By Jim Cline and Geoff Kiernan
In County of Allegheny, 134 LA 134 (Heekin 2014) the arbitrator upheld a discharge of a corrections officer who used his sick time, rather than his vacation time, to travel to Dallas for a photo shoot for a body building magazine. The Officer’s participation was confirmed with posted pictures of his photo shoot on Facebook. The arbitrator found just cause for the Officer’s discharge given that the CBA stated that sick leave was “not a right of taking” such as vacation and the fact that a poor discipline record including a recent last chance agreement. The arbitrator rejected the Union’s claim that there was a “right” to use sick leave as if it was a form of vacation.
The County held that the language used in contract was clear and unambiguous in stating that sick leave “shall not be a right of taking such as vacation”. The County pointed to the fact that this language had been in the contract since 2001, and has been reaffirmed in several policy directives issued by different Wardens in subsequent years.
This had been a very contentious issue for the Union for several years. After an impasse in bargaining, the Union even filed an Unfair Labor Practice against the County in 2008 with the Pennsylvania Labor Relations Board in an attempt to solve the sick leave problem. The two sides eventually reached a settlement, which did not include the words “sick leave shall not be a ‘right of taking’ such as vacation”. The Union contends that that the removal of this phrase shows that both sides agreed to sick leave being established as a “right of taking” as an exchange for settling the Unfair Labor Practice.
The arbitrator was not convinced by the Union’s arguments. He found that both the plain meaning of the term “sick leave” taken together with the language of the CBA , which explicitly stated that sick leave is not a “right of taking”, made it clear that in order for an employee to take sick leave he or she has to be sick. The arbitrator found that:
While evidence was submitted that the Union at least at one point sought to have sick leave become a “right of taking”, it was not established that this ever resulted in a mutual agreement between the parties…the fact that the wording “shall not be ‘a right of taking’” does not appear in the [settlement] simply does not stand up as an item of controlling significance.
The arbitrator found support for this ruling in the fact that the sick leave policies that were periodically issued in the prior 10 years all clearly stated that sick leave was not a “right of taking.” Furthermore, this policy was reiterated again in the Correctional Officer Policy Handbook which the CO was familiar with. All of these reinforced the fact that eligibility for sick leave is conditioned on an employee being sick. Based on these findings, the arbitrator concluded that there was no basis for the Officer to reasonably have believed that sick leave benefits were available to him as a “right of taking” without any limits. This, in addition to his extensive record of past discipline, allowed the County to establish that the Officer was discharged for just cause.
Although many employees (and sometimes their unions) act as though sick leave is available as an alternative form of vacation, this is not a view that managers or arbitrators are likely to share. Given that a ULP had been filed on this issue previously, apparently this was a belief many of the employees in this institution shared. Clearly such a belief is unreasonable and would subject the offending officer to discipline.
One could ask, though, why discharge and not suspension was appropriate here. The arbitrator’s progressive discipline analysis here was brief. The arbitrator explained that this employee already had a long record of discipline, including a 30 day suspension a year and a half previous to this incident, that subjected him to discharge. That suspension did not appear to be related to leave abuse, however, that action did result in a last chance agreement that had expired only months before the sick leave incident. The recency of that agreement and likely the brazenness of this officer’s photo shoot led the arbitrator to conclude that further efforts at progressive discipline were unlikely to succeed.
Another practice point — when an employee does something incredibly stupid, it is usually best to have them offer a sincere and humble apology for their actions. Employee excuses that they think their stupid actions are allowed by practice usually invite harsh management responses to firmly establish management’s view of what is or isn’t allowed. Certainly not all claims of misconduct should be conceded, and we don’t recommend admission of fault when none is warranted, but wisdom and pragmatism call for identifying your best points and contesting those.
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