BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MARSHFIELD EMPLOYEES, LOCAL 929 AFSCME,
CITY OF MARSHFIELD
Mr. Gerald Ugland, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, P.O.
Box 35, Plover, WI 54467-0035, appearing on behalf of Local 929.
Ruder Ware, S.C., by Attorney Dean R. Dietrich, 500 Third
Street, P.O. Box 8050, Wausau, WI
54402-8050, appearing on behalf of the City of Marshfield.
The Marshfield City Employees Local 929, hereinafter referred to as the Union, and
of Marshfield, hereinafter referred to as the City or Employer, are parties to a collective
agreement (CBA) which provides for final and binding arbitration of certain disputes, which
agreement was in full force and effect at all times mentioned herein. Pursuant to a request
Union and subsequent concurrence by the City, the undersigned was appointed arbitrator by
Wisconsin Employment Relations Commission on March 25, 2003, pursuant to the procedure
contained in the grievance arbitration provisions of the parties collective bargaining
hear and decide a dispute as specified below. A hearing was held into the matter in
Wisconsin, on June 26, 2003, at which time the parties were given the opportunity to present
evidence and arguments. The hearing was not transcribed. The parties filed post-hearing
August 5, 2003, marking the close of the record. Based upon the evidence and the
arguments of the
parties, I issue the following decision and Award.
The parties were not able to stipulate to a statement of the issue.
The Union states the issue as follows:
Did the Employer violate the collective bargaining agreement
when it denied Melvin Smith
use of Emergency Leave for November 15, 2002?
If so, what is the remedy?
The City states the issue as thus:
Whether the City violated the collective
bargaining agreement when it denied emergency leave
under Article 7 Emergency Leave to the Grievant for time off on November 15,
If so, what is the appropriate remedy?
The Arbitrator accepts the Union's
statement of the issue.
Article 7 Emergency Leave
. . .
C) One (1) day at full pay shall be allowed for deaths
of relatives during the work week (relatives
include grandparents, grandchildren, in-laws, uncles, aunts, nephews, nieces and
. . .
Article 15 Grievance Procedure
. . .
Section 5. The arbitrator shall
have no authority or power to add to, modify, or delete from the
express terms of this agreement.
. . .
The Grievant's grandmother passed away on November 9, 2002. Funeral services
take place in Mesa, Arizona, on Thursday, November 14, 2002, and the burial was to take
Salt Lake City, Utah, on Saturday, November 16, 2002.
Smith notified his supervisor, Brian Panzer, that he wished to take a day of
pursuant to Article 7 on Friday, November 15, due to the death and that he would not be
the funeral services or the burial. His request was denied due to the fact that he would not
attending the services or the burial. Following the denial, he used a vacation day on that
date and this
grievance followed in due course.
THE PARTIES' POSITIONS
The Union argues that the contract language is clear and uncontrovertible and that it
he taken literally by this Arbitrator. Further, the City failed to introduce any evidence of
and even if it had done so, it would be irrelevant due to the clarity of the contract language.
The City argues that although the agreement is silent on whether an employee must
funeral or wake to receive emergency leave, past practice shows that the City has
interpreted it to mean just that. Citing Elkouri, it reminds the Arbitrator that past practice
used to "fill in gaps" where a CBA is otherwise silent in order to ascertain the intentions of
parties. It also refers the undersigned to the case of J.I. Case Co., 93 LA 107,
109 (Kates, 1989)
for the same proposition.
Brian Panzer, the Grievant's supervisor, testified that he has, since his initial
the City in 1984, interpreted the language of Article 7 to require the physical attendance at a
before emergency leave could be paid and that he has denied payment of same in the past for
reason. Therefore, the "practice is of longstanding duration and is consistent."
The City further argues that "generally" provisions that allow paid time off for a
for the purpose of traveling to or attending a funeral or wake. It directs my attention to the
Warner & Swasey Co., 47 LA 438, 440 (Teple, 1966) which supports its contention
emergency or "funeral" leave pay is normally not granted unless one attends the funeral and
in making the arrangements for it. Arbitrator McGilligan, in his Marathon
County (Courthouse), Case 234, No. 52561, MA-9023, (McGilligan, 3/96) decision,
funeral lease did not encompass family gatherings after a funeral or taking care of "personal
as part of the grieving process.
If the Arbitrator were to find in favor of the Union, he would he changing the terms
agreement, a power not afforded to him by the terms thereof. This would be the case
a past practice exists which has now become a part of the binding nature of the contract,
that practice would result in a change in the terms of it.
In conclusion, the City asserts that the consistent interpretation of the language by the
has created a past practice and that practice is that emergency leave will not be granted
attends a funeral or a wake during the work week. To rule otherwise would open the door to
employees taking time off "for every death in the family." In short, it would give a day of
leave to employees without restriction or limitation.
The City urges the undersigned to find a binding past practice based upon the
Mr. Panzer. The "past practice," says the City, is the denial of emergency leave under
Article 7 to
members of the bargaining unit who do not plan to attend either the funeral or the wake of a
member referenced in paragraph C of that article. The only evidence supporting such a
from the testimony of Panzer who testified that he had always interpreted the subject
mean that the employee had to attend the funeral or a wake in order to qualify for the leave
he had consistently applied this interpretation to other employees over the years. When
cross examination for specific circumstances when he had denied this benefit in the past, and
whom, he was not able to recall such a case, specifically.
The City argues that this "past practice" may be used to "fill in the gaps" of
which have arguably left some important aspect of the parties intentions out. In the present
according to the City, the "gap" in the language of Article 7 is the part which requires one to
a funeral or wake for the deceased family member before becoming eligible for the leave. I
past practice may, in some instances, be used to fill in "gaps" and shed light upon the
intent. But this is not one of them. The "gap" suggested to exist by the City is nothing
the language the City wishes were there, but isn't. What language is there is a clear and
unambiguous statement outlining that a bargaining unit member is entitled to emergency
the death of one of the persons set forth therein. It does not require attendance at a funeral
It requires the death of a relative, including grandparents. The Grievant's situation meets
The City also argues that "Generally, provisions that allow paid time off for a death
the purpose of traveling to or attending a funeral or wake" and cites case law in support of
argument. This argument is rejected. The cases cited by the City are not persuasive in
this matter because in each of those cases, the contract language in question contained
requiring attendance at a funeral. Also, I am constrained by the clear and unambiguous
this contract and to inject another element into Article 7, specifically the requirement that
physically attend a funeral or a wake, would change the meaning and effect of the current
It would amount to a re-writing of the agreement and I do not have the authority to do that.
In light of the above, is my
The Employer did violate the collective bargaining agreement when it denied Melvin
use of Emergency Leave for November 15, 2002. The remedy for this violation is:
1. The Grievant shall be credited with one (1) day of vacation and November 15,
shall be considered a day of emergency leave under Article 7.
Dated at Wausau, Wisconsin, this 18th day of August, 2003.
Steve Morrison, Arbitrator