BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
INTERNATIONAL ASSOCIATION OF FIRE
FIGHTERS (IAFF) 1021, AFL-CIO
CITY OF MARSHFIELD
Mr. Joseph Conway, Jr., District Vice-President, IAFF,
appearing on behalf of the Union.
VonBriesen, Purtell & Roper, Attorneys at Law, by Mr. James
Korom, appearing on behalf of the City.
The above-captioned parties, hereinafter referred to as the Union and the City
were parties to a collective bargaining agreement which provided for final and binding
grievances. Pursuant to a request for arbitration, the Wisconsin Employment Relations
appointed a member of its staff, David E. Shaw, to decide the grievance. A hearing, which
transcribed, was held before the undersigned on April 5, 2001, in Marshfield, Wisconsin.
filed post-hearing briefs which were received by May 29, 2001. Based on the entire record,
undersigned issues the following Award.
At the hearing, the parties agreed on the substantive issue to be decided. In their
though, the Union worded it differently than the City did. The undersigned believes that the
contained in the City's brief accurately reflects the agreed-upon issue. Hence, the
which will be decided herein is:
Did the Employer violate the interpretation or application of the
provisions of the collective
bargaining agreement when it ordered the grievant to work on two separate occasions while
on authorized sick leave? If so, what is the remedy?
In addition to the substantive issue just noted, the City has also raised an arbitrability
questioning "whether the Arbitrator has substantive jurisdiction over this case in light of the
of the grievance?" This threshold issue will be addressed first.
The parties' 1998-2000 collective bargaining agreement contained the following
ARTICLE IV GRIEVANCE
Section 1: Definition of
Grievance: Any difference of opinion or misunderstanding which may
arise between the City and the Union or a member of the Union, involving the interpretation
application of the provisions of this Agreement, shall be handled as follows:
. . .
ARTICLE IX SICK
. . .
Section 3: In order to be
granted sick leave with pay, an employee must call the fire department
prior to 0700 hours and give the reason for his absence. The employee must keep the Chief
officer informed of his condition, for an extended illness, by submitting a medical certificate
absences of more than two (2) consecutive scheduled work days.
. . .
ARTICLE XI ADDITIONAL
. . .
Section 5: Wages of employees who are
Wisconsin State licensed paramedics shall be
increased by an additional three percent (3%) of a top step fire fighter's base rate as
compensation for obtaining the paramedic license. The increase shall be effective upon
certification. If the employee loses such certification, the employee shall not continue to
this additional payment.
. . .
ARTICLE XXV RESERVATION OF
1: The City retains all of the rights, powers and the authority exercised or
had by it prior
to the time the Union became the collective bargaining representative of the employees here
represented, except as specifically limited by express provision of this agreement.
AMENDMENT AND RENEWAL PROVISION
1: This agreement is subject to amendment, alteration or addition only by
written agreement between and executed by the City and the Union, where mutually
waiver of any breach, term or condition of this agreement by either party shall not constitute
precedent in the future enforcement of all of its terms and conditions.
The City maintains and operates the Marshfield Fire Department. The Union is the
bargaining representative for most of the Department's employees. Roy Dolens is a City
Firefighter/Paramedic and is a member of that bargaining unit.
The Union and the City have been parties to a series of collective bargaining
parties' most recent collective bargaining agreement contains a sick leave provision. That
which is found in Article IX, specifies that unit members who are on approved sick leave
In mid-February, 2000, Dolens injured his knee off-duty, preventing him from
normal job duties as a Firefighter/Paramedic. Dolens then went on approved sick leave. In
March, Dolens was diagnosed by an orthopedic surgeon as having an ACL (anterior cruciate
ligament) tear. The surgeon directed Dolens to stay off work until he had knee surgery.
surgery was performed on March 27, 2000. Following the surgery, he had an extended
period. During this time, he remained on sick leave since he was unable to perform his
duties as a Firefighter/Paramedic. Dolens went off sick leave and returned to work in June,
exact date is not contained in the record).
Each year, the Department conducts training sessions for those facets of the
operations that require yearly recertification or refresher training. Two examples of the
hazardous materials (hereinafter HAZ-MAT) and paramedic refresher training. This type of
is generally offered in-house, and is done so as to minimize the Department's overtime,
and travel expenditures. While employees are sometimes sent to training programs outside
Department, this causes replacement and coverage problems for management. The training
which occur outside the Department are usually more generic than the training programs
Department's in-house training is usually scheduled months in advance so that it can be
the Wisconsin Division of Emergency Management and so class schedules can be coordinated
teaching agencies such as Mid-State Technical College.
On March 9, 2000, the Department conducted a one-day HAZ-MAT refresher
in-house. This training consisted of four hours of classroom training in the morning and four
of hands-on application of the training in the afternoon.
In the spring of 2000, the Department, in conjunction with Mid-State Technical
offered a paramedic refresher course to its paramedics. Paramedics have to take this
every two years to maintain their paramedic license with the State. If they do not, their
certification lapses. Roy Dolens was one of the paramedics who took the course. While he
sick leave due to his knee injury, he missed some of the classwork and final exam in the
While Dolens was on sick leave because of his knee injury, two "training
occurred in the Department. Dolens' supervisor, Deputy Chief Bob Haight, decided that
medically capable of coming into work for them. Haight made this decision on his own
input from Dolens' medical providers. Haight felt that Dolens was, in his words, "fit to
come in for
training based on what he saw". He therefore directed Dolens to come in for training on
days. When he received this directive, although he questioned why, Dolens did not
challenge it or
say he would not comply. Dolens did, in fact, come in to work on those two days. The
occurred while he (Dolens) was waiting for surgery, and the second time occurred after he
surgery. The details of each one follow.
On March 8, 2000, Haight directed Dolens to come into the fire station the next day
9) for the HAZ-MAT refresher training which was going to be conducted that day. Dolens
did as he
was directed and attended same. Specifically, he sat in the room (with his leg raised) during
classroom portion of the training which occurred in the morning. Nothing physical occurred
that portion of the training. His sick leave account was not charged for the four hours he
was at the
fire station on March 9, 2000. He was paid four hours at regular pay for attending the
session, and had 20 hours of sick leave deducted for the day, rather than 24 hours.
In early June, 2000, Haight saw Dolens when the latter came into the fire station to
paycheck and talked to him about finishing the paramedic refresher course by making up the
classwork he had missed while on sick leave and taking the course's final exam. Haight told
that the local technical college representative had told the Department that, consistent with its
practice, it would give Dolens a temporary passing grade of "C", but if he did not complete
the make-up and final exams before the end of June, that (temporary) grade would be
rescinded. Haight further
told Dolens that he had the option of taking the classwork
(study guide) home, but that he was required to take the proctored final exam at the
Dolens chose to do it all at the fire station on June 9, 2000. Had he not been on sick leave,
(June 9) would have been a regularly-scheduled work day for Dolens. Dolens' sick leave
was not charged for the four hours he was at the fire station on June 9 taking the exams. He
four hours at regular pay and had 20 hours of sick leave deducted for the day rather than 24
The Union subsequently filed two separate grievances concerning the matters of
March 9 and
June 9, 2000 referenced above. The grievances contend that management should not have
Dolens in on those days because he was on approved sick leave. The two grievances were
through the contractual grievance procedure and were appealed to arbitration. At the
two grievances were treated as one because they concern the same issue.
POSITIONS OF THE PARTIES
The Union disputes the City's contention that the instant grievance is not subject to
grievance procedure. The Union relies on Sec. 1 of the Grievance Procedure (Article
defines a grievance as "any difference of opinion involving the interpretation or application
provisions of this Agreement." The Union avers that the instant issue involves "the
application of . . .this Agreement", so it should be subject to the grievance procedure. The
asks the arbitrator to so find, and reject the City's contention to the contrary.
With regard to the merits, the Union argues that the City violated the collective
agreement when it ordered Dolens in to work on March 9 and June 9. The Union notes that
went on sick leave for his knee injury in February, 2000. He complied with all the
provisions of the
sick leave clause, such as keeping management apprised of his condition, and submitting the
medical certification. Dolens supplied all the necessary documentation and information about
injury to management, whereupon management approved his sick leave which ran from
to sometime in June, 2000.
It is against this backdrop that management decided to deny Dolens sick leave for two
mornings, March 9 and June 9. On those two dates, Deputy Chief Haight ordered Dolens
fire station for training events. Thus, the basic question to be answered is whether the City
an employee into work when the employee is already on approved sick leave. The Union
that question in the negative.
First, the Union argues that Deputy Chief Haight, who decided that Dolens was
to come into work on those two dates, was not trained, qualified or competent to make
decisions. That being the case, Haight should not have disregarded Dolens' existing (valid)
releases and made a determination that was in conflict with the
decision of Dolens' medical providers. The Union calls specific attention to the fact
Haight decided that Dolens was fit to come into work on those two dates, he did not
examine Dolens, nor did he contact Dolens' physician, nor did he consult with the City's
in determining Dolens' ability to come into work. The Union questions why Haight would
himself to such liability and make a decision that was contrary to trained medical
then avers that the reasons Haight stated at hearing for his decision (that Dolens was fit to
work) were as follows: "training is different than work"; "training is not part of their job";
okay to me"; "sitting is lighter than sedentary work and was not on the chart" and "return to
forms are haphazardly filled out by clinic personnel." According to the Union, these reasons
subjective in nature, and should not be sufficient to override trained medical opinions as to
ability to be at work.
Regarding the training which was at issue on March 9, i.e., the HAZ-MAT training,
Union asserts that notwithstanding the City's assertion to the contrary, such training is not
mandatory. Other employees have missed that training and still been able to perform their
The City did not establish that the Department would be in violation of any laws or statutes if
individual went without the annual HAZ-MAT refresher. Thus, the City failed to provide
overriding reason why Dolens had to be at that training session.
The Union next asserts that the Department's existing Rules and Regulations relieve
employee on sick leave from duty, e.g., the Excused Absence From Duty regulation. Thus,
violated its own Departmental regulation when it had Dolens come in to work on the two
The Union takes issue with certain statements Deputy Chief Haight made during the
about training, i.e. that "training is different from work" and "training is not part of their
Seemingly, these statements were made to create a difference that would negate a "medical
from work". This argument is based on the premise that training is not work or part of an
job, so a medical release from work would not excuse an employee from being called into
for training exercises. The Union characterizes the argument "as a feeble attempt to distort
Moreover, the Department's training calendar "could readily be adjusted to account for
As to the tests which Dolens took on June 9, the Union notes that Dolens got a "C"
course before he even took the final exam. In the Union's view, something is amiss about a
where someone gets a grade before even taking the final exam. Aside from that, the Union
that the City failed to provide any overriding reason why Dolens had to come into the station
9 to take the tests. As the Union sees it, "the Employer's explanation of the events are
tears at the overall credibility of their actions and testimony with regard to the reasons for
Dolens in for the training."
Finally, the Union argues that if the grievance is denied, "a slippery slope is created
of contractual time off." The Union contends that the real danger associated with the City's
is that henceforth, the Department will believe that it can order employees on
authorized leave to come into work for almost any reason. As the Union sees it, "this
the negotiated benefit of leave time and violates the concept of being on authorized leave."
Union avers that if the City prevails, "any future authorized leave may be modified at the
In sum, the Union believes that the City inappropriately denied Dolens' contractual
use sick leave, and asks that the grievance be sustained.
The City initially contends that the Arbitrator has no substantive jurisdiction over this
because there is no applicable contract language. This contention is based on two contract
provisions: the Reservation of Rights clause (Article XXV) and the Sick Leave clause
The former clause provides that the City retains all the rights and powers it had "prior to the
Union became the collective bargaining representative." The City maintains that prior to the
arriving on the scene, the City had the inherent right to grant or deny sick leave, and to
employees to perform certain work functions within their physical capabilities. The City
given this grant of authority to management, the question is whether there are any contractual
on this pre-existing management right. It avers there are not. The City submits that a
of the Sick Leave clause (the only contractual provision relied on by the Union) reveals that
contains no language which limits or constrains the City in its right to direct employees to
duties within their physical restrictions. The City therefore maintains that the collective
agreement is silent on this particular point. It cites several arbitrators for the proposition that
the contract does not contain specific contract language prohibiting management from doing
something, the management rights clause applies, and management has the inherent right to
its authority in that area. Building on that premise, the City reasons that since the Sick
does not explicitly prohibit management from directing an employee on sick leave from
limited functions within their physical abilities, and is silent on the subject of light duty, it
had the right
to direct Dolens to perform the two limited functions involved in this case. The City
Arbitrator that should he find otherwise, the decision risks reversal on appeal.
Next, the City disputes the Union's contention that the Department's Rules and
support their position. The Union's reliance is misplaced, as using the Rules and
Regulations in this
fashion runs counter to the language contained in the Amendment and Renewal Provision
XXVI) of the Agreement. That provision provides that the collective bargaining agreement
to "amendment, alteration or addition only by a subsequent written agreement, between and
by the Union and the City." The Department's Rules and Regulations have not been
both parties, and thus, are not enforceable in this proceeding. Moreover, while the rule
"Excused Absence From Duty" says that employees may not be returned to "regular duty"
a medical release, nothing therein prohibits the City from assigning an employee to limited
duty functions outside the full performance of "regular duties".
Next, the City notes that when a party has no contractual support by their theory,
rely on an alleged past practice. However, there is no evidence of any practice one way or
The City extrapolates from this lack of evidence that there are no past cases where
physically capable of performing limited duties, and not that the parties agreed that the City
prohibited from assigning such duties under the collective bargaining agreement.
Should it be decided that the grievance is substantively arbitrable, the City believes
that it had
good reasons to deny Dolens' request for sick leave on the mornings of March 9 and June 9,
direct him to come into the fire station. First, the City asserts that when Dolens went on
for his knee injury in February, 2000, his request for sick leave was an on-going one which
subject to on-going review by management. Just because Dolens was on approved sick leave
days before and after March 9 and June 9 does not mean that sick leave had to be approved
two days as well. Second, it avers that if Dolens had not been directed to attend work on
a valuable training opportunity would have been wasted, resulting in substantial
burdens on the Department to reschedule it when Dolens was able to return to full duty.
to June 9, the City notes that Dolens had to renew his paramedic certification, and that
he had to
complete the written tests by the end of June to finish the refresher course. Third, the City
that Dolens had the opportunity to object to any medical risks he believed he might face by
into work on those two dates, and to secure medical evidence showing a physical inability to
those simple tasks. He did neither. Fourth, while Dolens could not physically perform all
regular job duties on the two dates in question, he could physically do all the "work" he was
to do on March 9 and June 9, i.e. sit in a classroom with his leg up on March 9, and take
on June 9.
According to the City, Dolens owed the Department his "best efforts to fulfill those
of [his] job responsibilities that are within [his] physical ability." Citing, Indiana State
Association, 104 LA 737 (Pavlucci, 1995); City of Mentor, 88 LA 890 (Dworkin, 1987).
City avers that it would be one thing if it had directed Dolens to go beyond his physical
those dates, but it did not. The City asserts that Dolens has never claimed that he was asked
anything on those dates that he could not physically perform. The City concludes that the
points establish the reasonableness of its decision denying Dolens' sick leave requests for
and directing him to perform limited training duties that were within his (then) physical
that its decision was not arbitrary, discriminatory or capricious.
In sum then, the City submits that no contract violation has been established, and
requests that the grievances be denied.
Arbitrators have authority to decide only those issues which, by agreement of the
ceded to them. When, as here, there is a dispute over jurisdiction, an initial inquiry must be
the scope of the matters that may be properly grieved. Accordingly, attention is focused
first on the
question of whether the Arbitrator has jurisdiction over this case.
The contractual grievance procedure defines which grievances are subject to that
and by inference, which grievances are in turn subject to grievance arbitration. Article IV,
specifies that a grievance is:
Any difference of opinion or misunderstanding which may arise
between the City and the Union
or a member of the Union, involving the interpretation or application of the provisions of this
While some labor agreements define a grievance and the scope of the grievance
narrowly, the above definition is fairly broad and covers any dispute "involving the
application of the provisions of this Agreement." On its face, this contractual definition of a
grievance does not exclude a certain class or type of dispute from being grieved and/or
That being so, the presumption is that any grievance which arguably falls into this category
grieved and/or arbitrated.
The City's contention that the instant grievance is not substantively arbitrable is based
language of the Reservation of Rights and Sick Leave articles in the Agreement, language
yet to be reviewed as it involves the merits of the dispute. This argument misses the mark.
it may ultimately be found that the City's interpretation of those contract provisions is
determination can only be made upon the interpretation of the parties' rights under the
language. In other words, this dispute involves the interpretation and application of those
and therefore, meets the contractual definition of a grievance set forth in Article IV, Section
being so, it is held that the instant grievance is substantively arbitrable. Thus, the focus now
to the merits of the grievance.
At issue here is whether the City violated the collective bargaining agreement when it
the grievant to come in to work on two separate occasions while he was on sick leave. For
following reasons, it is concluded the City's actions did not violate the collective bargaining
As this case involves sick leave, the logical starting point for purposes of discussion
contract provision which deals with that subject. A review of Article IX, Sick Leave, shows
Section 1 defines how sick leave is accumulated, Section 2 clarifies the method of
creates a cap, Section 3 establishes certain procedural steps for an employee to follow when
want to take sick leave, and Section 4 defines how accumulated sick leave may be lost. The
agree that in the context of this case, the section which is most applicable is Section 3. That
In order to be granted sick leave with pay, an employee must call
the fire department prior to
0700 hours and give the reason for his absence. The employee must keep the Chief or Duty
informed of his condition, for an extended illness, by submitting a medical certificate for all
of more than two (2) consecutive scheduled work days.
This section establishes procedural steps an employee must follow in order to be
granted sick leave.
This section does not guarantee that the sick leave will be granted automatically as long as
procedures are followed. Management has the right to evaluate the sufficiency of the
by the employee for his impending absence and then decide whether to grant or deny the
request for sick leave. The granting or denying of sick leave is generally recognized as a
prerogative, but one that must exercised in a reasonable and nondiscriminatory fashion. In
the City granted Dolens sick leave following his knee injury. He was on sick leave from
to sometime in June, 2000, inclusive, during which time he was twice directed to attend
sessions of a half-day each.
In Article XXV Reservation of Rights, the City has retained "all rights,
authority" it possessed prior to the Union's becoming the collective bargaining representative
City's firefighters, "except as specifically limited by express provisions of this agreement."
such rights would be the authority to direct its work forces and to assign work. Article IX,
Leave, does not contain such an express limitation on management's rights in those regards.
Article IX, as noted above, sets forth in Section 3 the procedures to be followed to
approval to be on paid sick leave, but such approval is not guaranteed. The underlying
a sick leave provision is to protect the employee from loss of pay when he/she is unable to
their regular duties due to illness or injury. Management determines whether or not an
unable to perform his duties and may, as is the case here, require medical verification of the
employee's condition to assist in making that determination. Elkouri and Elkouri,
Works (5th Edition), pp. 1025-1029. Also as stated above,
management's determination in that regard
is subject to a reasonableness standard. Whether the determination is reasonable will depend
facts in each case.
It is undisputed in this case that Dolens was not able to perform all of his normal
duties as a result of the knee injury he sustained on February 19, 2000. Dolens in fact
"Return to Work/Physical Capability Form" that indicated "Is to remain off work
four weeks until surgery." However, Dolens did not submit this form until
after he had attended
training on March 9th. Dolens also conceded that if he had thought
attending the training would
endanger his well-being, he would have objected and he would have sought a statement from
physician to that effect.
On March 8th, Deputy Chief Haight contacted Dolens at home and
directed him to come in
for HAZ-MAT training the next morning. The training the morning of March
9th was strictly
classroom instruction and Dolens sat with his leg up and could get up and move around
if he needed to do so. Dolens did not dispute that he was able to do this and did not claim to
pain because of it.
Dolens had surgery on his knee on March 27, 2000, and 2-3 weeks later submitted
form that indicated he was to be off work for another 3 weeks. In May, Dolens submitted
form indicating he was to be off work another 6 weeks. On June 8th, he
came into the Department
to get his paycheck, having driven there himself. Deputy Chief Haight gave Dolens study
be completed for the Paramedic Refresher course he had been taking and advised him that he
complete them at home, but had to come in to the Department the next day to complete the
exam in a proctored setting. Dolens came in the next day and completed the study guides
the final exam. Again, there is no claim that doing so caused Dolens pain or endangered his
While Dolens' injury to his knee was serious, the aspects of such an injury are fairly
known and definite, as opposed to internal injuries or brain injuries where the extent of the
concomitant dangers are not as clear. Dolens had been taking pain medication after the
wearing a knee brace, as well as using crutches. However, it does not appear he was on
medication on either March 9 or June 9, and he never told Haight he would not be able to
or sought an excuse from his physician. As he came into the Department on June
8th to get his
paycheck, he could not reasonably claim he could not come in on June 9th
to take the test. Seemingly,
his argument has been that since he was on authorized sick leave, he could not be called in to
work that falls within his normal duties (attend training), 1/ even though he was capable of
1/ Contrary to the City's
claim that attending training is not "work", it is within their firefighter's expected normal
While it does not appear that the training in question was as critical as the City would
it out to be, it was sufficiently established that having in-house training for the HAZ-MAT
served the Department in terms of the substance of the training and efficient use of
manpower. It also
seems reasonable to want Dolens to complete the paramedic refresher course he had started
retain his certification.
Under the circumstances in this case, it is concluded that it was not unreasonable for
to conclude that Dolens was capable of attending non-physical training at the Department
otherwise on authorized sick leave due to his injury, 2/ and to direct him to do so pursuant to
rights under Article XXV. Thus, it is further concluded that the City did not violate the
Agreement by its actions.
2/ In that regard, the undersigned does not
believe these two instances equate to a "return to duty" as referenced by the Department's
and Regulations", as Dolens was not asked or required to perform his normal duties beyond
the classroom training of a half-day each.
Based upon the foregoing, the evidence, and the arguments of the parties, the
issues the following
The grievances are denied.
Dated at Madison, Wisconsin this 2nd day of November, 2001.