2001 NAC 133 City of Bellingham and International Association of Firefighters, Local Union No. 106

Title: City of Bellingham and International Association of Firefighters, Local Union No. 106
Date: March 20, 2001
Arbitrator: David M. Gaba
Citation: 2001 NAC 133

This arbitration arises pursuant to a collective bargaining agreement between the INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL UNION NO. 106 (hereinafter the UNION), on behalf of Captain Bryan McDonald, and the CITY OF BELLINGHAM (hereinafter the CITY), under which DAVID GABA was selected to serve as Arbitrator and under which his Award shall be final and binding among the parties.

A hearing was held before Arbitrator Gaba on February 22, 2001, at Bellingham, Washington. The parties had the opportunity to examine and cross-examine witnesses, introduce exhibits, and fully argue all of the issues in dispute. No transcript of the proceedings was provided. Both parties filed post-hearing briefs on or about March 12, 2001.

The International Association of Firefighters, Local Union No. 106, and the City of Bellingham were parties to a collective bargaining agreement for 1998-2000.

Did the City have just cause to deny the request of Grievant, Captain Bryan McDonald, that he be granted bereavement leave to attend a picnic on Labor Day weekend in September, 2000, for the purpose of grieving the July 8, 2000, death of his father? If not, what is the appropriate remedy?

The “Agreement by and between the City of Bellingham and Bellingham Firefighters, Local No. 106, for 1998-2000”[1] (hereinafter the AGREEMENT) states in Article 22 - BEREAVEMENT LEAVE that:

In the event of a death in the immediate family of a member of the bargaining unit working a battalion shift schedule (24 hour shifts), that member shall be granted leave of two 24 hour shifts.

In the event of a death in the immediate family of a member of the bargaining unit working a regular day schedule, that member shall be granted leave of 3 days with pay if the location of the funeral is within 150 miles of Bellingham or 5 days with pay if over 150 miles.

Captain Bryan McDonald’s father died on July 8, 2000. On August 29, 2000, Captain McDonald requested that he be granted bereavement leave to attend a Labor Day weekend picnic in September, 2000, to honor his father’s memory. It was Captain McDonald’s contention that this request was appropriate because his father was a strong union supporter. It is noted that his mother had died on May 6, 2000, and he had not requested bereavement leave for either death until his August 29th request. Captain McDonald’s request to his Battalion Chief was referred to the Assistant Chief and then to Chief Mike Leigh. Chief Leigh consulted with the Human Resources Department and then denied Captain McDonald’s request, contending that the contract language was intended to apply to leave for death and funeral arrangements consequent to a death and could not be construed as an accrued benefit to be used whenever the employee desired. The Union did not concur, and filed a Grievance on behalf of Captain McDonald, in accord with its interpretation of Article 22 of the collective bargaining agreement. The matter was referred for arbitration and was heard before Arbitrator David Gaba on February 22, 2001.

In its Post-Hearing Brief, the Union contends that Captain Bryan McDonald was entitled by the terms of the contract to four shifts off, two for the death of his mother and two for the death of his father.[2] The Union notes that Captain McDonald requested no bereavement leave for his mother’s death and also notes that his only request for such leave for his father’s death was for one day of the Labor Day weekend in September, 2000. The Union categorizes his request as a genuine attempt on the part of Captain McDonald to memorialize his father, and maintains that, based on past practice and on the language of the contract, the Employer should have granted the Captain’s request.

With respect to past practice, the Union states that “there seem to be three known cases where Bereavement Leave was requested and granted at a later time.”[3] These cases, according to the Union, are: 1. Battalion Chief Morehouse’s request for bereavement leave for a summer fishing trip to memorialize his father over nine months after his father’s death; 2. Bereavement leave granted to Robert Coston nine months after the death of his grandfather; and 3. The case of a female city employee receiving bereavement leave two weeks after a death in order to memorialize a loved one. With respect to item 3., the Union notes that Senior Human Resources Analyst Steve Mahaffey was questioned at the hearing as to why two weeks was acceptable and at what point such request would be untimely; the Union notes Mr. Mahaffey’s response was that the leave was taken for a memorial service, and contends that his response insinuates no time constraints are relevant to Article 22. The Union maintains there is no past practice of the City denying bereavement leave due to the untimeliness of requests and concludes that past practice therefore does not support the City’s position.

The Union provides two exhibits to document bargaining history with respect to Article 22. The first of these, Exhibit J-3, is a City proposal dated August 13, 1980, in which the language is shown to have originally provided for “one twenty-four hour shift if the location of the funeral is within 150 miles of Bellingham or two twenty-four hours shifts if over 150 miles.”[4] The other Exhibit (J-4) is proposed language for the 1981 contract by Fire Fighters Local #106, which qualifies two twenty-four hour shifts for employees working a battalion shift schedule as being available to them “if working.”[5] This Exhibit also provides for three days with pay for bargaining unit members working a regular day schedule, and for three additional days with pay at the discretion of the Chief if necessary for travel. The Union cites these exhibits to show that alternate contract language was considered, and to bolster its contention that both sides must abide by the language of the 1998-2000 Agreement as worded.

The Union also makes reference to the job description for the position of Battalion Chief, citing language under the heading “Supervisory Relationships” that states the Battalion Chief “exercises considerable independent judgment under guidance of City and Department policies and procedures, and City, State, and Federal applicable laws and regulations.”[6] The Union points out that this job description was revised by Human Resources Analyst Steve Mahaffey and reviewed by Fire Chief Mike Leigh.

It is the Union’s contention that the language of Article 22 makes no reference to a time limit governing bereavement leave for bargaining unit members working a battalion shift schedule, that Captain McDonald’s request should therefore have been granted, and that Captain McDonald should now be granted four shifts of his choosing, two for the death of his mother and two for the death of his father, as provided for in Article 22 of the Agreement.

It is the position of the City, in its brief dated March 9, that the issue for arbitration is whether:

the purpose of the bereavement leave clause of the contract is to allow attendance at the funeral, memorial service, or similar event and to take care of immediate family needs at the time of death or whether the bereavement leave clause should be interpreted to allow leave to accrue to a time distant from the date of death for purposes like a Labor Day weekend picnic, fishing trip, or other purpose designated by the employee to commemorate the death.[7]

The City notes that the fire bargaining unit is the only City work force that has 24 hour shifts, and that the contract makes provision for both regular day schedule employees and for those working the battalion shift schedule. The City maintains that Chief Leigh’s interpretation of the contract was the correct one, and that his denial of Captain McDonald’s bereavement leave request was appropriate, inasmuch as the benefit is intended for specific purposes and events related to a death, and is not intended to be open-ended.

The City cites Chief Mike Leigh’s testimony at the arbitration hearing wherein he stated that, to his knowledge, bereavement leave had “uniformly been applied to allow leave only for the funeral or similar memorial event and related arrangements at or near the time of death.”[8] In his testimony, Chief Leigh indicated that he had denied Battalion Chief Morehouse’s request for bereavement leave for a fishing trip to memorialize his father. With reference to the bereavement leave granted to Robert Coston in 1998, Chief Leigh testified that he was temporarily retired at that time. The City cites the Declaration of Jay Gunsauls, who was Fire Chief at that time, in which former Chief Gunsauls notes that the granting of such leave would have been an error by the Battalion Chief and notes that he would not have upheld such a decision.[9] The City further notes that former Chief Gunsauls states that he did on one occasion grant an employee “bereavement leave a couple weeks after the death to allow the firefighter to attend an event in the nature of a wake because that was the important memorial event.”[10] The City goes on to state that there were no other requests for “bereavement leave to be taken significantly after the date of death and unrelated to any funeral or similar event.”[11]

The City makes reference to the hearing testimony of Senior Human Resources Analyst Steve Mahaffey with reference to bereavement leave provisions, noting that there are seven bargaining unit contracts and that the Human Resources staff monitors them to ensure consistency in application of like contract provisions. Mr. Mahaffey testified that “bereavement leave provisions in every contract have been interpreted and applied to allow attendance at a funeral, memorial service, or similar event and to take care of immediate family needs at the time of death.”[12] He further stated his understanding that he knows of no personnel practice, either within or outside the City, wherein such leave has ever been treated as an accrued leave to be taken at a time of the employee’s choosing.

With respect to joint exhibits 3 and 4, introduced by the Union, the City elicited testimony from Chief Leigh, who was involved in those negotiations as Assistant Chief, that at no time in the negotiations was any consideration given to creating a benefit that could be accrued for use at a time of an employee’s choosing. The City points out that both parties agreed by oral stipulation at the arbitration hearing that Article 22 has not been subject to bargaining between 1981 and the filing date for the current grievance.

The City contends that the contract clause is, at most, ambiguous, takes exception to what it categorizes as the literal reading proposed by the Union, and:

argues that a common sense reading of the whole of Article 22 leads easily to the conclusion that the bereavement leave is intended to allow attendance at the funeral memorial service, or similar event and to take care of immediate family needs at the time of death.[13]

It is the City’s position that the language of the contract, by referencing an event of death in the immediate family, points to a common sense contention that the leave would be taken at or around the time of the death. The City also contends that reading Section 22 as a whole supports its argument that the intention is to provide time off to attend a funeral or similar death-related event. The City cites Elkouri and Elkouri to bolster its argument against a “stand alone” interpretation of any single section of the contract provision.

The City maintains that “the Contract should be interpreted to effectuate the parties’ intent and to avoid an absurd result,” [14] reverts to Chief Leigh’s testimony and to the Declaration of Jay Gunsauls (who served as Chief from 1984 to 1999) to underline its interpretation of the bereavement leave language, and points to the primacy of a common sense interpretation to avoid any unintended absurd result. The City points out that the contract language makes specific provision for the Chief to exercise discretion as to the definition of “family member,” but contains no similar, specific language with respect to time frame or the definition of “funeral.” Elkouri and Elkouri’s commentary on funeral and bereavement leave (with respect to time and purpose of such leave) are referenced by the City.

The City asserts that past practice supports its interpretation of the bereavement leave provision, again citing the case of Battalion Chief Morehouse’s leave request, which Chief Leigh testified he denied. The belated leave granted to Robert Coston is, in the City’s view, a single incident that is not sufficient to establish any precedent.

Finally, the City contends that the limited bargaining history available supports its position, citing Chief Leigh’s testimony and the generally accepted context for the taking of bereavement leave, and asks that the grievance be denied.

In reaching a decision with respect to this dispute, the Arbitrator finds that there are two separate and distinct issues to be evaluated. The first is the issue of timeliness of a bereavement leave request, and the second is the issue of the appropriateness of the use of the leave with respect to the intention of the collective bargaining agreement. These issues must be considered in the light of past practice of the party’s and the reasonable person standard. Further, the contractual language of the relevant section must be considered in its entirety to discern the parties’ intent.

How Arbitration Works by Frank Elkouri and Edna Asper Elkouri is the standard text used as an aid in interpreting collective bargaining agreements. With respect to what they categorize as Funeral Leave, the Elkouris have the following to say:

Cases involving funeral leave provisions have turned upon the precise wording of the funeral leave or “bereavement” pay clause, and arbitrators appear to be inclined toward strict construction of such clauses. Thus, where the contract specifically stated that a certain number of days of paid leave would be allowed to attend the funeral of a member of the employee'’ immediate family, arbitrators have held that such leave provision includes attendance at the funeral and necessary travel time but does not contemplate absences to aid bereaved relatives or to attend to the estate. Moreover, where the language used is “pay for time lost” or “paid leave of absence” while attending the funeral of a family member, arbitrators generally have denied such pay when the employee was already on vacation or otherwise not scheduled to work.[15]

Arbitrator Robert E. Mathews stated that to be given significant weight in contract interpretation, “the practice must be of sufficient generality and duration to imply acceptance of it as an authentic construction of the contract.” A “single incident” has been held not to establish a practice.[16]

It is the consideration of the Arbitrator that neither party has satisfactorily established a pattern of past practice to support their respective arguments. The incidents referenced by the parties were too few and were spread over too great a length of time to represent a pattern or practice. With respect to the Morehouse bereavement leave request, the Arbitrator must accept Chief Leigh’s recollection that he denied that request, inasmuch as Battalion Chief Morehouse admits he cannot specifically remember whether the leave was granted to him, and that denial would bolster the City’s case. With respect to the Coston leave, while the Union can (and does) argue that the granting of that leave bolsters its case, the City can (and does) argue that this was an isolated incident of an error in judgment on the part of a Battalion Chief that would not have been upheld by the Chief. Finally, the Union makes reference to an unnamed city employee who received leave two weeks after a death to memorialize a loved one; in this instance, the time frame is not sufficiently long so as to be relevant to this case, nor is the nature of the memorial event described in sufficient detail so as to evaluate its appropriateness. Therefore, the examination of past practice does not provide sufficient grounds for a decision.

The Arbitrator must then turn to the question of relevant cases in other venues. Research yielded little that was specifically pertinent to this case. A review of over one hundred cases dealing with funeral or bereavement leave did not yield any cases with similar contract language and a similar fact pattern. It would appear that the situation confronting the parties is unique. However, it should be noted that Elkouri and Elkouri’s support of a fairly strict and literal interpretation with reference to bereavement issues is borne out by the Funeral Leave decision for a case where the grievance concerned an employee who was paid for only one of three possible days of grievance pay. In denying this grievance, Arbitrator Roger C. Williams stated as follows:

The arbitrator is sympathetic to the needs of an employee who requires time in addition to the day of the funeral to take care of matters related to the death of his relative. The Agreement simply does not provide for an employee to be paid for time taken off either before or after the funeral in order to take care of such matters.[17]

The Union’s position is that the City could not reject Captain McDonald’s request for bereavement leave because of untimeliness alone. While the Union maintains that the clause of Article 22 that pertains to members working a battalion shift schedule can be interpreted literally and on a stand alone basis, the Union can provide no justification for doing so and, indeed, practice dictates that meaning can and should be determined in light of context. This is supported by several references from Elkouri and Elkouri:

It is said that the “primary rule in construing a written instrument is to determine, not alone from a single word or phrase, but from the instrument as a whole, the true intent of the parties and to interpret the meaning of a questioned word or part with regard to the connection in which it is used, the subject matter and its relation to all other parts or provisions.”[18]

Definite meaning may be given to ambiguous or doubtful words by construing them in the light of the context. “Noscitur a sociis is an old maxim which summarizes the rule both of language and of law that the meaning of words may be controlled by those with which they are associated.”[19]

When one interpretation of an ambiguous contract would lead to harsh, absurd, or nonsensical results, while an alternative interpretation, equally consistent, would lead to just and reasonable results, the latter interpretation will be used.[20]

The language of the Agreement does not specify any specific length of time wherein such leave must be taken, so the question of the timeliness of the request is of necessity linked to the question of the intent of bereavement leave. While the Union focuses on the sentence of the contract that grants the leave, it ignores the fact that the section is titled “Bereavement Leave” and, ergo, that the shifts taken off can only be used for bereavement.

The applicable standards for contract interpretation are well established. Where the language in a collective bargaining agreement is clear and unambiguous, the arbitrator must give effect to the plain meaning of the language. This is so even when one party finds the result unexpected or harsh. Words are to be given their ordinary and popularly accepted meaning, unless other evidence indicates that the parties intended some specialized meaning. As stated by Elkouri and Elkouri:

Arbitrators have often ruled that in the absence of a showing of mutual understanding of the parties to the contrary the usual and ordinary definition of terms as defined by a reliable dictionary should govern. Use of dictionary definitions in arbital opinions provides a neutral interpretation of a word or phrase that carries the air of authority.[21]

With respect to dictionary definitions of bereavement and funeral, the Cambridge Dictionary of American English defines bereavement as “the experience of having a close relative or friend who has died.”[22] Funeral is defined as “a ceremony honoring someone who has recently died, which happens before burying or burning the body.”[23] Merriam-Webster’s Collegiate Dictionary defines these terms, respectively, as “the state or fact of being bereaved, especially the loss of a loved one by death” and “the observances held for a dead person, usually before burial or cremation.”[24] While the definitions of bereavement do not provide any specific time frames, both definitions of funeral include references that limit time, referring to recent death and the usual occurrence of funerals prior to burial or cremation.

a fictional person with an ordinary degree of reason, prudence, care, foresight, or intelligence whose conduct, conclusion, or expectation in relation to a particular circumstance or fact is used as an objective standard by which to measure or determine something.”[25]

The reasonable person standard is directly germane to this discussion, inasmuch as the Arbitrator must consider whether a reasonable person would presume that the bereavement leave was available for use at such time and for such purposes as an employee chose to use it. It is the conclusion of the Arbitrator that this would not be a reasonable presumption, and that a closer, more literal reading of the contract language, including the title, would be employed by a reasonable person.

While there is no question that the Union has raised a valid question as to the interpretation of the collective bargaining agreement, and that the Agreement is ambiguous, the Union still must prove its case by a preponderance of the evidence. Preponderance of the evidence can be defined as:

the standard of proof in most civil cases in which the party bearing the burden of proof must present evidence which is more credible and convincing than that presented by the other party or which shows that the fact to be proven is more probable than not.[26]

While the Union has produced substantial evidence to support its position, the City also has strong arguments in its favor.

Elkouri and Elkouri’s text on bereavement leave issues, on contextual relationships of language, and on the matter of definition of terms, as well as application of the reasonable person standard, mostly support the City’s contention that the bereavement leave benefit was intended to provide employees with paid leave to attend funerals or memorial services, or to make arrangements regarding the decedent’s funeral or estate, rather than to provide said employees with time to be taken at their discretion for participation in any and all events that they deem relevant to their loss. The Arbitrator wishes to emphasize that he is not questioning the sincerity of Captain McDonald’s intention to honor and memorialize his father by attending the Labor Day weekend picnic, but must side with the City in its contention that such an activity falls outside the scope of the intention and language of Section 22. It should be noted at this point that, had Captain McDonald requested bereavement leave for the same time frame to attend a gathering or event that had been specifically convened for the purpose of commemorating his father’s death, the Arbitrator would have no problem with upholding his request. However, this was not the case, and the Arbitrator must therefore deny the Union grievance and uphold the City’s decision with respect to this matter. While the Union is absolutely correct in maintaining that the Agreement provides for the possibility of bereavement leave of two 24 hour shifts for members working the battalion shift schedule, Captain McDonald would have needed to make his requests for leave at the appropriate times and in the appropriate contexts in order for it to be granted.

The Union has failed to prove by a preponderance of the evidence that the City’s interpretation of Article 22 of the collective bargaining agreement is incorrect. The grievance is denied.

All fees and expenses charged by the Arbitrator shall be borne equally by both parties, as provided for in Article 13, Section (d) of the parties’ collective bargaining agreement.

[1] Exhibit J-1.

[2] Post-Hearing Brief of the IAFF Local 106.

[3] Ibid.

[4] Exhibit J-3.

[5] Exhibit J-4.

[6] City of Bellingham, Classification Specification, Class Title: Battalion Chief, April 12, 2000.

[7] Post-Hearing Brief of City of Bellingham, March 9, 2001.

[8] Ibid.

[9] Exhibit J-5.

[10] Post-Hearing Brief of City of Bellingham, March 9, 2001.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] How Arbitration Works; Elkouri and Elkouri, Page 769 (4^th ed. 1985).

[16] Ibid, Page 453.

[17] Reichhold Chemicals, Inc. v. United Rubber, Cork, Linoleum, and Plastic Workers of America, Local 672, 61 LA 511, 1973.

[18] How Arbitration Works, Elkouri and Elkouri, Pages 352-353 (4^th ed. 1985).

[19] Ibid, Page 356.

[20] Ibid, Page 354.

[21] How Arbitration Works, Elkouri and Elkouri, Pages 490-491 (5^th ed. 1997).

[22] Cambridge Dictionary of American English, Cambridge University Press, 2000.

[23] Ibid.

[24] Merriam-Webster’s Collegiate Dictionary, Tenth Edition, 2001.

[25] Merriam-Webster’s Dictionary of Law, 1996.

[26] Ibid.

Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.