BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GRANT COUNTY EMPLOYEES UNION
LOCAL 918, AFSCME, AFL-CIO
(Cindy Kratcha Grievance)
Mr. David White, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, on behalf of the Union.
Mr. Frank A. Matel, Personnel Director, on behalf of the
The above-captioned parties, herein "Union" and "County", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Lancaster, Wisconsin, on June 10, 1999. The hearing was not transcribed and the parties
subsequently filed briefs that were received by June 28, 1999. Based upon the entire record
arguments of the parties, I issue the following Award.
The parties have agreed to the following issue:
Did the County violate Article 13 of the contract when it failed to
make payback sick leave
payments to certain part-time employes in 1999 and, if so, what is the appropriate remedy?
This case turns on whether the County violated Article 13 of the contract when it
failed to pay
grievant Cindy Kratcha and certain part-time employes in the County's Center on Aging for
their unused sick leave. The County had made such payment to them in 1996, 1997 and
other part-time County employes, including those in any other AFSCME bargaining units,
Donna Haines, the Director of Finance at the County's Orchard Manor nursing
testified that part-time employes at that facility, who are represented by AFSCME, since
have not been paid for unused sick leave unless they accumulate 192 hours of unused sick
this practice has "never been questioned"; that the pertinent contract language relating to this
has not changed throughout that time; and that employes at that facility have been paid
the County's policy which does not pay part-time employes for their unused sick leave unless
too, like full-time employes, have 192 hours accumulated in their sick leave bank.
Deb Udelhoven, an Administrative Assistant in the County's Health Department,
she oversees the sick leave buyback plan; that the plan started in about 1982, before the
on the scene; that it has always been administered in the same way since then; that, "We do
as Donna [Haines] does" in not paying part-time employes for their unused sick leave unless
accumulate 192 hours; that she "real informally" has told part-time bargaining unit employes
the County's policy; and that, "They know they are not eligible."
On cross-examination, Udelhoven stated she could not recall the specific names of
part-time employes who were denied sick leave payouts and that she does not know how the
payout plan is applied to the County's Courthouse employes.
POSITIONS OF THE PARTIES
The Union claims that the County violated Article 13 of the contract by not making
sick leave payments to certain part-time employes who had not accumulated 192 hours of
leave. It argues that the term "day" in Article 13 must be prorated for part-time employes to
four (4) hours so that they are entitled to a buyback of their sick leave if they accumulate 96
of unused sick leave; that a past practice supports its position; that evidence from other
units is "not relevant"; that evidence from the County's Health Department "should be given
weight"; and that "the practice of the parties is not the result of error."
The County asserts that its denial of the sick leave payback was in accord with the
that the "intent and past practices" of the parties support "defining a 'day' as eight hours"
the four hours claimed by the Union; and that any prior payouts "were made in error and
be considered a binding past practice."
This case turns on Article 13 of the contract, entitled "Sick Leave", which states in
. . .
13.02 Accrual: Sick leave shall accrue at the rate
of one (1) day per month for full-time
employees. Regular part-time staff shall accrue sick leave at a rate proportionate to the
time worked; for example, half-time staff would accrue one-half (1/2) day monthly.
13.03 Pay Back:
A) Employees will be paid for all scheduled days off for
illness or injury provided they
have successfully completed their initial probationary period, but not to exceed the amount
When and if an employee maintains at least 24 days for a 12 month period, beginning
January 1, the
employee at the end of the 12 month period may be paid for half of the sick leave not used
accrued during that 12 month period. The maximum number of days paid at the end of a 12
period will not exceed six (6) days. The remaining days shall be retained in the employee's
B) One-half (1/2) of the accumulated
sick leave shall be paid to the employee upon
retirement at age 62 or older. In the event the employee retires prior to age 62 with an
retirement benefit, the employee shall receive payment for one-half (1/2) of the accumulated
I find that Article 13 is unambiguous on the question of whether part-time employes
entitled to sick leave payback if they have more than 96 hours of accumulated sick leave but
192 hours, as this language, on its face, does not expressly address this question and the
claims by both parties show just how unclear this language really is.
The Union also relies on Article I, Section 1.03(B), the contractual recognition
states that all regular part-time employes are entitled to "all fringe benefits as provided in
Agreement on a pro-rata basis except that insurance benefits shall not be prorated." Here
part-time employes are granted this benefit on a pro-rata basis
provided that they have 192 hours of
accumulated sick leave in their sick leave bank. This dispute thus centers on whether
must meet this threshold requirement rather than whether, if eligible, they
receive this benefit on a
Article 14, Section 14.05 of the contract, entitled "Requirements", for example,
eligibility principle because it states that holidays will be granted only if employes "work
scheduled work day before and after the holiday, or the day scheduled as the holiday, unless
leave." If part-timers meet this eligibility requirement, they receive holiday pay.
The Union certainly has advanced a persuasive case why the County's eligibility
should be changed so that sick leave can be bought back if part-timers have more than 96
unused sick leave. For since the purpose of the payback program is to encourage attendance
(at least from the County's perspective), one would think that it would be in the County's
own self-interest to encourage, to the greatest extent possible, its part-time employes to not
use their sick leave
on the same footing as the County's full-time employes as far as working the same number
But here, by making part-time employes work twice as long on their half "days" to reach the
eligibility requirement set for full-time employes, its current policy does not do that. To
perfect equality, the 192 hour threshold thus should be reduced to 96 hours for part-time
just as contended by the Union.
But, what should happen on this issue is a separate question of what the contract
whether the contract is clear and unambiguous. Absent any language which expressly refers
eligibility question, I find that the contract is ambiguous and that it thus is appropriate to
parol evidence such as bargaining history and past practice to determine how this language
applied in the past.
As for bargaining history, both parties stipulated at the hearing that there never was
specific discussion of this issue in past contract negotiations. As a result, the Union never
obtained the benefit it seeks here at the bargaining table.
As for past practice, Director of Finance Haines and Administrative Assistant
testified about the County's unbroken past practice of not granting this benefit to any
than those employed in the Center on Aging and then only for the last few years.
testified that such benefits have not been paid since about 1979 and
Udelhoven testified that they have not been paid to any other part-time employes since
While the Union asserts their testimony should be disregarded, I view it as an invaluable aid
that even other part-time employes in other AFSCME-represented bargaining units do not
That is why this benefit need not be granted to any part-time employes other than
employed at the Center on Aging.
However, a past practice has existed of making such payout to certain part-time
employed at the Center on Aging for the last several years. While the County argues that
payouts were made in error, those employes nonetheless rightly came to view such payments
economic benefit. That being so, the County is required to continue those payments to those
employes for the duration of the contract, as they have become part of their established
wages. If the
County wants to stop those payments to those employes, it must bargain over that issue with
Union at the contract's duration.
In light of the above, it is my
1. That the County violated Article 13 of the contract when it failed to make
sick leave payments to certain part-time employes employed at its Center on Aging in 1999
accumulated more than 96 hours of unused sick leave.
2. That to rectify that contract violation, the County shall make whole those
by paying them for their unused sick leave days.
3. That to resolve any questions arising over application of this Award, I shall
jurisdiction for at least sixty (60) days.
Dated at Madison, Wisconsin this 11th day of August, 1999.
Amedeo Greco, Arbitrator