BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute
MILWAUKEE DISTRICT COUNCIL 48, AFSCME,
and its affiliate LOCAL NO. 883,
CITY OF SOUTH MILWAUKEE
Podell, Ugent, Haney & Miszewski, S.C., Attorneys at Law, by
Matthew J. Miszewski, on behalf of Milwaukee District
Council 48, AFSCME,
AFL-CIO and its affiliate Local 883, AFSCME, AFL-CIO.
Mr. Joseph G. Murphy, City Attorney, on
behalf of the City of
Milwaukee District Council 48, AFSCME, AFL-CIO, and its
AFSCME, AFL-CIO, hereinafter the Union, requested that the
Commission appoint a staff arbitrator to hear and decide the
instant dispute between the
the City of South Milwaukee, hereinafter the City, in accordance
with the grievance and
procedures contained in the parties' labor agreement. The City
subsequently concurred in
and the undersigned, David E. Shaw, of the Commission's staff,
was designated to arbitrate
dispute. A hearing was held before the undersigned on March 22,
2000, in South
Wisconsin. There was no stenographic transcript made of the
hearing and the parties
submitted post-hearing briefs in the matter by April 11, 2000.
Based upon the evidence and
the arguments of the
parties, the undersigned makes and issues the following Award.
The parties stipulated there are no procedural issues and to
the following statement of
Did the Employer violate the Collective Bargaining
when it failed to allow the
Grievant to accumulate sick days for the months of February,
March and April while he was
The following provisions of the parties' Agreement are
SECTION 1 REGULAR RATES
The parties agree that the rates to
be paid to
the employees covered by this Agreement shall be
as set forth in Appendix A.
. . .
. . .
SECTION 2 AMOUNT OF SICK LEAVE
Each employee shall earn one (1)
day of sick leave with pay during each month of
service in which the employee receives wage compensation for at
least three-quarters (3/4) of
scheduled work days, including holidays, accumulative in the sick
leave account. Allowable
accumulation in the sick leave account shall be unlimited, and
part-time employees shall
leave in accordance with the provisions of this Article on a
. . .
SECTION 1 DUTY-INCURRED
Any employee who sustains an injury
performing within the scope of his/her employment,
as provided by Chapter 102 of the Wisconsin Statutes (Worker's
Compensation Act) shall
eighty (80) percent of salary in lieu of Worker's Compensation
for the period of time he/she
temporarily totally or temporarily partially disabled because of
said injury, not to exceed one
from the date of injury.
The Grievant, Bruce Cota, is employed in the City's Streets
experienced a work-related injury in 1999 and was off work the
months of February, March
of 1999. During those three months the Grievant received
payments pursuant to Article XI,
1 of the parties' Agreement; however, the City did not consider
the Grievant to be
leave during those months and did not credit his sick leave
account with three sick leave days
The City's refusal to credit the Grievant's sick leave
account one day for each of the
months was grieved. The parties were unable to resolve the
dispute and proceeded to
before the undersigned.
POSITIONS OF THE
The Union asserts that the language of Article X, Section 2,
the only provision cited
upon by the Union in the grievance, is clear and unambiguous.
The rule followed by
arbitrators is that
when a contract's terms are clear and unambiguous, they are to be
given their ordinary
past practice cannot be used to alter the contract. Here, the
parties used the term "wage
compensation" in Article X, Sec. 2 to trigger the accrual of sick
leave days. If the parties
intended to exclude Worker's Compensation payment, they could
easily have expressed such,
not. Further, had the parties used only the term "wages", it
might have been unclear what
intended to cover. By using the term "wage compensation" the
parties made clear they
include more than just wages paid in exchange for work. It was
the Union's intent by using
"compensation" to include such situations as occurred in this
case, i.e., where an employe
compensation as a result of being employed and not just pay in
exchange for work. Given
and unambiguous nature of the wording, evidence as to past
practice is irrelevant.
Even if the language of Article X, Sec. 2 is found to be
ambiguous, the alleged
the City cannot be relied upon, since the City unilaterally
altered the prior practice of
in this situation and failed to notify the Union of the change.
To properly terminate a past
a clear intent to do so must be communicated to the other party.
By the City's witnesses'
testimony, this never occurred. Further, to effectively change a
practice that gives meaning
ambiguous language, it is not sufficient to merely repudiate the
practice; rather, the
language must be rewritten. This was not done and there is no
evidence adduced of any
agreement to the City's interpretation. Last, given the short
tenure of the City's practice and
likelihood that it would not be apparent to employes, little, if
any weight, should be given to
Last, the Union asserts that since neither the grievance,
nor the City's response,
issue of past practice, and the issue submitted to the Arbitrator
does not reference past
is beyond the scope of the Arbitrator's authority to consider
The Union requests that the grievance be sustained and the
Grievant be made whole.
The City concurs that this dispute concerns the application
of the wording "receives
compensation" in Article X, Sec. 2, of the Agreement. The City
asserts that the phrase does
include payments made as insurance indemnity for an employe
injured under circumstances
by Ch. 102, Stats., Wisconsin's Worker's Compensation laws. Ch.
102 requires and
payments to employes for injuries suffered in the course of
employment without regard to
injured employe is compensated pursuant to a schedule of benefits
based upon the
extent of the injury. The employer is required to pay for the
employe's medical expenses
and to pay
an indemnity for the "weekly wage loss" attributable to the
employe's wage loss during his
convalescence. Thus, the payment to the injured employe during
his convalescence under
is an "indemnity".
While under both Article XI, Sec. 1, of the Agreement and
Ch. 102, the indemnity
described as a percentage of the employe's usual wage, this does
not convert the payment for
loss into "wage compensation". The payment the Grievant received
in the three months in
made "in lieu of the Worker's Compensation" benefit for weekly
wage loss pursuant to
That provision states specifically that the payments are made in
lieu of the otherwise
Worker's Compensation payments.
Worker's Compensation is a mandatory insurance program and
payments made for
injury-related losses under that program are insurance benefit
payments, not wage
to be paid pursuant to the parties' Agreement are defined in
Appendix A, Base Salary and Wage Rates, For Probationary
Employees. The indemnity
paid under Article XI does not appear in Appendix A.
The City concludes that it has correctly applied Article X,
Sec. 2 in not crediting the
accumulated sick days for February, March and April.
The Arbitrator does not find the wording of Article X, Sec.
2 to be clear and
It is instead necessary to look to the wording of the two
provisions (Article X, Sec. 2 and
Sec. 1) cited by the parties to determine their interplay.
It is an accepted principle of contract interpretation that
words will be given their
and popularly-accepted meaning in the absence of evidence to
indicate they were used in a
sense. Elkouri and Elkouri, How Arbitration
(3rd Edition), p. 305. Article X, Sec. 2 of the
Agreement states that employes will earn one day of sick leave
during each month of service
the employe "receives wage compensation for at least ¾ of
the scheduled work days. .
." The City
would distinguish payments received under Article XI, Sec. 1,
because such payment,
percent of salary", is "in lieu of Worker's Compensation".
However, "in lieu of" is defined
"instead of" or "in place of." Webster's New World
Dictionary (2nd College Edition) p. 816.
it may be reasoned that instead of receiving the insurance
benefits under Worker's
employe receives "eighty (80) percent of salary", i.e., eighty
percent of the employe's
Article XI. This seemingly would qualify the employe to
accumulate paid sick leave as far
"receiving wage compensation."
Further, while "wages" may be taken to mean pay for work
performed, it does not
such paid time off as vacation, paid sick leave or holidays are
excluded under Article X, Sec.
the term "compensation" can be defined as either "anything. .
.given to make amends for a
"payment for services." Webster's New World
(2nd College Edition) p. 289. Thus, the
term "wage compensation" is far too susceptible of different
meanings within the context of
dispute to give it the narrow definition for which the City
It is also an accepted principle of contract interpretation
that if an agreement is
of two constructions, one of which works a forfeiture and one of
which would not, the latter
preferred in the absence of strong evidence that the parties
intended a forfeiture. Elkouri and
How Arbitration Works, (3rd Edition),
For that reason, the Union's interpretation is preferable
to the City's.
Last, while the City arrived at its interpretation in 1994,
it does not appear that the
communicated that interpretation to the Union.
For the foregoing reasons, it is concluded that the payments
the Grievant received
Article XI, Sec. 1, of the Agreement for the months of February,
March and April of 1999,
him to accumulate one paid sick leave day for each of those
months under Article X,
Sec. 2, of the
Agreement. Thus, it is concluded that the City violated Article
X, Sec. 2, of the Agreement
it refused to credit the Grievant with an accumulated paid sick
leave day per month for
March and April of 1999.
Based upon the foregoing, the evidence, and the arguments of
the parties, the
makes and issues the following
The grievance is sustained. The City is directed to
immediately make the Grievant
crediting his sick leave account with three (3) sick leave days
Dated at Madison, Wisconsin this 6th day of July, 2000.