BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL UNION 1667, WCCME, AFSCME,
VERNON COUNTY (VERNON MANOR)
Mr. Daniel R. Pfeifer, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 18990 Ibsen Road, Sparta, Wisconsin 54656-3755, appearing on
behalf of the Union.
Klos, Flynn & Papenfuss, Chtd., by Attorney Jerome J. Klos,
800 Lynne Tower Building, 318 Main Street, P.O. Box 487, LaCrosse, Wisconsin 54602-
0487, appearing on behalf of the County.
Local Union 1667, WCCME, AFSCME, AFL-CIO, hereinafter Union, and Vernon
(Vernon Manor), hereinafter County or Employer, are parties to a collective bargaining
that provides for the final and binding arbitration of grievances arising thereunder. The
requested, and the County concurred in, the appointment of a Commission staff arbitrator to
a pending grievance. The undersigned was so designated on February 23, 1999. An
hearing was held in Viroqua, Wisconsin, on May 12, 1999. The hearing was not
record was closed on June 22, 1999, upon receipt of post-hearing written argument.
The parties stipulated to the following statement of the issue:
Did the County violate the collective bargaining agreement by
requesting the Grievant to
furnish the County with a doctor's slip after one (1) day of illness when the Grievant had no
accumulated sick leave?
If so, what is the appropriate remedy?
2.01 Subject to the provisions of
Contract and applicable law, the County possesses the
right to operate the Manor and all management rights repose in it. These rights include, but
necessarily limited to, the following:
A. To direct all operations of the
B. To establish reasonable work rules
and schedule work;
C. To hire, promote, transfer,
schedule and assign employees to positions within the Vernon
D. To suspend, demote, discharge,
and take other disciplinary action against employees for just
E. To relieve employees from their
duties because of lack of work or other justifiable economic
F. To maintain efficiency of Vernon
G. To take reasonable action
necessary to carry out the functions of the Vernon Manor in
situations of emergency;
H. To take whatever action is
necessary to comply with State or Federal law;
I. To introduce methods or facilities
which are new or exist elsewhere;
J. To change existing methods or
K. To determine the kinds and amounts of services to be
performed as pertains to Vernon Manor
operations; and the number and kinds of classifications to perform such services;
L. To contract out for goods; and
M. To determine the methods,
means, and personnel by which Vernon Manor operations are to
. . .
Leaves of Absence
6.01 Application for leaves of
absence for personal reasons shall be made in writing to the
Administrator. A leave of absence may not be granted for the purpose of taking other
However, the term "other employment" shall not include election to federal, state, county or
municipal offices, or Union duties. The written reply to all such requests will be given
within five (5)
days of receipt.
6.02 A period of up to one (1) year
leave of absence shall be granted due to personal illness
or disability due to accident, provided competent medical proof is furnished when requested
substantiate the necessity for continuing said leave. Additional time beyond the limit herein
prescribed may be granted by mutual consent, provided medical information substantiates the
continued disability of the employee.
6.03 The granting of such leave and
the length of time for such leave shall be contingent upon
the reasons for the request. The Administrator may grant leaves of absence without pay for
(14) days or less without further authority of the Trustees. Leaves of absence for more than
(14) calendar days shall be discussed with the Administrator by the employee, with
the Union if requested. The Administrator shall present such request to the Board of
a recommendation and all such leaves, if granted, shall be for a specific period of time.
6.04 Maternity Leave.
Whenever an employee becomes pregnant, she shall furnish the
Employer with a certificate from her physician stating the approximate date of delivery.
Federal regulations will apply as to use of sick leave for pregnancy.
6.05 The Union shall be notified in writing by the
Administrator in the Department involved
at the time each leave of absence is recommended, denied, or authorized, indicating the
the authorization and at the time of subsequent renewals. Seniority shall continue to accrue
an authorized leave of absence as herein described.
6.06 Jury Duty. When
an employee receives notice of jury duty, he/she shall notify his/her
department head at once. He/She will be given leave for such jury duty and will be made
loss of pay during that period, provided, however, when considered necessary by Vernon
because of the needs of the business at a particular time, or because of the difficulty of
for the particular employee, such employee will cooperate with Vernon Manor in requesting
postponement of such jury duty.
The employee, while on jury duty leave of
absence, will, whenever his/her jury duty does not
conflict with Vernon Manor work schedule, check with his/her immediate supervisor to
whether or not he/she should report for work as he/she might be temporarily available. In
of the employee whole, his/her wages will be computed as if he/she had worked his/her
at straight time and will be paid in full therefor, minus the amount evidenced by this jury
6.07 Military Leave.
An employee directly leaving for service in the Armed Forces of the
United States shall be granted a leave of absence by the Employer in accordance with and by
of the terms of all applicable Federal statutes governing such military leaves of absence. As
such employee receives orders from the Armed Forces to report for military service, he shall
immediately notify his department head in writing so that proper information may be
the employee's personnel file at the Employer's office for future reference.
6.08 Fringe benefits earned shall
be lost when an employee is on leave of absence.
6.09 Employees who are eligible for
leave under the Wisconsin Family and Medical Leave
Law and/or the Federal Family and Medical Leave Act of 1993 will be granted leaves in
with the applicable law.
. . .
8.01 A regular full-time employee
shall be entitled to accumulate a total of not to exceed
ninety-six (96) days of sick leave at the rate of one (1) day per month, with days already
to be incorporated in the ninety-six (96) days. A regular part-time employee shall
leave at the rate of eight (8) hours for each one hundred and seventy-three (173) hours
8.02 All employees shall receive
pay at the regular rate for the number of hours he/she
would have worked when a sick day is taken. All employees shall receive one-half (1/2)
for each one-half (1/2) day taken as sick leave, at the regular rate.
8.03 In order to qualify for such
sick leave, an employee must report to his/her department
that he/she is sick, not later than one (1) hour before the earliest time for which he/she is
to report to work, except when said employee is taken ill after he/she starts his/her day's
sick employee is subject to check to verify the alleged sickness by a County representative.
employee, who, after a proper hearing, if found to have violated any sick leave regulation is
to discipline or discharge to be determined by the department head and designated
to the grievance procedure.
8.04 If any employee is sick for
more than three (3) days, the employee may be requested to
present his/her department head a certificate of illness signed by a licensed physician or
All sick leave forms to be furnished by the Employer and must be executed and returned by
employee upon returning to work.
8.05 An employee, when requested,
shall have the option of using not to exceed two (2) days
per year of employee's existing accumulated sick leave as authorized personal leave provided
of usage has prior written authorization of the Administrator.
. . .
On or about June 1, 1998, Pauline Brueggen, hereafter Grievant, called in sick on a
she was scheduled to work. The County employe that received this call told the Grievant
that the Grievant would be replaced. At the time, the Grievant did not have any
available sick leave. Later that day, the County's Director of Nursing telephoned the
advised the Grievant that she would need to provide the County with a doctor's slip. The
who had intended to see the doctor, provided the County with the requested slip.
Shortly thereafter, the County posted the following:
ANY EMPLOYEE calling in without benefit of an earned sick
day will be considered on
unauthorized leave, and subject to disciplinary action, unless they have been treated by a
who states they are unable to work.
On June 7, 1998, a grievance was filed alleging that the County had violated
Section 8.04, and other provisions of the collective bargaining agreement by requesting that
Grievant provide the County with a slip from the doctor. The grievance was denied at all
thereafter, submitted to arbitration.
POSITIONS OF THE PARTIES
As Retired Administrator Jacobson's testimony demonstrates, prior to 1998, employes
called in sick were given an "absent day." Such employes were not disciplined for an
and were not required to furnish a doctor's slip on the first day of calling in sick without
The County's posted "Sick Days" policy is contrary to a binding past practice.
the County cannot unilaterally establish the policy.
Section 8.04 of the collective bargaining agreement provides the County with the
request a medical certificate of illness if an employe is sick for more than three days.
County may not request such a certificate if the employe is ill for less than three days, as
The grievance should be sustained. The Arbitrator should order the County to cease
desist from enforcing the "Sick Days" policy.
Section 8.04, which addresses situations of more than three days of illness, is not
The instant dispute involves the right of the County to request medical proof of illness from
employe that had exhausted sick leave in order to provide the employe with an authorized,
an unauthorized, leave of absence.
Interim Administrator Jacobson believes that she posted the "Sick Days" notice prior
incident that gave rise to the grievance. Regardless of whether or not this notice was posted
to the incident that gave rise to the grievance, the County's conduct in requesting a medical
illness is within the County's contractual rights.
The record evidence does not support the Union's claim that the County's conduct is
to "past practice." The grievance is without merit and should be dismissed.
The right of the County to establish and enforce the posted "Sick Days" policy is not
that was presented to the undersigned. Accordingly, the undersigned makes no determination
respect to that issue.
As stipulated by the parties, the issue to be decided by the undersigned is as follows:
Did the County violate the collective bargaining agreement by
requesting the Grievant to furnish
the County with a doctor's slip after one (1) day of illness when the Grievant had no
If so, what is the appropriate remedy?
The Grievant and Myrtle Jacobson, the Manor's Interim Administrator from the
February to the middle of July, 1998, agree that Jacobson posted the "Sick Days" policy.
Jacobson believes that this policy was posted in May of 1998, prior to the request that gave
the grievance, she could not recall the exact date of the posting. Nor did the County provide
documentation of the date of the posting.
The County's evidence is not sufficient to rebut the Grievant's testimony that she
being in the room when the policy was posted and that the policy was posted after the date of
request that gave rise to the grievance. The undersigned concludes, therefore, that the posted
Days" policy was not in effect at the time of the request that gave rise to the
grievance. Accordingly, the County may not rely upon this policy to argue that the
reasonably and consistent with its management rights when it requested the Grievant to
County with a doctor's slip.
As the Union argues, Article VIII, Section 8.04, of the parties' collective bargaining
agreement provides the County with the right to request a certificate of illness signed by a
physician or chiropractor if any employe is sick for more than three (3) days. This provision
in the section of the collective bargaining agreement that addresses sick leave benefits. On
in question, the Grievant had exhausted her sick leave benefits. Inasmuch as the Grievant's
did not involve a sick leave benefit, Section 8.04 is not germane.
The Union does not argue, and the record does not establish, that the Grievant
was entitled to, any other type of paid leave. Thus, the Grievant's request on June 1, 1998
The Grievant's right to unpaid leave is governed by Article VI, Sections 6.01, 6.02
of the parties' collective bargaining agreement. Under Section 6.02, the County is required
up to one year's leave of absence "due to personal illness or disability due to an accident,
competent medical proof is furnished when requested to substantiate the necessity for
As the Union argues, the County had not previously requested a doctor's slip from
that called in sick without available sick leave. Contrary to the argument of the Union,
conduct on the part of the County does not give rise to a binding past practice. Nor does it
waive the County's Article VI, Section 6.02, right to request such slips. The reason being
decision to request, or to not request, a medical slip is a choice to be made by management
exercise of its management's discretion. A "practice" that is the product of management's
may be changed unilaterally by management.
It is not evident that the Grievant has been subjected to improper discriminatory
At the time of the incident, the County had a severe staffing problem. Under the
was reasonable for the County to limit leaves without pay to instances of verifiable illnesses.
conclusion that the County's conduct toward the Grievant was not improper discriminatory
is further supported by the fact that, shortly after the request that gave rise to the grievance,
County posted the "Sick Days" policy that was applicable to all bargaining unit employes.
Joan McCauley, a CNA, recalls that, after June of 1998, she was out of sick leave
in sick. According to McCauley, she was not required to provide a doctor's slip. McCauley
stated that nine out of ten times she did bring in a slip. McCauley, however, could not
specific instance in which she did not provide a doctor's slip to the County.
When McCauley voluntarily provided a doctor's slip, the County would have no need
"request" such a slip from McCauley. McCauley's testimony concerning the failure of the
to "request" a doctor's slip from McCauley does not demonstrate that the Grievant has been
subject of improper discriminatory practices.
Moreover, the testimony of the current Administrator establishes that McCauley,
Grievant, receives unpaid leave under the Family and Medical Leave Act. Employes
under the Family and Medical Leave Act have provided the County with competent medical
of the need for such leave. Neither the testimony of McCauley, nor any other record
demonstrates that the Grievant has been the subject of improper discriminatory practices.
The Grievant was absent from work for one day due to illness. Inasmuch as the
exhausted her sick leave, and it is not evident that the Grievant was entitled to use any other
leave, the Grievant's absence from work is governed by Article VI, Sections 6.01, 6.02 and
By requesting the Grievant to furnish the County with a doctor's slip for her absence of one
County acted consistently with rights granted to the County under Section 6.02 of the parties'
collective bargaining agreement.
Based upon the above and foregoing, and the record as a whole, the undersigned
1. The County did not violate the collective bargaining agreement when it requested
Grievant to furnish the County with a doctor's slip after one (1) day of illness when the
no accumulated sick leave.
2. The grievance is denied and dismissed.
Dated at Madison, Wisconsin, this 30th day of June, 1999.
Coleen A. Burns, Arbitrator