BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
THE LABOR ASSOCIATION OF WISCONSIN,
THE CITY OF MEQUON
(Diane Porter Grievance)
Mr. Patrick J. Coraggio, Labor Consultant, Labor Association
of Wisconsin, Inc., on behalf of the Association.
Michael, Best & Friedrich, by Mr. Robert Mulcahy, on behalf
of the City.
The above-captioned parties, herein "Association" and "City", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Mequon, Wisconsin, on January 12, 1999. The hearing was transcribed and the parties
filed briefs and reply briefs that were received by March 29, 1999. Based upon the entire
the arguments of the parties, I issue the following Award.
Since the parties were unable to jointly agree on the issues, I have framed them as
1. Is the grievance arbitrable?
2. If so, did the City violate the contract when it
conditioned long-term disability coverage to
grievant Diane Porter on her paying part of the retroactive premium demanded by the City's
insurance carrier and, if so, what is the appropriate remedy?
Grievant Diane Porter, an Administrative Secretary I, was hired as a part-time
1990 and became a full-time employe in August, 1995, at which time she became eligible for
benefits, including long-term disability insurance ("LTD"). Porter testified that no one on the
behalf then told her that she was eligible for LTD insurance.
Porter near the end of 1997 asked about such coverage and former Acting Human
Manager Carol L. Wichmann then asked the City's insurance carrier, United Wisconsin
Group ("UWG"), whether Porter was eligible to join the disability plan. UWG initially said
because Porter had a pre-existing medical condition, but ultimately relented and said yes only
Wichmann made repeated pleas on Porter's behalf. UWG, however, placed a condition on
joining the plan and waiving its existing condition requirement: it insisted that back
premiums for the
last 14 months in the amount of $558.61 had to be paid in order for Porter to receive
coverage. Since the contract at Section 20.06 states that employes must pay part of the
disability premium, the City decided that Porter should pay part of the retroactive premium
by UWG which totaled $558.61.
Wichmann testified she first discussed this proposal with Porter on February 16, 1998
otherwise stated, all dates herein refer to 1998), to which Porter reportedly replied words to
effect: "I'll get back to you on that. I'll let you know about it." About a half hour later
to Wichmann, Association Representative Kevin Naylor telephoned Wichmann to say that
not happy about paying any back premiums. Porter, on the other hand, testified that her
with Wichmann occurred on February 18. Wichmann informed Association Representative
J. Coraggio of the City's proposal by letter dated February 19. The record is unclear as to
Porter first saw this letter.
Wichmann subsequently spoke to Porter on February 26, at which time Porter agreed
such payment in the amount of $209.44 which was to be paid through monthly payroll
$20.94 per month. Porter testified she so agreed because that was the only way she could
disability coverage. On February 28, she filed the instant grievance. Porter subsequently
eligible for disability coverage on March 1.
POSITIONS OF THE PARTIES
The Association asserts that its grievance is timely because: (1), the ten-day filing
provided for in the contract did not start to run until after Wichmann spoke to Porter on
and (2), the grievance in any event was filed within ten days after Wichmann wrote to
Representative Coraggio on February 19. As to the merits, the Association contends that the
failed to offer Porter LTD insurance "in a timely fashion"; that the City has failed to prove it
such insurance to Porter when she became a full-time employe; that the City had an
obligation to offer
such coverage at that time; and that Porter therefore should be repaid the $209.44 she was
to pay for retroactive coverage.
The City, in turn, maintains that the grievance is untimely because it was not filed
days after Porter first learned in 1997 that she did not have LTD coverage and because it
filed within ten days after Wichmann spoke to Porter and Naylor on February 16. The City
asserts that the grievance is without merit because "the remedy requested in the original
has already been provided"; because it has fulfilled all of its contractual obligations; and
Porter herself agreed on February 26 to help pay for the retroactive payment demanded by
Turning first to whether the grievance was timely filed, Article IV of the contract,
"Grievance Procedure", states:
ARTICLE IV GRIEVANCE
Section 4.01: The
procedure in this Article shall apply only to grievances involving
the interpretation or application of the specific provisions of this Agreement. The grievance
shall be initiated within ten (10) working days of the incident or within ten (10) working days
time that the aggrieved became aware of or should have been aware of the incident. Any
the Association or the Association, may be a grievant. All grievances are required to be in
and shall state the specific provision or provisions of the Agreement alleged to have been
All grievances shall be processed as follows:
Step 1: The grievant
and/or the Association representative shall present the
grievance in writing to the Department Head. The Department Head shall respond in writing
within ten (10) working days of receiving the written grievance.
Step 2: If the grievant
is not satisfied with the reply of the Department Head
or if the Department Head does not respond in a timely manner, the grievance may be
appealed to the City Administrator or designee within ten (10) working days of the written
response in Step 1 or within ten (10) working days of the date that the response was due.
The City Administrator or designee shall submit a written determination of the grievance to
the grievant within ten (10) working days of receiving the grievance.
3: If the Association is not satisfied with the written decision of the
Administrator or designee, the matter may be submitted to arbitration.
. . .
Section 4.04 Time
Limits: All time limits in this grievance procedure may be modified
by mutual agreement of the parties. Working days referred to herein shall be defined as
through Friday excluding Saturdays, Sundays and Holidays. Any grievances not started
time limit set forth above shall be invalid.
. . .
Contrary to the City's claim, I find that the grievance is timely because it is not at all
when Wichmann first discussed the City's proposal with Porter, as Wichmann testified it was
February 16 while Porter said it was on February 18. In any event, it was filed within the
working days after Wichmann spoke to Porter on February 26 to fully explain the City's
For while it is true that Wichmann earlier wrote to Coraggio on February 19, Section 4.01,
states that a grievance can be filed either "within ten (10) working days of the
incident" or "within
ten (10) working days of the time that the aggrieved became aware or should have been
aware of the
incident." Here, since the City acknowledges that Wichmann "fully" made Porter aware of
situation on February 26, the February 28 grievance was filed within ten (10) working days
full awareness and "incident".
Turning now to the merits, this case turns on Section 20.05 of the contract entitled
Term Disability" and Section 20.06 of the contract, entitled "Premium Contributions", which
in pertinent part:
Section 20.05 Long Term
a) The City will maintain a
Group Long-Term Disability Insurance contract to provide
protection for the City's regular full-time employees.
b) Officers of the City will enter into a Long-Term
Disability Insurance Contract with a carrier
selected by the City.
c) Coverage provided by the
contract in a certificate published by the carrier, which will be
distributed to covered employees. Briefly, the coverage will include: A monthly benefit of
forty percent (40%) of monthly salary not to exceed two thousand five hundred dollars
($2,500), not coordinated with payments from Worker's Compensation or Social Security,
employees will be eligible for this coverage on the first of the month following thirty (30)
of service, there is a waiting period of forty-five (45) consecutive calendar days, or until the
expiration of all but ten (10) days of benefits under the City's paid illness/injury leave
provided for in Article XVIII of this Agreement, whichever is later, and
benefits are payable
for up to two (2) years for disabilities due to sickness and up to age sixty five (65) for
d) The Long-Term Disability
Insurance master contract controls coverage limits and the carrier
has final control on eligible benefits.
Premium Contributions: The Employer shall pay forty percent (40%) of
the premium for all employees enrolled in the long-term disability insurance and the
pay the remaining sixty percent (60%). The City of Mequon shall pay monthly Long Term
Insurance premiums as stated above for the entire term of this agreement or until a new
is negotiated to replace this one.
. . .
This language plainly requires the City to offer LTD coverage to employes after they
been full-time employes for 30 days. Here, Porter testified without contradiction that no one
about this benefit when she became a full-time employe in August, 1995. While the City
she was told, there are no documentary records supporting the City's claim and no City
ever came forward and testified that he/she ever related said information to Porter at that
(Wichmann testified this problem can be avoided in the future through the simple device of
employes sign a check-off sheet which lists such benefits.) Absent any such direct evidence,
Porter's testimony that the City never gave her this information.
But having said that, it also is true that Porter could have learned of this benefit if
read the contract. By failing to do so, and by not complaining about this situation until the
1997, she also shares some of the responsibility for her lack of LTD coverage before then.
Wichmann went to great lengths to secure such coverage for Porter after UWG initially
down. Indeed, it is questionable whether Porter today would be insured but for Wichmann's
which can only be lauded.
Furthermore, the City has provided Porter with a considerable benefit: Because of
Wichmann's efforts, Porter is now covered for her pre-existing condition for the rest of her
is something that would not have happened if Porter initially signed up for disability
she first became eligible in September, 1995, and if she became disabled because of that
that period. That is why Wichmann testified: "She's already out of the woods." Moreover,
were no retroactive premiums, Porter would not have been covered for any total disability
for all of
1998. Hence, any error by the City in this matter has been more than rectified.
Given this background, I find that the City acted reasonably in having Porter pay part
retroactive payment demanded by UWG as a condition precedent to insuring Porter for
Hence, it is my
1. That the grievance is timely.
2. That the City did not violate the contract when it conditioned long-term
coverage to grievant Diane Porter on her paying part of the retroactive premium.
3. That the grievance is hereby denied.
Dated at Madison, Wisconsin this 21st day of June, 1999.
Amedeo Greco, Arbitrator