BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TOWN OF MINOCQUA
LAW ENFORCEMENT EMPLOYEE RELATIONS
DIVISION (LEER) OF THE
WISCONSIN PROFESSIONAL POLICE ASSOCIATION
(WPPA) FOR AND ON
BEHALF OF THE MINOCQUA PROFESSIONAL POLICE ASSOCIATION
Mr. William Korrer, Jr., Town Chairperson, P.O. Box 168,
Minocqua, Wisconsin 54548-0168, appearing on behalf of the Town of Minocqua.
Attorney Richard Thal, 340 Coyer Lane, Madison, Wisconsin
53713, appearing on behalf of the Wisconsin Professional Police Association.
The Town of Minocqua, a Wisconsin municipality, hereinafter referred to as the
or the Town, and the Wisconsin Professional Police Association (WPPA), hereinafter
referred to as
the Association or WPPA, are parties to a collective bargaining agreement which provides
and binding arbitration of grievances arising thereunder. The Association made a request,
Town concurring, that the Wisconsin Employment Relations Commission designate a
or member of its staff to hear and decide a grievance filed by the Association. The
so designated. The hearing was not transcribed, the parties filed post-hearing briefs, and the
was closed on March 22, 1999.
On the evening of October 21, 1998, the Grievant herein, Kari Hanek, employed as a
dispatcher by the Minocqua Police Department, learned of the death of her
Hanek, off-duty at the time, immediately telephoned Lieutenant Berray to request funeral
attend her great-grand-father's funeral.
Lieutenant Berray was temporarily in charge of the Department due to the vacation of
Chief Raube. While still on the phone with Ms. Hanek, Lieutenant Berray read aloud the
leave provision of the parties' Collective Bargaining Agreement. He concluded that a
great-grandparent would be considered a "grandparent" under the parties' Agreement.
advised the Grievant he would authorize funeral leave for her as soon as she knew when she
The following day, Dispatcher Hanek requested funeral leave for October 24 and 25.
Lieutenant Berray authorized the requested leave, and Ms. Hanek subsequently utilized the
On November 2, 1998, the Grievant was advised that the funeral leave authorization
her by Lieutenant Berray had been overruled and withdrawn by Chief Raube who had by
returned from his vacation. Chief Raube's decision was based on his conclusion that
Berray had erred in his interpretation of the funeral leave provision contained in the parties'
Bargaining Agreement and that the term "grandparents" listed therein did not include
Dispatcher Hanek was directed to cover her absence on October 24 and 25 caused by
attendance at her great-grandfather's funeral with two days from her "holiday bank."
On November 3, 1998 Dispatcher Hanek filed the instant grievance.
Dispatcher Hanek has since resigned her employment with the Town of Minocqua for
personal reasons unrelated to this matter.
The parties do not agree as to the statement of the issue.
The Town suggests the following:
Did the Town violate the Collective Bargaining Agreement of the
Parties when the Police Chief
corrected an erroneous contractual interpretation of a subordinate lieutenant? If so, what is
The Association proposed a different wording:
Given that the Grievant was told that she would receive paid
funeral leave for October 24 and
25 (1998), did the Town violate the Collective Bargaining Agreement when it later denied
funeral leave? If so, what is the appropriate remedy?
I define the issue as:
Whether the Town violated the Collective Bargaining Agreement
of the parties by the Police
Chief's rescission of a funeral leave previously granted to an employee after the leave had
already taken? If so, what is the appropriate remedy?
. . .
Section 9.03: Funeral Leave:
Employees shall be allowed three (3) work days for funeral
leave in the event of death in the Employee's immediate family (spouse, children, mother,
mother-in-law, father, father-in-law, sister, brother, or the grandparents of the Employee or
spouse). One (1)
workday shall be allowed in the event of a death of a brother-in-law or sister-in-law. To be
for funeral leave, the Employee must notify the Chief of Police and must attend the funeral.
leave shall be paid at the regular daily rate of the Employee.
POSITIONS OF THE
The Town urges that the grievance be denied. It believes Section 9.03, Funeral
Leave, is very
specific and clear in defining how much funeral leave may be granted, depending on the
of the employee to the decedent.
The Town asserts that "great-grandparents" are not listed in the definition of
family" set forth in Section 9.03. It cites three WERC arbitration awards regarding funeral
language as supportive of the Town's position: Brown County (Social Services), No. 46974
(Engman, 1992); Para-Professional Employees Association of Brown County Department
of Social Services, No. 53564 (McLaughlin, 1996); City of Racine, No. 45204
1991). The Town further points out that even Webster's New World Compact School
Dictionary, 1995, illustrates the difference between "great-grandparents" and
"great-grandparent," according to Webster's, is a parent of any of one's
In view of the clear funeral leave language contained in Section 9.03 of the parties'
agreement, the Town believes that Lieutenant Berray was mistaken in his interpretation of
language and Chief Raube was correct. The Town argues that "(m)anagement is within its
rescind incorrect decisions made by subordinates." It notes that Chief Raube is the
chief executive officer of the Police Department and the final department authority on
all matters in
policy, operations, and discipline. As such, he can and does take any necessary corrective
because of subordinates' decisions, according to the Town.
In conclusion, the Town reasserts that "great-grandparents" are not listed as a
relative for funeral leave purposes. The Town suggests that if the Association believes
"great-grandparents" should be included in the funeral leave provision of the labor
agreement, the Town
would be willing to negotiate that issue at contract time.
The Association does not argue that the term "grandparents" includes
within the definition of "immediate family" in Section 9.03 of the parties' labor agreement.
Association posits, instead, that the doctrine of equitable estoppel should be applied. In
its view, the Association cites two arbitration awards: Town of Waterford, 68 LA 735
(Connecticut State Board of Mediation, 1977) and Armco, Inc., 86 LA 928 (Seidman, 1985).
In Waterford, supra, the arbitrator estopped a municipality from claiming that its
insurance plan didn't cover peridontic work performed on an employee because the employee
started treatment until he had been advised by the Town's Office Manager that such work
covered by dental insurance. However, the arbitrator allowed recovery of the cost of the
by the employee only to the point where the employee learned that the treatment was not
but continued with it anyway.
In Armco, supra, the grievant started a course of treatment consisting of
acupuncture for his son who suffered from a hearing deficiency. The grievant authorized
treatment only after his Personnel Relations Superintendent and the Company's Administrator
Contractual Benefits had assured him that the cost of the treatment was covered under the
Company's medical plan. Although this turned out to be inaccurate information, the
ordered reimbursement by the Company to the employee of the cost of the acupuncture
the grounds of detrimental reliance by the employee on assurances of Company
The Town urges that Section 9.03, Funeral Leave, is very specific in
relatives whose funerals employees may receive leave time to attend. Significantly, in this
Association makes no contractually based claim for funeral leave.
Indeed, I am satisfied that there is no contractually mandated benefit entitling
funeral leave to attend the funeral of a great-grandparent. The issue here, however, does not
focus on what appears to have been an erroneous contractual interpretation by Lieutenant
Nor is the issue whether Chief Raube is permitted to correct the error of a
issue, instead, centers solely on the timing of the action of Chief Raube in rescinding
Berray's funeral leave authorization. Specifically, the inquiry here is whether an erroneous
contractual interpretation by the Employer can be corrected after an
employee has taken action in
reliance on that interpretation.
The Association urges the application of the doctrine of equitable estoppel. In
"(t)he estoppel doctrine focuses on the conduct of the parties. The elements of estoppel are:
action or non-action, (2) on the part of one against whom estoppel is asserted, (3) which
reasonable reliance thereon by the other, either in action or non-action, and (4) which is to
his or her
detriment." Milas v. Labor Association of Wisconsin, 214 Wis. 2d 1, 11- 12, 571 NW 2d
(1997), citing Department of Revenue v. Moebius Printing Co., 89 Wis. 2d 610, 634, 279
2d 213 (1979).
The doctrine is used not only by the courts, but by labor arbitrators as well. Town
Waterford, 68 LA 736, 737 (Conn. State Bd. of Mediation and Arbitration, 1977). Under
proper circumstances the doctrine may be applied to public employers. Elkouri &
Arbitration Works, 5th Ed., Waiver & Estoppel, 579, BNA,
In the instant matter, the initial action was Ms. Hanek's funeral leave authorization
Lieutenant Berray. Lieutenant Berray, of course, was acting as an agent for the Town
estoppel is here asserted.
Neither party denies that the grievant relied on Lieutenant Berray's action, or that her
was reasonable. The facts indicate that after learning of the death of her great-grandfather,
the absence of the Police Chief, Ms. Hanek called Lieutenant Berray to inquire whether she
be entitled to funeral leave. Lieutenant Berray, of course, was in charge of the Police
during the Chief's vacation absence, and had both the apparent and actual authority to act in
Chief's place. While on the phone with Ms. Hanek, Lieutenant Berray read aloud the article
pertaining to funeral leave. He concluded that the term "grandparents" included
and advised Ms. Hanek that she was entitled to funeral leave to attend the funeral of her
great-grandfather. Under these circumstances, I believe Ms. Hanek's reliance on this
It was also to her detriment. For when Chief Raube returned from vacation and
funeral leave authorization, Ms. Hanek (who had already taken the two-day funeral leave)
required to cover the two days by giving up two days from her holiday bank.
In my opinion, this sequence of events and circumstances meet the qualifications for
application of the doctrine of equitable estoppel.
This is not to say that Chief Raube could not have rescinded the erroneous funeral
authorization before the leave had been actually taken by Ms. Hanek. 1/
Certainly, as the Town
argues, the Chief has the right and responsibility to correct an erroneous interpretation by a
subordinate who had been temporarily acting in his place. Had that circumstance occurred
doctrine of equitable estoppel would not apply. It could not, for any reliance at that point by
Hanek on the then discredited and invalid authorization of Lieutenant Berray could not be
reasonable, but rather at her peril.
Each of cases cited by the Town are consistent with the Town's suggested
interpretation of its
funeral leave provision in this matter. In Brown County (Social Services),
supra, the arbitrator
found that funeral leave entitlement did not occur for the death of a "step child" because
not included in the contractual definition of "immediate family." In
Association of Brown County, supra, the arbitrator
denied funeral leave to a grievant who
contended that "immediate family" included her "step-mother-in-law," although this term was
included in the definition of "immediate family." In City of Racine,
supra, the arbitrator dismissed
the grievance of an employee who wanted funeral leave in connection with the death of his
grandfather because "grandfather-in-law" was not included in the contractual definition of
family. However, none of these cases offered fact situations in which funeral leave was
being first granted and actually taken by the employee.
The grievance is sustained. Inasmuch as the grievant is longer employed by the
Minocqua, the Town is directed to make the grievant whole by payment to her of her regular
pay plus benefits for the two days from her holiday bank she was required to forfeit when
authorization for a two-day funeral leave was rescinded.
Dated at Madison, Wisconsin this 11th day of June, 1999.
A. Henry Hempe, Arbitrator