BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MONROE COUNTY HIGHWAY
LOCAL UNION NO. 2470
(Grievance of Kurt Schendel)
Mr. Daniel R. Pfeifer, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, on behalf of the Union.
Mr. Ken Kittleson, Personnel Director, on behalf of Monroe
The above-captioned parties, herein "Union" and "County", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Sparta, Wisconsin, on May 27, 1999. The hearing was not transcribed and the parties
filed briefs that were received by June 28, 1999. Based upon the entire record and the
the parties, I issue the following Award.
The parties have jointly agreed to the following issue:
Did the County violate the contract by denying grievant Kurt
Schendel paid sick leave to give
care and attendance to a member of his immediate household and, if so, what is the
This case turns on whether the County violated Article 8, Section 4, of the contract
refused to grant eight (8) hours of combined sick leave to grievant Kurt Schendel after he
Bonnie Backus - his then-live-in companion and now his wife - to a doctor in LaCrosse,
on August 25, 1998, and August 31, 1998, because she does not drive (unless
otherwise stated, all
dates herein refer to 1998.) By refusing to grant the sick leave requested, the County
Schendel to use eight (8) hours of his vacation time to care for Backus, who also is a County
employe. On the August 25, 1998, and August 31, 1998, days in question, her address on
the County was different than Schendel's. Nevertheless, and as I related at the hearing, I
Schendel's uncontradicted testimony that she was a member of his household in August,
The Union asserted in the grievance procedure that sick leave should have been
because Schendel's companion was a member of his immediate household, thereby qualifying
sick leave pursuant to Article 8, Section 4, of the contract which states:
. . .
Section 4. Sick leave will be granted when an
employee is required to give care and attendance
to a member of his/her immediate family (spouse, child or other member of the employee's
household) up to a maximum of sixteen (16) hours per year. The hours, if needed, shall be
from the annual accrual of sick leave of the employee.
. . .
The County denied the grievance on the ground that Schendel was not entitled to sick
because the term "immediate family" in Article 8, Section 4, only refers to legal
relatives and because
it in the past has only granted sick leave to take care of an employe's legal relatives.
In this connection, County Personnel Director Ken Kittleson testified that in Article
4, mirrors the County's long-standing Personnel Policy; that the County, pursuant to said
never granted sick leave to take care of someone who is not a legal relative; and that another
bargaining unit represented by the Teamster's union has agreed to the County's
Highway Commissioner Jack Dittmer testified that the County Highway Department
granted the sick leave sought here. However, he added on cross-examination that he is
any instance of where employes have ever sought sick leave to care for someone who is not a
POSITIONS OF THE PARTIES
The Union claims that the County violated Article 8 of the contract when it refused to
Grievant Schendel's request for sick leave because the contract clearly and unambiguously
for this benefit; because the County in past negotiations was unable to obtain contract
supporting its interpretation here; and because no past practice supports the County's claim.
Union therefore asks that Schendel be credited with "one (1) day of vacation and deduct one
of sick leave."
The County contends that Article 8 limits sick leave to the legal members of an
"immediate family"; that past practice supports its position; and that said practice is
its personnel policies. The County therefore claims that "Under the Union's interpretation,
single highway employees could rent a house together and if one called in sick, the other two
also take off using sick leave."
Article 8, Section 4, is not a model of clarity. That is why the Union can plausibly
the term "immediate family" includes "other members of the employee's
Here, since Schendel's then live-in companion was a member of his "immediate household",
grievance would have to be sustained if this interpretation is adopted. On the other hand, it
as plausible that the term "immediate household" refers back to the term "immediate family"
it is an example of that term and that, as a result, no sick leave can be granted
unless members of the
"immediate household" are also part of an employe's immediate
family. Given these plausible
constructions , I conclude that the contract is ambiguous on its face and that it thus is proper
consider parol evidence such as past practice and bargaining history.
As for past practice, there is no record evidence that any employe was ever granted
time off to care for someone in an employe's "immediate household" who was not also a
As to bargaining history, the County in 1997 and 1999 proposed language in contract
negotiations that expressly mirrored the interpretation it advances here by inserting the term
who is a" before the word "member" (Joint Exhibits 2 and 3) so that Article 8, Section 4,
"Sick leave will be granted when an employe is required to give
care and attendance to a relative
who is a member of his/her immediate family. . ."
While the County claims that its prior bargaining proposals only represented a
"clarification of long-standing practice", it is clear that the Union never agreed to those
Nevertheless, there is no proof that: (1), the Union in prior negotiations
ever proposed that
sick leave be granted to take care of someone who is in an employe's "immediate household"
who is not a legal relative; and, (2), the County never agreed to any such a
proposal. Hence, this
benefit was never expressly bargained or obtained at the bargaining table when this language
came into the contract in 1993.
In this connection, Kittleson testified without contradiction that the County's policy
1993 was to limit the grant of sick leave to care for an employe's legal relative. This
either known or should have been known to bargaining unit members when this benefit was
negotiated in 1993. That being so, it was incumbent upon the Union to obtain clear contract
granting this benefit. That, it did not do.
Hence, I conclude that Article 8, Section 4, does not allow an employe to use sick
care for someone who is not a member of his/her "immediate family" as that term is
identified in the
Based on the above, it therefore is my
1. That the County did not violate the contract by denying grievant Kurt Schendel
sick leave to give care and attendance to a member of his immediate household.
2. That the grievance is therefore denied.
Dated at Madison, Wisconsin this 19th day of July, 1999.
Amedeo Greco, Arbitrator