Holding: Employer violated the bargaining agreement when it prospectively required doctor’s
certification note for each time the grievant used sick leave, despite a suspicion
that he was abusing sick leave. The past practice of for 15 years has been that
doctor’s certifications were required only after three days of absence.
|
In re
Kitsap
County
and
Kitsap
County Deputy Sheriff’s Guild
119
LA (BNA) 1753
August
1, 2004
David Gaba, Arbitrator
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?
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, 2002.1The 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.
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. 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. In either instance, sick leave that is taken is subject to the
provisions of Article III, Section 3 of the Collective Bargaining Agreement.5
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.6 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.” 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, 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. Sipple 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. 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.”
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 Bargaining 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.
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.
The Guild argues that the Collective Bargaining Agreement is
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 explicitly 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 show 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 Consecutive 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.
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. Fleming when she calls in
sick. While the County may have acted with the best of intentions in addressing
the issue of Ms. Fleming’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.7 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 arbitral
opinions provides a neutral interpretation of a word or phase that carries the
air of authority.8
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.
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.”9
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. Fleming was being
disciplined for her use of sick leave.10 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.11
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.”12 “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.”13
In line with this principle,
another rule of contract interpretation is “that the expression of one or more
subjects excludes all others.”14 This legal doctrine is otherwise known as
“inclusion unius est exclusion alterious, i.e., the inclusion of one is the
exclusion of others.”15
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.” 16
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 there days. While not conclusive, this doctrine supports the Guild’s
position.
“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.”17 “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.”18
Testimony from the Guild’s witness 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 Fleming 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’
long-standing practice of not requiring employees to bring in Doctors’
Certifications for absences of less than 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.
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 grievance to provide a
“certification” for each day of sick-leave used. The grievance is upheld.
The grievance is sustained.
The Employer will reimburse the
Grievant, Deputy Pam Fleming, 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.
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 Id. at 19.
6 See Rights of Management, Id.
at 8.
7 Seattle School District, 119
LA (BNA) 481 (2004)
8 Elkouri and Elkouri, How
Arbitration Works 490-91 (5th ed. 1997).
9 City of Davenport, 91 LA (BNA)
855 (Hoh, 1988).
10 If Ms. Fleming was being
disciplined for her use of sick leave this would raise several novel legal
issues, among them: Is Deputy Fleming 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 grievable?
11 See, e.g., Foodland
Supermarket, Ltd., 87 LA (BNA) 97 (1986), Seattle School District, 119 LA (BNA)
481 (2004).
12 Armstrong Rubber Co., 87 LA
(BNA) 146 (Bankston, 1986).
13 Elkouri and Elkouri, supra,
493-94 (citing Beatrice Foods Co., 54 LA (BNA) 540 (Stouffer, 1965).
14 Columbia Local Sch. Dist.,
100 LA (BNA) 227 (Fullmer, 1992).
15 City of Ann Arbor, 102 LA
(BNA) 801, (Roumell Jr., 1994).
16 City of Ann Arbor, 102 LA
(BNA) at 805 (citing AAA Case No. 54 89 148688 (Walt, 1989).
17 Mentor Bd. of Educ., 89 LA
(BNA) 292 (Sharpe, 1987).
18 Barrett Paving Materials,
Inc., 78 LA (BNA) 819 (Murphy, 1982).