BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
PORTAGE COUNTY COURTHOUSE, HEALTH CARE
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
AND LIBRARY SYSTEM
EMPLOYEES LOCAL 348, AFSCME,
(Grievance SL00CO--Medical Appointment Time and Sick Leave)
Mr. J. Blair Ward, Assistant Corporation Counsel, 1516 Church
Street, Stevens Point, WI 54481, appearing on behalf
of the County.
Mr. Gerald Ugland, Staff Representative, AFSCME Council 40,
PO Box 35, Plover, WI 54467-0035, appearing on
behalf of the Union.
At the joint request of the parties, the Wisconsin Employment Relations Commission
designated the undersigned Marshall L. Gratz as arbitrator to hear and decide a dispute
the above-noted grievance under the parties' calendar 1998-99 collective bargaining
Pursuant to notice, the grievance dispute was heard in the Courthouse Annex in
Stevens Point on March 19,
2001. The proceedings were transcribed. The parties' post-hearing briefs were exchanged
on June 22, 2001, and
neither party gave notice of intent to submit a reply brief by the July 2, 2001, deadline,
marking the close of the
At the hearing the parties authorized the Arbitrator to decide the following issues:
1. Did the Employer violate the Agreement by disallowing
of sick leave for physical
therapy, chiropractic, counseling and other physical and mental care appointments than those
specified in Art. 13(F), by employees otherwise able to perform their job?
2. If so, what is the remedy?
PORTIONS OF THE
ARTICLE 13 - SICK LEAVE
A) Monthly Accrual: All
employees will accrue one day of sick leave per month with no limit on the total
B) Sick Pay: Sick leave shall
be paid on the basis of the regular hourly or monthly rate. (Regular hourly or
monthly rate meaning that received at the time of sickness or injury.)
. . .
D) Worker's Compensation: In the event an
employee receives an injury arising from his/her employment, he/she
shall be eligible to use accumulated sick leave amounting to the difference between that
received under Worker's
Compensation and his/her regular rate of pay. (Regular rate of pay meaning that received at
the time of injury.)
E) Notice to County: Any
employee absent because of sickness or injury shall notify the department head at least
one-half (1/2) hour before the start of work whenever possible, except . . . who shall notify
the department head or
designee at least one (1) hour before the start of work whenever possible. For an absence of
more than one (1) day,
the employee need not call in each day, but shall give an estimate of the number of days
he/she shall be absent from
work. The employee shall notify the department head prior to returning to work. When an
employee is off on sick
leave for three (3) or more consecutive workdays, the employee shall provide the employer
with a doctor's certificate
if required by the immediate supervisor. In the event of documented abuse, the preceding
sentence is not applicable.
F) Medical Appointments:
Employees shall be allowed necessary time off up to a maximum of two (2) hours
during working hours for physician, ophthalmologist or dental appointments. Time in excess
of two (2) hours per
appointment or sixteen (16) hours per calendar year shall be deducted from sick
leave. Such appointments shall be made during non-working
hours whenever possible. When requested by the
County, the employee shall submit a statement from the doctor certifying his/her appearance
at the doctor's office.
When necessary, employees shall be
allowed time off, to be deducted from sick leave, to
accompany a spouse or dependent child to a medical appointment. The employee must state
writing the need for their presence at the medical appointment.
. . .
ARTICLE 31 - ENTIRE MEMORANDUM OF AGREEMENT
This Agreement constitutes the entire agreement between the
parties and no verbal statement
shall supersede any of its provisions. Any amendment or agreement supplemental hereto
be binding upon either party unless executed in writing by the parties hereto. The County
that the Union may request negotiations during the term of this Agreement on any changes in
conditions not covered by this Agreement.
The County maintains and operates the Portage County Courthouse and Annexes,
Care Center, Department of Health and Human Services, Library, Highway Department,
of Aging, Portage House, Highway Department, Housing Authority, Law Enforcement
Solid Waste Department. With certain exceptions, the Union is the exclusive collective
representative of employees in a bargaining unit consisting of all of the County's
employees in those facilities and departments.
As of the March 10, 2001 hearing in this matter, the parties' most recent labor
contract was the Agreement,
which covered calendar years 1998-99 with a nominal expiration date of December 31, 1999.
The parties' bargaining
had not yet reached the point of certification of final offers at the time of the hearing in the
On April 10, 2000, County Personnel Therese Freiberg sent the following
To: Portage County Department Heads
CC: Gerald Ugland, AFSCME Staff
Representative, Collene Ottum, President, AFSCME Local
348, Portage County Personnel Committee
From: Therese Freiberg, Personnel Director
Date: Monday, April 10, 2000
Re: AFSCME Local 348 Medical
On Monday April 10, 2000, this office
became aware that despite the clear language in the AFSCME Local 348
agreement department heads are granting medical appointment time when the time is not
warranted. This must cease
immediately. I am attaching the last version of the form that is to be used by all departments
for medical appointment
time requests. Article 13 of the AFSCME labor agreement provides that medical
appointment benefit is only available
for Physician, Ophthalmologist and Dental appointments. Medical appointment time is
not appropriately granted for
chiropractor, physical therapy, optometrist, or other appointment with a provider not
specifically listed. If an employee
requests time off for any other type of appointment they must use either vacation, comp
time, or unpaid time to be
considered on approved time away from the work place. Sick time is not to be used unless
the employee is ill, not able
to perform their job.
This very clear language needs to be
adhered to in order to properly administer benefits to all AFSCME employees
in a consistent manner.
Please contact the Personnel Department
should you have any questions regarding the matter.
The form attached to the memorandum calls for the employee to check "yes" or "no"
in response to
the question whether the appointment is with one of the following professionals:
As noted above, a copy of that memorandum and attached form was sent to the
and to the Local 342 President.
The grievance giving rise to this arbitration was filed on behalf of "Local 348
et al" by Ottum on April 18,
2000. The grievance asserts that the County violated "Article 13 of the Labor Agreement
per letter from T. Freiberg
dated 4/10/2000" and requests that the County "adhere to the contract and past practice [and
provide] any other remedy
as may be required or allowed."
The dispute was ultimately submitted for grievance arbitration as noted above. At the
the Union presented testimony from Ottum, Union bargaining unit employee Toni Kaminski,
Chief Steward Betti Trzebiatowski, and retired bargaining unit employee Carol Richardson.
County offered testimony from County Nursing Home Administrator Dale Hagen and
It is undisputed that after issuance of Freiberg's April 10, 2000 memorandum, the
disallowed use of sick leave for physical therapy, chiropractic counseling and other physical
mental care appointments than those specified in Art. 13(F), by employees otherwise able to
It is also undisputed that the April 10, 2000 memorandum was issued after the
nominal December 31, 1999
termination date of the Agreement covering calendar 1998-99; that proposals for modification
of Art. 13 were advanced
during the parties' bargaining about a successor to the Agreement; but that by mutual
agreement those proposals were
withdrawn in favor of allowing the results of this arbitration to determine the meaning and
application of Art. 13 of
the successor agreement as regards the issue submitted in this case. (tr. 105-107).
Additional factual background is set forth in the positions of the parties and in the
POSITIONS OF THE PARTIES
By issuing and implementing Freiberg's April 10, 2000 memorandum, the County
violated the Agreement
by violating a longstanding practice of the parties that is not inconsistent with the language of
The Union has presented testimony from various witnesses to the effect that the
Art. 13 has remained materially unchanged since at least 1987; and that for many years
unit employees have been allowed to take sick leave for appointments such as physical
counseling and chiropractic services, regardless of whether the employee was or was not
able to perform his or her work, in circumstances where the Department Head involved
nature of the appointments involved. Ottum's testimony was based not only on her own use
leave for such appointments, but also on her having performed payroll functions at the
Center and later for the entire County and on her having been the Local president since the
1990's. Trzebiatowski's testimony was based not only on her own use of sick leave for such
appointments but also on her many years as a steward and Union officer to whom grievances
have been referred had sick leave denials occurred. Richardson's testimony was based on
experiences over 15 years of employment in the purchasing department. Health Care Center
Administrator Hagen admitted that prior to
April 10, 2000, sick leave was allowed for appointments other than with a physician,
and dentist and that he does not recall refusing to allow an employee to take sick leave for
appointments on a day when the employee was able to work.
Regardless of what Freiberg may have learned of the practice since her relatively
in March of 1998, the Union has clearly shown that the County was aware of the practice
in this case by the Union. Specifically, as reflected in Exhibit 6, former County Personnel
Gerry Lang was faced with a dispute regarding the use of a form for requesting time off for
appointments. Lang responded by issuing a memorandum to all Department Heads stating
AFSCME bargaining unit employees could avoid providing information they considered
by scheduling "confidential medical appointments during non-work time, vacation time, or
if the employee does not want their department head to know about their confidential medical
circumstance." That memorandum shows that the County's former Personnel Director
that sick leave could be used for any type of medical appointment, not just for those with a
ophthalmologist or dentist. Moreover, even Freiberg admitted that she learned in April of
some departments were allowing use of sick leave for people who were not sick but who had
health-related appointments other than with a physician, ophthalmologist or dentist.
Significantly, the Employer offered no testimony or other evidence to contradict the
proof of a longstanding, uniform, and mutually understood pattern of allowing sick leave to
by employees who were otherwise able to work but who were absent from work for
of various types in addition to those listed in Art. 13(F).
It is common knowledge that many employers allow use of sick leave for
language similar to that in Art. 13. The language of Article 13(F) provides for paid time not
to sick leave for certain listed types of medical appointments under certain conditions, but it
express or imply that sick leave use is precluded for appointments of types not on that list.
appointments are paid through sick leave and the employee, upon retirement, does not
payout from sick leave previously used for such appointments. This is the difference
13(A), (B) and (D) on the one hand and Art. 13(F) on the other.
For those reasons, the Arbitrator should sustain the grievance; conclude that the
2000 memorandum violated an established and binding past practice under the Agreement;
the County to reinstate the practice of allowing employees to use sick leave for appointments
not listed in Art. 13(F). The Arbitrator should also order the County to make whole all
adversely affected by the implementation of the April 10, 2000 memorandum.
The language of Art. 13(F) strictly limits appointments for which employees will be
time off to those with a physician, ophthalmologist or dentist. The provision does not
employee to use sick leave for physical therapy, chiropractic counseling and other physical
care appointments. Rather, as Freiberg testified (at Tr.87),
[A]n employee under the AFSCME labor agreement is able to use
sick leave if they are unable
to perform their job due to illness or injury. They're able to use sick leave if they have an
medical appointment that goes beyond two hours in duration, or they're able to use sick
leave if they
have an eligible medical appointment, by that I mean the three categories that are listed in
they have already used 16 hours per year of medical appointment time for those eligible
. . . And they are eligible to convert it at retirement . . . .
Freiberg testified that she learned during an April 10, 2000 meeting with members of
County negotiating committee that some department heads were allowing their employees to
leave for health-related appointments in addition to those with a physician, ophthalmologist
Freiberg further testified that from the beginning of her employment with the County in
1998 until that meeting, it had always been her understanding that the County was uniformly
sick leave for appointments to appointments with a physician, ophthalmologist or dentist.
Accordingly, Freiberg immediately issued the April 10, 2000 memo to all department
informing them of the correct way to apply Art. 13 of the Agreement.
As noted, the language of Art. 13 clearly and unambiguously limits sick leave for
appointments to appointments with a physician, ophthalmologist or dentist. The Union's
that past practice supersedes the clear language of the agreement must be rejected for several
The Union's proofs are not sufficient to show a practice that is unequivocal, clearly
enunciated, acted upon and readily ascertained over a reasonable period of time as a fixed
established practice. The Agreement covers 300 employees in some 20 County departments.
record evidence is limited as to the number of departments to which it relates. Moreover,
the appointments about which witnesses testified would have been proper uses of sick leave
either party's position in this case, such that they do not lend persuasive support the Union's
in this case; for example, instances in which the witness was absent from work for an
but was too sick to work as well. In addition, Freiberg testified that her office and the
would have no way of knowing that sick leave was being improperly used by employees or
improperly implemented by department heads.
Even if there were proof of a practice meeting the recognized arbitral standards
above, the practice would be
contrary to Art. 31 which expressly provides that any amendment or supplement of the
Agreement shall not be binding
upon either party unless executed in writing by the parties. Moreover, because the
Agreement contains neither a
maintenance of standards clause nor any other contractual basis to support enforcement of the
practice relied upon by
the Union, the practice was subject to unilateral discontinuation by the County. Citing, City
of La Crosse, WERC
MA-5865 (Jones, 8-20-90). Freiberg's April 10, 2000 memorandum properly discontinued
any on-going practice that
was inconsistent with the language of Art. 13(F) limiting sick leave for appointments
to those with a physician,
ophthalmologist or dentist.
For those reasons, the grievance should be denied in all respects. If the Arbitrator
merit in the grievance, the remedy should be limited to expanding the Art. 13(F) list of
types only to the extent supported by the record evidence.
As the County argues, the language of Art. 13, read as a whole, does not, on its
for the use of sick leave for any appointments other than those specifically listed in 13(F).
references to sick leave in Art. 13(B), (D) and (E) make sick leave generally available
employees who are "absent because of sickness or injury." The Agreement expressly
use of sick leave for other purposes only in 13(G) relating to conversion of sick leave to pay
insurance premiums of eligible retirees (which has no bearing on this case), and in 13(F)
"Medical Appointments" (which does have a bearing on this case).
In the first paragraph of 13(F), the parties have effectively defined "Medical
as "physician, ophthalmologist or dental appointments." The parties have further specifically
expressly provided in that paragraph that time spent on employee medical appointments so
"shall be . . . during non-working hours whenever possible" and ". . . shall be deducted
leave" except for the first two hours per appointment up to sixteen hours per calendar year,
there is no deduction from the employee's sick leave and no loss of pay.
In the second paragraph of 13(F) the parties have specifically and expressly provided
deducted from sick leave "[w]hen necessary [for an employee] to accompany a spouse or
child to a medical appointment."
Thus, the parties have specifically and expressly provided that medical appointments
defined in 13(F) shall be deducted from sick leave when they involve accompanying a spouse
dependent child to a medical appointment or when they exceed the stated hours standards
to an employee's own appointments. By contrast, the parties have not specifically or
expressly provided anywhere in the Agreement that any of the other kinds of
appointments at issue in this case shall be deducted from sick leave under any circumstances.
Applying the well-recognized standard of contract interpretation known by the maxim
"expressio unius est
exclusio alterius" -- to express one is to exclude all others -- it is appropriate and
conventional to interpret the
language used by the parties in Art. 13 as clearly and unambiguously meaning that the only
appointments for which
sick leave is available under the Agreement are those listed in Art. 13(F). See, Volz and
Goggin, eds., How Arbitration
Works, 5th Edition, p. 497 (BNA, 1997) and cases cited therein.
The Arbitrator finds unpersuasive the Union's argument that the sole purpose of
Art. 13(F) is to define three
special categories of appointments for which the employee, in specified circumstances, is
allowed time off that is not
deducted from sick leave. The second paragraph of 13(F) provides time off deducted from
sick leave "[w]hen necessary
[for an employee] to accompany a spouse or dependent child to a medical appointment"
without any reference to time
off that is not deducted from sick leave. Moreover, the first paragraph not only provides for
time off not deducted from
sick leave in certain circumstances, but it also expressly provides for time off deducted from
sick leave in other
Those specific and expressed provisions in 13(F) for time off deducted from sick
leave for physician,
ophthalmologist and dentist appointments are unusual. When they are read together with the
balance of the Art. 13,
the plain meaning of the Article is that the only appointments for which sick leave is
available are those listed in Art.
The Union has presented persuasive and virtually uncontroverted evidence of a
longstanding practice whereby
employees have been allowed to use sick leave for health-related appointments other than
those listed in Art. 13(F)
where the employee involved was otherwise able to perform his or her job duties. The
Union has also presented Exhibit
6 which persuasively indicates that the practice was known and acquiesced in not merely by a
few isolated department
heads, but also by the County's former Personnel Director, as well.
However, assuming (without deciding) that Art. 31 would permit evidence of past
practice to supercede the
plain meaning of the language of Art. 13, a past practice like the one relied upon by the
Union in this case -- which
the Arbitrator has determined does not involve interpretation of ambiguous language -- is
subject to unilateral
repudiation by either party at the time a new agreement is being negotiated. See, Nicolet
High School District,
WERC MA-10243 (Gratz, 5-24-99) citing, St. Antoine, Theodore, ed., The Common
Law of the Workplace, 81
(BNA, 1998) at 82-83 ("Altering a Past Practice. An established practice that is an
enforceable condition of
employment, wholly apart from any basis in the agreement, cannot be unilaterally modified
or terminated during the
term of the contract. Either party may repudiate such a past practice, however, at the time a
new agreement is
negotiated, since its continuing existence depends on the parties' inferred intent to retain
existing conditions, in the
absence of any objection. On the other hand, a practice that serves to clarify an ambiguous
provision in the agreement
becomes the definitive interpretation of that term until there is a mutual agreement on
rewriting the contract. The
practice cannot be repudiated unilaterally.
Finally a change of conditions that initially produced the practice may permit a party to
discontinue it. For a full
analysis, see Mittenthal, Richard, Past Practice and the Administration of Collective
Bargaining Agreements, in 14
NAA 30, (1961)").
The County's April 10, 2000 memo, coming as it did when the 1998-99 Agreement
had nominally expired
and when a new successor agreement was open for negotiations, constituted a notice
sufficient to effectively repudiate
the practice unless the Union obtained a change in the language of Art. 13 conforming that
language to the practice
in that round of bargaining. That memorandum clearly put the Union on notice that the
County was not willing to
grant sick leave for appointments other than those specified in 13(F) and hence was not
willing to conform its
interpretations of Art. 13 to any past practice that was inconsistent with the plain meaning of
the language of that
Once the County gave the Union that memorandum, the Union, by ultimately
agreeing to maintain the
language of Art. 13 materially unchanged, failed to take the step necessary to prevent the
County from terminating the
past practice and from strictly construing Art. 13 according to the plain meaning of its
language as regards all times
after the April 10, 2000 memo was issued to the Union.
Accordingly, the Arbitrator concludes that the Agreement did not require the County
to maintain the practice
after the County's issuance of the April 10, 2000, memo. The grievance has therefore been
denied in all respects.
DECISION AND AWARD
For the foregoing reasons and based on the record as a whole, it is the decision and
the Arbitrator on the issue submitted that:
1. The County did not violate the Agreement by
disallowing use of sick leave for physical therapy,
chiropractic, counseling and other physical and mental care appointments than those specified
in Art. 13(F), by
employees otherwise able to perform their job.
2. The subject grievance is denied, and
consideration of a remedy is necessary or appropriate.
Dated at Shorewood, Wisconsin, this 17th day of December, 2001.
Marshall L. Gratz, Arbitrator