BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MANITOWOC COUNTY HEALTH CARE CENTER
LOCAL 1288, AFSCME, AFL-CIO
Mr. Gerald D. Ugland, Staff Representative, Wisconsin
Council 40, AFSCME, AFL-CIO, P.O. Box 370, Manitowoc, Wisconsin 54221-0370,
appearing on behalf of the Union.
Mr. Steven J. Rollins, Corporation Counsel, Manitowoc
County, 1010 South Eighth Street, Manitowoc, Wisconsin 54220, appearing on behalf of the
Manitowoc County Health Care Center Employees Local 1288, AFSCME, AFL-CIO,
hereinafter referred to as the Union, and Manitowoc County, hereinafter referred to as the
are parties to a collective bargaining agreement which provides for the final and binding
of disputes arising thereunder. The Union made a request, with the concurrence of the
the Wisconsin Employment Relations Commission designate a member of its staff to act as
arbitrator to hear and decide a grievance over the meaning and application of the terms of the
agreement. The undersigned was so designated. Hearing was held in Manitowoc,
December 2, 1998. The hearing was transcribed and the parties filed post-hearing briefs and
briefs, the last of which was received on March 2, 1999.
The grievant is a Certified Nursing Assistant employed at the Health Care Center and
guaranteed 80 hours of work each two weeks. On March 19, 1998, the grievant worked
hours and then went home sick. The Grievant called in sick on March 20 and 21,
1998. The grievant
was out on sick leave for 19.25 hours. The grievant had only 10 hours of sick leave
was applied toward the 19.25 hours, leaving 9.25 hours which the County deducted from the
grievant's vacation bank. The grievant never requested vacation for the 9.25 hours or any
or unpaid leave. The grievant discovered that 9.25 hours of vacation had been deducted
received her pay check on March 27, 1998, and the grievant then filed the instant grievance
forced deduction of vacation time to cover her absence due to illness. The grievance was
The County has had a policy that employes must exhaust all paid leave prior to going
unpaid leave. The previous Health Care Center Administrator, Don Hall, believed that
called in sick and had no sick leave should go on unpaid status for the absence as this was
a punishment. Mr. Hall left the County's employ and Julie Place was the Interim
Michael Thomas became the Administrator in March, 1998. Mr. Thomas noted that there
excessive absenteeism at the Health Care Center which generated as much as $14,000 in
for a two-week period. Mr. Thomas felt that by allowing employes to go on unpaid leave
absence that he would have to cover the absence with someone else and again when the
vacation at a later date, whereas if vacation was required, then the absence need be covered
once. The change in philosophy resulted in employes being required to use vacation rather
unpaid leave and was the genesis of the instant grievance and this arbitration.
The parties stipulated to the following:
Did the Employer violate the collective bargaining agreement
requiring Linda Decker to
use vacation after her sick leave was spent?
If so, what is the appropriate remedy?
ARTICLE 3 MANAGEMENT RIGHTS
. . .
The Employer agrees that all amenities and
practices in effect for a minimum of twelve (12)
months or more, but not specifically referred to in this Agreement, shall continue for the
. . .
ARTICLE 14 VACATIONS
. . .
D. Institutional seniority shall be given
preference in selecting vacation time off.
E. Prior to March 1 of each year, vacation
periods shall be selected by the employees. Selection
of dates shall be by seniority. A vacation schedule shall be prepared and posted by the
or before March 15 of each year. Seniority will not be recognized if vacation periods are
requested by March 1. Changes after March 1 may be made by mutual agreement. Special
consideration shall be given for vacation day changes because of unusual circumstances.
. . .
ARTICLE 23 LEAVES OF ABSENCE
A. Extended Illness and Disability
1. Length of Leave:
Employees for prolonged illness or disability due to injury shall be granted
an unpaid leave of absence for up to twelve (12) consecutive months.
. . .
Leaves: Unpaid leaves of absence in excess of thirty (30) days
duration, for reasons
other than those specified above may be granted by the Personnel Committee up to a
amount of time of one (1) year. Such leave may be extended for up to one (1) additional
approval of the Personnel Committee. The Administrator may authorize leaves of absence
for up to
ten (10) working days; the Institutions Committee may authorize leaves up to thirty (30)
requests for leaves of absence shall be submitted in writing to the Administrator as soon as
for a leave is known, but in no event later than thirty (30) days prior to the date the leave is
POSITIONS OF THE PARTIES
The Union contends that the County seeks to impose a policy which changes a
past practice of allowing unpaid leave when sick leave has been exhausted. It asserts the
imposes forced vacation without regard to an employe's planned vacation usage, whether or
is already scheduled and without the employe's consent. It submits that this violates the
requirement of mutuality in changing vacation scheduling. It argues that the County's actions
the employe of vacation at the employe's selection and purpose.
It notes the practice has been to allow employes to take unpaid leave after exhausting
sick leave for short periods of time. The Union maintains that the practice should be allowed
continue as forcing employes to take vacation violates Article 14, C., D., E. and H. It seeks
restoration of vacation deducted from employes who called in sick, after sick leave was
and the employes made whole.
The County contends that it did not violate the collective bargaining agreement when
applied available benefits to cover the grievant's absence from work. It points out that the
posted for guaranteed schedule of 80 hours of work per pay period and this meant that she
expected to be at work for those 80 hours or cover these hours in the form of authorized
including sick leave, vacation leave and holiday leave. It notes that the contract permits
absence to be approved by the County in certain circumstances but nothing authorizes an
to be absent without approved leave. The County argues that it properly applied 9.25 hours
vacation to cover the grievant's full-time employment obligation. It observes that although
grievant told the County she was sick, she did not ask to apply sick leave, vacation pay or
benefit to cover her absence and did not request she be granted unpaid leave. It claims the
treated her absence from work as an implied request that the County apply available benefits
her obligation to account for her full-time schedule. It asserts that it believed that the
not intend to abandon her position so it applied 9.25 hours of vacation to cover her absence.
The County rejects the Union's argument that the language of Article 14, E. prevents
County from imposing the vacation leave because the grievant did not request it. It cites St.
County, Case 134, No. 51317, MA-8569 (unpublished, Bielarczyk, 1995) in support of its
position that the County can deduct vacation to cover an employe's absence despite language
allows an employe a choice over the use of paid time. It argues that
unpaid leave is not available until paid leave has been exhausted and thus it was
justified in treating
her absence as an implied request and in applying available paid benefits to cover her
The County contends that if it did violate the agreement, the appropriate remedy is to
to the grievant 9.25 hours of vacation and to deduct 9.25 hours of pay and the County would
the right to take such disciplinary action as is appropriate to address this unapproved
County concludes that it has not violated the agreement and the grievance should be denied.
The Union rejects the County's claim that the grievant is asking to take leave without
whenever she wants to because this ignores that there is no contention that the grievant was
It notes that the County admits that the grievant called in sick and had left work due to
asserts that the grievant was not just asking to take a day off. It observes that the County
that the grievant never requested vacation, yet treated her call in as an implied request for
which was a departure from past practice where the time off was without pay.
The Union argues that the County cannot rely on its new policy as the contract
restrictions on the use of vacation which cannot be unilaterally contradicted by policy. It
that after March 1, the County cannot change the vacation schedule and pay outs must be
in writing by the employe. It cites Brown County, Case 614, No. 55344, MA-9988 (Shaw,
for the proposition that restrictions in the collective bargaining agreement do not allow an
to impose the use of vacation under the Family and Medical Leave Act. It argues that after
exhausting sick leave, employes have been allowed to call in sick on a day-by-day basis for
sequences and have not been required to use vacation, especially when employes have not
notified that tolerance of this practice has ceased.
It notes that the contract does provide for leaves of absence under Article 23, A. and
submits that the County failed to require strict compliance with these provisions such that it
clear where short-term leave belongs. It observes that for many years the County did not
medical certification or a written request. It states that the County cannot rely on this Article
the principle of estoppel by acquiescence.
The Union distinguishes the case cited by the County, St. Croix County, above,
there was no past practice and that was a case of first impression whether a deduction could
for a double shift from PTO. It maintains that reliance on this case is totally unwarranted.
The Union also notes that the County's threat of discipline evinces a hostile attitude
any case, no discipline is warranted. The Union concludes that the record demonstrates that
County violated the agreement and it should restore any vacation deducted from employes
in sick and make them whole.
The County contends that the Union's "past practice" argument overreaches and
contract language and management's rights. It observes that the Union has asserted that the
must continue to permit employes to take unpaid leave without exhausting paid leave because
done so in the past and the Union claims employes have the right to be off work without
leave during brief absences after sick leave has been exhausted. The County submits that the
argument reaches well beyond the stipulated issue and must be dismissed. It claims that the
argument ignores Article 23 of the parties' agreement. It asserts that Article 23, H. governs
of short duration in that it states "The Administrator may authorize leave of absence for up
to ten (10)
working days." It insists that permitting an unpaid leave of a few days' duration is solely
Administrator's determination. It submits that there is no binding past practice but rather the
of discretion reserved to management does not establish a binding past practice just because
to exercise it in the same fashion. The County concedes that although the prior
permitted employes to take leave without pay, that was pursuant to his discretion under
H. and the present Administrator can exercise his discretion in a different manner where he
determined that the County's legitimate business interests justify such a change. It maintains
exercise of discretion was neither arbitrary nor capricious but a proper exercise of the
discretion under the contract.
The County alleges that the Union's claim of a violation of Article 14, E. overlooks
as well as the relevant language. It points out that Article 14, E. states that "changes in the
schedule are to be made by mutual consent," and the grievant made no request or agreement
change her vacation schedule. The County submits that the Union ignores the fact that the
acted in direct response to the grievant's failure to fulfill her contractual obligation to work
scheduled hours. It states that she failed to work the hours she was scheduled and thus
change the work schedule and the County merely paid her from sick leave and vacation. It
the Union's assertion is the same as that rejected in St. Croix County, supra. Besides, the
notes that the contract provides for vacation changes because of unusual circumstances and
existed due to the grievant's failure to work when scheduled without enough sick leave to
absence, her failure to request any kind of leave to cover this absence and if she had, it
within the Administrator's discretion to grant or deny the leave and it is unlikely that the
Administrator would grant such a leave if the grievant had paid leave available. It contends
grievant agreed to changes
in her vacation schedule when she decided not to come to work so the mutuality
Article 14, E. has been met. The County observes that the Union's references to Articles
14, C. and
14, D. are irrelevant and to 14, H. is misplaced.
The County insists that the Union's proposed remedy is inadequate. It admits that the
grievant would be entitled to have her leave restored if a remedy is required, but she must
money paid out for the leave otherwise she would receive a windfall. It states that if there is
remedy, it should be as stated in the County's brief in chief.
The County concludes that for the reasons set out above, it has not violated the
bargaining agreement and the grievance should be denied.
The undisputed facts establish that for a long period of time employes who were sick
for a day or two and had no sick leave balance were not paid for their absence nor was the
charged to vacation or other paid time such as holidays. Although the County had a policy
employes to exhaust all paid leave prior to going on an unpaid leave, the Administrator of
Care Center, Mr. Hall, believed that the loss of pay would be an incentive for employes to
a sick leave balance. This policy which was meant to discourage employes from using sick
other leaves by a loss of pay for the absence also had an unintended benefit to employes in
employe could schedule a vacation pursuant to the contract and that vacation would remain
unless mutually agreed by the employe and the County to change it. An employe could
reservations, etc., with the knowledge that the amount of vacation would remain available to
his/her absence. Thus, there was a different policy at the Health Care Center which was
fostered, encouraged and continued by the County at the Health Care Center until a new
administrator replaced Mr. Hall. The new administrator decided to implement the County's
that unpaid time due to illness must be covered by vacation or other paid leave reasoning that
County had to cover the employes' unpaid time off as well as vacation time off.
The parties rely on entirely different sections of the contract to support their
positions. The County relies on Article 23, Section E., which addresses leaves of absence
pay and which authorizes the Administrator to grant unpaid leaves up to ten days. The
asserts that the former Administrator authorized leaves, whereas the new Administrator will
authorize leaves as long as the employe has paid time available. The Union relies on Article
Section E. related to scheduling vacations which provides that changes in vacation schedules
made only by mutual agreement.
The County's assertion that the prior Administrator granted leaves of absence of short
duration is not supported in the record. The Administrator did not authorize a leave; he
It was meant to be the stick and not the carrot to have employes not use sick leave.
The County's assertion that employes who have exhausted sick leave and are off due to
an implied request to use vacation or other paid time is a legal fiction. The sick employe
because the employe was sick and without a request by the employe to cover it by use of
or other leave, there is no evidence the employe made an implied request, especially in light
past Administrator's policy not to grant vacation or paid time to cover a sick leave absence
the employe had no sick leave balance. More realistically, the employe's notification could
an implied request for leave without pay which has routinely been granted.
The County's reliance on St. Croix County, Case 134, No. 51317, MA-8569
11/95) is misplaced. That case involved a deduction from personal time off for the second
half of a
double shift which the grievant had volunteered to work. After January 1, 1994, the parties'
collective bargaining agreement specifically provided that employes asking for unpaid leave
use all accumulated PTO. The instant contract contains no such provision. Instead, the
implemented a policy which requires the use of any paid time before use of unpaid time.
case appears similar to Allen Dairy Products, 97 LA 988 (hoh, 1991), where the company by
required the use of personal leave to cover an employe's absence. The Arbitrator noted that
employes had significant input into when these days could be taken and the determination of
of those days could not be solely within the discretion of the employer. Here, too, employes
significant interest in when vacation may be taken and this is provided by Article 14 of the
as well as past practice and the use of vacation is not solely within the discretion of the
Article 14 provides for the selection of vacation by seniority and allows the use of vacation
to seniority at times most desired by the employe. The County's new policy defeats the right
employe input into when he/she wishes to take vacation and this amounts to a unilateral
of the contract. Allen Dairy Products, supra, at 992. Thus, the County's deduction of the
grievant's vacation for her absence due to sick leave violated Article 14 of the contract. Any
requiring the use of paid time such as vacation or holidays due to an absence where sick
been exhausted should be addressed in negotiations rather than unilateral implementation by
County. Additionally, the Union's arguments with respect to past practice are persuasive.
no evidence until the instant case that anyone was denied unpaid leave at the Health Care
when they were absent due to illness and did not have a sufficient sick leave balance to cover
absence. As noted by Arbitrator Mawhinney in School District of Mellen, Case 43, No.
MA-10273 (January, 1999), a case involving use of unpaid leave to extend a vacation, the
stated "Giving effect to this past practice promotes the parties' expectations and promotes
in the bargaining relationship. Given the period of time and the number of different
employes would expect leaves to be granted in a consistent manner and not by the personal
preferences of different administrators." This holds true for the instant case and the past
allowing unpaid leave must continue until it is changed in negotiations.
Based on the above and foregoing, the record as a whole and the arguments of
undersigned issues the following
The County violated the collective bargaining agreement by requiring Linda Decker
vacation after her sick leave was spent to cover her absence due to illness. The County
shall, at the
grievant's option, restore 9.25 hours of vacation with the appropriate deduction for wages
the 9.25 hours and it shall cease requiring the deduction of vacation or other paid leave for
due to illness when sick leave is exhausted unless mutually agreed until the practice is
changed at the
Dated at Madison, Wisconsin, this 24th day of March, 1999.
Lionel L. Crowley, Arbitrator