BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
NORTHWEST UNITED EDUCATORS
ST. CROIX FALLS SCHOOL DISTRICT
(Grievance of Trudy Lorenz)
Mr. Alan Manson, Executive Director, Northwest United
Educators, appearing on behalf of
Mr. Michael Julka, Attorney at Law, appearing on behalf of the
The Association and the District were parties to a collective bargaining agreement
provided for final and binding arbitration of grievances. Pursuant to the parties' request, the
Wisconsin Employment Relations Commission appointed the undersigned to decide a
A hearing, which was not transcribed, was held on July 16, 1997, in St. Croix Falls,
Afterwards, the parties filed briefs and reply briefs, whereupon the record was closed on
November 10, 1997. Based on the entire record, the undersigned issues the following
The parties stipulated the following substantive issue:
Did the Employer violate Article XV, D of the collective
bargaining agreement by denying
emergency leave to Trudy Lorenz for November 18, 1996? If so, what is the appropriate
In addition, the District raised the following procedural issue:
Whether the grievance is arbitrable given the procedural defects at
Level One and Level Two?
The parties' 1995-1997 collective bargaining agreement contained the following
ARTICLE VIII - GRIEVANCE PROCEDURE
. . .
3. Days. The term "days" when used in this article shall
mean calendar days,
excluding Saturdays, Sundays, and vacation days occurring during the regular
school term. Days indicated at each level should be considered a maximum. By
mutual agreement, the time limits specified may be extended.
. . .
D. All grievances shall be filed on a timely basis. If the
grievance is not appealed
within the time limits set forth herein, it shall be determined as settled on the basis
of the last answer given. If the Principal, immediate supervisor, Superintendent,
or Board does not respond within the prescribed time limits, the grievance may be
advanced to the next step, if appealed within the prescribed time limits.
E. Grievances shall be reduced to writing beginning with
level two using the following
. . .
F. Initiation and Processing.
1. Level One. The grievant will first discuss
the grievance with the Principal or
2. Level Two. If the matter is not
resolved, the grievance shall be presented in
writing by the teacher to the immediate supervisor within fifteen days from the
time the grievant knew or should have known all of the alleged violation. The
immediate supervisor shall give his/her written answer within fifteen days of the
time the grievance was presented to him in writing.
3. Level Three. If not settled in level two, the
grievance, within ten days after the
supervisor's response, should be formally filed in writing with the Superintendent
of schools. The Superintendent shall give a written answer no later than fifteen
days after the receipt of the appeal.
. . .
ARTICLE XV - LEAVES OF ABSENCE
A. Sick Leave.
Sick leave shall be granted at the rate of twelve (12) days per
school year, 13 days for 11
month contracts and 14 days for 12 month contracts, cumulative to 105. A teacher
beginning his/her employment in the district shall report to one day of work to qualify for
sick leave. All sick leave will be accredited to each teacher the first day of school or the
first day they report to work. Any disability payments received under the Workman's
Compensation Act may be endorsed over to the Board by the teacher and the teacher shall
in lieu thereof receive sick leave.
. . .
D. Emergency Leave.
1. In case of serious illness, injury, or death to a member
of a teacher's immediate
family, the teacher when practicable shall provide prior notice to his/her supervisor
to take up to five (5) days off in order to handle the emergency situation. The
aforesaid five (5) days are noncumulative and are for a period of one year only.
One of these days may be used for the funeral of a close friend.
2. "Immediate Family" is defined as the teacher's own
immediate family, his/her
parents, grandparents, grandchildren, brother or sister, or those of his/her spouse.
3. Leave for emergencies other than those described above
shall be granted at the
discretion of the Superintendent and may apply on accumulative sick leave.
The District operates a K-12 public school system. The Association represents a
bargaining unit of certified teaching personnel in the District. The Association and the
have been parties to a series of collective bargaining agreements, including the Agreement
by its terms, was effective July 1, 1995 through June 30, 1997.
The various collective bargaining agreements referenced above have contained an
emergency leave provision. The emergency leave provision in the parties' 1975-1977
provided as follows:
B. Emergency Leave. On written request to
the superintendent of schools, in the event of
compelling personal reasons or legal business requiring employees' attendance, or in the
event of the death or serious illness of a teacher's spouse, child, son-in-law, daughter-in-law,
parent, father-in-law, mother-in-law, brother, sister, brother-in-law, sister-in-law,
or a member of the immediate household, teachers may be granted up to five (5) days
emergency leave. Teachers may be granted, with a written request, up to two (2) days'
leave in th [sic] event of a death of a teacher's friend or relative outside the teacher's
immediate family as designated above. The days taken under this section shall be counted
as sick days. No more than five (5) such days shall be taken in a given year without the
special consent of the school board.
The emergency leave provision was replaced with the following in the 1981-83
D. Emergency Leave.
1. In case of serious illness, injury, or death to a member
of a teacher's immediate
family, the teacher when practicable shall provide prior notice to his/her supervisor
to take up to 5 days off in order to handle the emergency situation. The aforesaid
5 days are noncumulative and are for a period of one year only.
2. "Immediate Family" is defined as the teacher's own
immediate family, his parents,
grandparents, grandchildren, brother, or sister, or those of his spouse.
3. Leave for emergencies other than those described above
shall be granted at the
discretion of the superintendent and may apply on accumulative sick leave.
Except for the recent addition of an additional sentence in D, 1 providing for
emergency leave use
for the funeral of a close friend, the emergency leave provision in the Agreement has
unchanged since 1981.
The instant grievance involving emergency leave is the first to arise since the
leave language was placed in the parties' 1981-83 agreement.
The record indicates that in the past, emergency leave has been granted for the
events: a parent's, spouse's or child's scheduled surgery; a sick child; the birth of a child;
a spouse's scheduled doctor appointments. With respect to the last event (i.e. a spouse's
scheduled doctor appointments), the record indicates that retired teacher Donna Thill was
emergency leave on 35 different occasions between 1985 and 1992 to take her husband to
scheduled doctor appointments for cancer treatments. The District does not keep records for
emergency leave usage longer than one year. The District's records for the 1996-97 school
indicate that four emergency leave requests were changed by management to sick leave.
same records indicate that two sick leave requests were changed by management to
On Saturday, November 9, 1996, 1
veteran teacher Trudy Lorenz accompanied her
husband Dan Lorenz to Neenah, Wisconsin, to attend the State Volleyball Tournament.
stayed overnight in a motel. During the night, Dan experienced trouble breathing,
Trudy called 911. Emergency medical personnel responded to the call and took Dan to a
in Oshkosh where he was admitted on an emergency basis. Dan was later diagnosed as
a pulmonary embolism which is blood clots in the lungs. He remained hospitalized for this
condition for the remainder of the week.
Trudy Lorenz stayed in Oshkosh through Monday, November 11 to be close to her
husband. In doing so, she missed work on Monday, November 11. She drove back to her
in Osceola, Wisconsin later that same day. She returned to work on Tuesday,
After returning to work, Lorenz wrote her principal, Fred Yarolimek, a letter
requested that the status of her absence on November 11 be changed from sick leave to
leave. She had originally been scheduled for sick leave for that day for an orthodontist
appointment. This letter further indicated: "It may be necessary for me to take an additional
emergency day to complete his discharge from the hospital." Principal Yarolimek later
Lorenz' request to change the status of her November 11 absence from sick leave to
On Saturday, November 16 Lorenz drove to Oshkosh, picked up her husband who
released from the hospital, and drove back to their home in Osceola. It took 12 hours to
this 600 mile round trip. Before leaving Oshkosh, Dan's attending physician gave him
he was to go to his local physician in Osceola on Monday, the 18th. Dan's doctor
for that day had been arranged by the Oshkosh physician.
On Monday morning, November 18, Lorenz called Principal Yarolimek and told him
she needed a substitute teacher for the day because she was going to be absent. Yarolimek
her if she was sick and she replied in the negative. She indicated she needed to take her
to a prearranged doctor's appointment. They did not discuss what type of leave was
to the absence. Lorenz in fact took her husband to the doctor that day.
Lorenz subsequently submitted a request for emergency leave for Monday,
On the request form, her stated reason was: "To take my husband to his Dr. for his serious
of blood clots in his lungs." After receiving Lorenz' request for emergency leave,
responded with a note saying: "We can't count taking you (sic) husband to an appointment as
emergency in this case, based on what you have as a reason. I'll count it as sick leave."
informed NUE Executive Director Alan Manson of the foregoing sometime around
In a letter dated December 6, Manson inquired of Yarolimek whether, in fact,
request for emergency leave for November 18 was being denied. In a letter dated
Yarolimek responded as follows: "This is in response to your December 6th letter
status of Trudy Lorenz's November 18 absence. We do not interpret her reason for being
On December 20, Manson called Yarolimek but did not reach him. Yarolimek was
unavailable, so Manson left a message for him on the District's answering machine that he
to call Manson back so they could discuss Lorenz' emergency leave request. Later that day,
Manson filed the instant grievance concerning Lorenz' denial of emergency leave for
On January 9, 1997, Yarolimek responded to the grievance in writing and denied
In doing so, he asserted that the grievance was untimely filed because, according to his
calculations, the Level Two grievance was received five days late. He also indicated that he
not feel that an emergency situation existed as of November 18.
Manson appealed the grievance on January 17, 1997, to Level Three of the grievance
procedure. District Administrator Michael Cox denied the grievance on January 24, 1997.
doing so, he indicated as follows: "I cannot see where this should be considered an
situation". He also indicated: "If you can provide further or additional information from Mr.
Lorenz's doctor that would make me believe this was an emergency situation, I would be
to look at it again."
By letter dated January 29, 1997, Manson appealed the grievance to Level Four of
grievance procedure (i.e., the Board of Education). Cox responded to that letter with a letter
dated February 19, 1997. Therein, Cox wrote:
"Emergency" is defined by the dictionary as a sudden, urgent,
and usually unforeseen
occurrence. From what has been provided to us at this time, it does not seem to fit the
of an emergency. We understand that this was a post-hospital checkup; and therefore, we
the serious illness ended with his release from the hospital. . .We feel this request for leave
the fact, beyond the "serious state", and no longer an emergency situation. We would
medical evidence to the contrary if it can be provided.
The instant grievance was addressed at a March 11, 1997 School Board meeting. At
meeting, Manson read the following note from Dan Lorenz' Osceola physician aloud to the
"On November 18, 96, Mr. Lorenz had [unintelligible] pulmonary embolism and his wife's
presence was necessary." Manson then handed this note to one Board member,
Dr. Beyer, who
handed it back to Manson. The District did not receive a copy of this note (which was dated
March 5, 1997), until the arbitration hearing.
Lorenz was paid for her absence on November 18, 1996, but the District deducted
from her accumulated sick leave. Lorenz finished the 1996-97 school year with one
day of emergency leave that was not utilized.
POSITIONS OF THE
The Association initially challenges the District's assertion that the grievance is
procedurally defective. In its view, it complied with the contractual grievance procedure. It
asserts that the reason no "teacher" presented the grievance at Step 2 was because the
procedure allows NUE to be a grievant. The Association avers that the fact that the internal
references to "teacher" and "grievant" in the grievance procedure are not consistent does not
overcome the definition of NUE as a grievant, and the ability of NUE to file and process a
grievance. The Association asserts that if the definition of NUE as a grievant is to be given
significance, it must be accepted that "teacher" as used in Level Two, includes NUE when
is acting as the grievant. With respect to the District argument that the grievance processing
timelines were not met, the Association believes it is noteworthy that the Employer does not
to be able to identify an exact timeline, and that in any event the alleged several day
the grievance in no way compromised the Employer by imposing any burden or additional
on the Employer. The Association therefore contends that the Employer's procedural
to the grievance should be dismissed.
With regard to the merits, the Association's position is that the District violated the
agreement by not approving emergency leave for Lorenz for November 18, 1996. As the
Association sees it, the basic question which the arbitrator is to answer is whether Trudy
spouse Dan was suffering a "serious illness" within the meaning of Article XV, 1 on
November 18, 1996. The Association answers that question in the affirmative. It
a reasonable person would conclude that Dan Lorenz' pulmonary embolism constituted a
illness. The Association argues that the District's decision denying emergency leave under
circumstances is not supported by either: 1) a reasonable interpretation of the phrase "serious
illness" in Article XV, D, or 2) by a comparison of the facts of this case with those in which
emergency leave has been granted for other bargaining unit employes in the past. It
these points as follows.
With regard to the first point, the Association believes that the Employer is
this case to change the standard under which emergency leave has been provided to
employes. The Association notes that Article XV, D, provides that emergency leave can be
for "serious illness, injury or death to a member of a teacher's immediate family." As the
Association sees it, the District is attempting to add a new and additional factor, namely the
requirement that the serious illness, injury or death be "sudden, urgent and usually
The Association characterizes this additional requirement as a "suddenness" or
factor. The Association submits that whatever the origin or source of this additional factor,
is no evidence of it (i.e. suddenness) being a part of the parties' bargaining history. It notes
this regard that there is no discernable evidence of this new factor being in the original
which the parties negotiated. The Association believes that the easiest way to explain the
Employer's denial of emergency leave in this case is to conclude that a relatively new
superintendent is seeking to apply his own "common sense" or "dictionary" definition to the
"emergency" in the Article XV, D title "Emergency Leave." The Association argues that
a new suddenness restriction to the language is improper because it essentially narrows the
operative definition of emergency leave. The Association asserts that if the Employer wants
to change the definition of emergency leave as it exists in the existing contract, it
to do so at the bargaining table. The Association argues it is a violation of that language to
unilaterally adjust it (as happened here) so that it results in a denial of emergency leave.
With regard to the second contention previously referenced, the Association
to the manner in which the emergency leave clause has been applied in the last 15 years.
According to the Association, a review of past uses of emergency leave by bargaining unit
employes shows that some were of significantly less risk to life than was the case here (i.e. a
diagnosed pulmonary embolism for which a person was hospitalized for a week). The
calls specific attention to retired teacher Donna Thill's use of emergency leave 35 times over
years to take her husband who had cancer to his scheduled doctor appointments. Given the
foregoing, the Association believes emergency leave should have been granted to Lorenz on
November 18, 1996.
In order to remedy this alleged contract breach, the Association asks that the
order the District to grant Lorenz one day of emergency leave for November 18, 1996. It
seeks to have the District provide a letter of apology to Lorenz which acknowledges that in
violating the terms of the contract the District caused her unwanted and harmful additional
The District initially contends that the grievance should be dismissed on procedural
arbitrability grounds. It contends the grievance is not procedurally arbitrable due to the
three independent procedural defects. First, it avers that Manson never discussed the
with Principal Yarolimek before he filed it. The District asserts this violated Level One of
grievance procedure. Second, the District calls the arbitrator's attention to the fact that
of the grievance procedure specifies that "the grievance shall be presented in writing by
teacher" (emphasis added). It asserts that never happened here because NUE filed the
not Lorenz. The District argues that since no "teacher" presented the grievance in writing,
procedural requirement was not followed either. Third, it contends that the grievance was
untimely filed. It avers in this regard that Lorenz learned of Yarolimek's denial of her
leave request on either November 21, 22 or 25. Counting from any of those dates, the
asserts that the written grievance dated December 20 (and received by Principal Yarolimek
January 6, 1997), was from three to five days late. It therefore contends that the grievance
not filed within the prescribed time limits established in Level Two of the grievance
It urges dismissal of the grievance for any or all of these procedural defects.
With regard to the merits, the District's position is that it did not violate
Article XV, D,
of the labor agreement when it denied emergency leave to Lorenz for November 18, 1996.
makes the following arguments to support this proposition. First, it starts by reviewing what
believes are the three elements to qualify for emergency leave: 1) a "serious illness"; 2) it
affect a member of the teacher's immediate family, and 3) the leave must be "in order to
the emergency situation." The District concedes that in this case, the second element is not
issue, but it avers the other two (elements) are in issue. With regard to the first element, it
acknowledges that a pulmonary embolism can qualify as a serious illness under some
circumstances, but it contends that being subject to that condition does not mean that
continuously seriously ill. It cites the following circumstances to support its contention that
Lorenz was not suffering from a "serious illness" on November 18, 1996: 1) Trudy Lorenz
not see her husband all week until she picked him up; 2) no complications arose on the 300-
trip back to Osceola from Oshkosh; and 3) the Oshkosh physician did not deem it critical that
Lorenz be seen by his Oshkosh physician until Monday (even though they returned to
Saturday). With regard to the third element (i.e. an "emergency situation"), the District
that an emergency situation must exist in order for a person to qualify for emergency leave.
According to the District, Dan Lorenz' pre-arranged doctor's appointment on
November 18, 1996,
simply did not constitute such an emergency situation. It characterizes the doctor's
in question as simply a "prescheduled appointment for a pre-existing condition." The
contends that all three of these elements must be met in order to qualify for emergency leave.
submits that it is not enough that just a "serious illness" be involved; an "emergency
must also be present. The District argues that Lorenz' absence on November 18 to attend
husband's pre-arranged doctor appointment was simply not an emergency situation regardless
whether the Osceola physician believed Lorenz' presence was necessary.
Next, the District calls the arbitrator's attention to the fact that when the grievance
being processed, it made repeated written requests for Manson to provide additional
from which the District could re-evaluate whether emergency leave was warranted. It notes
when Manson finally presented some additional information, it was simply the doctor's slip
Exhibit 8). According to the District, that medical slip adds nothing to the resolution of the
here. The District further notes that no copy of that document was given to the Board until
introduced at the arbitration hearing. The District argues "it would be a travesty of justice
arbitrator to now base an interpretive decision upon information first entered into the record
Finally, with regard to past practice, the District "implores the arbitrator to do a
qualitative analysis of the record in that regard before coming to any specific conclusions
the practices of the parties." That said, the District contends that District Exhibit 3 (i.e. the
District's records for the 1996-97 school year) provides the best guidance as to the District's
history of granting or denying emergency leave. It emphasizes the following three points
that exhibit. First, the District does not maintain emergency leave records beyond one
Second, the instances referenced in District Exhibit 3 are illustrative of how emergency leave
been handled since Cox became Superintendent in 1994. Third, it contends that the four
referenced in that exhibit where requests for emergency leave were changed by management
sick leave closely approximate the factual circumstances surrounding Lorenz' absence on
November 18, 1996. The District therefore requests that the grievance be denied.
In the event however that the arbitrator finds that Lorenz is entitled to an
day for November 18, 1996, the District believes that the only remedy appropriate is the
bookkeeping adjustment of debiting her 1996-97 emergency leave account by one additional
and crediting her sick leave account for that year with one additional day. It contends that
letter of apology which the Association seeks is unprecedented and uncalled for.
Since the District contends the grievance is procedurally defective, it follows that this
the threshold issue. Accordingly, attention is focused first on the question of whether the
grievance is procedurally arbitrable.
The facts pertinent in making this decision are as follows. Several days after
Lorenz' request for emergency leave for November 18, Yarolimek responded with a note
indicating he believed it did not constitute an "emergency" and that he would count it as sick
leave. Sometime around November 25, Lorenz advised Manson of same. By letter dated
December 6, Manson inquired of Yarolimek whether, in fact, Lorenz' request for emergency
leave for November 18 was being denied. By letter dated December 10, Yarolimek
that emergency leave was, in fact, being denied since he did not view her reason for being
as an emergency. Association representative Manson filed the instant grievance on
Yarolimek received the grievance on January 6 following the Christmas break.
Manson did not
discuss the grievance with Yarolimek before he filed it. Manson called Yarolimek on
20, but did not reach him; Manson left a message asking Yarolimek to call back so they
discuss the matter.
The District contends there are three procedural defects with the grievance: 1)
failure to discuss the grievance with Yarolimek before he filed it; 2) no "teacher" presented
grievance in writing; and 3) the grievance was untimely filed. These contentions will be
addressed in the order just listed.
Level One of the grievance procedure provides that "the grievant will first discuss the
grievance with the Principal or immediate supervisor." In this case, the "grievant" is not an
individual teacher, but rather the Association. This language obligated Manson to "discuss"
grievance with Yarolimek before it was filed. That never happened, so technically the
did not comply with Level One. I find this technical non-compliance is not fatal though to
processing of the grievance because Manson made a good faith effort to have the discussion
referenced in Level One. He did this when he called Yarolimek on December 20 and left a
message for him to call back. This put the "discussion" ball in Yarolimek's court, so to
At that point, Manson had two choices: he could wait for Yarolimek to return his phone call
the Christmas holidays, or he could file a written grievance. His decision to go with the
rather than the former is understandable since the time limit referenced in Level Two (which
be addressed in detail later) starts running regardless of when and if the discussion referenced
Level One is held.
The District's second procedural objection involves that portion of Level Two of the
grievance procedure which specifies: "the grievance shall be presented in writing by
. ." (emphasis added). The District contends this language was not followed in this case
no teacher presented the grievance; rather, Manson did. The record indicates that Manson
the instant grievance as an Association grievance. Article VIII, A,2, specifically gives
right to file and process grievances. When it does so, such as here, NUE is the grievant. I
that if the definition of NUE as a grievant is to be given significance, it must be assumed
when the word "teacher" is used in Level Two, it includes NUE when NUE is acting as the
grievant. I therefore find that the fact that no teacher filed the instant grievance does not
constitute a procedural defect.
The remaining procedural objection is whether the grievance was timely filed. Level
specifies that the grievance is to be presented "within fifteen days from the time the grievant
or should have known of the alleged violation." The question here is what occurrence
the running of the 15-day time limitation. Specifically, was it when Yarolimek wrote a note
Lorenz indicating that he believed her absence on November 18 did not constitute an
was it the day Lorenz advised Manson of same, was it December 6 when Manson wrote
Yarolimek and inquired whether, in fact, Lorenz' request for emergency leave for November
was being denied, or was it December 10 when Yarolimek wrote Manson that Lorenz'
leave request for November 18 was, in fact, being denied since he (Yarolimek) did not view
reason for her being absent that day as an emergency. After considering all the foregoing
I find that the last occurrence just referenced is the one which triggered the running of the
time limitation. My rationale is this. I begin by noting again that this is an Association
grievance. Consequently, in this case, the "grievant" referenced in Level Two is not Lorenz,
Manson. Thus, it does not matter when Lorenz "knew or should have known of the alleged
violation" because she was not the grievant. It also does not matter what day Lorenz first
Manson about the matter. In my opinion, what is
important is the date that Yarolimek responded to Manson's letter inquiring whether, in
Lorenz' request for emergency leave for November 18 was being denied. That occurred
December 10 when Yarolimek wrote Manson and stated that Lorenz' emergency leave
being denied. This means that the 15-day time limitation started to run on December 10.
instant grievance was filed within that time period whether one counts from the date the
was filed (December 20), or the date Yarolimek received it after the Christmas break
I therefore find that the grievance was timely filed.
Having addressed and disposed of the three procedural objections, it is held that the
grievance is procedurally arbitrable and properly before the arbitrator.
At issue here is whether the Employer complied with the contract or violated same
it denied Lorenz' request for emergency leave for November 18, 1996. The Association
emergency leave should have been granted whereas the District disputes this contention.
In contract interpretation cases such as this, I normally focus attention first on the
language and then, if necessary, on the evidence external to the agreement such as bargaining
history or an alleged past practice. In this case though, I have decided to structure the
so that this normal order is reversed. Thus, I will address the bargaining history and the
past practice before looking at the contract language. My reason for doing so is this: if I
the contract language first and find it to be clear and unambiguous, there would be no need
at any evidence external to the agreement (i.e. bargaining history and an alleged past
guidance in resolving this contract dispute. Were this to happen, the case could be decided
without any reference whatsoever to either the parties' bargaining history or the alleged past
practice. The problem with this approach is that both sides made extensive arguments in
briefs about the bargaining history and an alleged past practice. I have therefore decided to
this unique structural format so that these matters are directly addressed.
Attention is focused first on the parties' bargaining history. Bargaining history is a
of evidence arbitrators commonly use to help them interpret ambiguous contract language.
case, the documentary evidence shows how the emergency leave language came to be
into the agreement. However, in my opinion that evidence does not help resolve the instant
interpretation dispute because it (i.e. the bargaining history evidence) does not establish that
parties reached a specific understanding concerning the interpretation of that language. As a
result, this case will not be decided on the basis of the parties' bargaining history.
The focus now turns to the parties' past practice argument. Past practice is a form of
evidence commonly used or applied to clarify ambiguous contract language. The rationale
underlying its use is that the manner in which the parties have carried out the terms of their
agreement in the past is indicative of the interpretation that should be given to the contract in
situations just noted. Said another way, the actual practice under an agreement may yield
evidence of what a particular provision means.
The record indicates that emergency leave has been granted in the past for the
events: a parent's, spouse's, or child's scheduled surgery; a sick child; the birth of a child;
a spouse's scheduled doctor appointments. With respect to the last situation just noted (i.e. a
spouse's scheduled doctor appointments), retired teacher Donna Thill was granted emergency
leave on 35 occasions over seven years to take her husband to the doctor for cancer
Most of the situations just referenced where emergency leave was granted occurred
to 1994 when the District's current superintendent (Cox) assumed office. Since then, it
that emergency leave has been granted less frequently. For example, District Exhibit 3
that in the 1996-97 school year, emergency leave was granted on two occasions and denied
After reviewing the record evidence in detail, I am not convinced that the incidents
contained in the record show a consistent practice concerning the granting of emergency
Instead, I find that the incidents contained in the record are mixed in terms of result and
distinguishable from the situation herein. That being so, it is held that no past practice
to the issue here has been shown to exist. Consequently, there is no past practice which can
me in resolving the instant dispute.
Having so found, attention is turned to the pertinent contract language. Both sides
that the contract language applicable here is the Emergency Leave provision found in Article
D. Section 1 of that provision provides as follows:
In case of serious illness, injury, or death to a member of a
teacher's immediate family, the
teacher when practicable shall provide prior notice to his/her supervisor to take up to five (5)
off in order to handle the emergency situation. The aforesaid five (5) days are
are for a period of one year only. One of these days may be used for the funeral of a close
This clause allows teachers to take up to five (5) days off per year "to handle" (certain)
"emergency situation(s)." The emergencies which are listed are: "serious illness, injury or
to a member of the teacher's immediate family." Although the three categories of "serious
injury or death" are not specifically identified as "emergencies" in Section 1, they are in
3 of the Emergency Leave provision wherein it provides: "Leave for
other than those described above shall be granted at the discretion of the
Superintendent. . ."
(emphasis added). There is no requirement anywhere in the emergency leave provision that
of the three emergencies listed in Section 1 be sudden or unforeseen.
I read Section 1 to create three elements which must be met in order to qualify for
emergency leave: 1) there must be a "serious illness, injury or death", 2) "to a member of
teacher's immediate family", and 3) "in order to handle the emergency situation."
In this case, the second element is not at issue because Dan Lorenz constitutes a
of Trudy Lorenz' immediate family pursuant to the definition of "Immediate Family"
in Article XV, D, 2. The other two elements are in issue though.
Attention is focused initially on the first element. As it relates to this case, the
is whether Dan Lorenz had a "serious illness" on January 18, 1996. For background
it is noted that the District granted Lorenz emergency leave for November 11, 1996, the first
working day following Dan's admission to the hospital for his pulmonary embolism. Since
District granted Lorenz emergency leave for that date, the District agreed that Dan's
embolism constituted a "serious illness" as of that date. The District asserts that as of
November 18 though, Dan's medical condition no longer qualified as a "serious
disagree. In order for me to find that Dan did not have a serious illness on November 18, I
essentially have to find that his "serious illness" ended with his release from the hospital on
November 16. I cannot do that because the record indicates he was still being treated for a
pulmonary embolism on November 18. While his medical condition on that day was not
enough to require further hospitalization, it was still serious enough that the Oshkosh
wanted Lorenz' Osceola physician to see him on that date (which happened to be the first
day after Dan returned home). In my view, the proximity between Dan's doctor appointment
November 18 for a pulmonary embolism and his hospitalization for the same condition
close (i.e. just two days apart), that I cannot say that his "serious illness" ended with his
from the hospital. I therefore find that Dan Lorenz' pulmonary embolism still constituted a
"serious illness" on November 18.
The focus now turns to the third element (i.e. the phrase "in order to handle the
situation"). I read the reference in Section 1 to the "emergency situation" to refer back to
three emergencies listed in the first line of Section 1 (i.e. "serious illness, injury or death").
Thus, if a "serious illness" exists, the "emergency situation" is the "serious illness". I do
the phrase "emergency situation" to create a separate or independent requirement that the
for the absence be an emergency within the common meaning of that term (i.e. sudden and
unforeseen). There simply is no such requirement in the language that the "emergency
be sudden and unforeseen. This means that if a "serious illness" exists, it (i.e. the "serious
illness") does not also need to be an "emergency" within the subjective opinion of
Applying this reasoning to the instant facts, I find that the "emergency
situation" on November 18 was to take Dan Lorenz to his doctor for treatment
for his pulmonary
embolism. Insofar as the record shows, no one else in the Lorenz family could do this (i.e.
Dan to the doctor). That being so, Lorenz' absence that day was "to handle the emergency
situation" of taking her husband to his doctor appointment. The fact that Dan's doctor
appointment for that day was prearranged (i.e. scheduled in advance by the Oshkosh
does not affect the outcome here. As just noted, this is because there is no requirement in
1 that "the emergency situation" be sudden or unforeseen.
Having found that Lorenz met all three of the elements needed to qualify for
leave, she should have been allowed to use emergency leave on November 18, 1996. Since
was not, the District violated the contract, specifically the emergency leave provision, when
denied Lorenz emergency leave for November 18, 1996. 2 In order to remedy this contractual
violation, the District shall grant Lorenz one day of emergency leave for her absence on
November 18, 1996. It shall do this by crediting her sick leave accumulation with one
day and debiting her 1996-97 emergency leave account by one additional day.
The Association also asks, as part of the remedy, for a letter of apology. In my
the instant circumstances do not warrant the granting of such a letter. Consequently, the
undersigned has not included the letter of apology as part of the remedy.
Based on the foregoing, and the record as a whole, the undersigned issues the
That the Employer violated Article XV, D, of the collective bargaining agreement by
denying emergency leave to Trudy Lorenz for November 18, 1996. In order to remedy this
contractual breach, the District is directed to grant her one day of emergency leave for that
Dated at Madison, Wisconsin, this 29th day of January, 1998.
Raleigh Jones /s/
Raleigh Jones, Arbitrator
1. All dates hereinafter refer to 1996 except where
2. In reaching this decision, I have found it unnecessary
to rely on the disputed doctor's slip
(NUE Ex. 8). As a result, no comment is made concerning same.