BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 67, AFSCME, AFL-CIO
CITY OF RACINE
(Art Felix Grievance)
John Maglio, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, on behalf of Local 67, AFSCME, AFL-CIO.
Guadalupe Villarreal, Deputy City Attorney, on behalf of the
City of Racine.
Local 67, AFSCME, AFL-CIO, hereinafter the Union, requested that the Wisconsin
Employment Relations Commission appoint a staff arbitrator to hear and decide the instant
between the Union and the City of Racine, hereinafter the City, in accordance with the
arbitration procedures contained in the parties' labor agreement. The City subsequently
in the request and the undersigned, David E. Shaw, of the Commission's staff, was
arbitrate in the dispute. A hearing was held before the undersigned on May 7, 2003, in
Wisconsin. A stenographic transcript was made of the hearing and the parties submitted
briefs in the matter by August 11, 2003. Based upon the evidence and the arguments of the
the undersigned makes and issues the following Award.
To maximize the ability of the parties we serve to utilize the Internet
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 that this grievance is properly before the Arbitrator, but were
to agree to a statement of the issues and agreed the Arbitrator will frame the issues to be
The Union states the issues as being:
Did the Employer violate the collective bargaining agreement, its
work rules, and the past
practice between the parties, when it issued the Grievant an oral reprimand on August 19 of
and/or furthermore, when it failed to pay the Grievant sick pay on August 2 of 2002? If so,
the appropriate remedy?
The City states the issues as follows:
Did the Employer violate Article II, Section E of the collective
bargaining agreement when it
issued an oral reprimand to the Grievant on August 19, 2002? If so, what is the appropriate
The Arbitrator concludes that the issues to be decided may be stated as follows:
Did the Employer violate the parties' collective bargaining
agreement and/or past practice when
it issued the Grievant an oral reprimand and denied him sick leave for his absence on August
If so, what is the appropriate remedy?
The following provisions of the parties' agreement are cited: 1/
1/ Although not cited, the parties' agreement
contains a paid sick leave provision at Article IX, C.
MANAGEMENT AND UNION
. . .
E: Management Rights. The City
possesses the sole right to operate City government and all
management rights repose in it, but such rights must be exercised consistently with the other
provisions of this contract and
the past practices in the departments
covered by the terms of this Agreement unless such past
practices are modified by this Agreement, or by the City under rights conferred upon it by
Agreement, or the work rules established by the City of Racine. These rights which are
normally exercised by the various department heads include, but are not limited to, the
. . .
2. To hire, promote, transfer, assign and
retain employees in positions with the City and
to suspend, demote, discharge and take other disciplinary action against employees
for just cause.
. . .
. . .
J. Decision of the Arbitrator: The
decision of the Arbitrator shall be limited to the subject
matter of the grievance and shall be restricted solely to interpretation of the contract area
where the alleged breach occurred. The Arbitrator shall not modify, add to or delete from
the express terms of the Agreement.
The Union shall be furnished with a copy of any written notice or reprimand,
suspension or discharge. The City agrees that it will attempt at all times to use the
disciplinary process as a means to correct shortcomings on the part of City employees in
terms of their overall work performance. Discipline, therefore, is intended to initiate a
corrective action on the part of the employee. A written reprimand sustained in the
Procedure or not contested shall be considered a valid warning. The Union agrees upon
receipt of the reprimand notice to review the situation with the employee in an attempt to
correct the problem. When an employee's record is cleared of minor infringements for a
all previous records of minor infringements shall be removed from his personnel file.
. . .
In addition to the contract provisions cited, also cited and of relevance is the
2. Notification of Absence
Employees who are unable to report to work due to illness or emergency
shall notify their labor supervisor or departmental office by calling at least 15 minutes
before the start of their shift. Employees who are completely physically unable to call
in may have a member of the immediate family do so.
. . .
The Grievant, Art Felix, has been employed by the City since 1988, and in August of
held the position of Equipment Operator in the City's Parks Department. Felix's scheduled
in August of 2002 was 7:00 a.m. - 3:00 p.m. Parks Department employees punch in at the
Service building at the start of their shift. Felix's immediate supervisor is James Kendall,
Superintendent of Parks.
Felix was scheduled to start a two-week vacation on Monday, August 5, 2002. On
August 2, 2002, after giving out work orders for the day at 7:05 a.m., Kendall noticed that
not present. What happened after that is in dispute.
According to Kendall, the following occurred on that day. He waited until
7:15 a.m. and then had his secretary call Felix's home. The secretary told Kendall that a
answered the telephone and said that Felix had gone to work. At 7:20 a.m. Kendall received
call from Felix who told him that his alarm clock had not gone off and that he had overslept.
replied, "Fine. Your vacation starts at 3:00 o'clock this afternoon. Today is a work day and
you to come to work." Felix then told Kendall he could not be there until 9:00 o'clock, to
Kendall responded, "Alright, be here at 9:00 o'clock." At 9:21 a.m., Kendall's secretary
call from Felix's wife. The secretary gave Kendall a note which stated,
"08-02-02 9:21 A.M.
Diana Felix called,
Art Felix will not be
Kendall did not recall talking to his secretary about the matter after receiving her
Kendall coded Felix's time card as personal time (unpaid) for August 2nd.
Kendall then did not
see Felix until Monday, August 19th, when Felix returned from his
two-week vacation. Kendall issued
Felix an oral reprimand on August 19th for failing to call in 15 minutes
prior to the start of his shift
on August 2nd when he was absent on that day.
Kendall testified that since he has been in the Department there have been no
an employee called in sick after his start time, but agreed on cross-examination that if an
called in sick after the start of his shift, he would be paid sick pay from the time he called in
end of his shift. He also testified that he understood the practice in other departments to be
an employee oversleeps and calls in, he has to punch in by 8:00 a.m., or he is not allowed to
The Union presented four witnesses: Art Felix, Diana Felix (spouse), Tony Perales
Romero. Art Felix testified that his daughter awakened him the morning of
August 2nd and told him
that work had called and that she told whoever it was that he had gone to work, as she did
he was home. Felix stated he immediately called work and that he was still in a daze from
Nyquil the night before. Kendall's secretary answered the phone and Felix asked to speak to
Felix testified he then told Kendall he was not feeling well and that Kendall started arguing
as soon as he said that. Kendall said, "What do you mean, you are not feeling well? Your
don't start till Monday. You better get your butt in here." Felix told Kendall that if he was
better by 9:00 o'clock, he would come in to work. According to Felix, he and Kendall
and forth about whether Felix was in fact sick. Felix then went back to sleep and awoke
o'clock and asked his wife to call work for him, because of his having argued with Kendall.
then called work for him. The next time Felix talked to Kendall was when he returned to
August 19th and was called to Kendall's office sometime after 7:00
a.m. When the meeting started,
Trino Romero was there from the Union, as the Parks Department steward was on vacation.
asked to have a Union steward present and the first meeting that day ended. There was a
meeting with Kendall that day, with Romero and Tony Perales present with Felix. At that
Kendall said Felix had missed work that Friday (August 2nd) and Felix said
that he had called in sick.
Kendall then said that Felix had not said he was sick, but that the alarm clock had woke him
also testified that he (Kendall) has told him and others that he has trouble hearing on the
Diana Felix testified that she was home the morning of August 2nd
and that after their daughter
told Felix that work had called, he called work and spoke with Kendall. According to Mrs.
Felix told Kendall he was not feeling well and would not be in, and that he repeated it, as it
Kendall questioned him, and that Felix then said he would come in at 9:00 o'clock if he felt
Mrs. Felix testified that around 9:00 o'clock, Felix asked her to call work and tell Kendall
that he was
not feeling better and would not be in. She then called work and spoke to one of the
the Parks Department and told that person Felix would not be in. She testified she did not
why Felix would not be in, as she knew they
were expecting him to call if he felt better, so she guessed they would know why he
was not coming
in. Mrs. Felix testified that at some point during the vacation (they stayed at home) Felix
his paycheck for that week and noticed he was not paid for August 2nd, and
that no one ever asked
her to make any statement to Kendall or management that she had called and said Felix was
day of August 2nd.
Tony Perales testified that he is the Chief Steward for the Union and that he attended
meeting with Kendall and Felix and Romero on August 19th. He stated that
when he arrived at
Kendall's office, Kendall told him that the reason Kendall called him there was because he
to meet with Felix and Romero, and the acting steward was gone and Felix wanted the Chief
there, as he did not feel Romero was qualified. Kendall then called Romero to the office.
not arrived yet when Romero arrived at Kendall's office. Kendall told Perales the reason
meeting was because Felix was supposed to have called in sick, but that he did not call in
that he (Kendall) felt Felix was only trying to call in sick because he was going on vacation
Monday. Kendall told Perales that he had called Felix at home and that Felix said he was
come in at 9:00 o'clock if he felt better. Then Kendall said Felix had not come in and had
at 9:00 o'clock and that his wife called after 9:00 o'clock and said he was not coming
in. On cross-examination, Perales testified that Kendall did not bring up Felix not being paid
for August 2nd, that
all he said was that he did not believe Felix was sick. At the time Perales was not aware
had not been paid for the day.
Perales also testified that the practice has been that if an employee calls in sick after
minutes prior to the start of his shift, he will be disciplined and will only receive sick pay
time he called in for that day. Perales agreed that if an employee called in, but did not say
sick, he would not be paid for the day.
Romero testified that he is the Union's Sergeant-at-Arms and that on August
19th he was
called to Kendall's office at approximately 7:15 a.m. When he arrived, Felix was in
Kendall said it was about Felix's absence on a Friday and that he wanted Romero there
wanted to clarify a situation of Felix not reporting to work. Felix said that he had called in
he was not feeling well and that he would show up at 9:00 o'clock if he could.
Kendall said he did
not recall any of that happening, that when they spoke Felix did not say he would call back.
meeting ended because Felix wanted a steward present. Romero agreed that Kendall denied
heard from anyone that Felix had reported in sick. Romero also testified that Kendall has
he has trouble hearing on cell phones.
Felix was not paid for August 2, 2002, and, on August 19, 2002, was issued an oral
for not calling in 15 minutes prior to the start of his shift on that date. Felix filed a
regarding the oral reprimand, which grievance requested the following:
Adjustment required: Remove oral
reprimand from any and all personnel files and make Art
Felix whole for all lost wages and benefits. (8 hrs.)
The grievance was processed through the parties' contractual
grievance procedure. Being
unable to resolve their dispute, they proceeded to arbitration before the undersigned.
POSITIONS OF THE PARTIES
The City takes the position that it had just cause to issue Felix an oral reprimand, and
Felix was not entitled to sick leave for August 2nd.
It is undisputed that Felix did not call in 15 minutes before the start of his shift on
and that he did not report to work at 9:00 o'clock that day as he said he would. Felix is
the work rule and offered no excuse for failing to report his absence at 6:45 a.m. or at 9:00
day. Felix's wife called at 9:21 a.m., but there is no evidence to show Felix was physically
make the call himself, as required by the work rule.
The Grievant's excuse is that he had given Kendall the reason for his absence, but
just did not hear it, and that he did not want to talk to Kendall at 9:00 o'clock given their
conversation. More plausible is that he was embarrassed to explain the change in his story
oversleeping to being sick in such a short time. When given the opportunity to explain his
side of the
story on August 19th, he instead asked for a more experienced Union
representative to be present.
Felix also did not dispute his use of sick leave in conjunction with other paid leave, saying
he did not realize it.
The City concludes that Kendall's version of what was said on August
2nd is more credible,
as he continued to believe Felix was coming in at 9:00 o'clock. The calls made by Felix and
on August 2nd did not comply with the work rule, and thus, it was as if no
calls were made.
Therefore, Felix was not entitled to sick leave for that day, especially in light of his frequent
sick leave in conjunction with vacations or holidays.
The Union cites the testimony of Felix and Mrs. Felix that when Felix called Kendall
August 2nd, he told Kendall he was not feeling well and that he would
come in by 9:00 o'clock, if he
felt better. The Union asserts that there were no further conversations between Felix and
management until he returned from vacation on August 19th.
Perales and Romero both testified that Kendall told them that Felix claimed to be ill,
he did not believe him. Perales testified that prior to the start of the second meeting on
before Felix was present, Kendall indicated he questioned the validity of Felix's claim that he
on August 2nd, and that Kendall said Felix had informed him that he would
report by 9:00 o'clock that
morning, if he felt better. Romero testified that Kendall told him that Felix claimed he was
August 2nd, and that he (Kendall) did not believe him. Kendall also told
Romero that Felix would
report by 9:00 o'clock if he were feeling better.
As Kendall's statements were made to Perales and Romero prior to Felix's arrival at
meeting on August 19th, and Kendall had not yet spoken with Felix about
the matter, Kendall cannot
credibly claim he did not hear that Felix was ill on August 2nd. Given the
testimony of Felix, his wife,
Perales, and Romero, if the case turns on credibility, the Grievant prevails.
The Union asserts that it is not a matter of Kendall not knowing Felix reported being
August 2nd; rather, Kendall did not believe what Felix told him. However,
there is no basis for
Kendall's position, as Felix had never been disciplined for sick leave abuse. When asked
hypothetically whether an employee would be disciplined for calling in sick a half-hour after
of his shift, Kendall answered in the negative. Thus, there was no reason to discipline Felix
reprimand should be expunged from his record.
Assuming, arguendo, that discipline was warranted for not timely calling in, the
long-established practice of the parties is that in similar situations where an employee calls in
the start of his shift, he is allowed to us sick leave for that day from the time of the
notification to the
end of their work day. Kendall confirmed the practice, and Perales testified he personally
so and knew of others who had similarly received sick pay in that situation. Thus, Felix is
to sick pay from 7:15 a.m. until 3:00 p.m. on August 2, 2002.
There are two primary issues to be decided in this case: (1) Did the City have just
issue Felix the oral reprimand, and (2) was Felix entitled to sick pay for August 2, 2002?
As to the oral reprimand, the work rule requires an employee to call in at least 15
before the start of his shift to report absence due to illness or emergencies. By his own
Felix did not call in until after his shift started at 7:00 a.m., and after Kendall's secretary
his home at approximately 7:15 a.m. that morning. While Felix testified he was in a daze
Nyquil the night before, that does not amount to being "deathly ill" (as in the hypothetical
Kendall by the Union's representative) or being
physically unable to call in. 2/ Further, according to Perales' testimony, issuing the
to Felix in this case was consistent with how the work rule has been enforced in the past.
2/ The work rule itself
only permits an immediate family member to call in for the employee in the latter instance,
and does not excuse calling
Based on the foregoing, it is concluded that the City had just cause to issue Felix an
reprimand for calling in late to report his absence on August 2, 2002.
Resolving the issue of whether Felix is entitled to paid sick leave for August
2nd first requires
a determination as to what was said in the phone conversations between Felix and Kendall
morning. Three of the witnesses were privy to what Felix said in his conversation with
Felix, his wife, and Kendall. Felix and his wife both testified that Felix told Kendall he was
well, and that he repeated this in response to what Kendall said, and that he told Kendall he
come in at 9:00 o'clock if he felt better. Kendall testified that Felix only said his alarm
clock did not
go off and did not mention anything about being ill. Kendall also stated that Felix said he
come in until 9:00 o'clock, but did not say that was if he was feeling better.
As to Romero's and Perales' testimony, while Romero's testimony was somewhat
he testified that at the start of the meeting the morning of August 19th,
Felix claimed he had called in
sick and that Kendall denied he had said that. Kendall could have been made aware at that
Felix was claiming he had called in sick on August 2nd. Therefore,
Perales' testimony that Kendall
told him at the afternoon meeting on August 19th that Felix was claiming he
called in sick on August
2nd, does not establish that Kendall only would have known Felix was
claiming he was sick through
his phone conversation with Felix the morning of August 2nd.
This leaves the Arbitrator with only the testimony of Felix, his wife, and Kendall to
the issue. While Felix has an obvious interest in the outcome, that is less the case for his
Kendall. For the following reasons, Diana Felix's testimony is credited over Kendall's.
testified in a straightforward manner as to what she had heard her husband tell Kendall in
conversation the morning of August 2nd. There were no attempts to
embellish her testimony to favor
her husband. She testified that when she called the Parks Department for her husband after
o'clock that morning, she only said he was not coming in and did not say why. She
she did not do so because he had already told Kendall he would come in if he was feeling
there was no need to explain why he was not coming in.
The testimony of Felix and his wife is also more plausible with regard to his saying
come in at 9:00 o'clock if he felt better, as opposed to Kendall's version that Felix simply
could not come in until 9:00 o'clock. It seems unlikely that Kendall would have accepted the
statement without questioning it further, especially in light of his testimony that he
the practice in other departments to be that if an employee oversleeps and calls in, he has to
in by 8:00 o'clock or he is not allowed to work for that day. Thus, the testimony of Felix
and his wife
is credited over that of Kendall.
Based on information it put together later in the fall of 2002, the City points out that
would have been the third instance in a two-month period where Felix called in sick adjacent
vacation or holiday, and challenges his entitlement to sick leave for August
2nd on that basis as well.
There is no doubt that this is a disturbing pattern; however, Felix was not disciplined on that
in this instance, nor had he been disciplined previously for sick leave abuse. The City's
denial of paid
sick leave in this instance was based on a failure to call in sick on August
2nd, not on alleged sick leave
As it has been found that Felix did call in sick on August 2nd when
he spoke to Kendall, and
that the practice has been that in these situations the employee is allowed to use sick leave
time he calls in sick, Felix was entitled to sick leave from 7:20 a.m. (when he called
Kendall) until the
end of his regular shift on August 2, 2002. By refusing to pay Felix sick pay for that time,
violated the parties' Agreement.
Based upon the foregoing, the evidence, and the arguments of the parties, the
makes and issues the following
The grievance is denied in part and sustained in part.
The grievance is denied as to the oral reprimand Art Felix received on August 19,
The grievance is sustained with regard to Felix's entitlement to use sick leave on
2002. Consistent with the above discussion, the City is directed to immediately make Felix
paying him sick pay from 7:20 a.m. to 3:00 p.m. for his absence on August 2, 2002.
Dated at Madison, Wisconsin, this 4th day of November, 2003.
David E. Shaw, Arbitrator