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Title: Metropolitan Exposition-Recreation Commission and AFSCME Local 3580-1
Date: July, 2000
Arbitrator: Jack H. Calhoun
Citation: 2000 NAC 123

IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

 

 

AMERICAN FEDERATION OF STATE,               )

COUNTY AND MUNICIPAL EMPLOYEES,        )

LOCAL 3580-1,                                                       )

            )             OPINION

            and                                                                  )            AND AWARD

                                                                                    )

METROPOLITAN EXPOSITION-                           )

RECREATION COMMISSION.                                )

 

 

 

 

BEFORE

JACK H. CALHOUN

ARBITRATOR

 

 

HEARING HELD

April 26 and 27, 2000

Portland, Oregon

 

REPRESENTATION

 

FOR THE UNION:                                               FOR THE EMPLOYER:

Monica A. Smith                                                  Kathleen A. Pool

Smith, Gamson, Diamond & Olney                  Office of General Counsel

21 1 0 SW Jefferson                                            Metro

Suite 200                                                           600 NE Grand Avenue

Portland, OR 97201                                         Portland, OR 97232

 

 


BACKGROUND

            The American Federation of State, County and Municipal Employees, Local 3580-1 (the Union) and the Metropolitan Exposition-Recreation Commission (the Employer) are parties to a collective bargaining agreement that sets forth the manner in which sick leave is to be administered and its abuse controlled.  The agreement contains a just cause provision.  The Grievant, Richard Schneider, was suspended for five days for abusing sick leave.  The Union filed a grievance that went unresolved and ended in arbitration.  The parties agreed the issues in dispute were properly before the arbitrator.  Post-hearing briefs were received on June 9, 2000.

ISSUE

            The parties were unable to agree on the precise wording of the issue.  It is as follows: Did the Employer violate the collective bargaining agreement by imposing a five-day suspension without pay on Richard Schneider?  If so, what is the appropriate remedy?

RELEVANT CONTRACT PROVISIONS

ARTICLE 16: SICK LEAVE

Section 1.

a.)        Except for part-time Event Custodians, sick leave shall accrue at the rate of 4.33 hours per payroll period, or 104 hours per year, accrued in an unlimited amount.  Sick leave shall not accrue during any period of leave without pay, or while receiving unpaid sick leave or industrial injury leave. b.) Non-probationary employees who have used 3 or less days of sick leave will be allowed to cash out one-half of the sick leave they have accrued in the prior six month period up to a limit of 26 hours, the cash out option can be used at the end of each December and June.

Section 2.

An employee who meets any one of the following criteria may be deemed a high sick leave user:

            a)            Exhaustion of all accrued sick leave;

            b)            Use of thirty-two (32) hours of sick leave in the preceding six (6) months; or

            c)            Use of sick leave on five (5) or more separate occasions in preceding six (6)

                        months;

d)         An employee who meets the above criteria as a result of a single incident of illness or injury, as evidenced by a physician's certificate, shall not be deemed a high sick leave utilizer.

Section 3.

An employee may use his/her accrued sick leave when temporarily unable to perform his/her work duties by reason of personal illness or injury, disability, medical or dental care subject to the limitations stated in this section and other sections of this Article.  An employee may use up to four (4) sick leave hours to visit a physician for medical or dental care per visit.  In addition, where an employee's spouse, parent, child or other person for whom the employee is legal guardian becomes seriously ill, the employee will be permitted to use accrued sick leave hours.  The employee shall be required to submit a doctor's certificate for any absence of three (3) days or more within a period of five (5) working days cited above.

Section 4.

An employee must notify the supervisor on duty of the nature and expected length of such absence at least two (2) hours before the start of the employee's shift.

Section 5.

An employee shall be entitled to use a maximum of four (4) consecutive work days sick leave without a signed doctor's certificate if the employee has accumulated not less than four hundred (400) hours of sick leave.  Otherwise, the employee will be entitled to use a maximum of three (3) consecutive work days sick leave without a doctor's certificate.

Section 6.

If an employee meets one or more of the criteria specified in Section 2 above and the Employer thinks that the employee is abusing the use of sick leave hours, the supervisor shall meet with the employee and his/her union representative to discuss the problem.  If, after the meeting, there is evidence that the employee is abusing sick leave hours, he/she shall be placed on sick leave probation for six (6) months and may be required to obtain a doctor's certification of each absence due to injury or illness.

Section 7.

An employee who continues to abuse sick leave hours after being placed on sick leave probation shall be subject to discipline pursuant to Article 24 of this Agreement.

Section 8.

Where the Employer has reason to believe an employee is not physically capable of performing the duties of his/her position, the Operations Manager, may require the employee to submit to a physical examination by a physician selected by the Employer.  The cost of such examination shall be home by the Employer and the information provided by the physician shall be limited to whether or not the employee is able to fully perform the duties of his/her position.

Section 9.

The Employer and the Union agree that no employee should receive full wages in paid sick leave while also receiving time loss payments on an insured disability or Workers' Compensation claim.  The parties therefore agree as follows:

 

Where the dual payment would result from the employee filing a claim for time loss payments for an injury or disease, the employee shall receive only the paid sick leave, if any, for the same condition necessary to bring the employee to full pay for the pay period.  The Employer may recoup any overpayment of sick leave paid, either by deductions from gross wages per day period in an amount not exceeding 20 percent of gross wages until the overpayment is recouped, or the Employer and the employee may, by mutual agreement, provide for some other means for repayment.  Upon repayment of the total amount of the excess, the employee's sick leave account shall be credited with that portion of the sick leave repaid.

Section 10.

Full-time employees who maintain perfect attendance each pay period shall receive an additional one (1) hour pay at his/her straight time rate.

 

ARTICLE 24: DISCIPLINE AND DISCHARGE Section 1.

 

No employee who has completed initial probation shall be disciplined without Just cause.  Disciplinary actions shall including only the following:

                         Oral reprimand,

                         Written reprimand,

                         Demotion,

                         Reduction in pay,

                         Suspension, or

                         Termination

            . . .

Section 3.

No employee shall be denied Union representation in any investigation that may result in disciplinary action or in meetings that involve disciplinary action provided the employee request such representation.

Section 4.

A non-probationary employee whose pay is reduced, suspended without pay, demoted or terminated may appeal such disciplinary action directly to Step 4 of the grievance procedure within ten (10) working days from the effective date of the action.  Any further written appeal beyond Step 4 shall follow the requirements and time frames outlined in Article 23. (Grievance/Arbitration Procedure)

Section 6.

An employee whose suspension without pay or termination is rescinded by the Employer, shall be reinstated with full compensation for all lost time and fill (sic) restoration of all other rights and conditions of employment, or as mutually agreed upon.  If an arbitrator rescinds a suspension without pay or termination, the arbitrator shall have the authority to fashion a remedy to the specific cause.

 

STATEMENT OF FACTS

            The Metropolitan Exposition-Recreation Commission is a public agency and a division of a tri-county government unit with its headquarters in Portland, Oregon.  The Oregon Convention Center is one of three event facilities managed by the Commission.  The Union represents a bargaining unit of 30-35 full-time employees who perform utility and maintenance duties at the Convention Center.  Richard Schneider is a utility worker at the Center.

            During the 1994 and 1997 negotiations for successor agreements, the Employer expressed concern about the high use of sick leave by employees in the bargaining unit.  The Employer was concerned about sufficient attendance in order to accomplish the work at the Convention Center.  Managers believed employees were using sick leave when they were not sick.  The Union's position was that if an employee is sick, the employee should be able to use accumulated sick leave; and if the employee had to produce a physician's certification stating that the employee was sick, the certification should serve to prove conclusively the employee was, in fact, sick.  The Employer agreed employees should be able to use sick leave for legitimate purposes.

            Article 16 of the collective bargaining agreement is the result of the parties' negotiations over the issue of sick leave.  It was intended to deal with sick leave only, other kinds of non-sick leave issues were separate from the discussions and negotiations dealing with sick leave.  The purpose of the sick leave probation provision was to provide a corrective action by the Employer to get the employee to evaluate the employee's use of sick leave.  Its purpose was not meant to be disciplinary.

Neither the agreement nor the Employer's personnel policies define sick leave probation as disciplinary.

            After the current collective bargaining agreement was signed, Dennis Miller, Assistant Operations Manager, issued a memorandum on September 10, 1997, to all bargaining unit members acknowledging that management had not diligently applied the sick leave abuse criteria in the past.  He stated that, as of September 2, 1997, all employees would start with a clean sick leave record and the criteria defining high sick leave use would be enforced from then on.  The memorandum also informed employees that Miller had instructed supervisors to have continuing discussions with employees regarding attendance and keep them informed about issues related to their attendance.

            The Employer promulgated and published a policy on September 2, 1997, that addressed attendance in general.  It set forth the Employer's expectations for employee attendance and defined absence as failure to report for work and remain at work as scheduled.

            Prior to Miller's memorandum on September 10, the Grievant had been absent from work a number of times.  He started work with the Employer in 1995, and was evaluated approximately three times during the first year.  His performance met the required standards and his attendance was adequate.  In March of 1996, the Grievant's use of sick leave was determined to be acceptable, it did not fit a pattern of abuse.  He was reprimanded for calling in sick late on May 21, 1997.

            The Grievant was placed on sick leave probation for six months on December 19, 1997, and was required to obtain a doctor's certification for each sick leave absence.  On June 18, 1998, he received a memorandum from his supervisors advising him that he had completed sick leave probation and was being removed from probation that day.

On November 16, 1998, the Grievant's supervisor informed him by memorandum that his

use of sick leave may be falling within the high-user criteria of Article 16, Section 2. He was directed to attend a hearing on December 3, 1998.

            On December 7, 1998, Dennis Miller wrote the Grievant a memorandum stating that after discussing the Grievant's sick leave use on December 3, it had been decided to place him on sick leave probation again.  He was again required to obtain a doctor's certification when sick.  On May 10, 1999, the Grievant was notified he had completed his sick leave probation and that his efforts to improve his sick leave use were appreciated by management.

            The Grievant took one day of family medical leave on March 13, 1999.  It was not counted against him for purposes of sick leave standing.  The next day his car broke down and he called in to say he could not work that day.  He could not find alternative means of transportation.  When he returned to work the following day, his supervisors did not indicate to him use of unpaid leave was improper even though he was still on sick leave probation.

            On May 6, 1999, the Grievant stayed home with his wife to care for her and to take his children to school.  His wife had had an MRI due to her epileptic condition on May 5, and the doctor said someone should stay with her for 24 hours.  When he returned to work on May 7, he filled out the proper form and provided documentation as the basis for his use of sick leave.  His supervisor signed the form indicating his approval for the use of sick leave.  No one mentioned to him that his use of sick leave on May 6 was improper.

            The Grievant missed work on May 13 and 14, 1999, after his scheduled days off because he had the flu.  He saw a doctor on the 13th  and obtained authorization from him to be off work for two days.  When the Grievant returned to work, he filled out the proper form and turned in the authorization.  No one said to him that his use of sick leave for the two days was improper.            On June 30, 1999, the Grievant asked permission of Miller to use a personal leave day on July I and to come in three hours late on July 2 because his wife had to care for her sick mother and he did not have a babysitter to cover the entire time she was to be gone.  Miller voiced no objection, but sent him to talk to his immediate supervisor, who approved both times off.

            The Grievant fell asleep on the beach on July 14, 1999, and suffered heat stroke and sunburn.  He called in the following day and reported he could not work.  The following day he could not put on his pants or shoes because of the sunburn.  He, therefore, requested and received approval for the day off.

            Dennis Miller wrote a memorandum to the Grievant on July 19, 1999, stating that the Grievant's use of sick leave had exceeded the criteria shown in Article 16, Section 2 of the Agreement and directing him to attend a hearing on July 23.  The Grievant had kept track of his sick leave use and believed he was under the maximum allowed.

            At the meeting, the Grievant was informed that the use of approved time off along with unapproved time off was a problem.  After the meeting, the Grievant was offered a last chance agreement in lieu of a five-day suspension.  He refused it.

            On August 2, 1999, the Grievant received a letter from Miller stating that as a result of the discussions at the July 23 meeting, the purpose of which was to discuss sick leave abuse, he was suspended for five working days.

SUMMARY OF THE EMPLOYER'S POSITION

            The Employer contends that the discipline imposed on the Grievant was proper and met all requirements of just cause.  The sick leave probation provision and the Employer's policies were known to all members of the bargaining unit, and they were required for the proper operation of the center.  The discipline was progressive in that it followed three written warnings for poor attendance.  Written warnings notify employees they have engaged in unacceptable conduct.  The sick leave probations differ from the first written warning because they carry a mandate, which, if not met, would subject them to additional discipline.

            Before each probation was imposed, the Grievant was given written notice and advised of his right to Union representation, a clear indication of disciplinary potential.  Although the notices refer-red only to sick leave use, it has been standard practice to review other absences as well.  The essential question is not whether the disciplinary action was totally free from procedural defect, but rather, whether the process was fundamentally fair.  All the absences cited in the suspension letter were discussed at the meeting and the Grievant had opportunity to respond.  He made no protest as to the scope of review because he knew about such meetings from his own experience.

            Although the review is triggered by sick leave use, probation is only imposed if the supervisor concludes that the employee had been using leave inappropriately.  Sick leave probation is a corrective problem and a warning that the Employer considers the employee's attendance and use of sick leave to be a problem.

            The evidence of chronic sick leave and misuse of sick leave is strong.  The employer was justified in rejecting two of the medical excuses offered by the Grievant.

            The Employer acted reasonably in considering not only the Grievant's stated excuses, but his overall pattern of absences.  The repeated pattern of absences preceding or following days off, and decreased absences during periods of sick leave probation, diminish the Grievant's credibility.  The Grievant had sufficient warning that poor attendance and misuse of sick leave would subject him to discipline.  He rejected every such warning.  A single day of absence due to car problems has been held to be sufficient to support a seven-day suspension.

            The suggestion that the Grievant was singled out for unfair discipline is refuted by the uncontradicted testimony of management witnesses that no other member of the unit reached the point of a third sick leave probation review, and that those who have since reached that level are receiving equivalent action.  The Union relies on partial employment records of other individuals who were disciplined, but under circumstances of dubious relevance.

SUMMARY OF UNION'S POSITION

            The Union contends that the Employer failed to carry its burden of proving the charges on which it relied as a basis for imposing discipline on the Grievant.  The contract created a special procedure for handling the use of sick leave.  The contract also requires just cause for any disciplinary action.  Sick leave probation is not included in the definition of disciplinary action in either the contract or Employer policies.

            The Grievant was disciplined for sick leave abuse, not for poor attendance in general.  The letters written to him, and the impression given him in the meeting, show he was disciplined for sick leave abuse.  The first letter scheduling the July 23 meeting stated that his use of sick leave exceeded the limit.  The suspension letter referred to the purpose of the meeting as discussing sick leave abuse.  The suspension letter recited the contract article on high sick leave use, sick leave probation, and discipline for sick leave abuse.  Poor attendance as a basis for the discipline was not brought up until early October after the Union requested arbitration.

            it is important that the precise basis for the discipline be identified.  Article 16 of the contract requires sick leave abuse to be treated in a specific manner.  Just cause and the Employer's policies require that the employee be notified of the charges against him and be given an opportunity to respond before discipline is imposed.

            The discipline violates the contract because the Grievant was not a high sick leave user.  He did not use more than 32 hours of sick leave in six months as the suspension letter states.  Of the five occasions referred to in the letter, two were leave without pay taken for personal reasons such as car problems or no babysitter.  Those hours should not have been counted because they were not sick leave.  Sixteen of the remaining 32 hours were used for a single absence for the flu.  That should have been counted as one eight-hour use of sick leave.  The grievance should be sustained on this reason alone.

            No evidence existed to show that the Grievant abused sick leave.  He provided proof to verify two of his three occasions of sick leave use.  On the third occasion, he did not seek medical treatment and, therefore, had no proof.  He did, however, use the sick leave only on the first day, July 15, of his absence.  On the second day he used a personal leave day.

            While the pattern of sick leave use may raise questions, in reality employees and their families get sick at the beginning and end of the employee's days off.  The contract provides for the use of sick leave for reasons stated therein, regardless of when they occur.  The Grievant presented documentary evidence and credible testimony to explain all of the sick leave use on which the Employer relied for his suspension.  The Employer presented no evidence of abuse.

            The Employer violated the contract by suspending the Grievant rather than putting him back on sick leave probation.  The contract mandates that employees be placed on probation where evidence of sick leave abuse exists.  Discipline can be imposed only after the employee is placed on probation.  The Employer agreed in the contract to treat sick leave use problems in a special way.  The Employer led the Grievant to believe his leave use was acceptable.  His absences on March 14 and May 6 occurred while he was on probation and being monitored closely.  Those absences were accepted by the Employer without question.  The Grievant, therefore, reasonably believed that those reasons, documentation, and timing were acceptable.  The Employer should not have relied on those absences to claim the Grievant did not learn from his sick leave probation and conclude that more severe action was necessary.

            The suspension of the Grievant violates the principles of just cause.  The Employer failed to give the Grievant forewarning of the possible or probable consequences of his conduct.  The Employer's investigation was not fair or objective and it did not obtain substantial proof that the Grievant was guilty as charged.  The Employer did not apply its rules and penalties evenhandedly without discrimination.  The Grievant is apparently the first non-probationary employee to be disciplined for sick leave abuse while not on sick leave probation.  Discipline can only be imposed for sick leave abuse that occurs when the employee is on sick leave probation.

            The discipline imposed did not reasonably relate to the seriousness of the offense.  The Grievant was given serious discipline without any prior discipline for sick leave abuse.  His only other discipline was a written reprimand for a different offense.

OPINION

            The Employer had the burden to prove by a preponderance of the evidence that it had just cause to impose a five-day suspension on the Grievant.  The parties' collective bargaining agreement contains a provision that specifically governs the matter in dispute.  Article 16 sets forth in considerable detail how situations related to sick leave are to be dealt with.  It states precisely what high sick leave use is, what is to happen if the Employer believes sick leave is being abused and what can be done when continued abuse of sick leave occurs after an employee is placed on probation.  Article 24 contains the just cause provision and defines disciplinary actions.  Nothing in the Employer's policies, that is contrary to the agreement, is effective as to bargaining unit members.  The agreement controls those matters it addresses.  The policies can supplement, but they cannot change the agreement.

            The role of arbitration in contract interpretation cases is to determine the intent of the parties in adopting certain language to express their rights and obligations.  The parties determine the value of their exchange, arbitrators interpret the agreement consistent with the parties' negotiated preference.  See the Common Law of the Workplace, St. Antoine, editor, BNA 1998 at 64, Contract Interpretation, Chapter 2, Carlton Snow.

            The agreement creates a special procedure for handling issues of sick leave use.  It defines the criteria to be used to determine if an employee is a high sick leave user and what the Employer must do if it makes that determination.  Once such determination is made and the employee placed on sick leave probation, the contract sets forth what can take place.

            The agreement cannot be reasonably interpreted to mean that discipline can be imposed on an employee for sick leave abuse prior to the employee being placed on sick leave probation.  The contract does not permit discipline for sick leave abuse unless the employee continues to abuse sick leave after being placed on sick leave probation.  At that point, Article 24 can be invoked to apply the disciplinary action listed.  Any interpretation to the contrary would effectively render what the Union bargained for with respect to sick leave use meaningless.

            The Grievant used a lot of sick leave.  When he was placed on sick leave probation, he used less sick leave.  It would appear that what the parties bargained for worked.  The employee began paying attention to his use of sick leave.  He was required to obtain a physician's statement when Liu was sick and off work.  Under the terms of the agreement, the Employer's solution to the problem of abuse of sick leave is to place the abuser on sick leave probation each time he becomes a high sick leave user.  If while he is on sick leave probation, he abuses sick leave, he then can be disciplined.  To allow discipline prior to placing the employee on probation serves to ignore the mandate of Section 7 of Article 16.

            General attendance problems of the Grievant are not at issue here.  The Grievant was told he was being investigated for sick leave abuse, the Employer concluded sick leave abuse occurred, and the Grievant was suspended for sick leave abuse.  The agreement addresses specifically high sick leave use and states what will happen in such cases.  If an employee is a high sick leave user, the Employer can call him in and find out what occurred.  If the Employer has evidence the employee is abusing sick leave, the Employer must place him on sick leave probation for six months and may require that he get medical certification for each sick leave absence.  While on probation, the employee may be disciplined if he continues to abuse sick leave, however, he must be on probation when the discipline is imposed for sick leave abuse.

            The Union's argument is persuasive.  Article 16 only permits discipline for sick leave abuse while the employee is on probation, it does not mean discipline can be imposed on an employee who is not on probation even though he might have previously served a probationary period for sick leave abuse.  The Employer's recourse is to again place the abuser on sick leave probation.  Discipline for sick leave abuse may only be imposed after the employee abuses sick leave while on sick leave probation.

            The agreement says nothing about patterns of sick leave use.  The criteria for high sick leave use is listed in Section 2 of Article 16, while use of sick leave to make a three-day weekend may well trigger suspicion, no valid conclusion regarding abuse can be drawn based on that premise alone.  The contract requires that an employee meet one of the criteria for high use of sick leave, then if the Employer thinks the employee is abusing sick leave, it must place him on probation.  No limit as to the number of times an employee can be placed on sick leave probation is stated in the agreement nor is any alternative mentioned once evidence of abuse is found.

            The Grievant missed work for a variety of reasons over the six-month period prior to his suspension, some of the absences were due to sickness, some were for other reasons.  He was called in for high sick leave use.  He showed his use was for valid reasons.  He did not abuse sick leave as cited, but if he had, he should have been put on sick leave probation rather than suspended.

            Where, as here, an employee successfully completes a sick leave probationary period without continuing to abuse sick leave, the cycle starts anew with respect to the use of sick leave and the procedure the parties agreed to under Article 16 of the agreement.  The purpose of the sick leave probation was met.  The corrective action was imposed.  The employee had the chance to evaluate his use of sick leave and the Employer had the chance to require him to obtain a doctor's certification each time he was sick.

            While one may, in retrospect, say the parties should have provided language for situations where an employee satisfies his sick leave probation by not continuing to abuse the sick leave, then reverts to old habits once off probation, it is not for the arbitrator to add to the agreement.  The parties presumably had ample time to write language that they believed, based on their experience, addressed the problem that was identified.  If the present language of the contract has created new and different problems, the solution lies in negotiations, not in an invalid imposition of discipline on an employee where discipline is neither called for nor permitted under the circumstances of the

present case.

            With respect to the Grievant's use of other leaves of absence and leave without pay, suffice it to say, the Employer's supervisory personnel permitted the Grievant to use the time off.  No one told him he could not use it, nor did anyone deny him permission.

            For the reasons stated herein, I have concluded that the Employer violated the agreement by imposing a five-day suspension without pay on Richard Schneider.  The Employer did not have just cause to impose the discipline.  Accordingly, I will enter an award to that effect.

AWARD

The grievance is sustained.

            The Employer is hereby ordered to rescind the suspension, to remove records of the suspension from the Grievant's personnel file and to make him whole by giving him back pay and any lost benefits for the period of his suspension.

Dated this the _____ day of July 2000.

 

 

                                                                                    ____________________________________

                                                                                    Jack H. Calhoun

 

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