BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SPARTA MANUFACTURING COMPANY
LABORERS' INTERNATIONAL UNION OF NORTH
LOCAL UNION NO. 140
Sparta Manufacturing Company and Laborers' International Union of North America
No. 140 are parties to a collective bargaining agreement that was in effect at all times
relevant to this
proceeding, and which provides for the final and binding arbitration of certain disputes. The
by request to initiate grievance arbitration received by the Commission on April 17, 1998,
the Commission to appoint either a Commissioner or member of its staff to serve as
Commission appointed Paul A. Hahn as arbitrator. Hearing in the matter was held on May
in Sparta, Wisconsin. There was no transcript made of the hearing, and the parties declined
opportunity to file post hearing briefs.
Arbitrator's Statement of the Issue:
Did the Employer violate the collective bargaining agreement, Article IV (Hours of
Work) when it
disciplined the Grievant for an absence from work on March 24, 1998; if so, what is the
RECOGNITION AND UNION SECURITY
Section 1. Recognition
The Union shall be the sole representative
of all employees in collective bargaining with the
Employer except the following:
Executives, salesmen, office and clerical employees,
and guards, and supervisory
(a) The term employee, as hereinafter used, shall mean all
employees of the Company who
are in the above-defined collective bargaining unit.
. . .
. . .
. . .
6. The Union and the Company agree the Wisconsin
Employment Relations Board shall
appoint an arbitrator from their commission to arbitrate such grievances. The decision of the
Arbitrator shall be final and binding upon both parties.
HOURS OF WORK
. . .
Section 5. Absences
. . .
Company will excuse a total of three (3) medical (doctors or
dentists) visits per fiscal year (July
1 thru June 30). To be excused the employee must furnish a written excuse from provider
employee did visit the doctor or dentist. After the total of three (3) visits has been reached
further visits will be covered by the normal attendance policy.
. . .
Section 1. Management
Subject to the provisions of this Agreement,
the management of the plant, property and business
of the Company, the direction of the working force, including the right to determine who
hired, promoted, demoted, transferred and/or assigned to jobs, to suspend, discipline and
employees for cause, to increase or decrease the working force, and to determine the
products to be
handled, produced or manufactured and the methods, processes and means of production or
shall be vested exclusively in the Company. Suspensions, discipline and discharge shall be
the grievance and arbitration procedures provided in Article III hereof. Any employee who
promoted, demoted or transferred by the Company contrary to his own desires shall not
loss of seniority as a result of such promotion, demotion or transfer.
This grievance involves Sparta Manufacturing Company and Laborers' International
of North America Local Union No. 140 representing employes of the Company set forth in
II, Recognition and Union Security, Section 1. (Jt. Ex. 1) The Grievant and the Union
contractual violation by the Company for a refusal by the Company to permit the Grievant to
excused dentist visit under Article IV, Hours of Work, for accompanying his wife to a
March 24, 1998. This refusal resulted in suspension without pay discipline to the Grievant.
The collective bargaining agreement in Article IV, Hours of Work, contains a no
attendance policy. Absences and tardiness which is not excused pursuant to the attendance
result in one or more occurrences; occurrences lead to progressive discipline up to
the Fall of 1997, the parties, by mutual agreement, modified the attendance policy to provide
when an employe reached ten occurrences or fourteen tardies, which would normally subject
employe to termination, the employe rather than being discharged would receive a five day
and a ninety day probation period. If the employe successfully completed the ninety days
further occurrences, the employe would go back to the previous disciplinary step pursuant to
attendance policy. During the parties' negotiations for the current collective bargaining
(Jt. Ex. 1 and Jt. Ex. 2) which became effective on March 1, 1998, the parties negotiated
labor agreement a provision under Article IV, Section 5, Absences, to provide that the
would excuse a total of three (3) medical (doctor or dentist) visits per year (July 1 through
provided that the employe furnished a written excuse from the provider stating the employe
did in fact
visit the doctor or dentist.
On March 23, 1998, the Grievant became concerned about his spouse because of her
to eat due to problems with her teeth. The Grievant called Gunderson Clinic, Ltd. On
March 23 and
was referred to the Department of Dental Specialists. On March 24, the Grievant called the
about 8:00 a.m. and learned that a dentist could see his wife at approximately 3:00 p.m. that
Because the Grievant could not make other arrangements, the Grievant accompanied his wife
Gunderson Clinic. The Grievant called the Company at noon that day and talked to
Supervisor Rick Watzka advising Watzka that he would be absent. (The Grievant works a
1:00 p.m. to 9:15 p.m.) Grievant's wife received root canal treatment and nitrous gas for
pain. The Grievant and his family returned to their home at approximately 5:30 p.m.
not return to work part of his shift because he could not arrange childcare.
When Grievant returned to work on March 25, 1998, he learned that his absence on
24, 1998 was an occurrence under the absentee policy, which gave him ten and one-half
subjecting him to the revised absence discipline policy. The Grievant received five days
without pay on April 2, 3, 4, 6 and 7. (Jt. Ex. 5) The Grievant provided two dentist excuses
3 and Jt. Ex. 6, page 3) verifying that he had been at the dentist's office with his wife and
presence was needed because his wife would have to have a driver after her treatment.
these dentist excuses to the Company. Grievant believed that the excuses would provide
an excused absence pursuant to the new language negotiated into the collective bargaining
under Article IV, Section 5. The Grievant, believing that the Company had wrongfully
him, filed a grievance with his Union Steward, William Blum. (Jt. Ex. 4)
The parties processed the grievance through the contractual grievance and arbitration
procedure and were unable to resolve the grievance.
The hearing in this matter was held by the Arbitrator on May 21, 1998, in the City
Prior to the close of the hearing the parties stipulated that there was no issue that the
in fact visited the dentist's office with his wife. The parties further stipulated that if the
dentists excuse provision of Article IV, Section 5 only applies to employes and not to family,
discipline given to the Grievant is correct under the collective bargaining agreement. The
closed at 12:15 p.m. The hearing was not transcribed. The parties were given the
declined, to file briefs and stated their positions by oral argument at the close of the
POSITIONS OF THE PARTIES
It is the position of the Union that the three doctor or dentist visits per fiscal year
negotiated into the current collective bargaining agreement, applies to visits by the employe
family of the employe, provided that the employe accompanies the family member. The
the position that the parties during their contract negotiations in
January and February of 1998 discussed the Union's proposal that the employes needed
absences to deal with family situations. The Union takes the position that the only concern
Company expressed during the negotiations was that the employe actually had to make the
the doctor or dentist and provide a written excuse from the doctor or dentist stating that the
did in fact make the visit. The Union argues that the Grievant followed the contractual
and that the Company has stipulated that it does not challenge the Grievant's reason for being
on March 24, 1998. Lastly, the Union position is that the Grievant should be made whole
wages and benefits and that the Grievant should be placed at that point in the attendance
procedure as though he had not received the occurrence resulting from the March 24, 1998
The position of the Company is that the pertinent language under the attendance
policy was only to
apply to visits to a doctor or dentist when the employe was being treated by the doctor or
Company states that the doctor or dentist visit does not apply to a family member.
Therefore, it is the
Company's position that because the visit by the Grievant's spouse to the dental specialist
was not an
emergency, this resulted in another occurrence or unexcused absence. This brought the
Grievant to ten and
one-half occurrences which, under the modified attendance policy, resulted in the Grievant
receiving a five-day suspension without pay and being placed on a ninety-day probation
period. It is the position of the
Company that the absence policy provides for enough flexibility to include family medical
visits and that the
Company would not and did not agree that the new language applied to visits other than by
The Company argues that the Grievant knew the policy, had signed all the previous
disciplinary action against
him and knew that the next occurrence under the attendance policy would result in five day's
without pay. Lastly, the Company states that the discipline given to the Grievant was
appropriate under the
collective bargaining agreement, that the dentist excuse provision under Article IV - Hours of
5 Absences was not applicable to the Grievant's situation and therefore the grievance
should be dismissed.
The facts leading to the discipline of the Grievant are essentially not in dispute. The
agree that the crux of this matter is the interpretation of the following paragraph of Article
of Work, section 5:
Company will excuse a total of three (3) medical (doctor's or
dentist's) visits per fiscal year
(July 1 thru June 30). To be excused the employee must furnish a written excuse from
stating that employee did visit the doctor or dentist. After the total of three (3) visits has
reached any further visits will be covered by the normal attendance policy.
The Company interprets this language as applying only to the employe. The Union
this language to apply to visits by the employe or by his or her family, provided that the
accompanies the family member to the doctor or dentist. The parties agree that if I find that
language applies only to employes, the discipline of Grievant was appropriate.
The parties offered evidence of bargaining history and past practice. Mike Wiedl,
steward on the third shift and a member of the Union's bargaining team, testified that the
discussed the language on several occasions in negotiating the current contract (effective
Wiedl testified that the Union went into negotiations wanting to increase the opportunity for
employes to be off for family medical situations. Wiedl stated that he had no recollection of
Company representatives stating that the language was only to apply to employes. Wiedl
that Company spokesman, Randy Priem, was only concerned that there be an actual visit by
employe to a doctor or dentist. Priem testified that he did not recall whether or not he stated
language would only apply to employes. In his testimony, Priem stated that it was not the
the Company to apply the language to family members. Priem stated that if family members
be included he believed the language would have reflected that fact. Wiedl testified that he
the language before the contract was signed but was not worried that there was not any
reference to family, as he assumed that is what the language meant based on the negotiation
Past practice, which arbitrators also consider to interpret contract language, offers no
assistance in this case. The only instance anyone could recall where an employe might have
excused for a family medical situation involved an extended leave of absence; the facts were
as to offer no guidance in this matter. Further, I do not find grievant's situation to qualify as
emergency as that term is commonly interpreted in labor agreements. The Union also never
that it was an emergency. Documented emergencies are excused under the attendance
Although contract language is normally interpreted against the drafter, in this case the
Company, to interpret the language as the Union argues would add a significant benefit to
agreement without documentation or testimony to support such a finding. It is clear from the
that absenteeism is a critical issue to the Company. To expand the language to family
members is not
something I am inclined to do based on the evidence. It also can be argued that the Union
responsibility to ensure that a reference to family should have been included in the language.
also, if I ruled in favor of the grievant and the Union, have to define "family." I again
adding language and substance to the contract when all that I am charged with doing under
III is to interpret a specific clause in the labor agreement. I also believe the language itself
the Company position. Normally language such as ". . . the employe must furnish a written
from the provider. . . ." refers to the employe being treated by the doctor or dentist, not
else. The language goes on to state that the employe "did visit" the doctor or dentist, not
else. And lastly, after three of these visits, any further visits will be covered by the normal
policy. Again, this language argues for an interpretation that the three excuses cover the
family members are not covered by the normal attendance policy. Therefore, I find that the
at issue, the last paragraph in Article IV, is not ambiguous and only covers employes and
cover anyone else .
I also find that the evidence of past practice and bargaining history introduced at the
is too inconclusive to be of any value and cannot alter my interpretation of a plain reading of
contractual provision. The Grievant testified that he was under the assumption based on
representations of his Union at the ratification meeting of the contract settlement that the
could be used for family. However, what happened at Union ratification meeting cannot
Company which is not part of or privy to that internal Union meeting. Therefore, the
assumption, even if credible, cannot alter the outcome of the interpretation of a contract
which I have found is clear on its face. While this decision produces an unfortunate result
Grievant, given Grievant's precarious position in reference to his occurrence record, it would
been prudent for the Grievant to have checked with the Company to ensure that he would be
on March 24, 1998.
Based on the evidence and consideration of the oral arguments of the parties, I find
that the Company
did not violate the labor agreement when it disciplined the Grievant pursuant to the
absence policy and, therefore, the grievance cannot be sustained.
The grievance is denied.
Dated at Madison, Wisconsin, this 8th day of June, 1998.
Paul A. Hahn, Arbitrator