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In re City of Marion, Illinois
and
Illinois Fraternal Order of Police Labor Council
Williamson County Lodge Number 197
126 LA (BNA) 1441
FMCS Case No. 08/04796
September 25, 2009
Richard A. Van Kalker, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
I. Introduction
This arbitration arises pursuant to a collective bargaining agreement between the City of Marion, Illinois (the “Employer”) and the Illinois Fraternal Order of Police labor Council, Williamson County Lodge Number 197 (the “Union”) concerning the “Grievant”.
II. Issue
Did the Employer have just cause when it issued a three-day suspension to the Grievant; if not, what is the appropriate remedy?
III. Findings of Fact
1. The Employer and the Union are parties to a collective bargaining agreement, effective March 1, 2004 to February 29, 2008.
2. The Grievant is a police officer for the Employer. The events giving rise to the grievance occurred in Marion, Illinois.
3. Article 29 of the collective bargaining agreement provides as follows:
Discipline in the department shall be progressive and corrective in cases of remediable offenses and shall be designed to improve behavior and not merely punish it, depending upon the circumstances of each offense, and shall be in all cases based on just cause… Discipline in the department shall be limited to oral reprimands, written reprimands, disciplinary suspensions and discharge… .
4. Article 5 of the collective bargaining agreement provides as follows:
The Employer may exercise the following rights provided that no right is exercised to or inconsistent with the other terms of this Agreement and the law of the State of Illinois… . (6) to direct the officers of the police department, including the right to assign work and overtime, (7) to suspend, demote, discharge and take other disciplinary action … [of] any officer for just cause… .
5. Article 13 of the collective bargaining agreement provides as follows:
The normal work week shall be defined as forty hours in the seven-day period Sunday through Saturday. The normal work day shall be defined as ten (10) consecutive hours …
6. The practice of the parties is for the officers to be assigned four consecutive ten-hour days, the first of the four days referred to by the parties and herein as the officer's “Monday,” the last of the assigned four consecutive days referred to by the parties and herein as the officer's “Friday.”
7. Article 19, Section 5 of the collective bargaining agreement covers sick leave and provides as follows:
Employees covered by this Agreement shall accrue sick leave at the rate of twelve hours per month, accrued to a maximum of one thousand two hundred (1,200) hours… . Employees having six hundred (600) accumulated sick leave hours shall be allowed to sell back to the employer the unused, accrued sick leave hours for the calendar year… . Sick leave may be used for non-service connected sickness or disability, or for caring for a seriously ill or injured individual living with the employee and who is in the employee's immediate family… . Abuse of sick leave is a serious matter which may subject an employee to discipline. The Union shall join the City in making an effort to correct the abuse of sick leave wherever and whenever it may occur… .
8. On January 4, 2006, the Chief of Police for the Employer issued a memorandum to all Employer Police Department personnel. The memorandum memorialized a labor-management conference of earlier that day in which the abuse of sick leave was discussed. The abuse identified by the Employer was the habitual use of sick leave time on either a Monday or Friday. The Employer provide an anonymous listing of twelve sick leave offenders. At the hearing, the Grievant was identified as employee number nine, taking 88% of his sick leave time on a Monday or a Friday.
9. Approximately seven months later, on August 10, 2006, the Chief of Police for the Employer issued a second memorandum regarding the abuse of sick leave time to select Employer Police Department personnel. The second memorandum was sent to employees who continued a habitual use of sick leave time on either a Monday or Friday. At this point in time, approximately 50% of the original twelve employees who had a pattern of taking their sick time on Monday or Friday corrected said behavior. The Grievant was identified as an employee who had not corrected such behavior. Along with the memorandum, the Grievant received a calendar summary demonstrating that for the period of January 1, 2006 to December 31, 2006, the Grievant had taken 4 out of 6 sick days on a Monday or Friday. The second memorandum provided that such a continued pattern would result in disciplinary action. The second memorandum also provided that the Employer could start requiring a doctor's statement to verify the employee's condition.
10. Approximately ten months later, on June 18, 2007, the Chief of Police for the Employer issued a third memorandum regarding the abuse of sick leave time to select Employer Police Department personnel. The third memorandum was sent to employees who continued a habitual use of sick leave time on either a Monday or Friday. At this point in time, only two employees of the original twelve employees who had a pattern of taking their sick time on Monday or Friday had not corrected said behavior. The Grievant was identified as an employee who had not corrected such behavior. Along with the memorandum, the Grievant received a calendar summary demonstrating that for the period of January 1, 2007 to June 18, 2007, the Grievant had taken 4 out of 6 sick days on a Monday or Friday. The third memorandum provided that such a continued pattern would result in disciplinary action. The third memorandum also provided that the Employer could start requiring a doctor's statement to verify the employee's condition.
11. Approximately two months later, on August 27, 2007, the Chief of Police for the Employer issued a fourth memorandum regarding the abuse of sick leave time to two identified employees. The Grievant was named as an employee who had not corrected the behavior of taking his sick days on a Monday or Friday. Along with the memorandum, the Grievant received a calendar summary demonstrating that for the period of January 1, 2007 to August 27, 2007, the Grievant had taken 6 out of 8 sick days on a Monday or Friday. The fourth memorandum provided that such a continued pattern would result in disciplinary action. The fourth memorandum also provided that the Employer would start requiring a doctor's statement to verify the employee's condition.
12. On May 30, 2008, the Chief of Police for the Employer issued a fifth memorandum to the Grievant. Said memorandum noted that during the months of January, February, March, April, and May of 2008, the Grievant continued his pattern of taking sick leave on a Monday or Friday, without the production of any verifying doctor's statement as to the actual sickness of the Grievant. In said fifth memorandum, the Grievant received a three-day suspension for the stated abuse in sick leave.
13. On June 9, 2008, the Union filed a grievance, requesting that the suspension be rescinded.
14. On July 29, 2008, the Employer denied the grievance.
IV. Discussion
A review of discipline for alleged employee misconduct requires an analysis of three factors. First, has the employer relied on a reasonable rule or policy as the basis for the disciplinary action? Second, was there prior notice to the employee—express or implied—of the relevant rule or policy? Third, was the rule or policy properly applied?
First, it is concluded that the employer relied on a reasonable rule or policy. In Article 19, Section 5 of the collective bargaining agreement, it is stated that sick leave may be used for non-service connected sickness, disability, or for caring for a seriously ill individual living with the employee who is in the employee's immediate family. The days provided by the Employer are not personal days to be taken as the employee sees fit. Rather, the language of the collective bargaining agreement is plain in its wording and intent: sick days are to be used only for a legitimate, bona fide illness. The legitimacy of illness certainly is questioned when there is a habitual pattern of calling in “sick” on a Monday or Friday. Stated very simply, the Employer has a legitimate interest in having employees that report to work when they are so scheduled.
Second, the Arbitrator finds that there was express and explicit prior notice to the employee that sick time used habitually on a Monday or Friday was suspect and that such a continued practice of calling in “sick” on Monday or Friday would result in discipline. Prior to receiving the three-day suspension, the Grievant was provided with no less than four memorandums providing notice that his use of sick time was suspect, that his pattern of behavior should cease, and that alleged illness would require doctor verification. Despite these notices, the habitual taking of sick time by the Grievant on a Monday or Friday continued. Despite these notices, no doctor verifications were provided to document the Grievant's actual condition.
Third, the Arbitrator finds that the relevant provisions of the collective bargaining agreement were properly applied. Article 5 of the collective bargaining agreement provides that the Employer has the right to direct the officers of the police department. The Arbitrator find that this right includes the right to schedule officers for work and expect that they appear, absent a legitimate illness. Article 5 of the collective bargaining agreement also allows the Employer to suspend, demote, discharge, and take other disciplinary action. The Arbitrator finds that the issuance of the three-day suspension was within the rights vested in the Employer.
An enlightening case in regards to sick leave is Indiana State Teacher's Ass'n, 104 LA 737 (Paolucci, 1995). In said case, a labor organization refused a field staff member's request for sick leave to undergo a non-emergency surgery. The field representative requested the sick leave at a time the labor organization was conducting a membership drive. The field representative filed a grievance. Arbitrator Paolucci denied the field representative's grievance stating that an employee is not free to set his own schedule and that management retained the right to control the use of sick leave, so long as management did not do so arbitrarily, discriminatorily, or capriciously. In the case before this Arbitrator, the Arbitrator finds that the Employer did not attempt to control sick leave in an arbitrary, discriminatory, or capricious fashion. On the contrary, the Employer clearly set forth what it felt was an abuse of sick time and took controlled and careful measures to curb such abuse.
The Union respectfully presented to the Arbitrator the argument of disparate treatment, namely that another employee was treated differently in the application of the relevant provisions of the collective bargaining agreement. The Union presented evidence that an employee in the telecommunications department only received a two-day suspension for a similar pattern of behavior. Upon review, the Arbitrator has determined that the total number of sick days taken on a Monday or Friday by said telecommunications employee was less than the number taken by the Grievant. Additionally, the Arbitrator finds that said pattern of behavior of the telecommunications employee occurred over a two-and-a-half month period, as opposed to a two-and-a-half year period in the case at bar. Accordingly, the Arbitrator finds in the negative as to any disparate treatment, as the two employees were not similarly situated.
In sum, it is the finding of the Arbitrator that the Employer acted properly, in accordance with the collective bargaining contract, and that the Employer had just cause to issue the three-day suspension to the Grievant.
V. Award
Having heard and carefully reviewed the evidence and the argumentative materials in this case and in light of the above Discussion, the grievance is denied.