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Title: Kitsap County and Kitsp County Deputy Sheriff's Guild
Date: August 1, 2004
Arbitrator: David Gaba
Citation: 2004 NAC 147

Federal Mediation and Conciliation Service

 

In the Matter of an Arbitration

            Between

KITSAP COUNTY DEPUTY SHERIFF’S GUILD   

            And

KITSAP COUNTY

(Pam Flemming)

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ARBITRATOR’S

DECISION AND AWARD

I.  INTRODUCTION

            This arbitration arises pursuant to a collective bargaining agreement between the KITSAP COUNTY DEPUTY SHERIFF’S GUILD (hereinafter the GUILD), on behalf of Pam Flemming and KITSAP COUNTY (hereinafter the EMPLOYER or the COUNTY), 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 May 6, at Port Orchard, 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.  The County’s post-hearing brief was received on July 23, 2004, and the Guild’s post-hearing brief was received on July 26, 2004.

APPEARANCES:

On behalf of the Guild:

Christopher J. Casillas
Cline & Associates
999 Third Avenue 
Suite 3800
Seattle WA  98104

On behalf of the County:

John S. Dolese
Kitsap County Prosecuting Attorney
614 Division Street  MS-35A
Port Orchard WA  98366

II.  ISSUE

                        The statement of the issue as framed by the arbitrator is:

             Did the employer violate the agreement when it prospectively required a doctor’s certification note for each time the grievant used sick leave and if so, what is the appropriate remedy? 

III.             RELEVANT CONTRACT PROVISIONS

The most recent collective bargaining agreement between Kitsap County and the Kitsap County Deputy Sheriff Guild is for the period of January 1, 2000 through December 31, 2002.  The Sick Leave Article reads, in full, as follows:

SECTION C- SICK LEAVE

1.         Sick leave shall accumulate at the rate of ten (10) hours for each full month of employment; provided, that no more than twelve hundred (1200) hours of sick leave may be carried from one calendar year to the next.

 

2.         Except as hereinafter provided, to the extent accumulated, sick leave with pay shall be allowed an employee who is incapacitated due to sickness or injury, when, due to exposure to contagious disease, the presence of the employee may jeopardize the health of others, or when necessary for medical examination or treatment of the employee.

 

3.         Any sickness or injury for which an employee desires to take sick leave shall be immediately reported to the Sheriff or his designee.  Sick leave must be approved by the immediate supervisor.  Sick leave taken in excess of three (3) consecutive working days must be supported by a certificate of physician or other licensed medical practitioner, if requested by the Sheriff or his designee.

 

4.         Upon retirement, employees who are members of the Law Enforcement Officers’ and Firefighters Retirement Plan (LEOFF) will receive payment for fifty (50) percent of accumulated sick leave based upon the rate of pay at the time of retirement.

 

5.         To the extent accumulated, sick leave with pay shall be allowed when an employee must attend to an illness or injury of the employee’s spouse; provided, such leave shall not exceed three (3) days (24 hours) in any calendar year; provided further, any such sick leave taken shall be subject to the provisions of Article III, Section C.3, above.

 

6.         Except as hereinafter provided, to the extent accumulated, sick leave with pay shall be allowed to care for a child of the employee under the age of eighteen (18), with a health condition that requires treatment or supervision; provided any such sick leave taken shall be subject to the provisions of Article III, Section C.3, above.

IV   FACTS

            In October or 2000, the Kitsap County Deputy Sheriff Guild and Kitsap County entered into a collective bargaining agreement for the period between January 1, 2000 and December 31, 2002.[1]  Pursuant to Article III, Section C(2) of the Collective Bargaining Agreement:

 “sick leave with pay shall  be allowed an employee who is incapacitated due to sickness or injury, when due to exposure to contagious disease, the presence of the employee may jeopardize the health of others, or when necessary for medical examination or treatment of the employee.”[2]

Furthermore, Article III, Section C(3) provides that:

[a]ny sickness or injury for which an employee desires to take sick leave shall be immediately reported to the Sheriff or his designee. Sick leave must be approved by the immediate supervisor. Sick leave taken in excess of three (3) consecutive working days must be supported by a certificate of a physician or other licensed medical practitioner, if requested by the Sheriff or his designee.[3]

Sick leave under the collective bargaining agreement also is allowed when an employee must attend to an illness or injury of the employee’s spouse [4] or to care for a child of the employee under the age of eighteen with a health condition that requires treatment or supervision.[5] In either instance, sick leave that is taken is subject to the provisions of Article III, Section 3 of the Collective Bargaining Agreement.[6]  Article I, Section I of the Collective Bargaining Agreement acknowledges the employer’s exclusive right to make and enforce safety and security rules and rules of conduct.[7] Furthermore, the parties in Article I, Section K of the Collective Bargaining Agreement acknowledge the existence of the Sheriff’s Rules and Regulations.

            Under Sheriff’s Office policy, “[e]mployees are expected to report for duty on their assigned shifts except when illness, emergency situations, or authorized absence prevent them from doing so.”[8] For use of sick leave, the Sheriff’s Office has promulgated a sick-leave policy that has been in effect since 1985. See Kitsap County Policy 1.05.11, Exhibit 25. This policy provides as follows:

REPORTING SICK --- Sick leave must be requested on a daily basis through the shift supervisor. Sick leave will be allowed only for instances of illness or injury.

(A)   Any employee who is absent from duty due to illness or injury may be required to provide a doctor’s certification in writing.
(B)   Sick leave request will be initiated by the supervisor receiving the report, and must be completed by the
employee immediately after his return to duty.
(C)   While on sick leave an employee must be at his residence, at the doctor’s office, or at the hospital unless authorization has been obtained from the Sheriff or his designee. Supervisors are authorized to periodically check on an employee’s condition.
(D)   Employees shall not abuse sick leave benefits by reporting off ill or injured when not ill or injured.

Deputy Fleming has served as a deputy sheriff for Kitsap County for seventeen years. On February 13, 2002, Deputy Fleming met with her supervisor Sgt. Steve Sipple to discuss her Performance Appraisal Report Development Plan.  Sgt. Simple in Exhibit 8 had noted an unusual pattern of using leave, most noticeably sick leave and last-minute requests for other leave. During the previous year, Deputy Fleming’s sick leave balance had fallen below zero on several occasions. Sgt. Sipple told Deputy Fleming that he suspected that there might be a problem contributing to her fitness for duty, and that he would monitor her sick leave and check on her as long as he believed there was a problem.

On June 20, 2002, Sgt. Sipple sent a memo to Lt. Ned Newlin in which he noted that Deputy Fleming leave balance as of May 31, 2002 was four hours, and that she had used sick leave on four more occasions leaving her sick-leave balance well below zero. He further noted that the average sick leave balance for the 22 members of his shift, not including Pam, was 401 hours; that the average sick leave balance of the 19 current patrol deputies and supervisors with at least 10 years of service was 918.7 hours; and that the average sick leave balance for 9 patrol deputies and supervisors who have at least Deputy Fleming’s length of service was 1111.6 hours; and the average sick leave balance for the 4 patrol deputies who have at least Deputy Fleming’s length of service was 1178.8 hours.[9]  Sgt. Sipple suggested that Deputy Fleming be required to present proof of illness or injury in the form of a doctor’s certification for each occasion of sick leave for a period of one year.  Lt. Newlin responded in a memo dated June 26, 2002 to Sgt Sipple; in this memo, Lt. Newlin stated that he agreed with Sgt. Sipple’s assessment and instructed him to direct Deputy Fleming to provide a doctor’s certification for each occasion of sick leave for a period of one year.

Sgt. Sipple issued a directive to Pam Fleming on July 1, 2002 requiring her to provide a doctor’s certification for each occurrence of sick leave for a period of one year.   In a memo accompanying this directive, Sgt. Sipple stated that Deputy Fleming’s record indicated to him that she was “most likely either using …[her] sick leave when …[she was] not sick or injured, or …[her] fitness for duty…[was] questionable.”[10]

During the arbitration, Bert Furuta, who has been the Director of Personnel and Human Services for Kitsap County for 24 years, testified regarding negotiations between the parties specifically relating to the certification requirement contained within Article III, Section 3 of the Collective Bargaining Agreement.  Mr. Furuta testified that this provision is substantially similar to provisions contained within other collective bargaining agreements in the County and has been uniformly applied, however none of the other Collective Bargaing Agreements were introduced at the hearing.  Mr. Furuta testified that the Sheriff’s Office has authority under the collective bargaining agreement to request certification for sick leave usage for less than three consecutive days upon a determination of suspected misuse of sick leave. During cross-examination, Mr. Furuta testified that he has a “vivid” recollection that this specific provision was discussed during negotiations when “current practices” were discussed. Mr. Furuta believes that these discussions took place five or six years ago. As reflected in Mr. Furuta’s testimony, the deputies’ negotiating team had expressed concern regarding the potential for abuse flowing from the Sheriff’s Office’s practice of requesting certifications for usage of sick leave not exceeding 3 days based upon a suspicion of misuse of sick leave. Mr. Furuta testified that the parties decided to leave the language alone within the collective bargaining agreement at the conclusion of these discussions.

In direct contrast to the testimony of Mr. Furuta, the Guild offered the testimony of Detective Howerton that past negotiations reflected the intent of the parties that the Sheriff’s Office could not require medical certifications for periods that did not exceed three days.  Detective Howerton also testified that the County had never requested a doctor’s note for employees using sick leave of less that three days duration, and that a past practice existed precluding the County from requiring doctor’s notes for sick leave of less than three days.

While the testimony of Detective Howerton and Mr. Furuta was interesting, it was far from conclusive.  Neither gentleman at the hearing testified to anything other than the opinions they expressed during negotiations.  Absent was any testimony that the parties acceded to one particular view of what the contract language in question meant. Neither witness could identify an individual on the opposing side of the table who would confirm a mutual understanding. In the end the parties always left the language in the contract unchanged. 

V.  POSITION OF THE EMPLOYER

            It is the Employer’s contention that Where a contract's meaning is not clear on its face, its interpretation depends upon the parties' intent at the time it was executed, which is an issue for the trier of fact and determining that intent, the trier of fact may look to the circumstances surrounding the contract's execution.

The County argues that applying the above principles, the evidence supports a finding that the parties intended the language of the collective bargaining agreement to allow for the Sheriff’s Office to require deputies to provide medical certifications for use of sick leave not exceeding three days.  The County relies heavily on the testimony of Bert Furuta and his recollection that during negotiations when the deputies’ negotiating team had brought up the potential for harassment arising from the potential practice of the Sheriff’s Office to requiring medical certification for use of sick leave not exceeding three days.  The County further concludes that the parties’ intended the language in question to be consistent with the Sheriff’s Office policy 1.05.11 which provides that any employee who is absent from duty due to illness or injury may be required to provide a doctor’s certification in writing.  The County posits that its conclusion is further supported by testimony that the County consistently applies this provision in its other bargaining agreements to allow for medical certifications for sick leave not exceeding three days upon a suspicion of misuse of sick leave.  

IV.  POSITION OF THE GUILD

The Guild argues that the Collective Barganing Agreement in unambiguous, its original intent should be given effect, and that when words in a Collective Bargaining Agreement are plain and clear, they must be given their ordinary meaning.  The Guild's position is that the "Collective Bargaining Agreement expliceitly and unambiguously prohibits a Sick Leave Certification requirement for less than three consecutive days of sick leave.

The Guild further believes that even if the Collective Bargaining Agreement is ambiguous, various principles of contract interpretation, such as bargaining history, past practice and more general principles of law how that a Doctor’s Certification cannot be requested for less than three consecutive days of sick leave.  Specifically, the Guild argues:

1.  The Bargaining History Between the Parties Reveals the True Meaning of the Relevant Contract Language.

2.  The Past Practice Between the Parties Makes Clear that The Department Can Only Seek a Medical Certification After Three Consecutive Days of Sick Leave.

3.  Past Practice is an Established Principle of Contract Interpretation for Resolving Ambiguity There is a Clear Past Practice That a Doctor's Certification For the Use of Sick Leave Can Only Be Required Following Three or More Consective Days of Absence.

4. The Standard Rules of Contract Construction Reveal A Clear Meaning Behind the Sick Leave Article.

The Guild also believes that to the extent there is an inherent management right, a sick leave monitoring program and Doctor’s Certification Requirement cannot be unfair and unreasonable and any sick leave monitoring program and certification requirement unilaterally implemented by an employer must be reasonable and fair.

VII.  DECISION

            During the arbitration hearing, the Guild repeatedly referred to the County’s actions as being “unfair.”  I would consider that a more apt way to categorize the Employer’s decisions would be to quote the adage “no good deed goes unpunished.”  I strongly and emphatically believe that the County’s decisions were made with the best of intentions in an honest attempt to best serve the interests of all of the members of the bargaining unit including those who are required to cover for Ms. Flemming when she calls in sick.  While the County may have acted with the best of intentions in addressing the issue of Ms. Flemming’s sick leave usage, the County cannot disregard the terms of the Collective Bargaining Agreement in an attempt to ameliorate the unfortunate situation. 

            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.[11]  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.  The use of dictionary definitions in arbital opinions provides a neutral interpretation of a word or phrase that carries the air of authority.[12]

The right to request a doctor’s note from employees is one that would be at the unfettered discretion of the employer in the absence of contractual provisions to the contrary.

            In the instant case we are confronted with language which is ambiguous and subject to two possible interpretations. The language negotiated states:

[a]ny sickness or injury for which an employee desires to take sick leave shall be immediately reported to the Sheriff or his designee. Sick leave must be approved by the immediate supervisor. Sick leave taken in excess of three (3) consecutive working days must be supported by a certificate of a physician or other licensed medical practitioner, if requested by the Sheriff or his designee.[13]

It is the goal of the arbitrator to interpret the language in the manner the parties intended. “Arbitrators must strive to determine what the parties were attempting to accomplish by the contract language used and to effectuate that intent.”[14] 

Unfortunately, as noted above, there is no showing that the parties ever had a common understanding of what the language meant.  The testimony of Detective Howerton and Mr. Furuta was far from conclusive and not necessarily contradictory.  Both gentlemen testified as to their interpretation of the language in question and had a recollection that they expressed their opinion during negotiations.  Unfortunately there was no evidence to conclude that the opposing party agreed with their respective opinions.  Absent any testimony that the parties acceded to one particular view of what the contract language in question meant and given that the parties always left the language in the contract unchanged, it is impossible to determine the parties intent based on the testimony of those involved with bargaining. 

Equally troubling was the testimony of Mr. Furuta when he stated that the County would request a Doctor’s Certification “if we suspect a pattern of abuse or concern,” and “there has to be a demonstrated need to ask for less than three days.”  While I don’t address the issue of “discipline,” some might conclude that Ms. Flemming was being disciplined for her use of sick leave.[15]  Such an interpretation would be consistent with a rule long established in a wide variety of cases that arbitrators look to the substance, not the form, of a contested action.[16]

Inclusion unius est exclusion alterious

“It is axiomatic in contract construction that an interpretation which tends to nullify or render meaningless any part of the contract should be avoided because of the general presumption that the parties do not carefully write into a solemnly negotiated agreement words intended to have no effect.”[17]  “The fact that a word is used indicates that the parties intended it to have meaning, and it will not be declared surplusage if a reasonable meaning can be given to it consistent with the rest of the agreement.”[18]

 In line with this principle, another rule of contract interpretation is “that the expression of one or more subjects excludes all others.”[19]  This legal doctrine is otherwise known as “inclusion unius est exclusion alterious, i.e., the inclusion of one is the exclusion of others.”[20] 

In City of Ann Arbor, a similar contract provision existed whereby an employee who is on sick leave for four or more consecutive days must provide a physician’s statement.  The employer subsequently required an individual employee to bring a written verification from the doctor for each sick leave occurrence, which resulted in a grievance.  In his discussion, Arbitrator Roumell cited another similar decision where Arbitrator Walt noted:

“because the parties have agreed that the Employer may require medical verification for an absence after a sick leave exceeds 3 working days, a conclusion is mandated that in most other instances, the Employer will be proscribed from requiring medical verification when the employee seeks sick leave for an absence that does not exceed 3 working days.  In authorizing the Employer to require medical verification for an absence which exceeds a specified number of days, a finding is mandated that the parties considered but dismissed the extension of that requirement to a lesser number of days.  The legal doctrine of ‘inclusion unius est exclusion alterious…supports this conclusion.”[21] 

If I were to conclude that the County could request a doctor’s certification whenever it chooses despite the language in the contract, it would necessarily mean that this language has no meaning.  Accepting the County’s argument would mean that there was no reason to specify in the contract that the County may require a doctor’s certification following three or more consecutive days of sick leave usage. 

In tandem with this point is the fact that the parties went to the trouble of specifying that a doctor’s certification can only be requested following three or more consecutive days of absence.  Under the doctrine of “the inclusion of one thing is the exclusion of another” this could mean that a certification could not be required for fewer than three days.  While not conclusive, this doctrine supports the Guild’s position.

Past Practice

“Past practice may be relevant to resolving grievances in two important ways: (1) it may supply terms and conditions of employment that are unexpressed in the contract, and (2) it may aid in interpreting the contract by resolving ambiguity or clarifying clearly stated provisions.”[22]  “Where a practice between the parties has occurred in an uninterrupted fashion, and has established meaning for language contained in past contracts and continued by the parties in the present Agreement, the language will be presumed to have the meaning attached to it by that practice.” [23]

Testimony from the Guild’s witnesses indicated that for the past fifteen years no member of the Guild has ever been required to provide a doctor’s certification note for less than three consecutive days of absence and that doctor’s certifications have been required of employees only after three days of absence.

The application of this practice has occurred over a lengthy period of time and on a multitude of occasions over the years.  The record indicated that during all sick leave occurrences, including using sick leave on single days or for three or more days, the Sheriff’s Department has never required an employee to submit a doctor’s certification both prospectively and for each day of sick leave taken. 

The past practice of the parties would indicate that the Sheriff’s Department has contractually limited itself to requiring a doctor’s certification for using sick leave to the sole situation where an employee has been on sick leave for three or more consecutive days.  Behavior by both parties consistent with this understanding has consistently occurred as far back as anyone can recall. 

While the past practice of the parties is clear one must also consider that the requirements placed upon Deputy Flemming comport with the policies of the County and with what has occurred under other Kitsap County Collective Bargaining Agreements.  Although there was no showing that the other Agreements contain the same ambiguous language that is contained in the Guild agreement, the County correctly argues that the practice it has engaged in with other bargaining units has some weight.  However, while the evidentiary value of what has happened under these other agreements is great, it is not enough to offset these parties longstanding practice of not requiring employees to bring in Doctor’s Certifications for absences of less that three days.

It is readily apparent that the language of the parties Collective Bargaining Agreement is ambiguous. While both parties have excellent arguments to support their interpretations of the agreement, I find that the past practice of the parties provides the best guide to the meaning of the language in question.  The practice is clear, and the language should be given a meaning consistent with that practice.           

VIII.  CONCLUSION

            The burden is on the Guild to establish that the County violated the parties’ Collective Bargaining Agreement.  While this was truly a close case, the Guild has demonstrated by a bare preponderance of the evidence that the County violated the agreement by requiring the grievant to provide a “certification” for each day of sick-leave used.  The grievance is upheld.

IX.  AWARD

The grievance is sustained. 

The Employer will reimburse the Grievant, Deputy Pam Flemming, for all costs or co-pays she incurred as a result of having to obtain documentation from health care providers for absences of less than three days. 

The collective bargaining agreement of the parties provides that “the fees and expenses of the arbitrator, shall be provided by the party ruled against by the arbitrator.” The Guild has prevailed in this matter; accordingly all fees and expenses charged by the Arbitrator shall be borne by the County. 

                                                                        ___________________________

                                                                        David Gaba, Arbitrator

                                                                        August 1, 2004
                                                                        Seattle, Washington

 
[1] Exhibit 1, Collective Bargaining Agreement Between Kitsap County and Kitsap County Deputy Sheriff’s Guild.

[2] Id. at 18. 

[3] Id. at 18-19.

[4] Such leave is limited to three days. Article III, Section C(5) of the Collective Bargaining Agreement.

[5] Exhibit 1 at 19, Article III, Section C(5)(6).

[6] Id. at 19.

[7] See Rights of Management, Id. at 8.

[8] Exhibit 25. 

[9] See Exhibit 9. 

[10] See Exhibit 12.

[11] Seattle School District,  119 LA 481 (2004)

[12] Elkouri and Elkouri, How Arbitration Works 490-91 (5th ed. 1997).

[13] Exhibit 1 .

[14] City of Davenport, 91 LA 855 (Hoh, 1988).

[15] If Ms. Flemming was being disciplined for her use of sick leave this would raise several novel legal issues, among them: Is Deputy Flemming entitled to overtime under the FLSA for her time spent procuring doctors notes? Does she have a due process right every time she is forced to incur a co-pay? Is each occurrence grieveable?

[16] See, e.g., Foodland Supermarket, Ltd., 87 LA 97 (1986), Seattle School District,  119 LA 481 (2004) .

[17] Armstrong Rubber Co., 87 LA 146 (Bankston, 1986). 

[18] Elkouri and Elkouri, supra, 493-94 (citing Beatrice Foods Co., 45 LA 540 (Stouffer, 1965). 

[19] Columbia Local Sch. Dist., 100 LA 227 (Fullmer, 1992). 

[20] City of Ann Arbor, 102 LA 801, (Roumell Jr., 1994). 

[21] City of Ann Arbor, 102 LA at 805 (citing AAA Case No. 54 89 148688 (Walt, 1989).

[22]Mentor Bd. of Educ., 89 LA 292 (Sharpe, 1987).  

[23] Barrett Paving Materials, Inc., 78 LA 819 (Murphy, 1982). 

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