BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL UNION NO. 579
CITY OF MILTON
(Vicki L. Heritage Sick Leave Grievance)
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Andrea F. Hoeschen, 1555 North Riverside Drive, Suite
202, Milwaukee, WI 53212, for the Union.
Roethe, Krone, Pope, McCarthy & Haas, by Attorney Michael R.
Haas, Milton City Attorney, 24 North Henry Street, P.O. Box 151, Edgerton,
WI 53534-0151, for the City of Milton.
Nowlan & Mouat, LLP, by Attorney David C. Moore, 100
South Main Street, P.O. Box 8100, Janesville, WI 53547-8100, appearing as
observer/personal attorney for the Grievant.
Pursuant to a joint request for the appointment of a staff arbitrator made to the
Employment Relations Commission by Teamsters Local Union No. 579, hereinafter referred
"the Union," and by the City of Milton, hereinafter referred to as "the City," the
designated by the WERC as Arbitrator to hear and to decide a grievance concerning the
of a provision contained in the parties' collective bargaining agreement. The hearing was
November 1, 2000, in Milton, Wisconsin. The hearing was not transcribed. Post hearing
exchanged on December 15, 2000, marking the close of the hearing.
Did the City violate Article 13 when it refused to pay the
Grievant, Vicki L. Heritage, her
unused accumulated sick leave when her employment with the City ended?
If so, what is the proper remedy?
Vicki L. Heritage, hereinafter referred to as "the Grievant," was employed by the
City as the
Deputy Treasurer for a period of roughly 13 years. Pursuant to the terms of the collective
agreement she accrued sick leave at the rate of one normal workday (8 hours) per month
13 years of service. The Grievant voluntarily terminated her employment with the City on
3, 2000, at which time she had accumulated 443.5 hours of sick leave.
Upon terminating her employment, the Grievant requested a pay out from the City
accumulated sick leave she had accrued up to a maximum limit of 130 days. (See Joint
Article 13 and Employer's Exhibit 1. Note that Employer's Exhibit 1, the "Personnel Action
Request" submitted by the Grievant, references her accumulated sick leave to be "130
During her testimony she explained that this entry was a mistake on her part and that she
say "130 days," the maximum amount allowable under the Contract. (The parties do not
error.) The City denied this request on the grounds that such a pay out was reserved for
"retired" under the agreement and since the Grievant had "resigned" she was not entitled to
The Grievant was a participant in the Wisconsin Retirement System (WRS). The
never made a pay out of unused sick leave to any employee who did not qualify for a
annuity under the WRS at the time of termination and no employee who left the City's
to his or her entitlement to such an annuity has ever grieved the City's refusal to make the
ARTICLE 13. SICK LEAVE BENEFIT
Sick leave with pay will be
granted to all full time City employees as follows for absence
due to sickness or injury where the employee is ill and unable to perform work related
Sick leave time will be earned by all full time
employees at the rate of one (1) normal work day per
month. Effective January 1, 1995,
unused sick leave will accumulate from year to year to 130 days. Unused sick leave
accumulated in excess of the above stated days shall lapse, but such lapsed sick leave shall be
recorded by the City Clerk. In the event of extended illness or injury of any full time
or their [sic] dependents with lapsed unused sick leave recorded, such lapsed sick leave shall
be restored and may be used, in whole or in part, by such employee on recommendation of
department head and Council. Lapsed unused sick leave may only be used after the
accumulated sick leave (as stated above) has been depleted, but may never become part of
regular accumulated unused sick leave.
. . .
Upon retirement, an employee shall be paid for all accumulated
sick leave days up to the
maximum stated above, or the City may use said accrued days to pay for health insurance
for retiree if necessary.
. . .
ARTICLE 23. PENSIONS
The Employer will pay the
contributions for the employee to the Wisconsin Retirement
POSITIONS OF THE
The Union argues that Article 13 of the collective bargaining agreement supports the
proposition that the City is obligated to pay accrued sick leave to any employee who leaves
employ of the City for any reason other than (presumably) discharge for cause.
The Union suggests that since the word "retirement" is not specifically
defined in the
bargaining agreement then it should be given its "common" (i.e. normal and customary)
It argues that the normal and customary meaning of the word "retirement" refers to the act of
a particular endeavor for any reason. The Union
argues that while the normal and customary
meaning encompasses the concept of the departing employee being of sufficient age and
sufficient longevity to qualify for "retirement benefits" as defined by the WRS, the definition
broader than that and embraces the Grievant's departure for other employment even though
yet to reach sufficient age to qualify for a retirement annuity.
The City argues that the word retirement as used in Article 13 refers to "common
age," i.e. that age, coupled with work experience, upon which an employee becomes eligible
retirement benefits under the Wisconsin Retirement System. Consequently, since the
not qualify for retirement benefits under the WRS she was not of "retirement age" and thus,
entitled to the sick leave pay out benefit upon her departure from employment with the City.
The underlying facts are not in dispute. The controversy surrounds the definition of
"retirement" as it is used in the contract. The contract does not define retirement and it thus
the Arbitrator to determine the mutual intent of the parties in this regard and to uphold that
applying contract language to the grievance.
The primary rule in construing a written instrument is to determine, not alone from a
word or phrase, but from the instrument as a whole, the true intent of the parties, and to
meaning of a questioned word, or part, with regard to the connection in which it is used, the
matter and its relation to all other parts or provisions. Riley Stoker Corp., 7 LA 764, 767
1947). To the greatest extent, the Arbitrator must ascertain and give effect to the parties'
intent. That intent is expressed in the contractual language, and the disputed portions must
in light of the entire agreement. Hemlock Pub. Sch., 83 LA 474, 477 (Dobry, 1984).
In the instant case, the agreement refers to the word "retirement" twice: once in
and again in Article 23. Article 23, entitled "PENSIONS," requires that the City pay the
contributions for its employees to the Wisconsin Retirement Fund.
Consequently, Article 23 gives
the word retirement meaning by reference to its connection to "pensions" and to its
the WRF. The Arbitrator takes official notice of the eligibility criteria for "retirement" set
the WRF as follows:
If you are age 55 or older (age 50 if you
are a protective category employe) and are vested under
the WRS, once you terminate all WRS employment you are eligible for a retirement benefit.
The rules of construction require that Article 13 and Article 23 be read together and a
used throughout an agreement must be given the same meaning absent a showing that past
or context indicates otherwise. The Union argues that past employees who have left the
the City have been paid the sick leave benefit in one form or another and that
this constitutes a past practice. However, all of these employees
had met the retirement age and work
experience requirements for a retirement annuity called for by the WRF, while the Grievant
The fact that some of these prior employees continued to work after leaving the employ of
argues the Union, evidences the fact that they were not "retired" but had merely left the
for other work. This fact, the Union says, supports its position that the word retirement
leave" rather than "to leave due to age, disability or illness."
The City's past practice, however, has not discriminated on the basis of whether a
employee works after retirement or not. The City takes the position that it does not matter
the employee continues to work elsewhere or not. The City's decision to pay the sick leave
under Article 13 hinged only upon whether the employee qualified for an annuity under the
the WRF. If so, the departing employee was entitled to receive the sick leave pay out. If
entitlement existed and the pay out was denied. Consequently, past practice fails to support
The bargaining history of the parties is not instructive. The language contained in
has existed for years in its present form and appears in identical form in other collective
agreements between the City and the Union. No effort has been made to change the
recent negotiations. Consequently, no bargaining history exists to support the Union's
independently reviewed Commission decisions on this issue. City of
Ashland, Case 53, No. 42668, MA-5769 (Bielarczyk, 1991) is on point with the instant case.
City of Ashland the provision relied upon by the employer to deny a sick leave pay out did
define "retirement". However, as here, the term was used in another Article which
employer to pay funds into the Wisconsin Retirement Fund for the employee's future
Arbitrator Bielarczyk concluded that these two provisions, when read together, supported the
argument that an employee's separation from employment can be called a "retirement" only
departing employee is eligible for benefits under the WRF.
The instant agreement's reference to the Wisconsin Retirement Fund in Article 23,
together with Article 13, leads the undersigned to conclude that the parties intended the term
"retirement" to refer to the status of one's eligibility for a retirement annuity under the WRS.
Based on the foregoing and the record as a whole, the undersigned finds that the City
Milton did not violate the collective bargaining agreement, specifically Article 13, when it
payment of unused accumulated sick leave to Ms. Heritage upon her voluntary separation
The City of Milton did not violate Article 13 of the agreement when it
refused to pay the
Grievant, Vicki L. Heritage, unused accumulated sick leave when her employment with the
Therefore, the grievance, dated July 25, 2000, is hereby denied.
Dated at Wausau, Wisconsin, this 26th day of January, 2001.
Steve Morrison, Arbitrator