BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LAKEVIEW EMPLOYEES LOCAL 1403,
WCCME, AFSCME, AFL-CIO
Mr. Daniel R. Pfeifer, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. Robert B. Taunt, Personnel Director, LaCrosse County,
appearing on behalf of the County.
Lakeview Employees Local 1403, WCCME, AFSCME, AFL-CIO, herein the Union,
requested the Wisconsin Employment Relations Commission to designate a member of its
staff as an
arbitrator to hear and to decide a dispute between the parties. LaCrosse County, herein the
concurred with said request and the undersigned was designated as the arbitrator. Hearing
in LaCrosse, Wisconsin, on April 6. 1999. No transcript was made of the hearing.
briefs were exchanged on June 29, 1999. On July 12, 1999, the undersigned was informed
parties had agreed not to file reply briefs.
The Union framed the issues as follows:
Did the County violate Section 11.04 of the collective
bargaining agreement between the
parties by the manner in which it calculated the commencement of the first ten (10) calendar
If so, what is the appropriate remedy?
The County framed the issues as follows:
Has the County violated Section 11.04 of the collective
bargaining agreement by incorrectly
counting 10 calendar days from the date of injury when known? Has a past practice been
If there is a violation, what remedy is appropriate?
The parties stipulated that the undersigned would frame the issues in his award. The
believes the following to be an accurate statement of the issues:
Is there a past practice for the interpretation of Section 11.04
the collective bargaining
agreement? Did the County violate Section 11.04 by its calculation of the compensation due
Wiemerslage for the work time she missed due to her injury on May 1, 1997? If so, what is
The grievant, Jane Wiemerslage, incurred a back injury while at work on May 1,
injury she reported to the charge nurse. Wiemerslage continued to work as scheduled until
1997, when she went to a doctor. From May 1 to May 13, she received her regular rate of
the hours she worked. The doctor put Wiemerslage on an injury leave of absence and she
worker compensation payments from the County's insurance company beginning on May 13
thirds her regular wage rate. Wiemerslage filed a grievance in which she contended that she
have received her regular rate of pay for the seven days of work when she was on injury
The County has had a policy for interpreting Section 11.04 for at least 9 years and
has been in writing since 1995. Said policy reads as follows:
The date the employe was first seen by the doctor will be used for
the start date to count the 10
days if there is no lost time and (1) there is no known date of injury or (2) the injury is
In all other cases where there is a known
date of injury, the 10 calendar days will run from the
date of injury. This date is most commonly reported by the employe on the WC-12 Report
Wiemerslage was injured at work on July 31, 1995, and was sent to the doctor on the
date. The doctor excused her from work until August 6, 1995, and she returned to light duty
August 7, 1995. Wiemerslage reported an injury at work on June 8, 1996, and went to the
on June 10, 1996. The doctor excused her from work until June 13, 1996, on which date
returned to work.
Karen Hauser, who works in the County's Personnel Office, processes all worker
compensation claims. It was Hauser's uncontradicted testimony that worker compensation
for other employes, who are covered by the same contract as Wiemerslage, have been
the same interpretation of Section 11.04 as was used for Wiemerslage.
Darcy Eckland, a County employe who is covered by the same contract as
who has been a local union officer for approximately the past 10 years, testified, without
contradiction, that she had never either seen, or heard of, the County's policy for
POSITION OF THE UNION
The Union contends that the 10 calendar days start on the employe's first day of
work because of the injury. Neither of the injuries suffered by Wiemerslage on July 31,
June 8, 1996, caused her to miss work beyond the 10 calendar days following the respective
Thus, those injuries fail to support the past practice alleged by the County.
There is no evidence to show that the County ever informed the Union of the alleged
for interpreting the 10-day period contained in Section 11.04 of the contract. A practice
clearly enunciated and accepted by both parties before it can constitute a past practice.
It would be unreasonable to punish the grievant for attempting to continue to work
suffering an injury. The grievant did not become disabled until the doctor ordered her to
POSITION OF THE COUNTY
The County argues that the language of Section 11.04 is ambiguous as to the start
date of the
10-day period, since said provision does not specify that the injury date is the start date.
both when there is no known date of injury and when the injury is cumulative in nature, e.g.,
tunnel syndrome, the contract is silent as to the start of the 10-day period. For at least the
years, the County has uniformly interpreted Section 11.04 in accordance with its policy.
has existed in written form since 1995, but existed in an informal manner prior to 1995. The
County's policy is reasonable and fair. The policy covers the three-day waiting period for
Compensation payments. If the Union's interpretation is adopted, then employes will be
to take their time in seeking medical attention and the County would not know if the employe
gone to a doctor or when the 10-day period would start. The County has an interest in
employes to seek medical attention as soon after an injury as possible.
If under the Union's proposed interpretation the 10 calendar day income continuation
runs from the date of the doctor visit, then an employe would receive no pay for any lost
to the doctor visit. The County's policy works to the benefit of the employes under the usual
and lost time situations. Although the policy occasionally, as in the Wiemerslage case, may
to the employe's benefit, it is not logical to void a policy which works to the benefit of the
of the employes because of an unusual exception.
ACCIDENTS AND INJURIES
. . .
11.04 Any employee incurring
a bona fide work-connected injury shall suffer no loss in pay
during the first ten (10) calendar days, provided that any compensation received shall be
the County for the first ten (10) days of disability. Any time lost under this Section must be
substantiated by a doctor's certification.
. . .
The undersigned agrees with the County's assertion that Section 11.04 is ambiguous
it fails to define the term "the first ten (10) calendar days." However, the undersigned does
with the County's conclusion that its interpretation of said phrase is more reasonable than the
interpretation. The reference to a work-connected injury serves to limit the coverage of
11.04 to absences for that reason only. The sentence, which specifies that an employe will
any pay during the first 10 calendar days, goes on to state that the employe must return to
any compensation received for the first 10 days of disability. If the employe continues to
reporting an injury before going to see a doctor, then the employe would not be considered
disabled until the employe misses scheduled work due to the injury. Nowhere does the
state that the compensation from the County is limited to time lost during the first 10 days
the injury. Thus, the undersigned concludes that the 10 calendar day period refers to the
first 10 days
of lost work time, commencing with the first day of absence caused by the work-related
without being limited to the first 10 days after the injury is reported.
The County argues that it has a consistent and long-standing practice of administering
11.04 in accord with its interpretation of the language. The evidence fails to provide any
examples to support that argument. The only work time Wiemerslage lost as a result of her
reported injuries, i.e., July 31, 1995, and June 8, 1996, in each case occurred during the
calendar days following the date of injury. Those situations would result in the County
the lost work time in each case under either interpretation. Hauser did testify that
treated the same as other employes have been treated under the same contract. However, no
examples were presented to support that general assertion. Further, Darcy Eckland, a Union
for the past 10 years, testified that she had never either seen, or heard of, the County's
interpreting Section 11.04. Neither is there any evidence that the Union was ever informed
policy or given a copy of the policy after it was reduced to writing in 1995. The policy does
appear in the County's personnel manual. Such a background fails to establish that the
aware of the policy and agreed to a practice based on such a policy.
The undersigned does not believe that employes will suffer a loss of benefit pursuant
decision. An injured employe will be covered by the 10-day income continuation whether
the 10 days
begin on the date following the injury or at a later date, if the employe continues to work as
for a period of time prior to losing work time.
The remedy, as set forth in the following award, applies only to Wiemerslage and
extend to any prior situations. This award does not require the County to search through its
to see if any other employe was affected in the past in a manner similar to Wiemerslage. If
employe had believed the County had incorrectly computed the compensation due said
lost work time resulting from a work-connected injury in the past, then that employe should
grieved the computation in a timely manner.
Based on the foregoing, the undersigned enters the following
That the County failed to prove the existence of a past practice of interpreting the
ten calendar days" in Section 11.04 to mean only the initial 10-day period following the date
reported injury; that the County did violate Section 11.04 of the contract by its calculation of
compensation due to Wiemerslage for the work time she missed due to her injury on May 1,
and, that the County make Jane Wiemerslage whole for any wages lost as a result of its
calculation. The undersigned will retain jurisdiction of this case for a period of thirty (30)
days, which period of time will commence on the day following the day on which this Award
issued, for the sole purpose of resolving any disputes over the remedy directed herein.
Dated at Madison, Wisconsin, this 5th day of October, 1999.
Douglas V. Knudson, Arbitrator