BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AFSCME, COUNCIL 40, AFL-CIO
Mr. Phil Salamone, Staff Representative,
Wisconsin Council 40, AFSCME, AFL-CIO, 7111 Wall
Street, Schofield, Wisconsin, appearing on behalf of Local 2492-E, Office and Technical
Mr. Frank A. Matel, Employee Resources
Director, County of Marathon, 500 Forest Street, Wausau, Wisconsin
appearing on behalf of the County of Marathon.
Council 40, hereinafter "Union," requested that the Wisconsin Employment Relations
a staff arbitrator to hear and decide the instant dispute between the Union and the County of
"County," in accordance with the grievance and arbitration procedures contained in the
parties' labor agreement. Lauri
A. Millot of the Commission's staff, was designated to arbitrate the dispute. The hearing
was held before the
undersigned on January 3, 2003, in Wausau, Wisconsin. The hearing was not transcribed.
The parties submitted post-hearing briefs, the last of which was received on March 26, 2003,
with the option to file reply-briefs by April 11, 2003.
Based upon the evidence and arguments of the parties, the undersigned makes and issues the
To maximize the ability of the parties we serve to utilize the Internet and
computer software to research
decisions and arbitration awards issued by the Commission and its staff, footnote text is
found in the body of this
The parties agreed at hearing that there were no procedural issues in dispute and
stipulated that the issue to
be determined was:
Did the County violate the collective bargaining agreement
it issued a written warning to the Grievant
on March 22, 2002, and later required a physician's certificate for any further absences,
regardless of length? If so,
what is the appropriate remedy?
Article 2 - Management Rights
The County possesses the sole right to
operate the departments of the county and all management rights repose
in it, but such rights must be exercised consistently with the other provisions of this contract.
These rights include,
but are not limited to, the following:
. . .
B. To establish reasonable work rules;
. . .
D. To suspend, demote,
discharge, and take other disciplinary action against employees for just cause;
. . .
I. To manage and direct the
working force, to make assignments of jobs, to determine the size and composition
of the work force, to determine the work to be performed by employees, and to determine
the competence and
qualifications of employees;
. . .
Article 13 - Sick Leave
. . .
C. Evidence of Illness
Abuse: If sick for more than three (3) consecutive work days, the employee may be
furnish the supervisor with a
certification of illness signed by a physician if requested by
department head or his/her immediate
supervisor. Employees who abuse sick leave benefits shall earn no sick leave for six (6)
the date of last proven violation. Additional abuses of sick leave may subject an employee to
. . .
E. Family Illness:
Employees will be allowed to use a maximum of thirty-two (32) hours per calendar year of
sick leave in cases of illness or injury in the immediate family where immediate family
member requires the
attention of the employee. Immediate family is defined as the employee's spouse, children,
parents, or a
member of the employee's household. This provision shall not apply to employees
members to any routine medical or dental appointments.
. . .
33107.00 Dereliction of
Derelection of duty on the part of any
employee is cause for disciplinary action and/or dismissal. The following
acts or omissions shall constitute dereliction of duty:
1. Failure to obey orders, or
willful or repeated violation of any rule, regulations, policy or procedure of the
2. Failure to properly report
incidents occurring in the Facility.
3. To be absent without authorized leave. This rule
may be extended to include failure to report to duty on time,
or leaving a place of duty or assignment without authorization.
4. Failure to assist or support fellow employees, or
5. Sleeping on duty.
6. Failure to complete required training
7. Neglect of duty.
8. Displaying a reluctance to properly perform
assigned duties or acting in a manner tending to bring discredit
upon oneself, the Facility, or the Department; or failing to exercise diligence and interest in
pursuit of duties.
BACKGROUND AND FACTS
The Grievant is an 11-year employee with the Marathon County Correctional
resides in Harshaw, Wisconsin, which is located approximately 60 miles north of her work
the County Correctional Facility and is the mother of two school age children with
County payroll records indicate that the Grievant generally worked four days on
two days off. Between the dates of February 1, 2002, and March 15, 2002, the Grievant
sick and used 65.36 hours accumulated paid sick leave on eight occasions. Her absences
extended scheduled time off on five occasions including February 1, February 9-10 1/,
March 9-10, and February 15. The dates of absence and the accompanying weather
those dates are as follows:
Weather conditions in Wausau Weather
conditions in Rhinelander
February 1 3 inch
snowfall No precipitation
February 3 trace
snowfall No precipitation
February 9 trace
snowfall No precipitation
1/ Winter watch for Marathon County 2/8;
Grievant used compensatory time for February 10 absence.
February 20 4 inch snowfall
February 21 2/10th inch
snowfall No precipitation
March 9 1 and 1/10 inch
snowfall 3/10ths precipitation
March 10 No precipitation 2/
3/10th inch precipitation No precipitation
2/ Weather information from County Exhibits
1A, 1B and 2. No entry for Rhinelander March 10.
On March 22, 2002, the County issued a written reprimand to the Grievant. The
Disciplinary Notice indicated the action was taken for "absenteeism" and explained:
Since February 1, 2002, Corrections Officer Hatleback-Wolfe has
called in sick, or sick family
Seven of those incidents were during
periods of snow fall which has been documented by weather
history for Marathon County and Rhinelander, WI. One of those incidents involved a winter
watch for those areas.
There is a consistent pattern of using sick
days whenever snow is falling to apparently avoid
You have been counseled previously about
inappropriate use of sick leave and absenteeism. As
of this date, you may be required to produce documentation of any illness for yourself or any
member resulting in sick family use, from a physician.
Your excessive absenteeism is in violation
of Corrections Division policy 33107.00, falling under
dereliction of duty, sub. 3.
Continued absenteeism and/or sick leave
abuse will result in continued progressive discipline
including termination of your employment.
As a result of the March 22, 2002 discipline, a grievance was
filed on March 27 alleging that:
VIOLATE CONTRACT LANGUAGE
Article 13 SICK LEAVE/DISCPLINE WITHOUT JUST
CAUSE/WRITTEN REPRIMAND IN FILE AND MAKING JULIE WOLFE BRING IN
SLIP FOR EVERY SICK CALL IN ACCUSATION DATE 3-21-02/ WRITTEN
County Personnel Director Frank Matel denied the March 27 grievance finding that
in sick eight times in less than two months is just cause for discipline." The grievance was
Two additional grievances were filed by the Grievant on July 3, 2002, and August
as a result of a memorandum issued to the Grievant informing her on that she was required
a physician's certificate for any future sick leave absences and enforcement of the
grievances were denied by the County.
Further facts will be set forth in the
POSITIONS OF THE PARTIES
The County maintains that the discipline imposed on the Grievant was necessary in
maintain efficiency and manage and direct the work force. The Grievant's abnormal sick
was the highest number of days utilized between February 1, 2002, and March 15,
2002, by any
Corrections employee, resulted in increased costs due to mandatory overtime, and negatively
impacted staff morale.
The Grievant called in sick eight times between February 1, 2002, and March 15,
seven of those eight days, it snowed. The snow, coupled with the fact that the Grievant lives
from her place of work, resulted in a determination by her supervisors that her absences
excessive justifying discipline. The eight days in which the Grievant called in sick resulted
extension of her "off days." The Grievant is in the habit of calling in sick to extend her days
addition to the dates between February 1, 2002, and March 15, 2002, the Grievant
also extended her
off days on April 17, 2002, and June 1, 2002. The Grievant's use of sick leave,
when snow falls and at the beginning or end of her days off, justified a finding by the
County that she
should be discipline and closely monitored.
Based on the evidence, the grievance should be denied.
The Union asserts the written reprimand imposed on the Grievant on March 22,
and the requirement
that the Grievant submit a physician's certificate for all sick leave absences subsequent to
March 22, 2002, are in
violation of the labor agreement.
The County lacked any proof that the Grievant abused sick leave when it imposed the
disciplinary warning. The County was suspicious of the Grievant's sick leave usage due to
geographic location of her residence and adverse weather conditions and acted solely on this
suspicion. The evidence submitted by the County is flawed; there was not measurable
three of the days for which the County bases its discipline. Recognizing that the County
burden of proof in a disciplinary matter, the County has fallen well short of this requirement.
Moving to the directive that the Grievant produce a physician certificate for absences
less than three
consecutive days, it is in clear conflict with the language of the collective bargaining
agreement. The agreement
provides the County the right to request a physician's certificate when an employee is off for
more than three
consecutive work days. The agreement does not provide the County the right to require the
Grievant to provide a
medical certificate for every instance of absence. This is a flagrant violation of the labor
The County has violated the collective bargaining agreement and the Grievant should
whole for her losses. The appropriate remedy is to withdraw the disciplinary letter from her
Personnel File and direct the County to cease and desist from requiring a notice from a
all absences less than three consecutive days.
This case arises out of the usage of contractually provided sick leave benefits by the
and the subsequent disciplinary action taken by the County. The County maintains that the
was justified while the Union counters that it lacked just cause.
Management has the right to discipline an employee provided there is proof of
There is no such proof in this case. The County Employee Discipline Notice indicates the
was disciplined for a "consistent pattern of using sick days whenever snow is falling to
avoid driving," yet there was snowfall on only five the eight days in question in the Wausau
on only two days of the eight in question in the Rhinelander area. Lacking snowfall, it is
conclude that the Grievant's failure to report for work on these dates was due to her desire to
driving. Moreover, there is documentation that on February 3 and March 9, the Grievant's
seen at the emergency room and one of these dates was a day in which there was snowfall in
Wausau and Rhinelander. Given that there is insufficient evidence to support that there was
on the eight dates in which the Grievant used sick leave between February 1 and March 15,
County has failed to meet is burden of proof in this case.
The Grievant is an 11-year veteran with the County. She has commuted between her
in Harshaw and the correctional facility for an unknown period of time, but at least for the
years. This is not the first year in which the Harshaw/Rhinelander area and the Wausau area
experienced snowfall and I am sure that had the Grievant previously engaged in a pattern of
associated with snowfall, the County would have informed me of such. Cary Pellowski, Jail
Supervisor, though not the Grievant's supervisor and who initiated the discipline imposed on
Grievant, testified that he had no evidence to support that the Grievant was not sick on the
question and that he was aware that the Grievant had submitted written documentation
her use of sick leave for some of the dates. I accept that the Grievant's absences may have
affected the morale of the other employees in the Jail and that there may have been overtime
associated with the absences, yet this is not a sufficient basis for imposing discipline when
evidence is lacking.
The County Employee Discipline Notice references a prior instance in which the
counseled for absenteeism and use of sick leave. The Grievant's Supervisor, Paul
testified that he had a conversation in March, 2001, at which time the Grievant was advised
County was concerned she was abusing sick leave. The Grievant denies this conversation
occurred. Given that the alleged conversation occurred one year prior to the discipline in
and the fact that the County did not reduce it to writing, I conclude that it is not relevant to
current discipline, especially since there is not sufficient evidence to support the written
The County has argued that the Grievant's sick leave use in conjunction with
scheduled time off (which
effectively extended the amount of her time off) was a further basis for discipline. Review
of the Employee Disciplinary
Notice confirms that the Grievant was not disciplined for this reason. I am unwilling to
uphold the written disciplinary
notice for a reason separate and distinct from that which the Grievant was originally
disciplined. The County's
identification and suspicion that Grievant extended her time off on five of the eight dates in
question occurred after
the discipline was issued. Had it been identified prior to the discipline, it would have been
included in the disciplinary
I next move to the issue of the County's requirement that the Grievant provide a
certificate for all sick leave absences following June 25. It is a legitimate exercise of
authority to prevent sick leave abuse and as such, management may establish reasonable
or other methods of monitoring so long as the method is not arbitrary, discriminatory, or
unreasonable. Elkouri and Elkouri, How Arbitration Works,
5th Edition, p. 1027-1028 (1997); cites
Services Oil Co. 62 LA 77, 82 (Taylor, 1974). The County, after having identified that the
Grievant had used what it determined to be an abnormally high number of days of sick leave
in a 45-day time period, regardless of whether the use of the leave was to avoid poor driving
to extend a scheduled leave, imposed the expectation of the Grievant that she provide a
confirmation from a physician for future sick leave absences. It is a reasonable exercise of
management authority to create a mechanism to monitor the Grievant's continued use of
Although the Union identified instances in which the County may have known that a
officer utilized sick leave inconsistent with the purpose for which sick leave benefits are
is unknown whether management was aware of the instances and there is no evidence to
the County's treatment of the Grievant was discriminatory or discriminatorily motivated.
during the time period in question, the Grievant worked only 19 of the 43 days, having used
sick leave, 4 days of compensatory time and was scheduled off for the remaining dates, it
reasonable for the County to act as it did in choosing to increase the level of scrutiny placed
Grievant provided it occurs for a reasonable period of time.
The Union challenges the County's expectation that the Grievant submit written
documentation following sick leave use on the basis that Article 13, Section C of the
bargaining agreement provides the only circumstances in which sick leave abuse can be found
specifies the penalty. This article and section does not apply to these circumstances. The
Grievant has not been found to be a sick leave abuser, has not been absent nor in sick
leave status for
three consecutive days and her sick leave benefits have not been denied for a period of six
Provided there are no specific provisions in the labor agreement or a past practice to the
an employer has the right to verify absenteeism and specifically, sick leave use.
Common Law of the
Workplace, (St. Antoine, 1998) p. 321. Article 13, Section C, is a specific
provision that addresses
a specific situation. The inclusion of this section by the parties does not negate
to manage its workforce. Lacking clear contract language which denies the County the right
monitor employee sick leave usage, the management right clause applies.
Based on the above and foregoing, the record as a whole and the arguments of the
parties, the undersigned
issues the following
1. Yes, the County violated the collective bargaining agreement when it issued a
warning to the Grievant
on March 22, 2002.
2. No, the County did not violate the collective bargaining agreement when it required
the Grievant to submit
a physician's certificate for all sick leave absences beginning June 25 provided the obligation
does not continue for an
unreasonable amount of time.
3. The appropriate remedy is to rescind and purge from the Grievant's personnel
the written warning issued.
Dated at Wausau, Wisconsin, this 25th day of June, 2003.
Lauri A. Millot, Arbitrator