BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
BROWN COUNTY SHELTER CARE
EMPLOYEES, LOCAL 1901-F, AFSCME,
BROWN COUNTY (SHELTER CARE)
Mr. Robert Baxter, Staff Representative,
Wisconsin Council 40, AFSCME, AFL-CIO, 2065 East
Baraboo Circle, DePere, Wisconsin 54115, appeared on behalf of the Union.
Mr. John Jacques, Assistant Corporation Counsel, Brown
County, P.O. Box 23600, Green Bay,
Wisconsin 54305-3600, appeared on behalf of the County.
Brown County Shelter Care Employees Local 1901-F, AFSCME, AFL-CIO,
Union, and Brown County (Shelter Care), hereinafter the County, are parties to a collective
bargaining agreement which provides for final and binding arbitration of disputes arising
The Union made a request, in which the County concurred, for the Wisconsin Employment
Commission to appoint a member of its staff to hear and decide a grievance over the
and application of the terms of the agreement relating to bereavement leave. The Commission
designated William C. Houlihan to serve as the impartial arbitrator. Hearing in the matter
in Green Bay, Wisconsin on September 23, 1999, with a stenographic transcript being
October 12. The parties filed written arguments by November 11, 1999 and waived reply
The Union states the issue as follows:
Did the Employer violate the collective bargaining agreement by
denying the grievant, Steve
Felter, three (3) days of bereavement leave? If so, what is the appropriate remedy?
The County states the issue as follows:
Did the Employer violate Article 12 of the labor agreement by
refusing to grant three paid non-consecutive scheduled work days to Stephen Felter as
Bereavement Leave for February 2 and 3,
I believe the issue to be:
Did the County violate the collective bargaining agreement by
denying the grievant, Steve Felter,
bereavement leave for February 2 and 3, 1999? If so, what is the appropriate remedy?
. . .
Article 6. MAINTENANCE OF BENEFITS
The Employer agrees to maintain existing benefits
that are mandatory subjects of bargaining not
specifically referred to in this Agreement. Any benefits which are mandatory subjects of
presently in effect, but not specifically referred to in this Agreement, shall remain in effect
for the life
of this Agreement. Personal effects such as glasses, watches, etc., damaged or destroyed by
shall be replaced by the Employer. Employees shall be given a copy of their evaluations.
The above stipulations are intended to cover
normal conditions that occur or exist; however,
should special conditions arise on matters that are mandatory subjects of bargaining, said
to be taken up with the Union to arrive at a satisfactory solution.
. . .
Article 12. TIME OFF
Employees are hereby granted a three (3)
consecutive day leave of absence with pay commencing
the day of death or day following in the event of a death of a member of their immediate
Immediate family is defined as: Husband, wife, children father-in-law, step parents. A
leave of absence with pay shall be granted in the event of the death of grandparents,
uncle of the employe or h/er spouse.
In the event an employe is called upon to be
a pallbearer, or to serve in a military funeral, one (1)
day of leave will be allowed: sick leave, vacation, or loss of pay, at the discretion of the
In the case of the death of a member of the
immediate family of a regular part-time employe in
the bargaining unit, the employe will be granted an excused absence to attend the funeral of
three (3) calendar days starting on the day of death or the day following the death through
day after internment. If during this leave, the employe has scheduled work days, the
employe will be
paid for those scheduled work days (to a maximum of three (3)). The employe will not be
any of the three (3) days which are non-scheduled work days. The immediate family is
same as above.
In the case of death of a grandparent or
uncle of the employe or the employe's spouse, a
regular part-time employe shall be granted one (1) day with pay to attend the funeral
day is a scheduled work day. If the funeral is not a scheduled work day, the employe will
not be paid
for this one (1) day.
The essential facts of this matter are not in dispute. Steve Felter has been a youth
for the Brown County Shelter Care for ten years, and a union steward for about seven or
This grievance concerns how many paid days off he was entitled to following the death of his
When his father-in-law became critically ill on the morning of Friday,
January 29, 1999, Felter
notified his supervisor and took five and one-half hours of family sick leave to go to the
Felter's father-in-law died about an hour after he arrived at the hospital, sometime between
11:30. The attending funeral home received the body sometime
on Sunday, with a wake taking place on Monday and the funeral on Tuesday, February
2. Felter was
not scheduled to work on Saturday or Sunday. He was scheduled to work on Monday and
On Tuesday, a Shelter Care supervisor called to inform Felter that he was not entitled
bereavement leave for Tuesday and Wednesday, and that he would have to either return to
Wednesday or use some other form of leave.
After returning to work on Thursday, February 4, Felter submitted a time card which
requested bereavement leave for Monday February 1 to Wednesday February 3. This
denied, and Felter used personal leave for February 2 and 3. On February 9 Felter filed a
seeking to be made whole, by restoration of those two personal leave days and utilization of
as bereavement leave.
On April 26, 1999, Brown County Human Resources Director James Kalny wrote to
Staff Representative Bob Baxter as follows:
Stephen Felter is employed at Brown County Shelter Care and
works Monday through Friday,
8:00 a.m. to 4:00 p.m. On Friday, January 29, 1999, while at work, Mr. Felter was
informed of the
death of his father-in-law. He worked three (3) hours and used sick leave for the remaining
hours of that day.
When Mr. Felter submitted his time card,
he used Bereavement Leave for Monday through
Wednesday, February 1, 2 and 3, 1999. His supervisor, Peggy Shimon, informed him that
accordance with the bargaining unit contract, his Bereavement Leave could not include
and 3, 1999. He was asked to select another type of paid leave for those two days and he
use Personal Leave.
On February 9, 1999, Mr. Felter filed a
grievance alleging a violation of Article 12, Time off for
Bereavement, lines 281 - 284 of the collective bargaining agreement, stating the "County
to pay three Bereavement days due to the death of father-in-law."
Mr. Felter seeks as relief that he be made
whole for loss of wage and benefits.
The contract language states, "Employees are hereby granted a
three (3) consecutive day leave
of absence with pay commencing the day of death or day following in the event of a death of
member of their immediate family." In this case, the date of death would have been Friday,
January 29, 1999. Mr. Felter had worked three hours of his scheduled day and chose
to use Sick
Leave for the
time he didn't work that day. His
Bereavement Leave commenced January 30, 1999, the day
following the death.
In grievance 94-094, a Brown County at
Shelter Care employee grieved, among other things this
same language. The County's response was that the contract language turned on the phrase
..consecutive days". The County reasoned that the issue of whether a person was scheduled
is irrelevant. The specific benefit granted by the contract goes to the days immediately
death. Based on that prior grievance, Mr. Felter would have January 30, 31 and February 1,
Of those three days, however, Mr. Felter was only scheduled to
work on February 1, 1999, and
it is that day, the third day of the three consecutive days, that Mr. Felter is
entitled to eight hours of
Bereavement Leave pay.
The County's response further reasoned that
the contract does not say, "Fulltime employees are
hereby granted a three (3) consecutive workday leave of absence with pay (excluding
or days off)...." as is the language in Local 1901 contract. Nor does the contract say,
death occurs to a member of the immediate family of an employee, the County shall
employee for any time lost from work during the next three (3) succeeding work days
death" as stated in the Courthouse contract. It is, and was, clear that the Shelter Care
language is different and it is logical that different language will lead to different benefits.
In addition, the above referenced 1994 grievance was arbitrated.
During the course of the
arbitration, the Union determined not to arbitrate the above stated interpretation of the
language. Thus the Union is on notice of the interpretation and elected not to challenge the
interpretation in the recent past. Nor did the Union attempt to negotiate a change in the
address this matter in the last contract negotiations.
As much as we sympathize with Mr. Felter
for his loss, we must interpret the contract as has been
the established practice and as it is written. Since Mr. Felter was paid Bereavement Leave
accordance with the contract as it is written, we must deny the grievance.
The Union thereafter submitted the grievance for arbitration.
POSITIONS OF THE PARTIES
In support of its position that the grievance should be sustained, the Union argues as
The language of the collective bargaining agreement is clear and
unambiguous, and therefore the
grievance should be sustained. The employer errs by focusing with laser-like precision on the
provision that the bereavement leave is taken in consecutive days from the day of death (or
after). The employer has clearly violated the collective bargaining agreement, and its
yields an absurd result, flies in the face of a logical interpretation and flies in the face of the
of the County Human Services Department.
It makes no sense for the employer to argue that bereavement
leave has to be taken prior to the
employe receiving the body for wake, funeral and burial. The arbitrator should sternly
employer for bothering the grievant about the nature of his leave during a time of emotional
Even the if the language is not considered
clear and unambiguous, the grievance should still be
sustained, because the employer's interpretation leads to an absurd result. The purpose of
bereavement leave is to allow an employe time to deal with the physical arrangements of the
to be present at the funeral, and to deal with the family's emotional needs. Accordingly, the
should be sustained.
Further, the employer has not proven that a
past practice exists, in that there is no practice which
is of uniform application, long duration and mutual agreement. Indeed, this specific situation
never occurred before. Thus, the grievance should be sustained.
The 1994 grievance involving Sandy Dudley has no precedential
value with regard to the present
dispute, and should be disregarded. The primary issue in that case was whether or not Ms.
should be paid holiday pay for Thanksgiving while she was on bereavement leave.
The grievance should be sustained for three
reasons. The language in the collective bargaining
agreement is clear and unambiguous, granting three consecutive days leave of absence with
Further, there is no past practice concerning this issue. Finally, no prior grievance arbitration
precedential value in this matter.
In support of its position that the grievance should be denied, the employer argues as
The term "consecutive days" in the bereavement leave clause is
clear and unambiguous. There
can be no doubt that the word "consecutive" can mean anything but three consecutive
and could not mean non-consecutive scheduled workdays. If the term "consecutive day"
construed to mean non-consecutive scheduled workdays, there would be no limit as to when
paid scheduled workdays could be used as bereavement leave. The County cites the following
Cases involving funeral leave provisions
have turned upon the precise wording of the funeral
leave or "bereavement" pay clause, and arbitrators appear to be inclined toward strict
of such clauses. Thus, where the contract specifically stated that a certain number of days of
leave would be allowed to attend the funeral of a member of the employee's immediate
arbitrators have held that such leave provision includes attendance at the funeral and
time but does not contemplate absences to aid bereaved relatives or to attend to the estate. In
addition, where the contract provided for "consecutive" days off, the arbitrators interpreted
"consecutive" to mean calendar, and not scheduled, workdays. Moreover, where the
is "pay for time lost" or "paid leave of absence" while attending the funeral of a family
arbitrators generally have denied such pay when the employee was already on vacation or
not scheduled to work.
The Union is requesting that the arbitrator
alter the plain terms of the collective bargaining
agreement, which the arbitrator has no power to do.
There is no violation of the collective
bargaining agreement when the employe has been freed
from work for three consecutive days with no loss of pay from the day of death or the day
County granted the grievant three consecutive days off; now the grievant is claiming a five
period, to receive a fourth and fifth day as paid scheduled workdays. He used other paid
those days, and was not forced to work on the day of the funeral.
The bargaining history and past practice preclude any entitlement
of three paid non-consecutive
workdays as bereavement leave. Also, fringe benefits are usually strictly construed to mean
specifically grant because there are no implied fringe benefits.
The collective bargaining agreement grants to employes "a three consecutive day
absence with pay commencing the day of death or day following in the event of the death" of
member of the immediate family. The grievant's father-in-law was, under the collective
agreement, a member of the immediate family. The only question is whether the three
days are calendar days or work days. If they are calendar days, the grievant's right to
leave extended from Saturday through Monday; if they are work days, the grievant was
bereavement leave through Wednesday.
The employer contends the days are calendar days, and correctly notes that the
have specified work days, as the County and AFSCME did in another bargaining unit. To the
the term "consecutive days" is clear and unambiguous, leaving no valid argument that they
mean anything other than consecutive calendar days. The County goes on to
argue that there can
be no violation of the agreement when the employe has been freed from work for three
days with no loss of pay. The County's argument in this regard ignores a portion of the
which creates the benefit. What the employe is entitled to is ". . .a three consecutive day
absence with pay. . ." That is different from a release for three consecutive days with no
loss of pay.
Construing consecutive days as synonymous with calendar days similarly ignores the
. . . with pay." The County concludes that unscheduled days which fall within the three
day period are to be unpaid days. This, too, ignores the contractual mandate that the leave
The County notes that it has negotiated agreements with AFSCME which explicitly
for the benefit sought in this proceeding. For instance, the Mental Health Center Agreement
that bereavement leave consists of:
. . .three consecutive work days of leave of absence with pay
(excluding non-scheduled or days
off). . .
The County contends that different language yields different results, and that these
demonstrated the ability to negotiate the benefit the union seeks in this proceeding, if that
was intended. The Mental Health Center language is more explicit. That fact, standing
not direct a conclusion that the language of this agreement does not generate the same benefit
the circumstances presented. Nor does it, by implication, soften the meaning of the "with
The words "with pay" must be accorded some meaning. Read literally, this contract
three consecutive days with pay. On its face, this is regardless of whether the employe was
to work. Both parties reject this construction and it is at odds with the purpose underlying
The language could be construed to require pay when one or more of the three consecutive
on a day when the employe is scheduled to work, as urged by the Employer. Such a
requires clarification of the provision. In the alternative, the clause could be read to provide
release for three consecutive working days, as claimed by the Union. This construction also
some clarification, though less than does the meaning argued by the County.
Both parties contend the clause is clear and unambiguous, though neither seeks a
application. In the face of ambiguity, it is helpful to examine the purpose of the provision,
benefit. These parties have previously arbitrated over aspects of bereavement leave and have
arbitral guidance in this area. In a prior award, Arbitrator Shaw held: "The purpose of
leave is to allow the employe to be off work in order to attend the funeral and attend to
without suffering a loss of pay." Brown County (Shelter Care), Case 568, No. 52478,
(Shaw, 1996). As noted above, the funeral took place on Tuesday.
I do not believe that Saturday and Sunday can be considered "leave of absence with
within the meaning of the contract. As a distinguished arbitrator held in a similar case, "a
is not a scheduled work day, and is the employee's day off, belongs exclusively to the
day is not one over which the company can assert control or authority including the
such day for leave of absence or for any other purpose." Warner & Swasey Co., 52
(Dworkin, 1969). Also see Sherwin-Williams Co., 22 LA 1 (Kelliher, 1954).
I also find unpersuasive the County's reliance on the 1996 Shaw Award, which
grievance of an employe who sought bereavement leave pay as well as holiday pay for
Day. In that matter, the grievant, following denial of her grievance, withdrew her request
for the non-consecutive calendar day of bereavement leave. She purportedly did so because
matters were concluded by the time her 12:00 p.m. 8:00 a.m. shift began.
Whatever the reason for
her withdrawal, that arbitrator never considered the matter pending this dispute.
I do not believe there is bargaining history or past practice to support either position
dispute. Jim Hermans, Shelter Care Superintendent, testified to the following, on direct
Q: And did you have a meeting with any
prior to denying the grievance, did you have a meeting
with any of the union representatives for Mr. Felter?
A: We met and when I say "we," myself and
Peggy Shimon with Mr. Felter and Union
Steward Jean Elliot, and we met within the required time period. I don't have a copy of the
contract in front of me, but within this required time period we sat down to discuss the
grievance to make sure that we were in understanding of what was being grieved and why it
was being grieved.
Q: And did you ask Ms. Elliott
whether it had ever occurred in the past that someone would be
paid a bereavement day when they were not normally scheduled to work?
Q: And what did she say?
A: At that time they were not
able to provide any past practice or other case situations where
that had come up.
. . .
Q: Has there ever been a situation where a funeral
has ever been four days after the date of death
that you know of in the past?
A: Not that I can recall.
. . .
On cross-examination, Hermans testified as follows:
Q: Are you aware of any occurrences with any
employees where they had a death and the day
of the funeral they were interrupted by a weekend or had a weekend fall between?
A: No, I'm not. I don't recall any situation like that
at this point.
Q: Would it be fair to say then that this is a set of
circumstances that's not occurred before?
A: In my experience here.
. . .
If anything, the foregoing testimony supports the proposition that this is a case of first
I believe that the provision should be construed to interpret "day" as "workday".
construction breathes meaning into all words and phrases used by the parties and is consistent
the purpose of the benefit.
That the grievance is sustained. The County shall adjust its time and payroll records
that Stephen Felter was on bereavement leave, not personal leave, on February 2 and 3,
Dated at Madison, Wisconsin this 30th day of August, 2000.