BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MANITOWOC COUNTY HEALTH CARE
EMPLOYEES LOCAL #1288, AFSCME,
(Tina Nething Grievance)
Mr. Neil D. Rainford, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing
on behalf of the Union.
Attorney Steven J. Rollins, Manitowoc County Corporation
Counsel, appearing on behalf of the
At all times pertinent hereto, Manitowoc County Health Care Center Employees
(herein the Union) and Manitowoc County (herein the County) were parties to a collective
agreement dated December 4, 2000, and covering the period January 1, 2000, to December
and providing for binding arbitration of certain disputes between the parties. On June 12,
Union filed a request with the Wisconsin Employment Relations Commission (WERC) to
grievance arbitration on the County's issuance of discipline to Tina Nething (herein the
alleged excessive absenteeism and requested the appointment of a member of the WERC staff
arbitrate the issue. The undersigned was designated to hear the dispute and a hearing was
on September 7, 2001. The proceedings were transcribed and the transcript was filed on
26, 2001. The parties files briefs on November 14, 2001, and reply briefs on January 14,
whereupon the record was closed.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties were unable to stipulate to the framing of the issues. The Union would
issues as follows:
Did the Employer violate the collective bargaining agreement
when it disciplined the Grievant,
Tina Nething, for the legitimate use of accumulated sick leave?
If so, what is the appropriate remedy?
The County would frame the issue as follows:
Is the grievance arbitrable?
If so, did the Employer have just cause to
issue a written warning to Tina Nething on January
If not, what is the appropriate remedy?
The Arbitrator frames the issues as follows:
Is the grievance arbitrable?
If so, did the County violate the collective bargaining
when it disciplined the
Grievant for excessive absenteeism based upon her use of accumulated sick leave?
If so, what is the appropriate remedy?
ARTICLE 3 MANAGEMENT RIGHTS
Unless otherwise herein provided,
management of the work and direction of the working force,
including the right to hire, promote, transfer, demote, or
suspend, or otherwise discharge for just cause, and the right to
relieve employees from duty
because of lack of work or other legitimate reason, is vested exclusively in the Employer. If
action taken by the Employer is proven not to be justified, the employee shall receive all
benefits due him or her for such period of time involved in the matter.
Manitowoc County shall have the sole right
to contract for any work it chooses and to direct its
employees to perform such work wherever located subject to only the restriction imposed by
Agreement and the Wisconsin Statutes. In the event the Employer desires to subcontract any
which will result in the layoff of any County employees, said matter shall first be reviewed
The Employer retains the right to comply
with the Americans With Disabilities Act. The
Employer and the Union mutually agree that an employee who is a qualified individual as
the Americans With Disabilities Act is eligible for, upon request, reasonable accommodation
defined by the Act. In the event the Employer finds it necessary to accommodate the
disability of an
employee whose work is within the parameters of Article One, Recognition, it will inform
The Union and the Employer will meet to discuss possible accommodations. Any
the accommodations shall be referred to the grievance arbitration procedure defined in
Unless otherwise herein provided, the
Employer shall have the explicit right to determine the
specific hours of employment and the length of work week and to make such changes in the
of employment of various employees as it, from time to time, deems necessary for the
operation of the Institution. The Union agrees, at all times, as far as it has within its
preserve and maintain the best care of all humanitarian considerations of the patients of said
Institution and otherwise further the public interest of Manitowoc County. The Employer
reasonable work rules except as otherwise provided in this Agreement.
The Employer agrees that all amenities and
practices in effect for a minimum of twelve (12)
months or more, but not specifically referred to in this Agreement, shall continue to for the
of this Agreement. The parties recognize the County's right to implement an Employee
Program. Practices and policies established pursuant to the Employee Assistance Program
be considered a past practice, regardless of how long the exist. The County reserves the
modify or discontinue any portion of the program. The decision of the County to modify or
discontinue any portion of the program shall not be subject to the grievance procedure.
The term "Employee Assistance Program" refers to a system of
employee referral and counseling
which helps employees deal with emotional, mental, chemical dependence and other personal
problems. Referrals and counseling shall be confidential and shall not be disclosed or
except as expressly authorized by the employee in writing.
ARTICLE 4 DISCIPLINARY
A. Employees may be
disciplined for just cause. It is understood and agreed that just progressive
discipline shall be forwarded. The Employer shall provide the employee and, at the same
time, the Vice-President of Local 1288 with a letter setting forth the reason(s) for the
Employees will be disciplined for non-participation in
in-service training sessions
unless prior approval is obtained by the employee from their supervisor (vacation, sick leave,
funeral leave and holiday time off shall automatically constitute prior approval). In-service
training, fire drills, etc. shall be conducted during regular working hours. Management shall
allot sufficient time for employees to attend in-service session(s) during the workday and
provide adequate notice of in-service sessions.
. . .
ARTICLE 7 GRIEVANCE
A. Definition of a
Grievance: Should any differences arise between the Employer and the Union
as to the meaning and application of this Agreement, or as to any question relating to wages,
hours, and working conditions, they shall be settled under the provisions of this Article.
Limitations: The failure of a party to appeal a grievance in a timely fashion will be
treated as a settlement to that particular grievance, without prejudice. However, if it is not
possible to comply with the time limitation specified in the grievance procedure because of
work schedules, illness, vacations, holidays, any approved leave or time off, these time
limitations may be extended by mutual agreement.
The party who fails to receive a reply in a
timely fashion shall have the right to automatically
proceed to the next step of the grievance procedure.
C. Steps in
employee and one (1) Union steward shall present written notice within a
reasonable period of time to the immediate
supervisor but in no event later than forty-five
days after the Union knew or
should have known of the occurrence of such grievance. In the event of a grievance, the
employee shall perform his or her immediate assigned work task, if any, and grieve the
later, unless his/her health or safety is endangered. The immediate supervisor shall within
seven (7) calendar days provide a written notice to the employee and the Union.
Step 2: If the
grievance is not settled in Step 1, the Union shall reduce the grievance to
writing and present it to the Administrator within fourteen (14) calendar days of
communication of the immediate supervisor's written response. The Administrator shall
offer to discuss the grievance with the employee and representatives of the Union (no
more than one representative shall be on the schedule for that time), and following such
meeting, if any, shall respond in writing within fourteen (14) calendar days of receipt of
Step 3: If the
grievance has not settled at Step 2, or if the parties mutually agree to waive
Steps 1 and 2, the grievance shall be submitted in writing to the Personnel Director within
fourteen (14) calendar days after receipt of the Department Director's written response.
The Personnel Director shall offer to meet with the Union to discuss such grievance with
the Union upon written request including identification of all grievances to be discussed
within fourteen (14) calendar days after receipt of such request. Following such meeting,
if any, the Personnel Director shall respond in writing to the Union within fourteen (14)
calendar days following receipt of the grievance.
Arbitration: If a satisfactory settlement is not reached in Step 3, the
shall notify the Employer in writing within each thirty (30) calendar days after the
receipt of the written decision of the Personnel Coordinator of its intent to process
the grievance to arbitration.
Arbitrator: The grievance may be submitted to an Arbitrator mutually agreeable
the Employer and the Union. If the Employer and Union do not agree to an arbitrator
within ten (10) calendar days, either party may request the Wisconsin Employment
Relations Commission to appoint an arbitrator.
c. Arbitration Hearing: The
Arbitrator shall with the consent of both parties, use his or
her best efforts to mediate the grievance before the Arbitration Hearing. The parties
shall attempt to agree in advance on stipulated facts and issues to be used as well as
procedures to be followed at the hearing. The Arbitrator selected or appointed shall
meet with the parties at the earliest mutually agreeable date to review the evidence
and hear testimony. The Arbitrator shall make a decision on the grievance which shall
be final and binding on both parties. The decision shall be submitted in writing as
soon as possible after the completion of the hearing.
d. Expedited Arbitration: In
order to increase efficiency and reduce cost to process
grievances where facts are not in dispute, the Union and the Employer may agree to
submit disputes to expedited arbitration in lieu of a formal arbitration hearing.
1. Availability: Both
the Employer and the
Union must agree to submit a dispute to
expedited arbitration. The decision to submit a particular dispute to expedited
arbitration does not constitute a past practice or precedent for future disputes.
2. No prejudice:
Neither the Employer nor the Union waives any rights by
submitting a grievance to expedited arbitration. No inference may be drawn from
the fact that expedited arbitration has been selected. No change in the underlying
burden of proof nor burden of presentation may be inferred from the submission
of a dispute to expedited arbitration.
3. Stipulated Facts: All
facts material to the dispute must be recited in a stipulation
approved by the representative of the Employer and of the Union. Any exhibits
or items of evidence shall be provided with the stipulation and listed.
4. No Testimony or
Record: There shall be no testimony or oral record of such
proceeding submitted for expedited arbitration. The record for the arbitrator shall
be the stipulations and exhibits agreed to by the parties.
5. Briefs: The parties may agree to submit
briefs arguing their case to the arbitrator.
Briefs shall be filed within 45 days of the date the representatives sign the
stipulations submitting the stipulated record to the arbitrator. Briefs shall be filed
with the arbitrator, who shall exchange briefs on behalf of the parties. There shall
be no reply briefs.
6. Effect of Decision: The decision of the
arbitrator shall have the same effect as if
the matter had been heard at a hearing.
e. Costs: Each party shall bear
the costs of its attorneys' fees. The party against whom
the decision is rendered shall bear the full cost, if any, of the selected arbitrator.
Either party may request a transcript, however, no party shall be required to order or
pay for a copy of the transcript. Any registration or filing fees shall be shared equally
by the parties.
f. Decision of the
Arbitrator: The Arbitrator shall not modify, add to or delete from the
terms of the Agreement.
ARTICLE 13 SICK
Employees shall earn sick leave at a rate of one and one-quarter (1 1/4) days
per month for a total of fifteen (15) days per year. Unused sick leave shall accumulate to a
maximum of one hundred and twenty (120) days. However, no sick leave benefits may be
used during the first year of employment although they may be accumulated on the
B. Notice of Sick
Leave: In order to be eligible for sick leave pay, it is understood that on any
work day when an employee is unable to perform his or her duties, he or she shall so advise
his or her immediate supervisor, the Administrator or the Administrator's designee prior to
the start of his or her work shift, if possible. In the event the employee calls in due to
one (1) hour or more prior to the start of his or her shift, the employee will make a good
effort to obtain replacement personnel.
In the event of critical illness or required
attendance upon an employee's father, mother,
spouse or child, an employee shall be allowed to use accumulated sick leave.
Manitowoc County recognizes and
complies with both State and Federal Family and Medical
Leave Acts, and when requested, will assist the employee in the utilization of those rights.
Any employee off work due to illness for three (3) or more consecutive days
shall be required by the Employer to submit an physician's statement.
After five (5) occurrences, (funeral
supplement not included), the Employer may require an
employee to furnish a physician's certificate for the sixth
(6th) sick leave occurrence and thereafter in a calendar year.
is understood that in
counting occurrences for the requirement of bringing in a physician's certificate to return to
work from sick days, no occurrence shall be counted if a physician's certificate is brought in
for such occurrence. If there is any additional expense for such physician's certificate, the
Employer shall pay the cost of the same.
As to sick leave absences caused by a
dependent's sickness, the County may if it has a
reasonable basis for questioning the taking of such leave, require that after five (5) total
absences covering all sicknesses during a calendar year, that the employee supply a
physician's certificate covering the sickness of the dependent, provided that the County pays
for the cost of the physician's certificate. Furthermore, it is understood that in counting
occurrences for dependent's sickness, no occurrence shall be counted if it is accompanied by
a physician's certificate.
Under this Article, the Employer may at
its expense, designate a physician to provide a second
physician's written opinion regarding the employee's illness and/or need for sick leave.
Should there be a contradiction between
the first and second physician's opinion, either the
employee or the Employer may request a third physician's written opinion regarding the
employee's illness and/or need for sick leave. Such third written opinion shall be from the
physician selected by mutual agreement of the first and second physician's and at the
Employer's expense. It is further understood that the practice of requiring a second or third
physician's statement will not be required in every circumstance, but rather on a case by case
Just progressive discipline may be
implemented for a recognized pattern of absenteeism such
as either the day before or the day after a scheduled time-off from work including
non-scheduled working days, holidays, vacations, etc. These are examples only and do not
the grounds for just progressive discipline for a recognized pattern of absenteeism.
In addition, an employee claiming or
obtaining sick leave benefits by proven fraud, deceit, or
falsified statement shall be subject to just progressive discipline.
. . .
ARTICLE 27 ENTIRE
MEMORANDUM OF AGREEMENT
A. The Agreement constitutes
the entire agreement between Manitowoc County and Manitowoc
County Health Care Center Employees, Local 1288,
AFSCME, AFL-CIO. None of the terms and conditions of
Agreement shall be changed
unilaterally. Changes may be made by mutual agreement of the parties in writing.
B. The parties agrees that
during the term of this Contract and any extension of the contract by
agreement, they shall not refuse to bargain in good faith.
Policy Implemented 6/1/98
Policy Revised 6/1/99
Attendance Policy of Manitowoc
County Health Care Center
The Manitowoc County Health Care Center
provides residential nursing home care to its
residents. It operates 24 hours a day, 7 days a week under strict state regulations. In order
that residents receive quality care and that the Manitowoc County Health Care Center
all legal requirements, it is essential that all employees work when scheduled to do so.
Adequate staffing is critical to meet state
and federal regulations and to meet the mission
statement of providing quality care to the residents of the Manitowoc County Health Care
Additionally, absenteeism causes unnecessary increases to payroll costs and is demoralizing
who do report to work as scheduled. For these reasons punctual and regular attendance is an
essential element of every job at the Manitowoc County Health Care Center and the
County Health Care Center expects its employees to report to work when scheduled.
The Manitowoc Health Care Center
understands that sometimes it is not possible to report to
work when scheduled. The Manitowoc Health Care Center provides sick leave, funeral
other types of leave for unanticipated absences from work to help employees deal with these
situations. The Manitowoc Health Care Center also provides vacation and holiday leave for
anticipated absences from work.
The purpose of this policy is to improve the
attendance and reduce absenteeism. This policy does
not apply to probationary on on-call employees of the Manitowoc Health Care Center. This
does not apply to absences covered by the Family and Medical Leave Acts, Worker's
or any other protected leave status covered by Federal or State law.
Sick leave is one of the most valuable
benefits the Manitowoc Health Care Center offers its
employees because it can provide income protection during an extended illness or the
an injury. Employees of the Manitowoc Health Care Center are allowed to accumulate a
balance of up to 120 days to provide this insurance against disruption in income.
Sick leave may only be used in cases of
actual illness or disability, other medical and health
situations requiring the employee's absence from work, or in situations where an employee's
attendance is required because of the serious illness or disability of a father, mother, spouse
Definitions of terms contained
within the Attendance Policy of the Manitowoc Health Care
No Call/No Show. A no
call/no show is when an employee fails to report to work and does not
notify the Manitowoc Health Care Center of their absence prior to the beginning of the
work shift, unless medically incapable of doing so.
Occurrence of No Call/No
Show. An occurrence of no call/no show happens each time an
employees fails to report to work and does not notify the Manitowoc Health Care Center of
absence prior to the beginning of the scheduled work shift, unless medically incapable of
Unscheduled absence is a failure to complete a scheduled day of work,
absence due to sickness of one (1) or more consecutive scheduled work days, absence due to
reason other than sickness, tardiness more than thirty minutes, or three instances of being
than thirty minutes within the rolling calendar year. Funeral leave and leave for jury duty
considered unscheduled absences.
Occurrence of Unscheduled
Absence. An occurrence of unscheduled absence is a failure to
complete a scheduled day of work, absence due to sickness of one (1) or more consecutive
work days, absence due to any reason other than sickness, tardiness more than thirty
minutes, or three
instances of being tardy less than thirty minutes within the rolling calendar year.
Rolling Calendar Year. A
rolling calendar year is used to access occurrences of unscheduled
absence and is a look back of one calendar year from the current date. For example, if there
occurrence of unscheduled absence on June 15, 1998 thorough [sic] June 15, 1999
be examined to determine if progressive discipline is appropriate, and if so, at what level.
Call In Procedure to Report Unscheduled
When unable to report for a scheduled day
of work, an employee must call in as soon as the need
to be absent is known and, in all cases, prior to the start of the employee's work shift. The
must speak with his or her department director. If the employee's director is not available,
employee must call the director's designated representative or the nursing facility supervisor.
The employee must state the reason for the
absence and the type of leave that the employee
intends to use.
Calls from individuals other than the
employee and messages left on answering machines are not
acceptable and will not meet the requirements of this policy unless an emergency situation
An employee who are unable to complete a
scheduled a day of work notify his or her department
director as soon as the need to be absent is known, and the type of leave the employee
intends to use.
If the employee's department director is not available, the employee must contact the
designated representative or the nursing facility supervisors.
Any employee off of work for three (3) or
more consecutive scheduled work days because of
sickness or due to sickness of an immediate family member as provided for under the terms
applicable collective bargaining agreement, policy, or law, is required to submit a physician's
certificate upon his or her return to work. As provided for under the terms of the collective
bargaining agreement or policy, every employee will be required to provide physician's
his or her upon each return to work after the fifth (5th) use of sick leave in
a calendar year.
As authorized under the collective
bargaining agreement, policy, or law, the Employer may, at
its expense, designate a physician to provide a second physician's written opinion regarding
employee's illness or need for sick leave. The employee will be examined on a date and
by the Employer.
Progressive Discipline Schedule
for Manitowoc Health Care Center Attendance Policy
Progressive Discipline For
Occurrences of Unscheduled Absence
Beginning with the sixth occurrence of unscheduled absence in a
rolling calendar year,
progressive discipline will be administered as follows:
occurrence verbal warning
occurrence written warning
occurrence suspension of three days
occurrence termination of employment
Progressive Discipline For No
For each occurrence of no call/no show
within the rolling calendar year, progressive discipline
will be administered as follows:
occurrence one day suspension
occurrence five day suspension
Progressive Discipline For Sick Leave
Any employee claiming or obtaining sick
leave benefits by proven fraud, deceit, or falsified
statement shall be subject to accelerated progressive discipline, beginning at minimum at the
suspension stage, up to and including termination.
An employee who has not had an
unscheduled absence for three consecutive months shall qualify
for an incentive and will have an incident of unscheduled absence removed from his or her
record. If the employee would rather receive a cash payout and deduction of eight hours of
leave, the employee must file a written request with the employer before the end of the
which the incentive is earned and that request will be honored until it is withdrawn in
The Health Care Center administration will
review attendance records at the end of each month
to determine which employees qualify for the incentive. Once the incentive is earned, the
will be eligible for further incentives when he or she has three new, consecutive months
unscheduled absence. No employee may qualify for more than four incentives in a calendar
The Union and the County are parties to a collective bargaining agreement, Article
which provides for accrual of 15 days of paid sick leave each year for bargaining unit
members, up to a maximum of 120 days, and establishes criteria for sick leave usage.
Under the sick
leave language, in order to be eligible for sick pay an employee is to give prior notice of
unavailability for work, if possible. Further, sick leave usage is available to attend to a sick
spouse or child. After a total of 5 absences during a calendar year, the County may require
employee to provide a physician's certificate justifying each subsequent absence, subject to
County's defraying the cost of obtaining any such certificate, in order to receive sick pay.
leave provision also provides for discipline of employees in cases of fraud or pattern sick
Independent of the collective bargaining agreement, the County has also unilaterally
an attendance policy pursuant to the management rights reserved to it in Article 3 of the
The attendance policy ostensibly exists in order to curb excessive absenteeism among County
employees. The most recent version of the attendance policy was adopted on June 1, 1999.
the policy, an employee who accrues more than five occurrences of unscheduled absence
rolling calendar year is subject to discipline. Absence from work due to illness, whether of
employee or a family member, is considered an unscheduled absence. In this regard, it is a
policy, since there is no inquiry into the reason for the absence or its justification - once the
has passed the threshold of permissible unscheduled absences he or she is automatically
discipline. Prior to 1998, the policy did not apply to use of sick leave where the absence
supported by a physician's certificate, nor did it apply to absences resulting from an
sent home from work by a supervisor who deemed the employee to be too sick to work, but
and 1999 forms of the policy eliminated these provisions. In 1998, the County also adopted
incentive plan for employees who had no unscheduled absences in a rolling calendar quarter
allowing themto either have one previous unscheduled absence
removed from their record or, in the
alternative, having one sick day converted to cash and paid out. Subsequently, absenteeism
County employees has been significantly reduced.
Tina Nething, the Grievant herein, has been an employee at the Manitowoc County
Care Center and a member of the bargaining unit since 1996. Over the course of her
she has made extensive use of the sick leaveaccrued during her
employment, such that she had the
equivalent of 4 days of sick leave available on January 23, 2001, despite having accrued 82
sick leave during her employment. On the date in question, she called in sick to work
son was ill with strep throatand she was required to care for him,
which was her 7th unscheduled
absence in the rolling calendar year commencing January 23, 2000. She obtained a
the doctor, confirming the illness, and provided it to her supervisor the next day, pursuant to
leave policy set forth in the collective bargaining agreement. On January 26, the Grievant
a written warning for violation of the County's absenteeism policy. Subsequently, the
an 8th unscheduled absence, which, although also supported by a
physician's certificate, resulted in
a 3-day suspension under the attendance policy. There is no allegation that any of the
absences were the result of fraud or pattern sick leave abuse, nor that she failed to comply
County's notice and certification procedures for sick leave usein any
On or before February 26, 2001, the Grievant filed a written grievance over the
written reprimand with the Director of Nursing, Julie Place, which was denied on February
grievance was then submitted to the Health Care Center Administrator, Michael Thomas,
it on March 22, 2001. Finally, the grievance was submitted to the County Personnel
denied it on April 30, 2001. The matter was then submitted for arbitration. Additional facts
referenced, as needed, in the discussion section of the award.
POSITIONS OF THE PARTIES
The issue is not arbitrable. In Manitowoc County (Health Care Center), WERC Case
249, No. 46579, MA-7012 (Knudson, 10/30/92), the arbitrator upheld the County's
policy, which was a predecessor to the one at issue here. Manitowoc County is, in effect,
judicata, therefore,on the question of whether its attendance policy
is valid and reasonable. Further,
the grievance is not timely. The grievance procedure in the contract provides that a
be filed within 45 days after the Union knew or should have known of the circumstances
to the grievance. The current policy went into effect on June 1, 1999, and the Grievant
copy on July 29, 1999, therefore, the grievance would need to have been filed no later than
September 12, 1999, in order to meet the time requirements of the contract.
On the merits, the County had just cause to discipline the Grievant for violation of
attendance policy. The County has a legitimate interest in reducing excessive absenteeism
attendance policy is an appropriate means of achieving this goal. The Grievant has a long
excessive use of sick leave, demonstrated by the fact that she had just 4 available sick leave
January 23, 2001, despite over five years of employment during which she accrued 82 sick
Just cause is determined by application of a seven part test which examines 1) adequacy of
2) reasonableness of the rule in question, 3) adequacy of investigation, 4) fairness of
5) proof of violation, 6) equality of treatment, and 7) reasonableness of penalty. The
been aware of the policy since July, 1999, which is more than sufficient notice of the
existence of the
rule. The reasonableness of the policy is established by the award in Manitowoc County,
upheld a substantially similar "no fault" attendance policy. A similar policy was also upheld
Detroit Riverview Hospital, 96 LA 639 (Glendon, 1991). Being that the policy is "no fault,"
only real issue to be investigated was whether the Grievant was absent on the day in question
County conducted a fair and appropriate investigation, which determined that she was. This
has been applied fairly and equitably since its adoption. In this case, the Grievant accrued a
unscheduled absence during a rolling calendar year, which calls for a written reprimand, the
penalty she received for a similar offense on December 15, 2000.
The grievance is arbitrable. Manitowoc County is not dispositive of this case for a
of reasons. First, it dealt with a different attendance policy, which was dissimilar to the one
in several significant respects. It had more reasonable time and attendance requirements and
for discretion in application of penalties, which the present policy does not. This last feature
to Arbitrator Knudson's decision to sustain the policy. The current policy is a "no fault"
policy which mandates discipline for a specified number of absences, regardless of cause,
unreasonable on its face. Discipline commences after the fifth absence in a rolling calendar
previous policy allowed for discretion in assessing penalties and did not call for a written
until the tenth absence in a six month period. The policies are not substantially similar.
Union did not waive its right to grieve the attendance policy. Each violation of the contract
on its own and may be grieved, independently of what has gone on before.
The County's actions violated several provisions of the contract. It violated Article 4
Cause, in that, contrary to the County's contention, the policy has not been applied
among the employees, but has been applied discriminatorily. Further, the County performed
adequate investigation. Once the Grievant's absence was determined there was no inquiry
legitimacy, which might have mitigated the penalty. Finally, the penalty was unreasonable.
Grievant had sick leave available on the day in question, had a legitimate excuse for her
followed the sick leave provision to the letter in giving notice and obtaining a physician's
yet she was disciplined. The County's actions also violate Article 13 Sick Leave.
provides for discipline only for sick leave abuse in the form of fraud or a recognized pattern
absenteeism. Neither circumstance applies to the Grievant. Sick leave is a contracted for
the County's policy hinders and restricts the employees' use of it. This is a violation of the
The County also violated Article 3 Management Rights Reserved, which permits it to
reasonable work rules. A rule which conflicts with the contract and impairs use
of a contracted
benefit is not reasonable. Finally, the County violated Article 27 Entire
Agreement, which prohibits unilateral amendment or alteration of the terms of the contract.
of the attendance policy fundamentally altered the sick leave provision and thus constituted a
The Arbitrator can, and should, require the County to conform its
attendance policy to the
terms of the contract and sustain the grievance.
The County in Reply
The challenge to the attendance policy is not timely. The contract specifies that a
must be filed within 45 days of the time the Union knew or should have known of the
the grievance. The Union was aware of the policy in June, 1999. Further,
it cannot assert a continuing violation as a basis for avoiding the contractual timelines.
timely claim is the Grievant's objection to the County's application of the
policy, not the Union's
challenge to the policy, itself.
The 1999 policy is actually more lenient than the 1992 policy upheld by Arbitrator
in Manitowoc County. This is because the former policy counted total sick days used
current policy is based on occurrences of absence. An occurrence could use multiple sick
days an yet
be considered only one occurrence, or none if the absence qualified for a Family and
Act exclusion. The Grievant in this case did not request an FMLA exclusion for her absence
January 23, 2000. The Union argument that the policy has been applied inequitably does not
scrutiny. The instances cited reflect situations when the policy was new and unfamiliar
discipline was retracted or not administered because a previous level of discipline was not
The Union concedes that this has improved. Further, the Grievant herself has benefited from
policy because she would have been terminated for her many absences under the previous
The cases cited by the Union are not on point. Arbitrator Knudson's decision in City
Oshkosh, WERC Case LV, No. 33092, MA-3221 addressed a different policy and different
language. None of his reasons for striking down that attendance policy apply here.
Union's other case citations can be distinguished on their facts. Rather, Manitowoc County
it clear that in Arbitrator Knudson's view the employer here was within its rights to establish
that permitted discipline for misuse, fraudulent use or excessive use of sick leave.
The Union in Reply
The Union has not waived its rights to challenge the attendance policy. The
the policy in violation of the contract represents a new grievable event each time it occurs
a new 45-day time period for filing. To hold otherwise would have the effect of allowing the
to adopt a policy and then avoid any substantive challenge by merely not implementing it
until 46 days
Detroit Riverview Hospital is distinguishable because the policy upheld there only
to absences where no advance notice was given. This policy applies to all absences
notice or cause. The policy in Detroit Riverview Hospital was also much less severe in its
application. Further, it was held to not be in conflict with the provisions of the collective
agreement. Where such a policy is in conflict with the contract, the policy must give way to
terms of the agreement. In this case, there is a clear contradiction between the terms of the
attendance policy and the sick leave provision in the contract. Under the circumstances,
the policy must be stricken and the grievance upheld.
The County argues that this case is controlled by Manitowoc County (Health Care
Center), WERC Case 249, No. 46579, MA-7012 (Knudson, 10/30/92), which upheld a
to the current attendance policy. I disagree. The policy upheld in Manitowoc County was,
here, a "no fault" plan, as noted by Arbitrator Knudson. However, it was a different plan
different timelines, different criteria for discipline and different rules for application.
Arbitrator Knudson tailored his award to the specific language of the policy and contract in
the time and made no sweeping generalizations regarding the reasonableness of no fault
se. Over time, both the contract language and the policy have been modified andmust be compared
and evaluated on their own merits. Manitowoc County is not, therefore, binding in this case.
In its reply brief, the County concedes that the grievance was timely filed, but only
application of the attendance policy in this particular instance. 1/ It is the County's apparent
position, based upon the decision in Detroit Riverview Hospital, 96 LA 639 (Glendon,
that any substantive challenge to the policy itself was waived when the Union failed to file a
within 45 days of its adoption in 1999. This argument misperceives the issue. The
grievance is based
upon discipline issued allegedly without just cause, as the County concedes in its proposed
of the issue. The Grievant exercised a contractual right and was subsequently disciplined.
grieved the discipline in a timely manner and is entitled to a determination of whether this
a violation of the just cause principle set forth in Article 4, Section A. In making this
it may be necessary to determine not only whether application of the policy upon which the
is based is reasonable, but whether the policy itself is inherently incompatible with the
Arbitrator's authority to make such a determination is not restricted by the fact that the
flows from the enforcement of the policy rather than its adoption.
1/ The County does not challenge the
Grievant's failure to file a grievance after receiving an oral reprimand
for her 6th absence, nor claim that such failure constitutes a waiver of her
right to grieve the County's actions
The Grievant's attendance records, set forth in Exhibits 15-17, reflect that all of the
unscheduled absences resulting in her discipline on January 26, 2001, were the result of her
sick leave, and in fact all of her unscheduled absences since 1997 have been the result of the
sick leave, Family Medical Leave or an injury qualifying for Worker's
Compensation. The record does not indicate any evidence that the Grievant's absences
legitimate uses of sick leave, or that she did not comply with the terms of the sick leave
giving notice or providing subsequent certification. On the other hand, the Union does not
that the attendance policy was applied to the Grievant in accordance with its terms. Rather,
contends that the policy violates the contract, is unreasonable on its face, and also has not
applied consistently throughout the bargaining unit. 2/ Thus, it
becomes necessary to evaluate the
interplay between the policy and the contract in order to make a determination as to the
merits of the
2/ That is to say, there is no contention that
the Grievant's absences were incorrect in number or designation,
nor that the level of discipline imposed was inordinate according to the policy's terms, only
that the policy, itself,
The parties have cited numerous authorities in support of their respective positions.
County relies heavily on Manitowoc County and Detroit Riverview Hospital for the
proposition that "no fault" attendance policies are not inherently unreasonable, even when
in conflict with other contract language, that employers have a legitimate interest in trying to
absenteeism, and that imposing discipline for excessive unscheduled absences is an
of doing so. The Union has cited contrary authorities, most notably Spooner Community
Memorial Hospital and Nursing Home, WERC Case 15, No. 53872, MA-5460
1/6/97), Brown County (Mental Health Center), WERC Case 294, No. 38184, MA-4446
(Bielarczyk, 8/6/87) and St. Joseph Mercy Hospital, 87 LA 529 (Daniel, 1986). These cases
stand for the proposition that work rules, and specifically attendance policies, that
conflict with contractually guaranteed benefits are unenforceable. In each instance certain
principles are recognized by virtually all arbitrators in analyzing the cases. It is fair to say
that all the
propositions put forth by the employer concerning "no fault" attendance policies, generally,
received widespread arbitral support. Nevertheless, it is also equally true that arbitrators
generally not held "no fault" attendance policies to be reasonable per se and
that, therefore, each
policy must stand the test of reasonableness on its own in order to be upheld. This is
when policies that are developed and imposed unilaterally by the employer undercut contract
provisions that have been mutually bargained by the parties.
In this case, there is no question that the County's attendance policy does conflict
sick leave provision contained in Article 13 of the collective bargaining agreement. Under
leave provision, employees accrue 15 sick days per year, with unused days accumulating to a
maximum of 120. Further, according to Article 13, Section C., employees may only be
for sick leave use when there is a recognized pattern of absenteeism or a proven case of
or a falsified statement. 3/ Nevertheless, under the attendance policy,
upon the 6th taking of one or
more sick days within a rolling calendar year, which are
defined as occurrences of unscheduled absence, the employee is subject to mandatory
commencing with a verbal warning. Each successive occurrence results in additional, more
discipline until the 9th occurrence, which results in termination. Further,
the attendance policy
requires no inquiry into whether the absence was legitimate, but is strictly triggered by the
of absences. Thus, under the attendance policy, an employee could be legitimately absent
personal illness and/or illness of a dependent on 6 occasions within a 12-month period and be
disciplined after using only 40% of his or her earned annual sick leave and terminated after
60% of his or her earned annual sick leave. I find this policy to be unreasonable.
3/ The contract cites use of sick leave the day
before or after a scheduled holiday as one illustrative example
of pattern sick leave abuse. While the contract states explicitly that this example is not all
inclusive, it does reveal
the underlying rationale, which is that sick leave routinely taken at such times or in such
fashion that it gives rise
to a suspicion of use for ulterior reasons creates a rebuttable presumption of misuse.
Extensive use of sick leave,
in and of itself, does not constitute pattern sick leave abuse and the County does not so
The County's cited authorities are distinguishable. Detroit Riverview Hospital
an attendance policy that provided significantly more exceptions than that in issue here,
military obligation, inpatient injuries, weather emergencies and absence due to low census.
notably, use of sick leave was not counted in cases where there was at least 24 hours
of the absence. No such exceptions exist here. Further, employees only accrued 10 sick
year, but were not suspended until the 9th absence or terminated until the
13th. The numerous
exceptions and significant number of occurrences necessary to invoke discipline were
by the arbitrator in his determination that the policy was reasonable. I am more persuaded
reasoningin St. Joseph Mercy Hospital, 87 LA 529,
(Daniel, 1986). In that case, the arbitrator
struck down a "no fault" attendance policy for the same problem that appears here, the
procession toward, and imposition of, mandatory discipline for a specified number of
regardless of legitimacy. Specifically, Arbitrator Daniel stated:
. . . the bothersome aspect of such no fault systems is the
unrelenting progression through
disciplinary steps without regard whatsoever for the reason why the employee is absent from
all excuses are disregarded. This system has a fatal flaw, noted above, found in
causing their rejection by other arbitrators. When employees are by contract accorded a
number of personal or sick days, any attempt in a no fault system to assign or attribute blame
disciplinary jeopardy for the use of such days must be regarded as a violation of the contract.
words, employees are not being given that which has been bargained for their benefit . . .
It is the opinion of this arbitrator that if days absent are excused
that is the employee meets all
eligibility requirements or call-in requirements for the day and is compensated for the time
then that day may not be counted in a "no fault" system." 87 LA at 533.
Under the policy in place here, once five unscheduled absences have occurred any
unscheduled absences will result in discipline, no matter the cause, except in cases where the
employee's right to be absent is protected by law (e.g., Worker's Compensation, Family
Leave Act, etc.). Under this policy, employees are even assessed with unscheduled absences
sent home by the supervisor because they are too sick to work, which was not the case under
original policy approved in Manitowoc County. Sick leave, however, is a bargained for
which employees are entitled to use for illnesses or injuries without reference to whether
absences would otherwise be permissible by law. Further, the County has bargained into the
language that permits it to require a physician's certification after a specified number of
to discipline misuse of sick leave to protect it against malingering employees.
Implicit in Arbitrator Knudson's award in Manitowoc County was his belief that the
installed in 1991 contained a degree of flexibility whereby the County could forego or remit
where unscheduled absences were justified. I find no such flexibility here. Under this
system, an ill
employee with five unscheduled absences in the previous year must choose between going to
sick or mandatory discipline, even if he or she has available sick leave. In my opinion, this
unreasonable, particularly in a setting where the employees work with patients in a health
who could be exposed to infectious disease by an employee trying to avoid discipline. The
presented substantial evidence documenting its absenteeism problem, as well as the apparent
of the attendance policy in curtailing it. Nonetheless, however laudable its goal, the County
address its problem by, in effect, unilaterally amending the contract to permit the discipline
employees for proper use of a contract benefit. If there is no means for legitimate absences
illness to be excepted, such a policy overreaches management's rule making power, infringes
sick leave provision, and thereby violates the contract. The grievance is sustained.
Based upon the foregoing and the record as a whole, the Arbitrator hereby enters the
The grievance was timely filed and the Grievant has the right to challenge to
County's attendance policy, therefore, the grievance is arbitrable. Because application of the
violated the Grievant's rights under Article 13 of the collective bargaining agreement, the
not have just cause to discipline the Grievant. Therefore, the County shall expunge the
reprimand issued on January 26, 2001, from the Grievant's
personnel file, shall remit any subsequent and progressive discipline issued to the
Grievant under the
attendance policy by one degree, and shall make the Grievant whole for any loss in wages or
incurred due to any such subsequent discipline.
The Arbitrator shall retain jurisdiction for thirty (30) days subsequent to the issuance
award to address any questions that may arise from its implementation.
Dated in Fond du Lac, Wisconsin, this 17th day of May, 2002.
John R. Emery, Arbitrator