BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LINCOLN COUNTY PROFESSIONAL DEPUTIES'
LOCAL 101, LABOR ASSOCIATION OF WISCONSIN,
(Brian Kingsley Grievance)
Mr. Thomas Bauer, Labor Consultant, Labor Association of Wisconsin,
Inc., appearing on behalf of the Union.
Mr. John Mulder, Lincoln County Administrative Coordinator,
appearing on behalf of the County.
The Lincoln County Professional Deputies' Association, Local 101 (herein the Union)
Lincoln County (herein the County) are parties to a collective bargaining agreement covering
period January 1, 1999, to December 31, 2000, and providing for binding arbitration of
disputes between the parties. On September 29, 1999, the Union filed a request with the
Employment Relations Commission (WERC) to initiate grievance arbitration on a denial of
pay to Brian Kingsley (herein the Grievant) and requested the appointment of a member of
staff to arbitrate the issue. The undersigned was designated to hear the dispute and a hearing
conducted on December 7, 1999. The proceedings were not transcribed. The parties filed
February 22, 2000.
The parties stipulated to the following statement of the issue:
Did the County violate the collective bargaining agreement
it denied the Grievant
overtime pay for time spent to obtain a doctor's certificate for use of sick leave on June 7,
If so, what is the appropriate remedy?
ARTICLE 12 OVERTIME
12.1 Overtime. All hours worked in excess of the
regular eight and one-half (8-1/2) hours shift
shall be deemed overtime, and, when authorized by the Sheriff, shall be compensated at time
and one-half (1-1/2) of the employee's normal hourly rate. The hourly rate shall be
computed based upon the
2,080 hour work year. The parties, by mutual agreement, may agree that compensatory time
in lieu of payment, up to a maximum of forty-two and one-half (42.5) hours. If
is given, the same shall be at the rate of time and one-half (1-1/2). Scheduling of
off shall be by mutual agreement between the employee and the Sheriff, or his designee.
ARTICLE 20 SICK
20.1 Annual Accumulation. Employees shall be entitled
to sick leave at the rate of eight and
one-half (8-1/2) hours for each calendar month of service, after the probationary period of
employment has been completed, and may accumulate such leave to a maximum of 850
. . .
Statement. In order to become eligible for sick leave, an employee may be
required to furnish a physician's certificate to either his Department Head, or the County
Office, as proof of his or her illness.
An employee desiring sick leave shall inform his immediate supervisor at least
thirty (30) minutes prior to the start of his work shift for that day, and explain the reason for
The Grievant, Brian Kingsley, has been a deputy with the Lincoln County Sheriff's
Department for more than seven years. In early June, 1999, the Grievant had the wisdom
teeth in the
right side of his mouth extracted. On the evening of June 6, he bumped his right cheek and
experienced severe pain at the extraction sight, whereupon he took some prescription pain
medication, which had been provided to him by his oral surgeon. On June 7, the
scheduled to work the day shift from 5:45 a.m. 2:15 p.m. Since the medication
regarding operation of motor vehicles, he elected to take a sick day and called the shift
Kenneth Schneider, shortly after 5:45 to explain the situation and inform him he would not
to work. Schneider advised the Grievant that he would need to submit a Sick Leave Report
before he would receive compensation for June 7.
On June 9, 1999, the Grievant submitted a Sick Leave Report form, requesting eight
and one-half hours of sick leave for June 7. Because the contract provides that such requests
are to be made
at least one-half hour prior to the beginning of the shift, and because the Grievant had been
work the previous day, Schneider determined that the Grievant should provide a physician's
to justify the request. On June 14, therefore, he told the Grievant that he would need a
certificate in order to qualify for sick leave. On June 28, the Grievant obtained a note from
surgeon supporting his request, which he resubmitted along with an additional claim for one
overtime pay for the time he spent obtaining the note. Schneider granted the sick leave
denied the request for overtime, whereupon a grievance was filed on June 30, which was
grievance, thereupon, proceeded through the contractual steps to arbitration. Additional facts
be referenced, as needed, in the discussion.
POSITIONS OF THE PARTIES
The specific language of Article 20, Section 20.4 of the collective bargaining
provides the County with the authority to order an employe to provide a doctor's certification
support a sick leave request. Specifically, the section states that such documentation "may be
required" in order to become eligible for sick leave. This is in keeping with the accepted
that it is reasonable for an employer to require documentation of illness in order to prevent
abuse. In Black's Law Dictionary, (5th Ed. 1979) p. 1172, the
word "require" is defined, inter alia,
as "to, direct, order, demand, . . . instruct, . . . command, . . . compel."
This permits the inference
that the Grievant was ordered to provide a doctor's certificate for his absence on June 7.
The testimony of the County's witnesses that Sergeant Schneider merely advised the
that he needed a doctor's certificate in order to be compensated for a sick day cannot be
Further, Schneider's opinion that such is the meaning of Section 20.4 reflects his lack of
in the negotiation and interpretation of collective bargaining agreements. The purpose of the
requirement is to investigate a questionable sick leave claim when there is reasonable cause
the Grievant failed to obey the order, he would have been disciplined as well as denied sick
There was no basis for the County's suspicion that the Grievant was abusing sick
was the second time all year that he had requested sick leave and the basis was legitimate.
Schneider's explanation, that the Grievant had been late for work the previous day and he
trying to avoid discipline for additional tardiness, is questionable. Nevertheless, the Grievant
complied with the order and obtained the certificate, as directed.
The County's argument that the Grievant was not authorized to work overtime on
is unsupported by the facts. The Overtime provision provides for compensation at time and
for hours worked beyond the regular eight and one-half (8-1/2) hour shift. The Grievant's
shift is 5:45 a.m. 2:15 p.m. On June 28, he visited the doctor's office between 3:30
and 4:30 p.m.
on the express orders of Sergeant Schneider. Schneider's order was an extension of the
authority, based upon his suspicion that the Grievant was abusing sick leave. For this
doctor visit should be considered authorized overtime and should be compensated
Precedent also supports the Union's position. In December 1998, Deputy Thomas
called in sick and his supervisor, Sergeant Jeff Jaeger, ordered him to obtain a doctor's
before returning to work in order to be compensated for it. Koth complied and requested an
of overtime for the doctor visit, which was denied. The Union grieved the denial and the
was resolved in April 1999, when the County agreed to pay Koth the requested hour of
"Where a grievance has been settled by mutual agreement of the parties, the same issue that
involved in such 'settled' grievance, though appearing in the guise of another grievance,
ordinarily be subject to arbitration at the request of only one party (or, if the issue does reach
arbitration, the prior settlement should constitute a binding precedent)." Elkouri and
Arbitration Works, 4th Ed., p. 206. Further, such settlements are
typically given great weight when
addressing contract provisions that lend themselves to more than one interpretation.
omitted.) This case is identical to the Koth grievance and should, therefore, have the same
The County introduced a February 15, 1999 memo from Chief Deputy Soucy to the
department sergeants (Co. Ex. 1) in an attempt to establish that there was no presumption of
abuse on the Grievant's part. The document contradicts itself in that at one point Soucy
Section 20.4 is to be invoked whenever there is a suspicion of sick leave abuse, and yet he
that a request for a physician's statement is not an accusation of abuse. Further, it conflicts
collective bargaining agreement and, in such cases, the provisions of the agreement control.
reasons, the memorandum should be disregarded. The record is clear that the Grievant was
to obtain the statement, and that he did so outside normal working hours. The grievance
This issue in this case is strictly whether the Grievant is entitled to overtime pay as a
of obtaining a physician's statement after being advised by Sergeant Schneider that he would
one to qualify for sick pay for June 7, 1999. The County has not contended that
the Grievant has abused sick leave in the past, or that his use of a sick day on June 7
Likewise, the grievance doesn't concern management's right to require a physician's
qualify for sick leave. This right is clearly established in Section 20.4 of the collective
agreement. These matters are irrelevant and should have no bearing on the decision.
This is also a wholly different case than the Thomas Koth grievance, cited as
precedent by the
Union. In the Koth case, the Grievant was specifically ordered to obtain a doctor's
Sergeant Jaeger prior to returning to work, as shown by Joint Exhibits 4A & 4C, unlike
circumstances here. No evidence was offered at the hearing by anyone directly involved in
case to establish precedential effect and it has none.
The Grievant was not ordered to obtain a physician's certificate. He was, rather,
he would need to provide such a certificate to qualify for sick leave. The Union
meaning of Section 20.4. The Grievant was advised, under that Section, that a certificate
necessary to receive compensation, but the choice of whether or not to make the appointment
obtain it was the Grievant's. The County merely exercised its prerogative under Section
require a physician's statement as a condition for eligibility for sick leave.
In February, the Chief Deputy issued a memo to the department sergeants (Co. Ex.
explaining the new leave form and clarifying the policy on physicians' statements. That
makes it clear that officers are not "ordered" to go to the doctor or to obtain physicians'
The statement may be required to qualify for sick leave, but the decision whether to get it is
The Grievant made the decision to get the statement based on his desire to receive
Only after the fact did he request overtime for the doctor's appointment. Under
however, overtime must be pre-authorized. The Grievant did not receive any such
which is an important vehicle for management to direct the workforce and control costs.
should not be allowed to self-direct their overtime under circumstances such as this and the
therefore, should be denied.
The collective bargaining agreement between the County and the Union contains a
provision, Article 20, which permits bargaining unit members to accrue up to 850 hours of
leave, which may be used in cases of illness, injury, or physical disability. Section 20.5 of
provision requires that an employe desiring sick leave give notice to his supervisor at least 30
prior to the start of his shift to explain the reason for his absence. Section 20.4 permits the
at its discretion, to require a physician's certificate as a condition to receiving sick leave.
contends that, by invoking this provision in
this case, the County is obliged to compensate the Grievant for the time spent in
certificate, because his compliance was mandatory. Furthermore, inasmuch as the doctor's
appointment took place outside normal working hours, the Grievant is entitled to overtime.
The specific language of Section 20.4 is as follows: "In order to become eligible for
an employee may be required to furnish a physician's certificate to either his Department
the County Personnel Office, as proof of his or her illness." This type of language is
into contracts as a means of monitoring sick leave usage to prevent abuse, and the record
that is its purpose here. A February 15, 1999 memo to the department sergeants from the
Deputy (Co. Ex. 1) states, in pertinent part, "The decision criteria for the sergeant is simple.
is a reasonable suspicion that a worker has misused sick leave, the sergeant will refer to
of the L.A.W. contract or article 25.02 of the AFSCME contract . . . . In order to become
for sick leave an employee may be required to provide a physician's statement. The sergeant
decide, based on the presence or absence of a reasonable suspicion, whether or not a
statement is necessary on a case by case basis."
In this instance, the Grievant had been late for work on June 6, and had received a
reprimand. On June 7, he called the shift supervisor, Sergeant Schneider, shortly after he
was to have
begun his shift, to call in sick, due to pain associated with his recent dental work, and the
the prescription medicine he was taking for it. Inasmuch as the call came in after the
had begun, Schneider suspected it may have been to avoid discipline for being late a second
consecutive day, and so determined to require a doctor's statement from the Grievant to
leave day. The Grievant did obtain the statement and the County did pay him for the sick
decision to not pay him overtime for obtaining the statement was not based on any
abuse, but on the County's determination that the Grievant was not entitled to such
under the contract.
At the hearing, Sergeant Schneider testified that when he received the leave request
told the Grievant that to qualify for sick leave he would have to provide a doctor's statement,
cited him to Section 20.4 of the contract. This essentially agrees with the Grievant's
the conversation. Where the two differ is in the effect of Schneider's statement. The Union
that the statement was a direct order, which the Grievant had no choice but to obey and that,
therefore, the County is required to compensate him. The County, on the other hand,
there was no order, and that Schneider merely invoked Section 20.4, as he was entitled
to do, and
advised the Grievant of his options.
Based on the language of the contract alone, the County's position would seem the
reasonable. While the provision does use the words "may be required," it is important to
they are used in the context of establishing a precondition for exercise of an employe benefit,
of sick leave. There is no suggestion in the contract language, or the record, that an
face potential discipline for not supplying a doctor's statement. Failure to do so would not
be an act
of insubordination, but an election to forego the option of receiving pay for a sick day.
The Union, however, cites the settlement of a previous grievance as precedent for its
The record contains documents regarding the grievance of Officer Thomas Koth, who in
1998, was instructed to obtain a doctor's certificate after taking sick leave, and who
overtime for the time spent obtaining the statement, which was denied. (Jt. Ex. 4)
ultimately paid Koth one hour of overtime and the Union withdrew the grievance. The
that this settlement has precedential effect, and also reflects the understanding of the parties
requirement of a doctor's statement under Section 20.4 does, in fact, constitute an order to
"work," which must be compensated.
The County argues that the Koth grievance is not relevant to the facts here. In
County points to the fact that Koth was apparently ordered to provide a doctor's statement
returning to work. This is confirmed by a letter to the Sheriff by Sergeant Jaeger,
who had issued
the order, on the day of the incident, wherein Jaeger states, "Per you [sic] request, I did
place a call
to Deputy Koth's residence at approximately 1630 this date. This was to advise him that
required to provide a doctor's excuse prior to returning to work for today's illness."
(Jt. Ex. 4-C
emphasis added.) The County maintains that that is dramatically different than this case,
Grievant was not ordered to obtain the statement, but was only told he would need one to
The County also disputes the contention that the Koth settlement reflects any common
understanding of the meaning of Section 20.4. The County points to the February 15
referenced above, as evidence that, in fact, from the County's perspective, Section 20.4 does
any mandatory application. In addition to the portions previously quoted, the memo states,
every sick call will trigger a request for a physician's statement. In fact, the vast majority of
leaves are legitimate, so only a few will trigger requests. The department does not
require the worker
to go to the doctor; therefore no compensation will be given for that purpose. Per contract,
wants to be paid for the sick day, s/he will provide a physician's statement when requested.
worker does not provide a statement after the sergeant's request for one, the worker is not
for sick pay. The decision is up to the worker." (Emphasis added.)
I am satisfied that this accurately reveals the County's actual understanding of the
of Section 20.4, as well as its position on whether doctor's office calls to obtain requested
are compensable. The timing of the memo is significant, as it was issued after the Koth
filed, but prior to the present one. The wording also indicates that it was intended, in part,
the rationale and procedure for physician's statement requests in light of the Koth situation in
to prevent similar problems from arising in the future. The problem in the Koth case, as
discussed, was that the sergeant ordered Koth to obtain a physician's statement prior to
work, which triggered his request for compensation. The memo instructs the sergeants that
cannot be "ordered" to obtain such statements. The sergeant may request a statement, as a
precondition for qualifying for sick leave, but the decision whether to obtain it is the
officer's. In my
view, the settlement of the Koth grievance was a recognition that the contract language had,
been incorrectly interpreted by the sergeant and the memo was a curative for the problem
that led to
The Grievant testified that his overtime request was triggered, in part, by the
Koth had been paid under similar circumstances. He had no personal knowledge of the Koth
grievance, however, and was unaware of whether Koth had been ordered to obtain a
statement. He also did not testify that his awareness of the Koth settlement influenced his
to obtain the statement in the first place. Therefore, there is no sense in which he can be
said to have
acted in reliance on his understanding of the Koth settlement, although it may have created
expectation that he would be compensated for his time.
For all the foregoing reasons, I do not see the Koth settlement as having any
relevance in this
case. As far as the record indicates, the Koth matter was an isolated occurrence and there is
established pattern of compensating employes for time spent in obtaining physician's
required under Section 20.4. It cannot be said, therefore, that any past practice applies to
situation. Further, the Koth case is distinct from this one in that the evidence indicates that
in fact, ordered to provide a physician's statement and may have, therefore, acted under
Here, and partly because of the Koth case, Sergeant Schneider merely indicated that
statement was a precondition for using sick leave, not a precondition for returning to work.
of the different facts, therefore, the Koth case has no precedential effect. Finally, although
Grievant was aware of the Koth settlement, it did not apparently influence his decision to
In sum, therefore, I find that the language of Section 20.4 does not make obtaining a
physician's statement mandatory. Rather, it permits the County to require verification to
sick leave request, at which point the employe has the option of providing it or foregoing the
The time spent in obtaining such certificate, therefore, does not constitute "work time"
compensation under Article 12. Further, the extrinsic evidence does not support an
interpretation, nor does it establish the existence of any contrary practice or precedent.
Based upon the foregoing and the record as a whole, the undersigned enters the
The County did not violate the collective bargaining agreement by its refusal to pay
Grievant overtime for time spent obtaining the doctor's certificate requested under
Section 20.4. The
grievance is, therefore, denied.
Dated at Eau Claire, Wisconsin this 18th day of May, 2000.
John R. Emery, Arbitrator