BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF ADAMS EMPLOYEES' UNION
LOCAL 323, AFSCME, AFL-CIO
CITY OF ADAMS
(McConnell Leave Grievance)
Mr. William Moberly, Staff Representative,
Wisconsin Council 40, AFSCME, AFL-CIO,
8033 Excelsior Drive, Suite "B", Madison, Wisconsin 53717-1903, for the labor
Mr. Robert Ellisor, City Administrator, 101 North Main Street,
Adams, Wisconsin, for the
The City of Adams Employees' Union, Local 323, AFSCME, AFL-CIO and the City
Adams are parties to a collective bargaining agreement which provides for final and binding
arbitration of disputes arising thereunder. The union made a request, in which the city
the Wisconsin Employment Relations Commission to appoint a member of its staff to hear
a grievance concerning the meaning and interpretation of the terms of the agreement relating
medical leaves of absence. The commission designated Stuart Levitan to serve as the
arbitrator. Hearing in the matter was held on March 23, 2003; it was not transcribed. The
union filed written arguments on May 8 and 9, respectively; only the union chose to file a
which it did on May 20.
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 stipulated to the following issue:
Did the City violate the collective bargaining agreement when it
required Terry McConnell to
exhaust his earned vacation during an approved and unpaid medical leave of absence?
The parties further stipulated to the following remedy, in the event the grievance were
If so, then the City should restore McConnell's 2002 vacation
which it required him to use and
allow him twelve months to schedule and use it.
Article 6 Sick Leave
Section 6.04 Medical Leave of
Absence: An employee who exhausts his sick leave credits
and is unable to work due to injury or illness will be granted a leave of absence upon
documentation by a doctor or chiropractor of his/her inability to perform the duties of his/her
position. The Employer is entitled to a medical report, when requested, as to the employee's
condition. Such medical report should include the approximate duration of the employee's
and possible limitations upon the employee's return to duty.
. . .
ARTICLE 19 - EMPLOYER'S
19.01 Functions of
Management: The Union recognizes that except as herein provided, the
Employer has the right to manage and direct the work force. This right includes the
following: to subcontract work, provided that jobs historically performed by members of the
bargaining unit shall not be subcontracted and further provided that no present employees
shall be laid off or suffer a reduction of hours as a result of
determination and direction of the work force; the right to plan, direct and
control activities; to schedule work and assign workloads; to determine methods in work to
maintain the effectiveness of the Employer; to determine the employee competence; to create,
revise, and eliminate positions; to establish and require observance of reasonable rules and
regulations; to select and terminate employees and to discipline and discharge employees for
just cause. "Jobs historically performed" shall be defined as street maintenance, water and
sewer maintenance, wastewater, snow plowing and removal, and duties performed by Public
Works Secretary and City Hall Data Clerk/Deputy-Treasurer positions. If trash collection is
returned to the bargaining unit, trash collection would become included in the definition of
"jobs historically performed."
Inclusive: The foregoing enumeration of the functions of the Employer
shall not be
deemed to exclude other functions of the Employer not specifically set forth the Employer
retaining full functions not otherwise specifically nullified by this Agreement.
CITY OF ADAMS PERSONNEL ADMINISTRATIVE
III. Leaves of Absence
E. Leaves Without
4. Medical Leave of Absence
a. An employee who will be absent because
of an injury to the employee
of because of the employee's physical or mental illness, and who has
exhausted all of his or her paid sick leave, must request an unpaid
leave of absence, accompanied by a doctor's certificate.
The grievant, Terry McConnell, was hired by the City of Adams on June 3, 1997,
a full-time Crewman II on October 7, 1997. In a motorcycle accident on June 24,
2002, 1/ McConnell suffered five broken ribs and damaged the tendons in his left
shoulder. Due to
his injuries, McConnell was unable to return to work until December 2, a period of 115
1/ Unless otherwise specified, all further
references are to 2002.
At the time of his accident, McConnell had seven days, 3.5
hours of accrued sick leave credits,
plus six days, one hour of accrued unused vacation leave. Prospectively, the grievant was
receive a paid holiday on July 4 and another sick day credit on July 16.
Following the accident, McConnell requested to cover the first 13.5 days of absence
use of vacation and sick leave. Following the use of these leaves and the holiday, the
and was granted an unpaid medical leave beginning July 17.
On McConnell's fifth anniversary, Oct. 7, he was to receive another 11.65 days of
(prorated from the normal fifteen (15) days due to the unpaid leave), for his use in the
months. On October 3, Street Superintendent David Mead wrote McConnell as follows:
Re: Request for Medical Leave (September 29, 2002)
The purpose of this letter is to confirm
receipt of your request for Medical Leave dated
September 29, 2002 on October 2, 2002 and to summarize our discussion of October 2,
As to your request for Medical Leave, it
our understanding that you are scheduled for
shoulder surgery on Friday, October 4, 2002. Accordingly, you have requested Medical
a period of six (6) weeks after October 4, 2002 (October 7, 2002 November 15,
to the terms of the collective bargaining agreement between the City and the City of Adams
Employees Union, your request for unpaid Medical Leave is granted. Please note that as of
7, 2002 you will have earned 93 ¼ hours of vacation time. Based upon past practice,
the City will
toll your Medical Leave beginning October 8, 2002 and will require you to use your vacation
As such, you will be paid for your vacation time beginning October 8, 2002 until such time
vacation is depleted.
As to our discussion of October 2, 2002, you indicated that
health care provider believed
you would be able to return to work without restrictions on or before December 2, 2002.
you indicated that you would make every effort to return to work prior to this time.
indicated that you believed you would be able to return to work within six (6) weeks
at some point
prior to November 15, 2002. In addition, you indicated that you would advise the City of
of your surgery and your progress during your rehabilitation on a regular basis.
During our discussion of October 2, 2002,
we discussed the burden your absence has placed
on the Department of Public Works. You have been absent since June 26, 2002. As a
responsibilities have had to be spread out amongst the other members of the Department,
in an increased burden for them. We also discussed with you the fact that this was a busy
time of year
for the Department and that it would be getting busier as the Department begins a number of
projects. You indicated your understanding and desire to return as soon as possible.
Please be aware that because of the size of
the Department and the projects the Department
is to undertake, the City of Adams cannot afford to lose one of its employees indefinitely. It
therefore imperative that you return to work as soon as your health care provider clears you,
you keep the City apprised of your status during your absence. In the event you are unable
to work without restrictions on or before December 2, 2002, the City will have no choice but
to re-evaluate the situation and make a determination at that time as to your employment
Should you have any questions, please call.
On October 21, the union grieved, alleging this action constituted a violation of
of the collective bargaining agreement. Mead and City Administrator Robert Ellisor denied
grievance on October 23, stating as follows:
On three separate occasions, two of which were in regards to Mr.
McConnell, employees were
required to use their vacation time before being granted extended medical leave. Based on
practice, there was no violation of the collective bargaining agreement in this case. The City
therefore, denying Mr. McConnell's request to reinstate and hold his vacation time until he
to active duty.
On November 13, the union appealed the denial of the grievance to Step 2, the city
Committee. On November 27, Personnel Committee chair Don Williams wrote McConnell
As you are aware, the City of Adams
Personnel Committee convened on Monday, November 25,
2002 to consider your grievance appeal. The appeal pertained to vacation time use and was
pursuant to procedures outlined in Article 13, Section 13.02 of the Union Agreement.
from the Union was provided on your behalf by Mr. Jeff Moore. In summation, your appeal
contested the policy of exhausting vacation time prior to taking extended medical leave.
Subsequent to hearing and deliberating the
facts of the appeal, the Committee rendered a
unanimous decision to deny the request to preserve and suspend use of accrued vacation time
an extended sick time leave period. In rendering the decision, the Committee referenced past
of utilizing accrued vacation time prior to extended leave and management right to uphold
practice of employee vacation use.
On December 16, the union filed its request with the
commission for grievance arbitration.
POSITIONS OF THE PARTIES
In support of its position that the grievance should be sustained, the union asserts and
The collective bargaining agreement is clear and unambiguous in
establishing that an employee
who exhausts sick leave credits and is unable to work due to illness or injury will be granted
of absence. It is not disputed that the grievant was unable to work due to documented
that he had exhausted his sick leave credits.
Had the parties intended for the agreement
to include the use of vacation as a prerequisite for
qualifying for a medical leave of absence they would have bargained that into the collective
agreement. By specifically expressing the conditions that it did, the agreement must have
intended to exclude all other qualifications, including the exhaustion of vacation.
Past practice also supports the union, both
for the grievant and for all other employees in the
Because the grievant complied with the
clear and unambiguous conditions of the collective
bargaining agreement, it is evident the city violated the agreement. The city should be
restore the grievant's vacation and allow him twelve months for its scheduling and use.
In support of its position that the grievance should be denied, the city asserts and
Management retains the right to coordinate and schedule employee
work hours and time off to
provide effective service and productivity, a management prerogative equally important
maintaining equitable work hours and distribution of labor.
Because the city has a small shop and is
responsible for a wide range of vital services, extended
absences increase the work demands on the remaining crew. Prolonging an extended leave of
with accrued vacation time prolongs the burden on other employees, adversely affecting
morale and hampering productivity through a negative work environment.
As both parties acknowledge, the city has
maintained a practice of requiring use of accrued
vacation time prior to granting extended leave. In three separate occasions, twice involving
grievant, employees complied with the stipulation of using vacation time prior to being
extended medical leave. The city has been consistent in application of the policy and the
not been contested on prior occasions.
For these reasons, the city did not act
outside of its management rights or violate the spirit of the
collective bargaining agreement.
In response, the union posits further as follows:
The city's arguments workload and worker
morale are not supported by the evidence and were
not offered at hearing. Whether the grievant used accrued vacation before an extended
had no impact on the duration of his leave, which was dictated by his recovery time. The
argument is speculation based on unsubstantiated argument.
The contract language at issue in this dispute seems, on its face, fairly clear
have exhausted their sick leave credits and unable to work due to injury or illness "will be
leave of absence" upon satisfactory documentation of their inability to perform their duties.
Notwithstanding this language from the collective bargaining agreement, the City
grievant to also exhaust his vacation bank prior to going on unpaid leave. The City offers
explanations for this course management rights, practical necessity and past practice.
As noted above, the employer does retain the normal rights of management, including
rights to "plan, direct and control activities," to "schedule work and assign workloads," and
"establish and require observance of reasonable rules and regulations." However, these
subject to the normal proviso that they can only be exercised "except as herein provided."
the employer's general right to manage does not supersede specific provisions of the
bargaining agreement requiring another course of action. Here, because there is specific
the agreement setting the conditions and criteria for a medical leave of absence, those terms
precedence over the city's general management right. 2/
2/ It is worth noting that in those areas
where the city's right to manage is not restricted by a collective
bargaining agreement, it has adopted an administrative policy, III/E/4, which, apart from a
sentence structure, provides for the same course of action regarding the mandatory request
for an unpaid medical
leave following exhaustion of sick leave credits.
The City's argument as to practical necessity also fails, primarily because it is
allegations about workforce morale and productivity which are unsupported by the record.
or not requiring exhaustion of vacation prior to use of an unpaid medical leave would indeed
the length of an employee's absence (an assumption the city makes, but one which is also
unsupported by the evidence), the record lacks any testimony of documentary evidence
impact on scheduling or the rest of the workforce.
Finally, the City's reliance on past practice is misplaced. First, it is rarely, if ever,
to even consider past practice when contract language is clear and unambiguous. Moreover,
to be a legitimate past practice, certain conditions must be met namely, that the
longstanding, obvious and mutually understood. As it is said in the most
famous recitation of the criteria, "(i)n the absence of a written agreement, 'past
practice' to be binding
on both Parties, must be (1) unequivocal; (2) clearly enunciated and acted upon; (3) readily
ascertainable over a reasonable period of time as a fixed, and established practice accepted
Parties." Celanese Corp. of Am., 24 LA 168, 172 (Justin, 1954).
Here, the purported practice fails on all three prongs. While there were apparently
including one in August, 1999, when the parties mutually acted in a manner consistent with
policy, there were others, notably August, 2001, when they did not. The fact that
leave while still holding two vacation days in the bank in 2001 demonstrates that the parties
have a practice with sufficient longevity, clarity and universality to overcome the clear and
unambiguous language of Section 6.04.
That section provides that employees who have exhausted their sick leave but are
work due to a documented illness or injury "will be granted a leave of
absence." (emphasis added)
The collective bargaining agreement makes no reference, either explicit or implicit, to any
qualifying conditions an employee needs to meet before obtaining a leave of absence. Under
the city should have granted McConnell his medical leave upon exhaustion of his sick leave
and not required exhaustion of his vacation as well.
Accordingly, on the basis of the collective bargaining agreement, the record evidence
arguments of the parties, it is my
That the grievance is sustained. The City shall restore 11.65 days of vacation to the
and allow him twelve (12) months in which to schedule its use.
Dated at Madison, Wisconsin, this 3rd day of July, 2003.