BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AFSCME, COUNCIL 40, AFL-CIO
COUNTY OF MARATHON
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
Ruder Ware, by Mr. Dean Dietrich, Attorney, 500 Third Street,
P.O. Box 8050, Wausau,
Wisconsin, appearing on behalf of the County of Marathon.
AFSCME, Council 40, AFL-CIO, hereinafter "Union," requested that the Wisconsin
Employment Relations Commission appoint a staff arbitrator to hear and decide the instant
between the Union and the County of Marathon, hereinafter "County," in accordance with
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
undersigned on January 22, 2003, in Wausau, Wisconsin. The hearing was not transcribed.
parties submitted post-hearing briefs and reply briefs, the last of which was received on April
2003. Based upon the evidence and arguments of the parties, the undersigned makes and
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 at hearing that there were no procedural issues in dispute and
was properly before the Arbitrator. The parties were unable to stipulate to the substantive
leaving it to the Arbitrator to do so.
The Union framed the issue as:
Did the Employer violate the collective bargaining agreement
when it refused to grant the
Grievant a one year, unpaid medical leave of absence? If so, what is the appropriate
The County framed the issue as:
Whether the County violated the Labor Agreement when it
decided not to grant continued
medical leave of absence to the Grievant? If so, what is the appropriate remedy?
Because the Grievant did not request a one year unpaid medical leave of absence I do
accept the Union's proposed issue nor do I accept the County's framing of the issue since
there is no
reference in the labor agreement to continued medical leave. As a result, based on the
evidence and arguments in the case, I frame the issue as:
Whether the County violated the collective
bargaining agreement on September 9, 2002 when
it denied the Grievant's request for an unpaid medical leave ofabsence
from "present to January
2003"? If so, what is the appropriate remedy?
The following are provisions taken from the parties' 2000-2002 collective bargaining
agreement, hereinafter the Agreement, and are cited, in relevant part:
. . .
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
contract. These rights include, but are not limited to, the following:
. . .
C. To hire, promote, transfer, assign and retain
D. To suspend, demote,
discharge, and take other disciplinary action against an employee for just
E. To relieve employees from
their job duties because of lack of work or for legitimate reasons,
. . .
Article 17 Other Leaves
A. Personal Leave:
Applications for leave of absence without pay for personal reasons shall be
made in writing on forms provided by the County to the department head. A leave of
may not be granted for the purpose of taking other employment; however, the term "other
employment" shall not include union duties. Union duties do not include the taking of a
full-time position with the Union as a representative.
The granting of such leave and the length
of time for such leave shall be contingent upon the
reasons for the request. The department head may grant leaves of absence without pay for
thirty (30) calendar days or less without further authority of the Personnel Committee.
of absence for more than thirty (30) calendar days shall be referred to the Personnel
Committee by the department head with a recommendation, and all such leaves, if granted,
shall be for a specific period of time.
B. Notice: The
Union shall be notified in writing by the department head at the time each leave
of absence of more than thirty (30) days is recommended, denied, or authorized, indicating
the duration of the authorization and at the time of subsequent renewals. Seniority shall
continue to accrue during the authorized leave of absence. No other benefits shall accrue,
however, participation in the medical/hospital insurance group will be permitted if the
employee pays the full cost of such participation.
C. Military Leave:
Employees who are members of a reserve component of the military forces
of the United States or State of Wisconsin shall promptly notify the department head and be
granted a leave of absence if called for reserve training or duty for civil emergency. Such
employees shall be paid the difference, if any, between their regular pay and their military
for the period not to exceed ten (10) working days per calendar year.
Leave: Any veteran of the armed forces of the United States of America may be
granted an authorized leave of absence to pursue under the G.I. Bill of Rights or any
subsequent government veteran's training program, provided the department head determines
that such training is of value to the department and the person's position.
Leave: Educational leave of absence not to exceed one (1) year may be granted
with pay and benefits at the discretion of the Personnel Committee. The employee must
in writing to remain employed for a period of time equivalent to three times the length of
leave of absence. If that amount of service is not rendered, the employee shall be required
to make repayment of that expenditure within sixty (60) days of termination.
F. Medical Leave:
In the event of an extended absence due to sickness or temporary disability
stemming from such causes as heart attack, stroke, cancer, pregnancy, etc., the employee
take an unpaid medical leave of absence up to one (1) year so as to retain a sick leave
for use after return to work. Such medical leave of absence may be requested as specified
. . .
BACKGROUND AND FACTS
The Grievant, Emma Hoffman, began her employment with the County on May 13,
a Corrections Officer. Hoffman maintained continuous employment with the County until
11, 2002 at which time she was administratively terminated. Hoffman was elected Union
in 2002 and held such position through the date of the hearing.
This grievance precipitated from a non-work related medical condition of the
her subsequent absences from work due to the medical condition. The chronology of her
is as follows:
Hoffman requested and was approved for a two-week medical leave from December
through December 29, 2001 due to health problems associated with her back. This time
calculated against her 2001 State and Federal Employee Medical Leave. Hoffman's Medical
Certification form completed by her physician, Dr. Grim, indicated that Hoffman was
a "herniated cervical disc with severe pain" which commenced during October 2001 and that
duration of the condition was "unknown possibly 6-8 weeks" with an estimated
return to work date
of "4-6 weeks."
On December 28, 2001 Hoffman requested additional medical leave time which was
by her supervisor, Captain John Reed. From December 28, 2001 through January 8, 2002,
accumulated sick leave and vacation leave. From January 10, 2002 through March 25, 2002
Hoffman used and exhausted her State and Federal Employee Medical Leave.
County Personnel Specialist Carol Pasnecker sent a letter to Hoffman dated
which reviewed the communications between Hoffman and Pasnecker as it related to a
Since their (sic) was no mail delivered on Monday due to the
President's Day holiday, I first
called you yesterday to inquire why you did not yet return the updated medical certification
Friday, February 15th. You indicated your surgeon would not complete the
form until he saw you
again today and that you would then have your husband bring the completed form to me
I did not receive the completed medical
certification. Instead you left a voice mail indicating the
surgeon will not complete the form and wants your primary physician to provide the required
documentation. In addition, you indicated your primary physician will not complete the form
you meet with him next Monday, February 25th for a pre-surgical
appointment. You also related you
do not know when your neck surgery will be scheduled.
You may have one additional extension to
submit to me the completed Medical Certification form
by next Tuesday, February 26th. This is your responsibility since any
further delays in providing the
required updated medical documentation could affect your continued eligibility for Federal
I appreciate your assistance.
Carol Pasnecker, PHR
Hoffman responded to Pasnecker's letter in writing on February 22 and informed
that she would be seeing her primary physician, Dr. Grim, on Monday, February 25 and that
would be delivered to Pasnecker on February 26.
At Hoffman's February 25 appointment with Dr. Grim, he indicated that Hoffman
able to perform all functions of her position and that she needed to be absent from work for
treatment. Dr. Grim did not indicate an estimated return to work date.
In advance of surgery scheduled for March 12, Hoffman requested from Sheriff
Hoenisch 30 days of medical leave. In her request, Hoffman informed Hoenisch that she
to be off work for a time period of between four and nine months following surgery.
approved the 30 day unpaid county medical leave, from March 26 through April 24 in a
read in pertinent part:
. . .
Since you indicated in your March 10th letter
that your surgeon expects you to "be off anywhere
from 4 to 9 months", you will need to again submit a written request for any additional
beyond April 24th. Prior to Tuesday, March 26th, please
submit this request plus the following
updated medical documentation from your surgeon relating:
A more specific date or time
period you can return to work. Four to nine months is too broad
of a time period for me to determine the impact of your absence.
Will you be able to return to
work with or without any restrictions. (sic)
If there are restrictions,
provide detail concerning these restrictions and how they apply to
your job duties and requirements. A copy of the Corrections Office class specification and
"Employer's Statement of Job Requirements" is enclosed for your surgeon's review.
I will review this medical information to
better assess if or how much additional leave I can
further consider. If I recommend the additional time off, the Personnel Committee will also
need to approve the leave during their April 1st meeting.
. . .
Hoffman was unable to obtain the necessary forms for
Hoenisch before the April 1st Personnel
Committee meeting and informed Hoenisch of same. Hoenisch recommended to the County
Personnel Committee a 12 calendar day unpaid medical leave to allow him the opportunity to
determine what recommendation" he would make in response to Hoffman's request for nine
of unpaid medical leave. The Committee approved the 12 days of leave from April 25
Hoffman's surgeon, Dr. Paul Jensen, completed a County provided Medical
on April 11 which indicated that he did not believe Hoffman would have a permanent
would affect her ability to perform her job explaining "currently Ms. Hoffman has
limitations and will for a period of 6 to 9 months. At this point it is "too early to determine
term limitations or restriction" and further, that it was "too early to determine" whether she
have any permanent restrictions that would affect her return to work.
At its May 6 meeting, the Personnel Committee approved four of the nine requested
of unpaid County medical leave for Hoffman and recommended to the County Hiring
Committee that the position be double filled.
Hoenisch, knowing that Hoffman desired additional leave time due to her inability to
to work, informed Hoffman during August 2002 that the Personnel Committee had changed
expectations for employees requesting unpaid leave. Employees were now required to submit
forms including a Request for Unpaid County Medical Leave form and a medical information
Hoenisch requested that Hoffman return the forms to him by August 21 and let her know the
and time of the Personnel Committee meeting.
The Personnel Committee addressed Hoffman's Unpaid County Medical Leave
"present to Jan 2003" on September 9, 2002. Hoffman submitted the leave form and
Assessment form as provided by Hoenisch. Inclusive to the Unpaid County Medical Leave
Hoenisch responded to questions as follows:
7. How will the approval of this additional leave affect your
department operational issues
(scheduling, staffing levels, morale, past practice, availability of light duty work if requested,
This position was authorized for a double
fill. It has not been filled due to other previous
vacancies in the Corrections Division, and postings that occurred. Currently the day shift is
operating with this position vacant.
8. What additional costs will your
department incur if this leave is approved (overtime, additional
wage & benefits due to double filling, unemployment cost, etc.)?
As stated, this position was authorized for
double fill. We continue to pay overtime for vacant
shifts due to minimum staffing level requirements.
9. As the department head, what is
your recommendation concerning this request for additional
I recommend this request for continuation of
unpaid leave be denied. The length of the leave has
become problematic and there is continued uncertainly pertaining to permanent disability.
10. Any additional comments:
I would be willing to consider reinstatement
rights within 24 months if the employee successfully
meets medical and physical requirements of the position. The employee must be capable of
to unrestricted full duty as a Correctional Officer.
The County Medical Assessment form, dated August 1st read in
. . .
2. Amount of additional time off from
work required to recover from medical condition:
Unknown at this time but currently
considering return in January
. . .
4. Will Ms. Hoffman have a permanent disability which
will affect her ability to perform her job
duties (See attached information about Corrections Officer job duties.)
Unknown at this time
5. Will Ms. Hoffman have permanent
restrictions with regard to the performance of her job
duties when she returns to work? (Refer again to attached information about Corrections
Unknown at this time.
Personnel Director Frank A. Matel informed Hoffman that the Personnel Committee
denied her request for additional unpaid leave. The September 10 letter read as follows:
This letter is written confirmation of the Marathon County
Personnel Committee's decision to
deny your request for additional unpaid leave time. You have previously exhausted all leave
entitlements under both Federal and State Family and Medical Leave Acts and your
Bargaining Agreement. The Sheriff has granted an additional 30 days of unpaid leave and
Marathon County Personnel Committee then granted another 12 days of unpaid leave. On
2002, the Personnel Committee granted an additional 4 months of unpaid leave. You have
continuous leave from December 15, 2001 through September 9, 2002.
The County has been advised that you are
not able to return to work and fully perform any duties
of your position. The County has also been advised that you do not anticipate to return to
duties in the near future.
Your employment, therefore, shall be
administratively terminated effective September 10, 2002.
The Sheriff will consider reinstatement
rights within 24 months if you can meet the medical and
physical requirements of the correctional officer position and return to unrestricted full duty.
is no guarantee of future employment. Good luck in your recovery and future endeavors.
Frank A. Matel
On November 12, 2002, the Grievant filed the pending grievance alleging that
Section D of the labor agreement had been violated. The grievance was immediately
arbitration since the County Personnel Committee had already ruled on the issue thus placing
grievance properly before the Arbitrator.
The factual background set forth to this point is undisputed. The balance of the
is contained in the parties' arguments and in the
DISCUSSION section below.
POSITIONS OF THE PARTIES
Union Initial Brief
The Union argues that the language of the collective bargaining agreement is clear
expressly provides employees with the discretion to utilize up to one year of unpaid medical
absence. Consistent with arbitral authority, this language is to be given its full effect and,
ambiguity, the clear language is to be applied. Even if the parties do not agree as to the
the language, this, in and of itself, does not allow for the automatic conclusion that the
unclear. Rather, it is the obligation of the Arbitrator, consistent with the negotiated
procedure, to determine whether the language in dispute is unambiguous and thus entitled to
enforcement or ambiguous and subject to interpretation.
Given that the grievance procedure limits the Arbitrator to only the terms of the labor
agreement where the alleged breach occurred, the Arbitrator is restricted solely to the
section, Article 17, Section F. Article 17, Section F includes the discretionary term "may"
is preceded and qualified by the word "employee" making it crystal clear that the option is
to the employer, but rather the employee." (brief, p. 5, underline in
original). This language is clear and vests all discretion as to whether unpaid medical
leave will be
used with the employee provided the employee has a qualifying medical condition. There is
question the Grievant qualified in that she suffered from a serious and fully documented
condition which required a long and painful healing process. Having met the qualifying
condition requirement, the Grievant was entitled to unpaid leave for an automatic one year
period and the County's denial was inconsistent with the express language of the agreement
intent of the parties.
The parties' intent as to Section F is discernable when contrasted with Section E.
clearly grants the discretion as to whether or not to take unpaid medical leave with the
Conversely, in Section E, Educational Leave, the discretion as to whether an employee will
educational leave is grounded in the negotiated language "may be granted" which places the
making authority in the employer. It is emphasized to the Arbitrator that the difference in
language between Section F and Section E is likely due to the lack of choice an individual
taking medically necessary leave and the option an employee exercises when requesting
The parties' intent to allow an employee the discretion of taking up to one year of
medical leave is further supported by an examination of the motives of the parties when
labor agreement. The purpose of the medical leave language was to guarantee a minimum of
leave to employee's with serious and debilitating medical conditions. This makes good labor
human relations sense in that it does not "throw out to the wolves" an employee who is ill
exhausted his or her accrued sick leave. This purpose would not be attained if it were up to
employer to determine when a seriously ill employee is entitled to unpaid medical leave,
since there is no cost to the employer.
Finally, in the event that the Arbitrator determines that the language is ambiguous,
ambiguity has been clarified by the actions of the parties when presented with similar
in the past. The Union submitted an unchallenged lengthy exhibit which establishes a
and unequivocal past practice of the County granting medically necessary leaves. (Exhibit
Pointedly, there is no instance in the history of the parties where the Personnel Committee
extended unpaid medical leave request.
County Initial Brief
The County argues that the language of the collective bargaining agreement is clear
County acted within its contractual rights when the Personnel Committee did not authorize an
extension of Hoffman's unpaid leave of absence. Further, the Committee's decision was
a rationale justification and thus is not subject to being overturned by the Arbitrator.
Article 17 of the labor agreement is clear and unambiguous. Section F provides the
with the right to approve or deny employee requests for unpaid medical leave of absence.
manner in which requests are to be submitted, Section A, is referenced in Section F. This is
procedure the County and the Union have historically followed when addressing requests for
medical leave. This procedure arises out of the County ordinance that governed these
prior to their organization with a labor union and was relied upon when drafting the labor
Further, the procedure identified in Article 17 was followed by the Grievant and the County
Article 17 affords the Personnel Committee with decision-making authority when
requests for unpaid County medical leave. The language of Section F includes the phrase "if
and therefore had it not been intended for the Committee to have discretion, the phrase
have been written into the section.
The past practice and bargaining history further confirm that the Personnel
the discretion to grant or deny requests for unpaid County medical leave. The bargaining
originated from the 1983 Personnel Ordinance and was essentially incorporated into the
labor agreement with only the addition of "up to one year" added to the contract. This
the same as that contained in the current agreement, albeit a change in the name of the
and is the practice followed by the parties. In addition, given that the Union has never filed
grievance challenging the County's consistent practice of processing requests, it has
review and approval or denial by the County Personnel Committee. This, coupled with the
decision to not grieve the Personnel Committee's denial of the Grievant's request for a nine
unpaid medical leave proves the County's interpretation and application are consistent with
of the parties.
Finally, application of the rules of contract interpretation require the Arbitrator to
County. Labor agreements are to be construed as a whole and effect is to be given to all
phrases. Noting that the second sentence of Article 17, Section F refers to Section A which
the Personnel Committee the discretion to grant or deny requests, the Union's interpretation
year of leave is an automatic would render the second sentence of Section F meaningless.
accepting the Union's interpretation would render meaningless the recommendation from the
department head since the one year leave is automatic. Finally, Article 17, Section B
notes that the Personnel Committee may deny the requested leave of absence and affirms that
of requests was contemplated by the parties.
Moving to the action of the Personnel Committee, it was neither arbitrary nor
thus, even if the Arbitrator finds that the language of the labor agreement is ambiguous, the
action may not be overturned. Referring to the decision reached by
Arbitrator Stephen G. Bohrer in School District of Drummond, WERC MA-10898
3/00), lacking an arbitrary or capricious decision by the County, the County has wide
latitude in its
application of discretion when making it's decision as to what qualified for requested leave.
record establishes that the County made its decision on a rationale basis, "the Grievant's
documentation was lacking", (brief p. 33) and it should be sustained. Even if the Arbitrator
find the County's decision to be arbitrary or capricious, the only remedy available is to
Personnel Committee's decision and grant the one year unpaid leave request. A monetary
damages, as sought by the Union at hearing, is not causally connected to the Personnel
decision to deny her request for unpaid leave and, consistent with the decision of Arbitrator
B. McLaughlin in Board of Education of the School District of Mellon, WERC MA-7953
Union Reply Brief
The Union agrees with the County's contention that the language of the collective
agreement is clear and unambiguous, but takes issue with the County's conclusion that the
"clearly and unambiguously" vests the Personnel Committee with the discretion to deny the
Grievant's request. The language expressly provides that an employee with a qualifying
may take one year of unpaid medical leave.
In response to the County argument that since an employee must "request" the leave
Personnel Committee, then the Committee must have the authority to deny the request, the
finds the conclusion faulty. Rather, when an employee meets the only eligibility requirement
contained in Section F, a qualifying medical condition, and the employee provides medical
certifications that are not "bogus or unsubstantiated", then the employee is entitled to one
The record is void of any examples that support the County's reliance on past
is no evidence to show the "overwhelming" support for the County's position because unpaid
leave requests have been routinely approved by the County. Although the County attempted
on other County contracts which made medical leave discretionary, the language of all three
contracts grant the employee the leave warranted. A past practice does not exist which
The County's attempt to suggest that it was the negotiators' intent to immediately
seriously ill employees is an unreasonable interpretation and is inconsistent with the rule of
interpretation which favors the avoidance of harsh, absurd or nonsensical results when an
interpretation would result in a just and reasonable result.
The Union next challenges the County's reliance on School District of Drummond,
In that case the language specifically provided the District with the discretion to evaluate
requests which is distinguishable from the language of Article 17, Section F.
With regard to the remedy, there is little question that the County intentionally
spirit and letter of the labor agreement and therefore the Union seeks more than a make
remedy. The Grievant was required to withdraw her Wisconsin Retirement System employee
balance as a result of the County's actions and thus her WRS fund credits should be restored.
Additionally, a punitive reparation is in order due to the County's callous action. The
recognizes that punitive or other penalty-type relief is not generally applied in an arbitral
however, the egregious conduct of the employer in this case justifies such an award.
For the reasons cited, the Union respectfully requests that the Grievance be sustained.
County Reply Brief
In response to the Union's assertions that the County Personnel Committee was
by Union animus, the Union failed to produce facts to support its assertion. The evidence
at hearing does not support that either Sheriff Hoenisch or Mr. Matel were motivated by
animus; both were new to their positions and Staff Representative Salamone testified that
animus to the Grievant. The majority of the Personnel Committee was new to County
and as such, had no knowledge of the Grievant's prior union activities or her Union position.
Consequently, the claim is baseless and needs to be rejected.
As to the "lengthy record of employees who have been granted extended leaves in the
this is irrelevant to the matter pending before this Arbitrator. Further, the exhibit is
and incomplete. At best the exhibit supports the conclusion that the County allowed the
exhaust her accumulated contractual leave and family medical leave in the same manner as it
those employees listed on Exhibit 2.
Finally, the County challenges the Union's conclusion that the information provided
County Personnel Committee indicated that the Grievant would not be permanently restricted
performance of her duties when she returned to work. Rather, the record establishes that it
early to determine" whether the Grievant's condition would result in permanent restrictions.
For the foregoing reasons and those set forth in the County's initial brief, the County
the Arbitrator deny the grievance in its entirety.
This case arises as a result of the administrative termination of the Local 2492-E
President following the County's denial of her request for unpaid medical leave of absence
September 9, 2002. There is essentially no dispute as to the facts leading up to the
Committee's decision on September 9, 2002. The dispute lies in the meaning of Article 17,
F and thus, it is the appropriate place to start.
In contract interpretation cases, the role of the arbitrator is to give meaning to the
conduct used by the parties in their collective bargaining agreement. Labor and
Arbitration, 2nd Ed. Volume 1, p. 9-3. When the "plain" or "clear
and unambiguous" language of the
agreement is ascertainable, it is to be given effect. How Arbitration Works,
Elkouri and Elkouri, 5th
Edition, p. 470 (1997). If the language is ambiguous, contractual intent is determined
application of 1) the standards of contract interpretation, 2) the concept of past practice and
principle of reasonableness. Common Law of the Workplace, Theodore St.
Antoine, (BNA, 1999)
Both the County and the Union conclude that the language of Article 17, Section F is
and unambiguous yet each side asserts a different interpretation. Article 17, Section F
In the event of an extended absence due to sickness or temporary
disability stemming from such
causes as heart attack, stroke, cancer, pregnancy, etc., the employee may take an unpaid
leave of absence up to one (1) year so as to retain a sick leave balance for use after return to
Such medical leave of absence may be requested as specified above.
This section contains three components. First, there must be a sickness or temporary
causation similar to heart attack, stroke, cancer, pregnancy, etc. The Union argues that the
meets this component of the Section in that she has a "fully documented medical condition
required a long and painful healing process." The County did not challenge the nature of the
Grievant's medical condition. Although I do not entirely agree with the Union's conclusion
medical absences for the conditions as contained in Section F are unforeseeable, the
medical diagnosis is of similar causation to those identified in the Section and I find she met
language of the first component of the Section.
Moving to the second component, the maximum amount of time in which a
member "may take" a leave is for one (1) year. Discretion rests with the employee. The
has discretion in multiple areas; whether to take unpaid medical leave; the length of the
medical leave of absence provided it is less than one year; and whether to retain a sick leave
to be utilized when the employee returns to work. There is no ambiguity in this part of the
and reading it in isolation, I find the Union's argument more persuasive.
The third component is identified in the second sentence of Section F. The County
that the Union's asserted clarity in the first sentence is clouded when read in conjunction
second sentence thus shifting the discretion to the County. Sentence two indicates that
leaves of absence must be requested and that the requests are to follow a
above". "As specified above" is ambiguous to the extent that it is unclear what Section
above" is referencing, but accepting the testimony of the Grievant, Sheriff Hoenish, prior
Director and current Deputy County Administrator Brad Karger, and the process followed
parties in this instance, the section which is
referenced is Section A grants the Committee the discretion to approve or deny the
Arbitrator Richard B. McLaughlin in County of Marathon, WERC MA-5973 (McLaughlin,
7/90), when addressing the same language presented in this case, found:
. . . leaves under Article 17 presume the exercise of discretion by
the County. Section D specifies
a type of cause of "sickness or temporary disability" for which a medical leave may be
find the County's position on the language of Article 17 to be persuasive. The final sentence
section specifies that the procedure for requesting the leave is "specified above." Section A
that granting of leave "shall be contingent upon the reasons for the request." Each of these
presumes the County's exercise of discretion in granting a leave.
I concur and conclude that it was within the County's discretion to grant or deny the
request for unpaid medical leave of absence provided the decision was consistent with
Section A and
was not arbitrary or capricious.
Article 17, Section A limits the County to granting or denying applications for leaves
absence based on "the reasons for the request". The County argues that its decision to deny
Grievant's request was for a valid reason and not arbitrary or capricious. Personnel
member Karen Piel testified that the Committee did not approve the Grievant's request
the medical evidence. She testified that there was "not sufficient information to approve",
was "no basis to grant" the request and that the physician's report was "vague" and lacking a
timeframe for the Grievant to return to work.
The Grievant and her physician provided responses to all questions on the newly
Personnel Committee forms. 1/ Lacking within the responses was a date certain when the
would be considered "recovered" and returning to work. Although the Committee may
desired a date certain, the fact that it was unknown to the physician and indicated as such on
does not make the documentation insufficient. This is not a situation where the County is
questioning the reason for the requested leave because there is inadequate documentation as
existence or extent of an employee's medical condition. Rather, it is a situation where the
desired to minimize the Grievant's time spent on leave when faced with an uncertain return
date and its concerns as to whether the Grievant would ever be able to return to her former
Although I find the County's concerns valid, the labor agreement does not provide the
right to deny unpaid leave requests based on the length of the leave, but rather allows it to
based on the "reason for the request". This is further supported by the language of Section
the parties' reference an "employee returning to work" after an absence of what could be a
which makes it clear that the parties contemplated that an employee would be absent for
as much as one year and return thereafter. The County's decision to deny the
request is therefore inconsistent with Section A.
1/ The Grievant's unpaid leave request
addressed by the Personnel Committee in May 2002 was the progenitor
to its decision to change the forms that employees needed to complete when requesting an
The County finds support in Arbitrator Stephen Bohrer's decision in School District
Drummond, id. Having reviewed the decision, it is distinguishable in that the District was
limited by the language of the labor agreement as to how its discretion was to be applied as it
Having found that the County's denial of unpaid leave was inconsistent with the
bargaining agreement, the question becomes what is the appropriate remedy. The impact of
County's decision was the Grievant was terminated. But for the County's 24 month
period, it would be necessary to address how to remedy the County's action. Since the
created re-employment rights for the Grievant for 24 months, which is in excess of the 12
afforded the Grievant by Article 17, Section A, I encompass the County's offer of
24 months into this award. The Union seeks restoration of the Grievant's retirement system
and punitive damages. There is strong precedent against awarding punitive damages in the
setting, but for a limited number of arbitrators who have done so when willful and repetitive
violations were found. Remedies in Arbitration, Hill Jr. and Sinicropi,
2nd Edition, p. 447 (1991).
The facts of this case do not rise to this level and thus a make whole remedy is appropriate.
1. Yes, the County violated the collective bargaining
agreement when it denied the Grievant's
unpaid medical leave request on September 9, 2002.
2. The appropriate remedy is to revise the Grievant's
employment records to reflect an unpaid
County medical leave of absence from September 9, 2002 through January, 2003 and to
the Grievant whole for losses, if any, through January 2003.
3. I shall retain jurisdiction for at least sixty (60)
days to resolve any questions involving
application of this award.
Dated at Wausau, Wisconsin, this 18th day of July, 2003
A. Millot, Arbitrator