Exposition-Recreation Commission and AFSCME Local 3580-1
IN THE MATTER OF THE GRIEVANCE
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES, )
LOCAL 3580-1, )
JACK H. CALHOUN
April 26 and 27, 2000
FOR THE UNION: FOR
Monica A. Smith
Kathleen A. Pool
Smith, Gamson, Diamond & Olney
Office of General Counsel
21 1 0 SW Jefferson Metro
600 NE Grand Avenue
Portland, OR 97201
Portland, OR 97232
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.
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?
ARTICLE 16: SICK LEAVE
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.
An employee who meets any one of the following criteria may
be deemed a high sick leave user:
Exhaustion of all accrued sick leave;
Use of thirty-two (32) hours of sick leave in the preceding six (6)
Use of sick leave on five (5) or more separate occasions in preceding six
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.
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
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.
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.
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
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.
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.
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.
Full-time employees who maintain perfect attendance each pay
period shall receive an additional one (1) hour pay at his/her straight time
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:
Reduction in pay,
. . .
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.
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)
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.
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
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
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
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.
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
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.
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
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
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
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
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.
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
Dated this the _____ day of July 2000.
Jack H. Calhoun