By Jim Cline and Troy Thornton
In Village of Skokie, 2020 BNA LA 1311, Arbitrator Sinclair Kossoff found that the employer did not violate the CBA when it denied an Officer’s bereavement pay request. The Union argued that vacation should be converted to bereavement leave when applicable. But the Arbitrator concluded that the Union position was not supported by CBA language.
Officer Alexander Vincic was using vacation time when his father suddenly passed away. The language of the CBA included “In the event of a death in the employee’s immediate family, the employee may be granted up to three (3) days leave of absence without loss of pay for the purpose of attending the funeral.” Vincic, scheduled a three-week vacation in July of 2019. When notified of his father’s passing, Vincic immediately went to the assisted living home where his father had been staying and met with his family there. The following day, Officer Vincic requested that his vacation time for that stretch of time be treated as bereavement leave. Eventually, the Village denied the conversion of leave, stating that Vincic, “was already off and available to attend to either arrangements or attendance of the loss of a loved one.”
The Union argued that the purpose of bereavement leave is to prevent employees from using their personal, sick, or vacation leaves for family deaths. It argued that the CBA was violated because Vinic either: 1) was deprived of his bereavement days, or 2) did not receive his full vacation entitlement. The Union also claimed that the cancelation of vacation days, which it claims Vincic did, was allowed by CBA language stating that “vacations shall be scheduled insofar as practicable at times desired by each employee.” The Union’s argument focused on the word “desired,” which it argued implied that the employee has a choice as to when they are on vacation.
The Village based its denial of Vincic’s vacation leave, and its argument at hearing, on its belief that the purpose of funeral leave is to permit an employee to attend a funeral without loss of pay. Since Vincic was already on paid vacation leave, he did not lose any pay. According to the Department witnesses, that practice had been in place since at least 1982. The Village also contended that the Union did not meet its burden of proving that the CBA language required the Village to convert prescheduled vacation leave into bereavement leave, which the Union must do as the party asserting a violation.
Arbitrator Sinclair Kossoff found that the CBA language, designating the leave as a “leave of absence,” implied that the employee would be relieved from work for the leave. Someone who is already on vacation would be free to attend a funeral without being given a leave of absence, so a bereavement leave provision would therefore not apply to an employee already off work on an approved leave.
It is unfortunate when someone who has planned a vacation for rest and relaxation must, instead, attend to the burial of a loved one. But no one ever has a guarantee that a planned vacation will go smoothly. Weather conditions, transportation problems, cancellations, and a whole host of unanticipated events may spoil a planned vacation. But that does not mean that the Village must reschedule an employee’s vacation when such an unfortunate event occurs.
Arbitrator Kossoff did find that some ambiguity existed in the bereavement leave provision in the CBA, so he examined the past practice of the parties as well. In doing so, he found Chief Scarpelli’s testimony compelling, and found that the Village was merely continuing its preexisting practice.
This case demonstrates the importance of the role of past practice in contract grievance arbitrations. When CBA language is clear, it should be resolved consistent with its “plain meaning.” More often than not, though, grievances that are submitted to arbitration involve some type of “ambiguous” CBA language over which the parties might have reasonable differing interpretations. In that event, other interpretation principles come into play and among those, “past practice” is often the most important.
While the result in the context of a bereavement request may seem harsh, this issue needs to be evaluated in the context of the broader issue of vacation scheduling. While the union’s argument that the term “desired” implied a choice, that argument wouldn’t hold up if it were taken to its logical extension. Under that logic, an employee could cancel a portion of their vacation after it was it had commenced, which is not a feasible rule.
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