BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LABORERS' INTERNATIONAL UNION OF NORTH
AMERICA, LOCAL 140
SPARTA MANUFACTURING COMPANY,
(William Schaefer, et al Grievance)
Mr. Kevin Lee, Business Manager, Laborers'
International Union, Local 140, appearing on behalf
of the Union.
Mr. Jeffrey Kilpin, Plant Superintendent, Sparta Manufacturing
Company, Inc., appearing on behalf
of the Company.
The Laborers' International Union of North America, Local 140 (herein the Union)
Sparta Manufacturing Company, Inc. (herein the Company) are parties to a collective
agreement covering the period March 1, 1998, to February 28, 2001, and providing for
arbitration of certain disputes between the parties. On February 15, 2000, the Union filed a
with the Wisconsin Employment Relations Commission (WERC) to initiate grievance
a denial of funeral pay allegedly due to William Schaefer, Steven Stone and David Brown
Grievants) and requested the appointment of a member of the WERC staff to arbitrate the
undersigned was designated to hear the dispute and a hearing was conducted on May 17,
proceedings were not transcribed and the parties did not file briefs.
The parties stipulated to the following statement of the issue:
Did the Company violate Article IX, Section 9, of the
when it denied the Grievants
funeral pay for the death of their step-mother and step-mother-in-law?
If so, what is the appropriate remedy?
. . .
Section 9. Funeral Leave
In case of necessary absence of an employee
to attend or to make arrangements for a funeral of
a member of his immediate family (spouse, son, daughter, sister, brother, mother, father,
mother-in-law, or father-in-law) such employee will be paid for actual working time lost
including the day of
the funeral but not to exceed three (3) days, at his regular hourly rate and not to exceed the
days, however, if requested by the employee additional time will be granted without pay.
leave will be paid for Saturday, Sunday or for any days on which holiday pay is paid.
. . .
The Grievants are all employes of Sparta Manufacturing Company., Inc, and
members of the
bargaining unit. In January, 2000, the Grievants requested funeral leave subsequent to the
Lucille Schaefer, who was the step-mother of William Schaefer and his two sisters, who are
wives of Steven Stone and David Brown. The request was denied. A grievance was filed on
of all three Grievants, alleging that the Company has, in the past, granted paid funeral leave
deaths of step-parents and step-children, establishing a precedent for the interpretation of the
leave provision. The grievance was denied and the matter proceeded to arbitration.
will be referenced, as necessary, in the discussion.
POSITIONS OF THE PARTIES
Lucille Schaefer was married to the father of William Schaefer and his sisters for 21
During this time, the two sisters married Steven Stone and David Brown. Thus, she
was Schaefer's step-mother for many years and was, in fact, the mother-in-law of
Stone and Brown.
The collective bargaining agreement provides for up to three days funeral leave for the death
mother-in-law. The Union further contends that the Company has an established past
granting funeral leave for the death of step-relations. For this reason, the Company is in
the collective bargaining agreement and the Grievants are entitled to be paid for three days of
Article IX, Section 9, of the collective bargaining agreement determines who qualifies
immediate family for the purposes of funeral leave. Step-relations do not constitute
under that provision. Further, the decedent was not the mother-in-law of Stone and Brown,
their step-mother-in-law, because she was the step-mother of their wives. Therefore, they
precluded from funeral leave. There have been occasions where funeral leave has been given
deaths of step-relatives, but these instances were mistakes where the true nature of the
was not discovered until after the fact. There is no established past practice of granting
for the deaths of step-relations.
The contract language specifies that an employe may receive up to three days of paid
for the death of a member of the immediate family, defined as a spouse, son, daughter,
mother, father, mother-in-law or father-in-law. The contract makes no reference to
step-children, step-siblings or half relations. The Union argues, however, that the definition
be broadened to include the decedent, who was the step-mother of one Grievant and the
step-mother-in-law of the other two Grievants.
One argument advanced for doing so is that the generic terms 'mother,' 'father,'
'brother' and so forth may encompass step relations and relations of the half blood. Such a
not without precedent. Some arbitrators, emphasizing the closeness of the relationship, have
extended the language of similar funeral leave provisions to step and half relations [Cf;
Dairies, Inc., 43 LA 616 (Greenwald, 1964)]. This is not, however, a universally held view
other arbitrators have held that such clauses should be strictly construed. [Cf; Brown
Case 593, No. 53564, MA-9390 (McLaughlin, 1996)]. Typically, the rules of contract
would favor the latter view because arbitrators will usually give words their ordinary and
meanings, unless there is evidence that the parties intended otherwise.
In this case, the evidence suggests to the contrary. At the hearing, Charles Vian, an
of Sparta Manufacturing, testified that he was aware of at least three instances where the
had given paid funeral leaves to employes for the deaths of step-relations. He also testified,
that he was aware of instances where employes have not received
funeral leave for the deaths of step-relations. Additionally, Jeff Kilpin, the Company's
Superintendent, testified that on the occasions where funeral leave was given, the Company
discover the true nature of the relationship until after the fact. Given this background, it is
that the parties did not specifically intend the language of the provision to cover
otherwise one would have expected each denial of the benefit to result in a grievance, which
the case. I do not find, therefore, that the language of the contract covers step-relations.
The Union also argues that there is an established past practice of allowing paid
for step-relations, based upon the instances cited by Vian, thus binding the Company to
benefit to the Grievants. For a variety of reasons, I am not persuaded by this argument. In
place, past practice usually becomes relevant only where the contract is silent or the
contract language is ambiguous, which is not the case here. Where past practice has been
modify clear language, it is usually where, through consistent application, it reflects a clear
by the parties to modify the language of the contract. Such is not the case here.
Further, to qualify as a binding past practice, certain criteria must exist. Specifically,
practice must be (1) unequivocal; (2) clearly enunciated and acted upon; (3) readily
a reasonable period of time as a fixed, and established practice accepted by the parties. [Cf.;
Cumberland, Case 18 No. 55310 MA-9976 (Meier, 4/23/98)]. In this case, the criteria for
establishing a binding past practice have not been met.
The record reveals that in the past certain employes have received paid leave for the
of step-relatives. The Company contends that this has only occurred rarely, and then only
mistake, because the fact of the step-relationship only became known later. Whether or not
the case, however, it is undisputed that other employes have not received paid leave after the
of step-relatives and that until now the denial has gone unchallenged. Clearly, therefore, this
if practice it is, is not unequivocal, because it has not been applied uniformly, nor apparently
employes objected in the past when the benefit has not been extended. It appears that the
have been extended inadvertently or arbitrarily, but it has not been extended consistently.
circumstances presented here, the criteria set forth in City of Cumberland have not been met.
that reason, I cannot find that there is an established past practice of granting paid funeral
employes in the event of the deaths of step-relations.
I turn, finally to the Union's contention that the deceased was not the
the Grievants Stone and Brown, but was, in fact, their mother-in-law, which is a covered
under the contract language. This argument is based upon the fact that the deceased was
the father of the Grievants' wives at the time of their respective marriages and, thus, is the
mother-in-law they have, or could have, ever known. While this argument has appeal,
cannot reach the same conclusion. Were the wives of Stone and Brown employes of the
and Grievants in this matter, as step-daughters of
the deceased they would not be entitled to funeral leave under the same reasoning
Schaefer. It would not be logical to construe the contract language to then extend a benefit
even further removed in degree of relationship.
Further, "in-law" status is, by definition, conferred by marriage and has, by custom,
of extending one spouse's family relationships to the other spouse, but has not the effect of
does not, by marriage alone, become a legal heir, nor automatically succeed to any of the
appurtenances of family status. Thus, where contracts provide paid leave for the deaths of
it is the deceased's relationship to the employe's spouse, not to the employe, which is the
factor. For this same reason, an employe would not under the language used here, be
funeral leave for the death of the natural mother of his ex-wife. While the deceased would at
have been the employe's mother-in-law, the divorce would have the effect of sundering that
relationship as well. Marriage, therefore, cannot confer greater rights or closer familial
status on the
Grievants here than that possessed by their spouses.
Based upon the foregoing and the record as a whole, the undersigned enters the
The Company did not violate the language of the contract or past practice in denying
leave to the Grievants. The grievance is, therefore, denied.
Dated at Eau Claire, Wisconsin, this 31st day of August, 2000.
John R. Emery, Arbitrator