BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GENERAL TEAMSTERS UNION LOCAL 662
SCHOOL DISTRICT OF WINTER
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Jill M. Hartley, appearing on behalf of the Union.
Weld, Riley, Prenn & Ricci, S.C., by Attorney Brian K.
Oppeneer, appearing on behalf of the District.
General Teamsters Union Local 662, hereinafter referred to as the Union, and the
District of Winter, hereinafter referred to as the District, are parties to a collective
agreement which provides for the arbitration of disputes arising thereunder. The undersigned
selected from a panel of Wisconsin Employment Relations Commission employees to act as
arbitrator to hear and decide a grievance over the meaning and application of the terms of the
agreement. Hearing was held in Winter, Wisconsin on October 25, 2000. The
hearing was not
transcribed and the parties filed post-hearing briefs which were exchanged on November 27,
The facts underlying the grievance are not in dispute. The grievant was employed by
District as a bus driver since 1991. On March 7, 2000, the grievant resigned his
March 17, 2000 to take other employment. At the time his resignation
became effective, the grievant had accumulated 64 days of sick leave. The grievant
asked to be paid
for these days and for continued health insurance coverage and the request was denied. The
filed a grievance over the failure to pay him his accumulated sick leave and insurance
was denied and appealed to the instant arbitration.
The parties stipulated to the following:
Did the District violate Article 26 of the 1998-2000 agreement by
failing to pay the grievant for
unused sick leave and for failing to pay for continued health insurance after his resignation?
If so, what is the appropriate remedy?
ENTIRE MEMORANDUM OF
A. The parties understand and agree
that this Agreement constitutes the entire Agreement by the
parties, and no practices in existence prior to its ratification are incorporated within the
unless expressly done so by the Agreement. No oral understandings or agreement shall
expand upon, or supersede any of the provisions of this Agreement, or any written
be ratified and executed in the same manner as this Agreement in order to be effective.
. . .
MAINTENANCE OF EXISTING FORMAL
Unless otherwise indicated in this Agreement, all policies
formally adopted by the School
Board affecting wages, hours, and conditions of employment, shall not be changed during the
of this Agreement.
POSITIONS OF THE PARTIES
The Union contends that the District violated Article 26 of the parties' agreement by
to pay the grievant his accrued sick leave and continue his health insurance upon separation
District. It takes the position that contrary to the District's argument that there is no formal
the testimony of the Union witnesses established otherwise. It refers to two former
Stanley Sward and Sylvester Wisnefski, who were paid for their unused, accumulated sick
days at the
conclusion of their employment and the decision to pay them was a "formal policy" adopted
District as specified under Article 26. It submits that the agreement does not require the
policy to be in writing but that all formal policies will continue and not be changed during
of the agreement. It argues that a formal policy was adopted by the pay out to Sward and
and the District is bound to that policy and must honor it for the grievant as well.
The Union claims that the District has a past practice of paying out employees
days upon termination of employment. It states that the criteria for a practice are longevity
repetition, clarity and consistency, mutuality and acceptance and consistent underlying
It argues that a benefit granted as a consistent response to a given set of circumstances
a past practice. It maintains the District's past payment of employees' accrued sick days
severance from the District constitutes a binding past practice and required the payment of
grievant's accrued sick days and continuation of his insurance coverage. It states that Sward
go because he could not pass the physical necessary to keep his job but received his
leave every two weeks until his sick leave was exhausted and he received insurance coverage
this period of time. As to Wisnefski, the Union observes that he too was paid for his
leave after reaching agreement with the District and had insurance coverage until the final
of his sick leave. It insists the grievant is entitled to the same benefits as Sward and
It points out that the District presented evidence that other bus drivers resigned their
employment and did not receive pay for their unused, accrued sick leave, however it
the District was obligated to pay them and as they did not protest the District's failure to pay
the Union could not grieve something of which it had no knowledge or notice. It concludes
light of the Union's lack of knowledge, the District's failure to pay others accrued sick leave
fatal nor pertinent to the Union's position.
The Union also rejects the District's assertion that the Union understood there was no
or practice of paying out sick leave because the Union proposed to include a provision in the
agreement for a successor collective bargaining agreement. The Union asserts that it
wanted to solidify its understanding of the parties' practice of paying out sick days by
practice in formal language in the Agreement. It states the Union's conduct in no way
past practice or the language of Article 26.
It concludes that the District violated the agreement and it asks that the grievant be
his sixty-four hours of sick leave and he be reimbursed for the insurance coverage he should
The District contends that it did not violate Article 26 or any other provision of the
bargaining agreement in denying the grievant's request for sick leave and continued health
benefits. It submits that no provision in the agreement provides for either of these benefits.
to Article 25 which states that no practices in existence prior to the Agreement are
it unless expressly done so and as no practice with regard to sick leave and insurance is
the Agreement, none exists. It argues that, contrary to the Union, Article 26 does not
payout of sick leave or health insurance because it requires that all policies be formally
continue to have effect. It insists that the record demonstrates that no formally-adopted
requires sick leave payout or the continuation of paid health insurance. It states that as there
formal policy adopted, there is no violation of Article 26.
The District maintains there is no past practice of such payments and Article 25
continuation. It asserts that even if Article 25 did not exist, no past practice entitles the
sick leave payments or continued health insurance. It states that a past practice requires it be
unequivocal; (2) clearly enunciated and acted upon; (3) readily ascertainable over a
of time as a fixed, and established practice accepted by both parties, citing Celanese Corp. of
America, 24 LA 168 (Justin, 1954). It states there have been only two cases in the last 14
where sick leave was paid and one was when an employee was in the hospital terminally ill
other case involved a release and resignation of a bus driver. In the latter case, the District
that Wisnefski was not sick but was paid as a resolution of a termination proceeding. It
settlements are on a non-precedent setting basis. It insists that the elements required for a
practice do not exist.
With respect to whether there was an inappropriate deduction taken for health
District contends this issue was not substantiated and was raised for the first time at the
contends that there was not a mistake, and if the District is shown that one occurred, it
it. According to the District, the issue in contention is that the grievant was looking for
coverage from the time of his resignation until his new employer's coverage began and this
compare to the cases of Sward and Wisnefski who received health insurance contributions
on sick leave.
In conclusion, the District denies violating the collective bargaining agreement as
there is no
contractual provision, no established policy, and no established past practice entitling the
a sick leave payout and continued insurance benefits. It asks that the grievance be denied.
There is no specific provision in the parties' collective bargaining agreement which
that upon resignation employees are entitled to be paid for unused accumulated sick leave and
receive continued health insurance coverage. The Union relies on Article 26 which is sort of
modified Maintenance of Standards clause which provides that formally adopted policies will
during the term of the contract. The phrase "formally adopted" implies some affirmative
the part of the District's Board to establish or recognize an expressed policy. There was no
of any "formally adopted" policy that applies to this case.
The Union essentially relies on two factual situations to either be considered a
adopted" policy or/and a past practice. The first case involves a former bus driver named
Sward. The District's Bookkeeper, Madeline Smith, testified credibly that Mr. Sward was ill
visited him in the hospital. Sward used sick leave because he was sick (Ex. 10). Sward was
to use sick leave because under Article 19 he was sick. After Sward exhausted his sick
apparently did not return to work and was terminated (Ex. 8), and died shortly
situation does not establish any past practice as he came within the express terms of the
bargaining agreement. While Sward was receiving sick leave, he continued to receive health
insurance coverage the same as if he was working. Sward never resigned to take another job
never got a lump sum payment. Thus, the use of sick leave by Sward proves no past
The second case involves a former bus driver named Sylvester Wisnefski. Union
Dave Rudi testified that Mr. Wisnefski was let go because of age. Inasmuch as this might be
age discrimination, it does not make sense that he would be terminated because of his age.
credible testimony was that complaints were made about Wisnefski's driving and Wisnefski
credibly that he denied any failure to properly perform his duties and he had not been warned
disciplined about any such conduct or he would have challenged it. Apparently, there was
difference of opinion about these matters and the District and the Union met and reached an
agreement that the grievant would resign and he would be paid his accrued sick leave.
Apparently, Mr. Wisnefski was on leave with pay from March 11 through March 28,
then went on sick leave until May 31, 1996 (Ex. 11). The evidence clearly establishes that
entered into an agreement satisfactory to both sides that Wisnefski would resign effective
sick leave ended. This creates no past practice. Mr. Wisnefski never quit to
take another job and got health insurance coverage while on sick leave because he was
during that time. Even if this is considered as precedent-setting, one case does not establish
practice under either of the definitions proffered by the Union or the District.
It is concluded that there is no past practice of the District paying out sick leave when
employee resigns to take other employment as in the grievant's case. Thus, the two cases do
establish any formally-adopted policy and/or past practice.
There was no proof that the grievant was entitled to any continuing health insurance
beyond the end of March, 2000. Ms. Smith testified credibly that employees were charged
to cover 25% of the insurance premium over the year during the months they worked and
As the District pays 75% of the monthly premium, once an employee quits, the District is
obligated to pay 75% beyond the month in which they quit as they are no longer employees
not entitled to such payment. Employees who have paid more than the required 25% amount
month are reimbursed the difference. No proof was offered that the grievant was not
reimbursed. Inasmuch as there was no past practice and no formally-adopted policy proven
Union with respect to unused accrued sick leave payment on resignation and continuing
insurance payments, the grievance must be denied.
Based on the above and foregoing, the record as a whole and the arguments of the
the undersigned makes and issues the following
The District did not violate Article 26 of the 1998-2000 Agreement by failing to pay
grievant for unused sick leave or for failing to pay for continued health insurance after his
and therefore, the grievance is denied in all respects.
Dated at Madison, Wisconsin this 5th day of December, 2000.