In re Village of Oak Park
Illinois Fraternal Order of Police
FMCS Case No. 01/03578
117 LA (BNA) 99
February 19, 2002
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.
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
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.
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.
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.
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.
* 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.