Arbitration Award
In re Village of Oak Park
and
Illinois Fraternal Order of Police
Labor Council
FMCS Case No. 01/03578
117 LA (BNA) 99
February 19, 2002
Steven
Briggs, Arbitrator*
Background
On April 18, 1994 the
Village of Oak Park (the Village) adopted an ordinance which provided to
same-sex domestic partners of Village employees the exact benefit package
enjoyed by the spouses of its married employees. A short time later the Village
incorporated the ordinance into its Personnel Manual.
In subsequent
contract negotiations with the patrol officers' bargaining unit, and after that
in contract talks with the combined sergeants' and lieutenants'unit, Village
chief negotiator (and Assistant Manager) Ruby Smith proposed the addition of
the term “domestic partners” to the contractual definition of “family” for
benefit purposes. The bargaining teams for both groups ultimately agreed to
Smith's proposal.
The grievant in this
matter is Sgt. Geoff Sjostrom. As a member of the sergeants'and lieutenants'
unit he is represented for collective bargaining purposes by the Illinois FOP
Labor Council (the Union). The woman with whom he was living was scheduled to
undergo major surgery on Monday, November 29, 1999. Sometime during the
previous week Sgt. Sjostrom requested domestic partner sick leave so he could
attend to her medical needs and provide emotional support. His request was
denied.
Sgt. Sjostrom grieved the matter in writing on December 10,
1999. Deputy Chief Toll denied the grievance at Step 1 of the contractual
grievance procedure, whereupon Sgt. Sjostrom appealed to Chief Joe Mendrick on
December 16, 1999. Mendrick denied the Step 2 appeal on December 21, 1999. Sgt.
Sjostrom then submitted a Step 3 appeal to Village Manager Carl Swenson. Though
the grievance procedure requires that a Step 3 meeting between the Village
Manager and a grievant must be held within ten business days of an appeal to
that level, none was convened in this case.
Sgt. Sjostrom appealed to arbitration on February 10, 2000.
Issue
At the hearing the parties stipulated to the following
statement of the issues before the Arbitrator:
1. Is the grievance time barred?
2. If not, did the Village violate Section 13.6 of the
collective bargaining agreement when it denied Sgt. Sjostrom the use of sick
family time?
3. If so, what is the appropriate remedy?
ARTICLE VIII—GRIEVANCE
PROCEDURE
SECTION FIVE: Grievance Procedure
It is mutually desirable and
hereby agreed that all grievances shall be handled in accordance with the
following steps, except that individual steps may be bypassed by mutual
agreement in writing between the designated representative of the Village and
the President of the Association:
Step 1: The grievance shall be
reduced to writing and presented by the Association to the Bureau Chief within
ten (10) business days following the event or occurrence giving rise to the
grievance. The written grievance shall include the Section(s) of this Agreement
of Understanding allegedly violated. The Bureau Chief or his designee shall
attempt to resolve the grievance as soon as practicable, and therefore a
meeting will be scheduled with the grievant, and an Association representative
within five (5) business days after receipt of the grievance at this Step. The
Bureau Chief shall render a written answer, copy to the grievant and
Association, within ten (10) business days of the meeting. If the grievance is denied,
the specific reason for the denial shall be included in the answer.
Step 2: If the grievance is not
adjusted in Step 1, and the grievant wishes to appeal the grievance to Step 2,
the grievance, indicating the specific objection to the Step 1 answer, shall be
submitted in writing to the Chief of Police within five (5) business days of
the receipt of the Step 1 answer. A meeting between the grievant and the Chief
of Police or his designee shall be held at a mutually agreeable time and place
within ten (10) business days of the Police Chief's receipt of the grievance,
unless otherwise agreed upon, to discuss the grievance. All documentation in
the possession of the grievant or the Association which is not otherwise
available to the Chief through Police Department records and which supports the
grievant's position should be submitted to the Chief of Police at least five
(5) business days prior to the meeting date. If the grievance is settled as a
result of the meeting, the settlement shall be reduced to writing and signed by
the parties. If no settlement is reached, the Chief of Police or his designee
shall give the Police Chiefs answer in writing to the grievant and the
Association within ten (10) business days following said meeting. If the
grievance is denied, the specific reason for the denial shall be included in
the answer.
Step 3: If the grievance is not
adjusted in Step 2, and the grievant wishes to appeal the grievance to Step 3, the
grievance, indicating the specific objection to the Step 2 answer, shall be
submitted in writing to the Village Manager within five (5) business days of
the receipt of the Step 2 answer. A meeting between the grievant and the
Village Manager or his designee shall be held at a mutually agreeable time and
place within ten (10) business days of the Village Manager's receipt of the
grievance, unless otherwise agreed upon, to discuss the grievance. All
documentation in the possession of the grievant or the Association which
supports the grievant's position should be submitted to the Village Manager at
least five (5) business days prior to the meeting date, except that
documentation may be submitted at the meeting if extreme difficulties prevented its prior submission.
If documentation is submitted for the first time at or with (sic) five (5)
business days of the meeting, the Village Manager may adjourn the meeting for a
period of time up to ten (10) business days from the original meeting date in
order to review the documents. If the grievance is settled as a result of the
meeting, the settlement shall be reduced to writing and signed by the parties.
If no settlement is reached, the Village Manager or his designee shall give the
Village Manager's answer in writing to the Association within ten (10) business
days following said meeting. If the grievance is denied, the specific reason
for the denial shall be included in the answer.
Step 4: The Step 3 written answer
shall settle the grievance unless it is appealed to arbitration in writing by
the Association within fifteen (15) business days of the date of that answer.
If the grievance is timely appealed, arbitration shall proceed in the following
manner: ...
SECTION SIX: Time Limits
Grievances shall be raised and
settlement attempted promptly. Accordingly, a grievance, in order to be
considered, must be raised not later than five (5) business days after the
grievant knew or reasonably should have known of the event giving rise to the
grievance. If not raised within this time limit, the grievance shall be deemed
to have been “waived,”and it may not be processed further. Similarly, if a
grievance is not filed or appealed to any step of the grievance procedure or to
arbitration within the time limits specified in Section 8.5, it shall be
considered to have been settled on the basis of the Village's last answer. If
the Village does not answer a grievance at any step of the grievance procedure
within the time limits specified in Section 8, the grievant may elect to treat
the grievance as being denied at that step and immediately appeal the grievance
to the next step of the grievance procedure. Any of the time limits referred to
in this Section may be extended by mutual agreement in writing.
ARTICLE XIII—LEAVES OF ABSENCE
SECTION TWO: Definition of “Family”
A member of the immediate family shall be defined to be an employee's
mother, father, wife, husband, daughter, or son (including step or adopted),
sister or brother (including half, step or in-law), father-in-law,
mother-in-law, daughter-in-law, son-in-law, grandparent, grandchild or
grandparents-in-law and domestic partners.
SECTION SIX: Sickness In Family
An employee shall be entitled to use paid sick leave when there is a
sickness or disability involving a member of his immediate family, as defined
in Section 2, which requires the employee's personal care and attendance. This
leave shall only be taken when requiring the employee to report for work would
cause a serious hardship on the member of the family suffering from the illness
or disability. In extraordinary circumstances
the Chief of Police or his designee may, in his sole discretion, agree to grant
an employee's request to use sick leave for the purpose of attending to the
illness of a family member. The determination as to whether or not there exists
a hardship shall be made by the Chief of Police or his designee.
The Parties'
Positions
Village Position
The Village asserts that the grievance is time barred. It
also maintains that it did not violate §13.6 of the collective bargaining
agreement when it denied Sgt. Sjostrom the use of sick family time. The
Village's main arguments are summarized below:
1. The grievance is time barred because it was not filed
within five business days after the Grievant knew or reasonably should have
known that his girlfriend did not meet the definition of domestic partner.
2. The Grievant knew no later than November 26, 1999 that this
leave request had been denied, yet he did not file a grievance until December
10, 1999. That time interval is more than the five business days permitted by
the grievance procedure.
3. The grievance was terminated at Step 3 of the grievance
procedure because it was not appealed to arbitration immediately after the
parties failed to convene a meeting within the contractual time limits. In
fact, Sgt. Sjostrom did not appeal to arbitration until February 10, 2000—a
full month after the grievance had been effectively denied. For that additional
reason, the grievance is time barred.
4. With regard to the merits of the grievance, the Union
has the burden of proof.
5. Since the phrase
“domestic partner” is not defined in the Agreement, the Arbitrator should
consider the surrounding circumstances that caused the term to be used by the
parties.
6. According to the uncontroverted testimony of Village
Attorney Raymond Heise, the 1994 ordinance was adopted to provide employees in
same-sex domestic relationships with the same benefits that had long been
available to their married heterosexual co-workers. The ordinance was
subsequently incorporated into the Village's personnel manual.
7. When the parties
added the term “domestic partner” to Article XIII, §2 of the Agreement,
domestic partner benefits were available only to unmarried employees with
same-sex partners. Against that background, the Union never proposed that
domestic partner family sick leave benefits extend beyond the scope of the
Village ordinance and personnel manual to include unmarried, opposite-sex
couples. Moreover, adding “domestic partner” to the Agreement stemmed from a
Village proposal.
8. Domestic partner family sick leave has only been granted
on one previous occasion involving two female police dispatchers. In that
instance, both employees were required to comply with all aspects of the
Village ordinance.
9. If the Union intended heterosexual partners to be
considered “domestic partners,” it should have said so at the bargaining
table.
10. During contract negotiations the Village explained that
the term “domestic partner” would be limited to same-sex relationships in
accordance with its ordinance and personnel manual.
11. The grievance should be denied.
Union Position
The Union maintains that the grievance is not time barred.
It argues as well that the Village violated §13.6 of the collective bargaining
agreement when it denied Sgt. Sjostrom the use of sick family time. The Union's
principal arguments may be summarized as follows:
1. The Village's arbitrability arguments are untimely, as
they were first raised at the arbitration hearing itself.
2. Sergeant Jorgenson testified about a prior grievance
which was appealed to Step 3 of the procedure, and the Step 3 meeting itself
was held approximately one month after the contractual time limit for it had
expired. The Village did not raise a timeliness argument in that matter.
3. Article VIII, §6 provides no penalty if contractual time
limits are not followed. Moreover, the arbitration step has no time limit
associated with it.
4. According to the Grievant, who has processed many
grievances himself, 2 or 3 of them went to Step 3, and the Step 3 meetings were
not convened according to the contractual time limits.
5. The Grievant was
fully engaged in a domestic partnership. He and his female partner had lived
together for eleven years. She was the named beneficiary of his life insurance.
They shared finances and had a long-standing amorous relationship. Prior to her
surgery, she granted him power of attorney. She needed his emotional support
and physical presence through the ordeal, and the Grievant's failure to fulfill
those two responsibilities would have created a serious hardship for his
partner.
6. The collective
bargaining agreement does not define the term “domestic partner,”and it
contains no reference to the Village's Employee Handbook, to its ordinances, or
to legislative history.
7. The parties did
not discuss a definition of “domestic partner” at the bargaining table. Thus,
there was no meeting of the minds about that issue.
8. Similarly, the parties to the patrol unit negotiations
did not agree to a definition of the term either.
9. The addition of “domestic partner” to the collective
bargaining agreement was proposed by the Village. Accordingly, it must prove
that its interpretation of the term is the more correct.
10. The testimony of Village Attorney Raymond Heise is
irrelevant, since he was not at the bargaining table and is not involved in
labor relations matters.
11. The grievance should be sustained. As a remedy, the
Grievant should be credited for the compensatory time and vacation he was
forced to take when his request for sick-family leave was improperly
denied.
Opinion
The Arbitrability Question
The Step 1 time limit is problematical. According to its
terms, grievances must be presented by the Association to the Bureau Chief
within ten business days following “the event or occurrence giving rise to the
grievance.” In contrast, there is a time limit in Article VIII, §6 which
indicates that in order to be considered, grievances “must be raised not later
than five (5) business days after the grievant knew or reasonably should have
known of the event giving rise to the grievance.”The grievance procedure
provides no guidance as to which of those two conflicting provisions should
prevail. Since the purpose of grievance procedures generally is to settle
disputes, the Arbitrator believes that the provision most conducive to doing so
should be adopted in the present case. Accordingly, I rely upon the ten
business day time limit in Step 1.
The Grievant acknowledged that sometime before his
partner's November 29th surgery, he knew his leave request to be at the
hospital the day of the surgery itself had been denied by Commander Robert
Scianna. The Grievant claims it was not until December 7, 1999, however, the
day he returned to work after taking time off to care for his significant other
after the surgery, that he first knew “for sure” that his request for sick
family time had been denied. The Arbitrator has considered those points
carefully, and has concluded that the latter is the more contractually
meaningful. The Grievant testified that while his friend was in the hospital,
he did not need sick family time to care for her. Once she was released on
Friday, December 3rd, however, he did need it because he cared for her at their
home. It was the home care portion of his time off, the Grievant insists, that
on his December 7th return to work he first learned would not be covered under
the sick family leave umbrella. He grieved that action on December 9th, well
within the ten business day contractual time limit for doing so. The Arbitrator
finds nothing in the record to discredit the Grievant's testimony on the
foregoing points, and concludes that the December 9th grievance was timely
filed.
Turning to Step 3, the parties seem to have a history of
processing grievances without strict regard to the contractual time limits for
doing so. According to the uncontroverted testimony of both Sgt. Joregenson and
the Grievant himself, for example, at least three Step 3 meetings have taken
place well after the contractually specified ten business days of the Village
Manager's receipt of grievances. There is no evidence in the record to indicate
that the parties mutually agreed in writing to waive the Step 3 time limits in
those situations.1 And in the present case, the Village Manager apparently did
not even attempt to schedule a Step 3 meeting. Without a Step 3 meeting, there
was no Step 3 written answer either. And absent such an answer, the Step 4 time
limit to appeal to arbitration (i.e., within fifteen business days of the date
of the Step 3 answer) cannot possibly apply. The “immediate” appeal requirement
discussed in Article VIII, §6 is also vexing, since there is absolutely nothing
in the record to suggest what the parties mutually intended by that term. In
any event, it is clear from the record that the parties have been historically
lax in enforcing the grievance procedure's time limits. It would be
inappropriate to unleash strict enforcement of them now, without advance notice
from the Village to the Union that it intended to do so.2
The Arbitrator also notes that the Village did not raise
any of its timeliness objections until the arbitration hearing itself—nearly
two years after the grievance was filed. Until then, it seems, neither the
Union nor the Grievant had so much as an inkling that the Village would claim
the grievance was procedurally flawed. While nothing in the grievance procedure
prohibits such belated introduction of procedural arbitrability arguments,
doing so prevents the parties from engaging in good-faith pre-arbitration
discussion of them. Without the benefit of such discussions the parties cannot
possibly explore and attempt to resolve their procedural and substantive
differences.
On balance, the record has not convinced the Arbitrator that
the December 9, 1999 grievance is time barred. I believe it was timely filed in
the first place. In addition, the parties have processed other grievances
without strict regard for timeliness provisions in the past. And finally, the
Village's belated introduction of its timeliness arguments did not give the
parties full opportunity to explore and resolve those issues during the
grievance process itself.
The Substantive Question
This is an agreement interpretation dispute. It concerns
the proper interpretation of the term “domestic partners” as it is used in
Article XIII, §2 (Definition of “Family”). That term is not defined anywhere in
the Agreement, nor did the parties discuss and agree upon a definition at the
bargaining table. Rather, when Village negotiator Ruby Smith proposed its
inclusion during 1996 negotiations with the Union, she simply stated that it
applied to same-sex partnerships, consistent with the Village Ordinance.
Village witness Joe Mendrick was present at those negotiations, and he
confirmed Ms. Smith's testimony on those points. The Grievant was at the
bargaining table as well. While he did not recall Smith's reported reference to
the Ordinance, he did candidly acknowledge that the parties added the term
“domestic partners” to the contractual definition of “family” without agreeing
on how it was to be defined.
Since this is an
agreement interpretation matter, the Union has the burden of proof. To prevail,
it must demonstrate that when they were at the bargaining table the parties
mutually intended for opposite sex partners to be covered by the “domestic
partner” language of Article XIII, §2. By the Grievant's own admission, no such
meeting of the minds took place. The Village had one perspective; the Union had
quite another. That difference of opinion may not even have been apparent to
the parties at the bargaining table in 1996. Nevertheless, the significant fact
remains that during those negotiations the Union did not secure agreement from
the Village to include opposite sex partners under the “domestic partners”
rubric. Granting the December 9, 1999 grievance would essentially bestow upon
the Union something in arbitration that it did not obtain at the bargaining
table. It would exceed the Arbitrator's authority under Article VIII, §5(C) by
adding to the Agreement something that simply is not there.
The Arbitrator
understands that the Village proposed addition of the “domestic partner” term
to Article XIII in the first place. Generally then, any resulting ambiguity
should be construed in the Union's favor. But given the intense historical
debate in the Village of Oak Park about the domestic partnership issue, it is
just not reasonable to conclude that in 1996 the Union could have been under
the impression that Ms. Smith was expanding the established meaning of the term
to include opposite sex partnerships. That historical background should have
resolved any ambiguity Union negotiators may have had about what she meant. If
it did not, the Union should have pressed the matter right then and there—at
the bargaining table. It cannot win in these proceedings a debate which it
should have raised with Village negotiators in 1996, but did not.
It is important to
recognize that the Arbitrator's job is to uphold the parties' mutual intent
when they were at the bargaining table. Here, the Union essentially claims that
they did not have one. Rather, they concluded the 1996 negotiations and went
their separate ways, with conflicting ideas about the meaning of the term
“domestic partners.” Under those circumstances the Arbitrator concludes that
the Union has not met its burden of showing that the parties mutually intended
for opposite sex partners to qualify for family benefits under Article XIII of
the Agreement.
AWARD
After careful study of the record in its entirety,
including all of the evidence and argument presented by both parties, the
Arbitrator has reached the following decisions:
1. The grievance is not time barred.
2. The Village did
not violate Section 13.6 of the collective bargaining agreement when it denied
Sgt. Sjostrom the use of sick family time.
3. The grievance is
denied.
Footnotes
* Selected by parties through procedures of the Federal
Mediation and Conciliation Service
1. Article VIII, §6 indicates that the grievance
procedure's time limits “may be extended by mutual agreement in writing.” The
implication of that language is that without such agreements, the procedure's
time limits are to be enforced. The parties do not seem to have paid much
attention to that provision in the past, however.
2. If the Village expects to enforce the time limits
strictly in the future, it should advise the Union of that position in writing.
There is no evidence to suggest that it did so prior to the filing of the
grievance in the present case.) For a discussion of this general principle, see
Owen Fairweather, Practice and Procedure in Labor Arbitration
(Washington, D.C.: Bureau of National Affairs, 1991), 3rd Ed., p. 91.