By Rick Gautschi
In Woodford County, 130 LA 843, May 12, 2012, since prior to 2004, under a collective bargaining agreement, correctional officers in Woodford County, IL were authorized up to 12 sick days in a given fiscal year. In December 2004, the Sheriff’s Department revised an existing policy (Policy) to authorize requests for medical certification from correctional officers after the officers had used five sick days in a given fiscal year. Consistent with that revision, between 2004 and 2008, the Sheriff’s Department routinely made requests for medical certification of correctional officers who reached that threshold. In addition, during the same period the employer took disciplinary action in the form of issuing letters of caution to several corrections officers who had used five or more sick days during a fiscal year. When the parties negotiated a 2008-2011 collective bargaining agreement (CBA), the union agreed to include language that would give the employer authority to request medical certification from a correctional officer if the employer suspected the officer had abused the sick leave policy. During the 2010-2011 fiscal year, the employer issued a letter of caution to an officer, who had used five days of sick leave during that year, two days of which were consecutive and the other three of which were not. The union grieved the issuance of the letter. The basis for the grievance was language in the CBA that was the subject of the amendment to which the union had agreed during the negotiations on the 2008-2011 CBA. According to the union, absent suspected sick leave abuse, a request for medical certification was authorized only if the three sick leave days were consecutive. Consequently, the issuance of the letter was an unfair labor practice in violation of the CBA.
In assessing the union’s claim, the arbitrator noted that although the employer asserted it suspected that the officer had abused the sick leave policy, it communicated the suspicion to neither the union nor the officer.
Further, the intent of the 2004 Policy provisions regarding sick leave was to deal with suspected instances of sick leave abuse. The Policy contained four examples of circumstances that might give rise to suspicion. The first of those examples focused on three or more consecutive days of sick leave, in which circumstance the employer indicated that in would request medical certification. Under the second example, the employer stated that it would request medical certification from any employee who used five or more sick days in a fiscal year. There was, however, no evidence that prior to the union’s agreeing to the amendment to the CBA to address the employer’s concern about possible sick leave abuse, the employer had ever issued a letter of caution to any employee under the circumstances in the first example in the Policy. According to the union, taken together, the CBA, the first example in the Policy, and the employer’s past practice meant that the CBA’s provisions involving sick leave allowed the employer to request medical certification when an employee had used three consecutive sick days. The arbitrator explained that given the employer’s past practice and the Policy, when it negotiated the 2008-2011 CBA the union had no reason to change the language regarding “three days of sick leave.” According to the arbitrator, the union did, however, have reason to agree to the addition of language that allowed the employer to request medical certification at any time it suspected sick leave abuse. Consequently, the arbitrator ruled that the employer had a contractual burden to identify suspected sick leave abuse as the basis for issuing a letter of caution and to cease routinely issuing letters of caution based solely on the number of sick days that an employee used during a fiscal year. In addition, the arbitrator ordered that the employer remove the letter of caution from the grievant’s file.
