leave, other Fire Fighters of equal or higher rank may work for the Fire Fighter up to a maximum of ten (10) days.

Medical examinations by a physician of the City's choosing may be required after prolonged, serious or repetitious illness, major surgery, or injury not incurred on the job. Return to duty after such illness depends on the decision of the Fire Chief and the City Manager, based on advice of the supervisor, medical information supplied by the Fire Fighter's physician and the physician of the City's choosing.

ARTICLE XXIX

MAINTENANCE OF BENEFITS

The City agrees that, as a result of this contract, no benefits previously granted employees by the City shall be either withdrawn or reduced unless specifically stated in the collective bargaining agreement.

BACKGROUND

On May 3, 1990, Fire Chief David Flagstad issued the following letter to Fire Fighter Patrick Feiereisen, hereafter the Grievant:

Dear Pat:

As you know, Assistant Chief Wayne D. Parker and I attended a meeting with yourself and the medical staff at Theda Clark Hospital on May 2, 1990 at which the attending physicians explained their diagnosis of your injury. I am told we will be receiving a detailed report in several days.

Based on their diagnosis, Wausau Insurance has informed the City that after 1200 noon on May 2, 1990, they will no longer be liable for any of your time off under Workmen's Compensation concerning this claim. This will require us to consider all time absent from work from here on to be considered use of your sick leave privilege.

As Dr. Anderson recommended, you are to contact Jim Hebel of the YMCA to enroll in a program that will rebuild and recondition your physical areas that have been weakened through the past months. This is to take place for two (2) hours per day on Monday through Friday. The suggested exercises of Dr. Anderson are swimming, sauna, and work on a Nautilus type exercise machine. This can be better determined and defined by Jim Hebel. This is to continue for a minimum of four (4) weeks and a maximum of six (6) weeks. During this time, I will check with Jim as to your progress and, depending on your improvement, you will be expected to return to full duty between four (4) and six (6) weeks.

For the next four (4) weeks, you will be considered on light duty and will report to Central Station Monday

through Friday from 0800 hours until 1600 hours. You will be excused from light duty work to attend your physical therapy sessions.

Your cooperation is appreciated and your recovery is expected.

On June 14, 1990, Fire Chief David Flagstad issued the following letter to Fire Fighter Patrick Feiereisen:

Dear Pat:

I have received a communication from Wausau Insurance that originated with Dr. Anderson from Theda Clark Hospital. It is their opinion that you have a 5% partial disability in your right shoulder; however, in his letter, he stated "After 15 June 1990 he can work at regular work capacity at his normal job. There is no need for any restriction in his work hours, either at this time when he is on lighter duty nor after 15 June, when he returns to normal regular duty."

I have reviewed this letter with Personnel Director Rick Brewer and it is our decision to have you comply with the doctor's recommendation and have you return to full duty on Saturday, June 16, 1990.

I will refrain from using you as a Motor Pump Operator until after July 15, 1990 so that you may work into the MPO position again. I would encourage you to apply yourself so you may re-establish yourself quickly as a productive MPO.

The Grievant returned to work on June 16, 1990. At approximately 10:00 a.m. on June 16, 1990, the Grievant responded to an ambulance call and, upon his return to the station, complained of shoulder and back pain. The Grievant reported that he had reinjured his shoulder and back while pulling himself onto Engine 5 and that the injury was aggravated when he and another employe carried the empty stretcher from the back of the ambulance. Around noon, the Grievant advised Acting Shift Commander David Liebelt that he could not do his job unless he was permitted to take his pain medication which, as stated on the medication bottle, could cause drowsiness. Liebelt told the Grievant that he could not use the medication and be relied upon for firefighting if the medication caused drowsiness.

At approximately 3:00 p.m., Acting Captain Schuh advised Liebelt that the Grievant had requested to use his medication, stating that unless he used his medication he could not do his job. Liebelt then talked with the Grievant. When the Grievant restated that he could not be relied upon because of the pain, Liebelt responded that due to the fact that the Grievant could not be relied upon to do his job, the Grievant should check onto sick leave.

On June 18, 1990, the Grievant was examined by the Employer's physician, Dr. Gay. R. Anderson. On that same date, the Grievant received a note from his personal physician, Dr. Bowman, which stated as follows:

I would recommend light duty until evaluation by Dr. Meyer, Neurosurgeon, on 7/9/90.

Dr. Bowman did not examine the Grievant at the time that he issued the note.

On June 20, 1990, Fire Chief David Flagstad issued the following:

Dear Pat:

On June 16, 1990, you filed an accident report claiming re-injury of a previous work related injury. At this time, you felt you were unable to perform your duties as a firefighter and placed yourself on the sick list at 1608 and remained on the sick list for the next work day. It was requested that you visit Dr. Gay Anderson who had issued an opinion on your previous injury, and he has filed his results on his examination. It is his professional opinion that you did not sustain any physical disability but the problem was attributable to your behavior.

After discussing this with Personnel Director Richard Brewer and Wausau Insurance, it is my decision to dock you pay for the amount of time you missed while on sick leave.

As a further result of the doctor's opinion, I am placing you back on full duty immediately and would hope that you would correct your behavioral problem and perform your duties in a most capable manner. An EAP brochure is also enclosed for your information.

After Dr. Anderson had examined the Grievant on June 18, 1990, but before the Chief issued the letter of June 20, 1990, the Chief discussed the results of the examination with Dr. Anderson.

On June 26, 1990, Dr. Anderson provided the City with a written report of his June 18, 1990 examination of the Grievant. The cover letter of this written report stated as follows:

Enclosed is a work capacity classification for Pat Feiereisen. This is what we developed at the Industrial Injury Clinic after evaluating him and I confirmed this on my report of 18 June 1990, when I re-examined him and found no objective evidence to support his subjective complaints. I believe this patient is manipulating the system with complaints and that, in fact, he can and was as of 15 June 1990, to do his regular job activities at his work site consistent with the work capacity classification enclosed with this letter.

The enclosed work capacity classification, which is dated May 2, 1990, indicated, inter alia, that the Grievant was capable of "Med. Heavy Work - Lifting 75-80 lbs. max. with frequent lifting and/or carrying of objects weighing up to 40 lbs."

On June 26, 1990, Charles Buss, President of the Union, sent the following letter to Chief Flagstad:

On June 16, 1990 Fire Fighter Pat Feiereisen returned to work on a full duty status after having been on light duty as a result of a work related injury. At 1000 hours on that date his work related injury was aggravated while responding to an emergency call. At 1545 on that date Feiereisen informed Acting Shift Commander Liebelt that the pain he was experiencing was sufficient enough to require him to take his prescribed pain medication, which tends to make him sleepy. Feiereisen was told by Liebelt that he could not perform his duties under those circumstances and Feiereisen then put himself on the sick list and went off duty.

On June 18th the City informed Feiereisen that they wanted him to be seen by Dr. Anderson (city doctor) and Feiereisen complied with that request. After seeing Dr. Anderson he also saw his physician, Dr. Bowman, who issued Feiereisen a light duty slip.

On June 20th Feiereisen returned to work on a light duty status.

He presented you with a light duty slip from his doctor which stated that Feiereisen should be on light duty until July 7th when he would be evaluated by a neurosurgeon. At 1610 you gave Feiereisen a letter which informed him that based on Dr. Anderson's opinion he was being put back on full duty and he would be docked pay for sick time taken as a result of the injury incurred on June 16th.

Contractual Violations

1. Article XIII-Sick Leave: You violated Article XIII when on June 20th you reduced Feiereisen's wages for the amount of time he was off on sick leave for the injury he received on June 16th. Once earned sick leave belongs to the fire fighter, to be used as he requires time off for injury or illness. Eventhough the union has argued in a separate grievance that the time off should have been under workmans compensation provisions, as it was necessitated by a work related injury, the grievant, absent a granting of workmans compensation benefits by management has a right to utilize earned sick leave under Article XIII.

2. Article XXXIX-Maintenance of Benefits: When on June 20th you notified Feiereisen that he would be docked in pay for the period of time he was absent from duty on sick time, you did so based on Dr. Anderson's opinion that Feiereisen was able to return to full duty. The time Feiereisen was off began accumulating on June 16th, prior to the time he saw Dr. Anderson. It is not possible for Dr. Anderson to give an opinion of Feiereisen's condition on June 16th when he left duty, based on an examination performed two days later on June 18th. It is a violation of Article XXIX for management to reduce the wages of the grievant by retroactively applying Dr. Anderson's opinion to sick time taken prior to the date of the examination.

As a resolution to this grievance Local 400 proposes that Feiereisen be granted sick time for the period of time he was absent from duty, until such time that a related grievance arguing that the time off should have been covered under workmans compensation is resolved. In addition, the Union proposes that any wages withheld from the grievant be refunded in full.

On October 2, 1990, City Manager Jacle to the public (and the Union) and thus is not confidential information. Therefore, her duties do not involve confidential labor relations matters and do not form a basis for excluding her from the unit as a confidential employe. PRIVATE Accounting Supervisor and Payroll Technician tc \l 2 "Accounting Supervisor and Payroll Technician" The County contends that Brill, the Accounting Supervisor, and Reismer, the Payroll Technician, should continue to be outside the collective bargaining unit because they are supervisors and/or confidential or managerial employes. Brill and Reismer's day-to-day supervisory duties with regard to both the Account Clerk I and Account Clerk II are sufficient to warrant their exclusion from the unit as supervisors. Both the Accounting Supervisor and the Payroll Technician positions have been significantly involved in interviewing and hiring candidates into the positions of Account Clerk I, Account Clerk II and receptionist over the years since 1987. They have substantial independent disciplinary authority. Both the Accounting Supervisor and Payroll Technician have conducted performance evaluation reviews and created performance plans for the employes working under them and have effecttively recommended that these employes pass probation and receive merit raises. The Accounting Supervisor and Payroll Technician have the authority to assign and direct work, and to approve or deny leaves and overtime. Although the number of employes supervised is small, it is clear from Page 37 No. 22667-F the record that the County Clerk has given these two individuals significant supervisory powers. As we have found the Accounting Supervisor and Payroll Technician to be supervisors, we find it unnecessary to address the County's other arguments regarding their confidential and/or managerial status. Dated at Madison, Wisconsin, this 12th day of January, 1999. WISCONSIN EMPLOYMENT RELATIONS COMMISSION A. Henry Hempe /s/ A. Henry Hempe, Commissioner Paul A. Hahn /s/ Paul A. Hahn, Commissioner Page 38 No. 22667-F PRIVATE OZAUKEE COUNTYtc \l 3 "OZAUKEE COUNTY" CONCURRING OPINION OF PRIVATE CHAIRPERSON JAMES R. MEIERtc \l 3 "CHAIRPERSON JAMES R. MEIER" I write separately on the question of the MERA status of the chief deputies of elected constitutional offices appointed under the specific sections of Chapter 59. I note initially that this Commission has no special expertise on the subject of harmonizing a statute which it administers with those that it does not administer. I concur with the result reached by my colleagues but write separately because I do not believe my colleagues' analysis sufficiently confronts what I understand to be the central issues before us: what is the meaning of the language in County of Eau Claire v. AFSCME Local 2223, 190 Wis.2d. 298 (Ct.App. 1994) relative to chief deputy clerks and is that language dicta? In Eau Claire, the Court stated: We distinguish Crawford on its facts because it apparently involved a union exclusion of only a single chief deputy in each office. We conclude that deputized employes, apart from the chief deputy, are exempt from MERA coverage, only to the extent that they in fact function as managerial or supervisory employes, as that term has been defined by case law. (emphasis added) and Where the facts demonstrated that the appointment is not merely a subterfuge to avoid the union contract, and the employe's functions actually coincide with the well-established definition of a managerial employe, the appointment of more than one exempt deputy is in harmony with MERA and the discretion granted an elected official to manage his or her office. (emphasis added) It seems the most reasonable interpretation of this language as it relates to chief deputies is that they would be exempt, not just from those provisions of a collective bargaining agreement which conflict with the authority of the constitutional officers to appoint and discharge deputies, but from MERA as well. Webster's Third International Unabridged Dictionary defines the phrase "apart from" as "besides." That dictionary defines the word "besides" as "in addition." So I understand the court in Eau Claire to say that chief deputies are exempt from MERA coverage as a result of statutory harmonization and that in addition other deputized employes are exempt from MERA coverage only when they are also managerial or supervisory. Page 39 No. 22667-F The next question is whether the noted language constitutes the holding of the case or is merely dicta. In Chase v. American Cartage Co., 176 Wis. 235, 238 (1922), the Wisconsin Supreme Court held that "when a court of last resort intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision." I believe that in Eau Claire, the question of whether a chief deputy is exempt from MERA coverage is "germane to, though not necessarily decisive of, the controversy . . ." The reason I think that is true is because the chief deputy exception is as a result of the court in Eau Claire reconsidering what it meant to hold in Crawford, and in so doing announced that Crawford applied to chief deputies who, it noted, were MERA exempt. However, while the question may be germane to the controversy, I cannot conclude that the Eau Claire court "intentionally took up, discussed and decided the question." There is language in these cases which causes me to think that the court may believe that even in an office with few employes where there is no need for a manager or supervisor other than the elected constitutional officer, there are times when the elected constitutional officer ought to be able to leave the office in charge of a person, i.e. the chief deputy, which person is not reliant on the union for his or her level of compensation etc. While this reading is consistent with the language of the cases it is not express and must be inferred. The court in Eau Claire simply modified Crawford by stating that only chief deputies are exempt from MERA, although that was not the question before the court in Eau Claire or the holding of the court in Crawford. While the court went to the extraordinary effort of checking the Crawford record in the state archives with the result of reading "deputies" out of Secs. 59.38 [now 59.40(1)] and 59.50 [now 59.43(3)], Wis. Stats., the court did not explain its observation that chief deputies are exempt. This lack of an explanation leads me to conclude that the Eau Claire court did not intentionally "take up, discuss and decide" the exemption from MERA issue. Therefore, I would find the subject language of Eau Claire to be dicta. Dated at Madison, Wisconsin, this 12th day of January, 1999. WISCONSIN EMPLOYMENT RELATIONS COMMISSION James R. Meier /s/ James R. Meier, Chairperson gjc 22667-F.D