BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
BAYFIELD COUNTY EMPLOYEES
LOCAL UNION 1731, AFSCME, AFL-CIO
BAYFIELD COUNTY (DHSS)
(Grievance of Nancy Brown)
Bayfield County Employees Local Union 1731, AFSCME, AFL-CIO, hereinafter the
requested that the Wisconsin Employment Relations Commission appoint a staff arbitrator to
and decide the instant dispute between the Union and Bayfield County, hereinafter the
accordance with the grievance and arbitration procedures contained in the parties' labor
The County subsequently concurred in the request and the undersigned, David E. Shaw, of
Commission's staff, was designated to arbitrate in the dispute. A hearing was held before
undersigned on August 13, 1998, in Washburn, Wisconsin. There was no stenographic
made of the hearing and the parties submitted post-hearing briefs in the matter by November
Based upon the evidence and the arguments of the parties, the undersigned makes and issues
The parties stipulated there are no procedural issues, but were unable to stipulate to a
statement of the substantive issues and agreed that the Arbitrator will frame the issues to be
The Union would state the issues as follows:
Did the Employer violate the terms of the Collective Bargaining
Agreement and the long standing
past practice when it denied the Grievant the use of sick leave to attend to the medical needs
Grievant's adult child?
And if so; the appropriate remedy is for the
Employer to allow employees the use of sick leave
for the care of their adult children.
The County proposes the following statement of the issues:
A. Did the County violate Article 24, Section H, of the
parties' collective bargaining
agreement when it denied the grievant's request to use sick leave for the purpose of
her adult daughter to a medical appointment?
B. If so, what is the appropriate
The Arbitrator frames the issues to be decided as follows:
Did the County violate Article 24, Section H, of the parties'
Collective Bargaining Agreement
and/or a binding past practice when it denied the Grievant the use of sick leave for the
accompanying her adult daughter to a medical appointment? If so, what is the appropriate
The following provisions of the parties' Agreement are cited, in relevant part:
ARTICLE 4 GRIEVANCE
. . .
A. A grievance is defined to be controversy between
an employee and the Employer as to:
1. A matter involving the interpretation of
2. Any matter involving
an alleged violation, of this Agreement in which the employee
or the Union maintains that any of their rights or privileges have been impaired in
violation of this Agreement, or
3. Any matter involving
wages, hours, or conditions of employment.
. . .
C. Decision of the Arbitrator
1. The decision of the arbitrator shall be in
writing and set forth his/her opinions and
conclusions on the issues submitted to her/him, in writing, and/or at the hearing.
2. The decision of the
arbitrator shall be binding for both parties, shall be final, and is
limited to terms and conditions set forth in this Agreement.
3. The arbitrator shall
not have any authority to make any decision amending, changing,
subtracting from or adding to the provisions of this Agreement, and shall be limited
to the subject matter of the grievance.
ARTICLE 24 SICK LEAVE
. . .
H. Sick leave shall be defined as time off the job
with pay because of illness, bodily injury,
exposure to a contagious disease requiring quarantine, attendance upon members of the
immediate family, diagnostic treatment, dental procedures and services of opticians when
services are performed by duly licensed practitioners. An employee's immediate family for
sick leave shall be the spouse, children and parents.
The contract language in issue, presently Article 24, Sec. H, of the parties'
first included in their 1991-92 Agreement and has not been changed in any way since then.
its inclusion, the Agreement did not reference the use of sick leave for other than an
illness or injury.
In May of 1996, the Chair of the County Board issued the following memorandum to
TO: All County Employes
FROM: Fred Janz, County Board
DATE: May 20, 1996
RE: Use of Sick Leave for Adult
Within the last few months, the County has
received requests for the use of sick leave for adult
daughters who have recently given birth to children. While the County has had the
practice of limiting the use of sick leave to minor children, the more recent requests have
received under the state and federal family and medical leave laws.
Under Wisconsin's law, two weeks of leave
for the care of a child who is eighteen years of age
or older is allowed provided the adult child cannot care for himself or herself because of a
health condition. State law defines a "serious health condition" as a "disabling physical or
illness, injury, impairment or condition involving any of the following: (1) inpatient care in a
nursing home or hospice; (2) outpatient care that requires continuing treatment or supervision
health care provider."
Similarly, under the federal family and
medical leave law, the use of the law for the care of an
adult child is limited to an adult child who is incapable of self care because of a mental or
As indicated, state law allows up to two
weeks of leave for this purpose. Further, state law
allows employees to substitute accumulated sick leave to transform the otherwise unpaid
paid leave. Under federal law, employees may utilize up to 12 weeks for this purpose.
under federal law, the employee is not entitled to substitute paid sick leave.
Thus, in order to utilize either the state or federal family and
medical leave law in instances where
an adult daughter has recently given birth, the adult daughter must have a serious health
which renders her mentally or physically disabled and unable to care for herself.
the state and federal laws require that the presence of the employee is necessary in order to
care for the adult child. In addition, both the federal and state laws allow the employer to
certification from a health care provider that the adult daughter has a serious health condition
the employee is needed to care for the adult child. The health care provider may also be
provide an estimate of the amount of time that the employee's care is needed.
The County has adopted a certification form
for its use in approving leave requests under the
state and federal family and medical leave laws. A copy of the form is attached for your
Any future requests for leave for purposes of the care of an adult child will require the
of the certification form prior to the County's review and action on the request.
Union Steward Bill Gahnz testified that he had no knowledge
the practice referred to in
the memorandum and that when he received it, he looked at the contract language and felt it
and that no further action was necessary. The County's Administrative Coordinator, Tom
testified that he actually drafted the memorandum for the County Board Chair, and that other
a brief discussion with Gahnz, it was not discussed with the Union and it was not challenged
In the fall of 1996, during negotiations for the parties' 1997-1998 Agreement, the
proposed the following regarding the contract language in issue:
For clarification purposes, revise the last sentence to read: "An
employee's immediate family for
sick leave shall be spouse, minor children living in the same household, and parents."
The proposed language was not included in the parties' 1997-98 Agreement.
The Grievant, Nancy Brown, has been employed in the County's Department of
Services for approximately seven years. At the time in question, the Grievant's daughter was
years old and was home from college. The daughter had an appointment to have allergy
performed at a clinic in LaCrosse, Wisconsin. On January 12, 1998, the Grievant requested
sick leave on January 16th to accompany her daughter and bring her home
after the appointment. The
Grievant's supervisor, Elizabeth Skulan, asked the Grievant the age of her daughter and
was informed, told the Grievant that she did not think
the Grievant could use sick leave, but that she would check on it. Skulan checked with
who advised her that sick leave could not be used for adult children. Skulan advised the
next day that her request to use sick leave to accompany her daughter to the appointment was
due to the daughter's age. Skulan also told the Grievant that she could use vacation time or
would make some other arrangement to allow her to go if she did not have any time off left.
Grievant changed her request to vacation, but also asked the clinic in LaCrosse to confirm
that it was
necessary for someone to drive for the daughter due to possible reactions she could have due
allergy tests. The clinic FAXed the Grievant such a confirmation, which the Grievant then
Skulan and asked if that made a difference. Skulan responded that it did not make a
Skulan also provided the Grievant with a copy of an excerpt from the Family Medical Leave
(FMLA) and advised her that it did not qualify under that Act. The Grievant's daughter had
drive her to her appointment as she did not want her mother to use vacation time.
The Grievant grieved the denial of her request to use sick leave. The parties
resolve their dispute through the grievance procedure, but were unsuccessful and proceeded
arbitrate the grievance before the undersigned.
POSITIONS OF THE PARTIES
The Union asserts that the language of Article 24, Sec. H, of the Agreement, is clear
unambiguous that it may be used for members of the immediate family for diagnostic
that "immediate family" includes "children". Nowhere does it limit an employe's right to
leave only for the care and attendance of minor children. The Union cites a
number of arbitration
awards which have interpreted sick leave provisions allowing for the use of sick leave for
to include adult children.
The Union also asserts that there is a long-standing past practice of permitting the use
leave for an employe's adult child. The Union presented a number of witnesses, all of which
that they have been granted the use of sick leave for the care of their adult children. In
document prepared by the Union's steward, Gahnz, detailed the history of the practice of
numerous employes from various County departments to use sick leave for the care of their
children over a time period ranging from 1988 to 1997 and covering the span of several
bargaining agreements. Several of those employes testified at the hearing as to their use of
for the care of their adult children, and that it was never challenged by anyone in
it may be argued that the employes' supervisors did not know the age of the child in
factor of the child's age was never an issue in any of these departments. Further, there is no
testimony that any of the
employes other than the Grievant have ever been denied the use of sick leave for the
care of their
adult children. Thus, the criteria for recognizing a past practice has been well established.
argument that the County's memorandum dated May 20, 1996 limits employe's rights to use
leave for the care of adult children is rebutted by the evidence that employes continue to use
leave for adult children after that date, e.g. Stauffer, Deragon and Ochsner.
The Union also disputes the relevance of the State and Federal Family and Medical
Acts. It is the clear language of the Agreement and the long-standing past practice that are
operative and controlling factors in this case.
The Union also disputes that the use of sick leave was negotiated away at the
Leaders of the Local who have been involved in the negotiations over the years testified that
change or limitation on an employe's right to use sick leave for adult children was ever
Lastly, the Union asserts that the act of unilaterally taking employes' right to use sick
to care for adult children is unfair and fundamentally anti-family.
In its reply brief, the Union disputes the assertion that the language of the agreement
ambiguous. The claim that the Union never challenged the County's interpretation that
only means minor children is rebutted by the testimony of the Union's witnesses that they
using sick leave for the care of both minor and adult children for years. It is only when the
was denied the use of sick leave for an adult child that the issue arose, and the Union
a grievance contesting the denial. The County's assertion that the bargaining history
position is also disputed by the Union. Had the parties intended to cover only minor
would have added that restriction to the Agreement, and no such restriction limiting the use
leave to only minor children is referenced in the contract. Finally, past practice also does
the County's position, as the practice has been that employes have always used sick leave for
of adult children, and the County clearly knew about it and allowed it until the Grievant was
sick leave for her adult child. The County attempts to discount the testimony of the Union's
witnesses in that regard by relying upon various supervisors who claim they were aware of
County policy limiting the use of sick leave to adult children, however, they never
use of sick leave for adult children. The County, in turn, relied upon the testimony of those
employes' supervisors that they either did not know what type of leave was being used by the
employe, or were unaware that sick leave was being used for the care of an adult child. The
however, has been that employes did use sick leave for the care of adult children without
by the County, and that was consistent with the employes' understanding of the Collective
Agreement. The Union requests that the grievance be sustained.
The County first asserts that the language of Article 24, Sec. H, of the Agreement is
ambiguous in that the term "children" is not defined. That provision was added in the
Agreement, and the County has always interpreted "children" as minor children. The
interpretation has never been challenged by the Union and the fact that it now seeks a
interpretation underscores the ambiguity of the provision.
The County also asserts that the bargaining history supports its position. The
Social Services, Cheryl Huenink, testified that the County's negotiator for the 1991-92
was Mike Puksich, then the County's Administrative Coordinator/Personnel Director, and
Puksich frequently consulted with her regarding the negotiations for that agreement.
testified that prior to the 1991-92 agreement, the practice was that sick leave could not be
children. During negotiations for the 1991-92 agreement, she and Puksich were aware that
already-enacted Family and Medical Leave law had expanded the rights of employes
use of sick leave. She testified that there still remained a concern regarding minor children,
cannot receive medical services without a parent's signature, and thus a parent's attendance
medical appointments for minor children is required. She further testified that it was, and is,
understanding that "children" meant minor children. There was no testimony to refute
testimony on this point.
Past practice also supports the County's position in that the record establishes there is
practice of permitting employes to use sick leave for adult children beyond that allowed by
and Federal FMLA's. There are approximately 60 to 70 employes covered by this
the Union could only find eleven examples of sick leave having been used for adult children.
example predated Section H (Banta), the only evidence involving two examples was hearsay
(Kannenberg and Deragon), one example did not indicate the leave was for the employe's
(Mertsching), two or three examples involved the supervisor not being aware the child was
older (Mertsching, Stauffer and Brown), and in three of the examples the County had no
since the requests met the criteria for leave under the FMLA and had to be granted
and Ochsner). This falls far short of establishing that there is an unequivocal, clearly
acted upon, past practice of permitting the use of sick leave for adult children which is
ascertainable over a period of time as a fixed and established practice by both parties. In
Steward Gahnz admitted that he had "no knowledge either way" as to whether there was such
practice. Further, the FMLA provides leave for an adult child in the event the child has a
health condition" and after its enactment employes began filing requests for the use of sick
adult children with serious health conditions. In early 1996, it became apparent to the
there was some confusion regarding the use of sick leave for adult children who had recently
birth. As a result, the County Board Chair issued a memo to employes reminding them of
the long-standing practice that sick leave was limited to minor children, but
informing them of the circumstances under which sick leave could be used for adult
the FMLA. The Grievant, Union Steward Gahnz, former Union President Cederberg and
Mertsching all admitted they received the memo in May, 1996. There was no challenge of
by the Union regarding the statements in the memorandum. Given the broad definition of a
"grievance" in the Agreement, the Union could have grieved the memo if it believed the
misstated or misrepresented the parties' practice and understanding regarding the use of sick
for children. The fact that the County was required to grant certain leave requests in light of
FMLA does not bear on the interpretation or application of Article 24, Section H. Absent a
condition meeting the criteria of a "serious health condition" under the FMLA, the use of
sick leave has always been limited to minor children. That is not changed by the fact that a
requests may have "slipped through the cracks." In fact, the paucity of requests which did
through the cracks demonstrates that most employes knew and understood sick leave could
used for adult children.
Finally, the County notes that the issue is not whether the Grievant would have been
to accompany her daughter to the doctor's appointment, as she was told by her supervisor
could use any other leave such as vacation or a floating holiday.
In its reply brief, the County asserts that a careful reading of the arbitration decisions
by the Union reveals that they are not on point and in the case of one of the decisions,
supports the County's position. In the Manitowoc decision cited by the Union, the Arbitrator
concluded that the term "child" could not be considered clear and unambiguous. In
appropriate means for resolving the ambiguity, the Arbitrator stated that in considering the
definition, past practice or bargaining history, the latter two are the most reliable, since each
on the conduct of the bargaining parties who are the source of meaning for the terms of the
agreement. Each case of this sort is fact-specific, and the Arbitrator in Manitowoc
based upon numerous examples, the parties had established a past practice which supported
grievance. The facts in Manitowoc are significantly different from the facts in this case.
Union's reliance upon the City of Rhinelander and West Bend decisions is also misplaced, as
definition of "children" was not an issue in either case. Each case must be analyzed based on
set of facts and must rise or fall based on its own merits. Since no two cases are ever
the result cannot be presumed to be the same in both cases. As in the Manitowoc decision,
instant case turns on the parties' bargaining history and past practice. As to past practice,
to the Union's assertion that the State and Federal FMLA are not relevant, since many of the
examples cited by the Union are leave requests which were required to be granted under the
the application of these laws is relevant. Further, the Union could only come up with 11
even though the language of Section H has been in the Agreement for nearly seven years.
deleting the requests which the FMLA required to be approved, the requests that predated
H, the requests which did not specify that the leave was for a
child, the requests for which the only evidence was hearsay testimony, and the request
for which there
is no evidence of underlying facts, one is left with three examples, two of which the
approved thinking the child was under 18, and in the third the employe admitted that she did
know whether the supervisor knew that her son was 18. While the Union faults the County
challenging the requests of Stauffer, Banta, Jacobson and Ochsner, two were required to be
under the FMLA, Banta's request predated Section H and in Stauffer's case, the supervisor
mistakenly assumed the child was under 18.
While the Union faults the County for not proving a negative (i.e. that it has denied
requests for the use of sick leave for adult children) requests not made cannot be denied.
is on the Union to demonstrate that Section H applies to adult children, and the basis for
past practice dissolves when it is revealed that it is based solely on two, or possibly three,
which were approved by mistake over the course of seven years. Under no interpretation do
in this case rise to the compliance with the standard for finding of past practice. That
contemplates a course of conduct knowingly and voluntarily engaged in by the parties, and
actions dictated by a statute. The County also disputes the Union's claim that it has never
any change regarding limiting employes' ability to use sick leave for adult children. Failure
upon a right given by a contract may be considered by the arbitrator to help establish the
intent of the
parties. Elkouri and Elkouri, How Arbitration Works, Fifth Edition, at p.
577. Here, the Union was
given express and clear written notice in May of 1996 of the County's position that sick
limited to minor children. At no time following the issuance of that memo, and prior to the
grievance, did the Union challenge that position. The Union's acquiescence with the
position in 1996 is further evidence that the intent of the parties was that Section H applies
minor children. Finally, the County asserts that whether the Grievant is a sick leave abuser
or not is
not in issue, nor is the assertion that the County's interpretation of Section H is "anti-family"
The Union is attempting to expand the interpretation to cover adult children, contrary to the
intent and practice. The County requests that the grievance be dismissed in its entirety.
The Union's assertion that the term "children" in Article 24, Section H, of the
clear and unambiguous is not persuasive. Wording is not clear and unambiguous if it is
to reasonable differing interpretations. The term "children" may accurately be used to
adult and minor offspring of human parents. That said, however, it is the County that is
the term is to be given the more limited meaning of only minor offspring in this case. As
limitation is not set forth in the wording of Article 24, Sec. H, if it is to be found, it must be
In that regard, the County relies upon both past practice and bargaining history to support its
position, as does the Union.
With regard to past practice, the County asserts that the parties have interpreted
Sec. H to apply only to minor children since its inception and cites as evidence of that
lack of any challenge to the County Board Chair's memorandum issued in May of 1996. As
previously, the County also takes issues with the examples offered by the Union of instances
employes have used sick leave for adult children. The County discounts those examples
child's condition would have been covered by the FMLA Tutor, Deragon, Jacobson
Both Jacobson and Ochsner testified they requested and used sick leave in 1997 to assist or
accompany an adult child with the knowledge of their supervisors. While both agreed that
child's medical condition could qualify as a "serious health condition" under the FMLA, both
testified that they only requested to use sick leave and could not say if the FMLA was
their supervisors. However, the County's May, 1996 Memorandum states:
The County has adopted a certification form for its use in
approving leave requests under the
state and federal family and medical leave laws. A copy of the form is attached for your
Any future requests for leave for purposes of the care of an adult child will require the
of the certification form prior to the County's review and action on the request.
Gordon testified that Tutor had in fact filled out the certification form and had it
approved, but then
waited a month, when there was no longer a serious condition in the County's estimation, to
her daughter and that is what prompted the memo. There is, however, no evidence Jacobson
Ochsner submitted such a certification form with their requests and according to their
would not have. Presumably then, their requests to use sick leave in these instances were
reasons other than the mandates of the state or federal FMLA's. Other than testimony from
that Deragon's child's condition involved a serious injury in 1997, there is no evidence that
certification form was submitted or approved. With regard to the May 24, 1994 request of
Mertsching, it states it is for "son's Dr. appt." and she testified that her son was 19 at the
that both supervisors who initialled her request, Smitten, her immediate supervisor and
Director of Social Services, were aware her son was out of high school. Mertsching testified
Huenink was aware of her son's age because she had a son the same age. While Smitten
she was not aware Mertsching's son was over 18 at the time, Huenink did not dispute
boy's age. Huenink testified that her initialling the request was only a matter of reviewing
off and not of reviewing the supervisor's approval. It would seem, however, that Huenink,
aware Mertsching's son was over 18, would have indicated in some manner that approval of
Mertsching's request was improper if she felt the use of sick leave for a child that age was
Of the other examples offered by the Union, one predated the contract language
was not clear the employe was using sick leave (Kannenberg), one was not clear the sick
request involved the employe's child (Mertsching's June 24, 1994 request) and two were not
the employe's supervisor knew the employe's child was age 18 or older (Brown's January
request and Stauffer). Those examples are not helpful in determining whether there has been
The County notes the difficulty in proving it has denied requests to use sick leave for
children if such requests have not been made. While there is some merit to that argument,
no indication in the record that employes have ever been asked about the age of the child for
they have requested to use sick leave prior to Skulan asking the Grievant in this case. The
evidence of the County's concern in that regard prior to this situation is the May, 1996
In sum, other than the testimony of Skulan, Smitten and Huenink that it was their
sick leave could not be used for an employe's adult child, there is no evidence of a practice
regard other than the memorandum asserting it has been a "longstanding practice." Although
was no formal challenge to that memorandum at the time by the Union, there was some
on the point between Gahnz and Gordon. The evidence of a practice, albeit not
the Union's position that employes have been permitted to use sick leave for their adult
The evidence with regard to bargaining history consists of the County's proposal in
negotiations for this Agreement to revise the last sentence of what is now Article 24, Sec. H,
clarification purposes" to expressly provide that sick leave may only be used for "minor
in the same household." While that evidence does not conclusively establish that without
revision the provision provided otherwise, it is an acknowledgement that such a limitation is
implicit in the wording of the provision. That the parties reached agreement on the contract
the County's proposed revision at a minimum indicates that the Union did not agree to the
and that the County was aware of the Union's position when it agreed to this Agreement
In conclusion, the term "children" may be used to accurately describe both minor and
offspring and the County has failed to establish that the parties intended the term be given the
narrow definition of only minor children. The evidence as to the parties' practice and
history, while not overwhelming, favors the Union's position that the term is to be given its
meaning. Therefore, it is concluded that the County violated Article 24, Sec. H, of the
Agreement when it denied the Grievant's request to use sick leave to take her 18 year old
to a medical appointment. As the Grievant did not accompany her daughter after her request
denied, no remedy is available beyond ordering the County to stop violating the Agreement
regard, and that is the relief granted.
Based upon the foregoing, the evidence, and the arguments of the parties, the
makes and issues the following
The grievance is sustained. The County is directed to cease and desist from violating
parties' Agreement as set forth in this Award.
Dated at Madison, Wisconsin this 9th day of February, 1999.
David E. Shaw, Arbitrator