FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 04-56250

Grievant Mark A. Schmidt
TEAMSTERS LOCAL 214,
Union,

and

SHIAWASSEE COUNTY SHERIFF,

Employer.
________________________________/

OPINION OF THE ARBITRATOR

February 16, 2005

After a Hearing Held January 12, 2005

At the Offices of the Shiawassee County Board of Commissioners
In Corunna, Michigan

For the Union: For the Employer

Michael L. Fayette Bonnie G. Toskey

Pinsky, Smith, et al. Cohl, Stoker, et al.
146 Monroe Center, NW, Suite 1515 601 N Capitol Avenue
Grand Rapids, MI 49503-2824 Lansing, MI 48933-1211
 I. The Parties And The Nature Of Their Dispute

Teamsters State, County and Municipal Workers Local 214 (“Union”)

and the Sheriff’s Department of Shiawassee County, Michigan (“Employer”)

disagree over the interpretation and application of the funeral leave

provisions of their collective bargaining agreement (JX 1A or “CBA”).

Article 34, Section 4 of the CBA provides:

A. In the event of death in an employee’s immediate family, or

other family members, the employee shall be granted a leave of
absence with pay, at his regular rate, for a period not to exceed
three (3), four (4), or five (5) work days as provided below,
which period shall terminate with the day following the funeral.
Wages shall be paid only for the days included in the three (3),
four (4), or five (5) days which would be the days the employee
would normally work. The employee shall be required to attend
the funeral for which he is being given leave.

B. The term “immediate family” shall be defined as follows: wife,

husband, son, daughter, mother, father. For the above relatives,
employees shall be granted five (5) days as noted in Paragraph
(A) above.

C. The term “other family members” is defined as: grandchildren,

step-mother, step-father, step-son, step-daughter, step-brother,
step-sister, grandparents, brother, sister, father-in-law, mother-
in-law, brother-in-law, sister-in-law. For these relatives,
employees shall be granted three (3) days as noted in paragraph
(A) above. However, if there is an out-of-state funeral, an
additional day shall be given for travel for a total of four days.

The Sheriff takes the position that funeral leave is measured by

consecutive days dating back from and including the day of the funeral. The

Union contends that the days need not be consecutive. The issue is clouded

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by the fact that the parties have switched from 8-hour shifts to 12-hour ones,

without changing the language of the funeral leave provisions.

II. The Grievance

On Tuesday evening, April 27, 2004, the grievant, Deputy Mark A.

Schmidt (“Grievant”), received word that his grandmother had died in

Maryland and that the family was making arrangements to have her body

flown back to Michigan for a funeral on the following Friday or Saturday.

Because Grievant had been off on that Tuesday, the next day he telephoned

the Sheriff’s Department and requested funeral leave for Wednesday (April

28) and Thursday (April 29), days he normally would work. He was not

scheduled to work Friday (April 30), Saturday (May 1), or Sunday (May 2).

Grievant’s request initially was granted.

However, a problem arose with the grandmother’s death certificate,

and Grievant learned that the funeral would have to be postponed until

Monday, May 3. He so informed the Department around four o’clock

Thursday afternoon, about two hours before his 6:00 PM—6:00 AM shift

normally would have begun. He was told that his funeral leave would have

to be revoked because Wednesday and Thursday were outside the 3-day

period measured from a Monday funeral. He was given options of working

his regular Thursday shift and otherwise covering the time. Because family

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members already had arrived from out of state for the funeral, Grievant

elected to cover Wednesday with vacation time and Thursday with comp

time.

Grievant attended the funeral on Monday, May 3, as required by the

CBA to be paid for funeral leave. Back at work the next day, he filed a

grievance (JX 6), seeking to recover vacation time for April 27 and comp

time for April 28 and to receive instead paid funeral leave for those two

days. There is no dispute over his entitlement to paid funeral leave for the

day of the funeral, which he received.

III. The Dispatcher’s Death In The Family

On April 30, 2004, during the 6:00 PM—6:00 AM shift, the

dispatcher learned of her grandfather’s death. She was so upset at the news

that she had to leave work. Her supervisor granted her a non-consecutive day

of paid funeral leave. Following the grandfather’s funeral, the Sheriff

learned of the grant, probably in conjunction with his review of the instant

grievance. The Sheriff then changed the non-consecutive day of paid funeral

leave to sick leave, on the grounds that funeral days must be consecutive and

the dispatcher was too upset to work after she heard the sad news.

IV. Arbitrators’ Treatment Of Funeral Leave Provisions

The principles applied to funeral leave are discussed in Elkouri &

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Elkouri, How Arbitration Works (ABA/BNA 5th ed 1997) @ 1040-1042;

1999 Cum Supp @ 198-200:

Cases involving funeral leave provisions have turned upon the precise
wording of the funeral leave or “bereavement” pay clause, and
arbitrators appear to be inclined toward strict construction of such
clauses. Thus, where the contract specifically stated that a certain
number of days of paid leave would be allowed to attend the funeral
of a member of the employee’s immediate family, arbitrators have
held that such leave provision includes attendance at the funeral and
necessary travel time but does not contemplate absences to aid
bereaved relatives or to attend to the estate. In addition, where the
contract provided for “consecutive” days off, the arbitrator interpreted
“consecutive” to mean calendar, and not scheduled, workdays.
Moreover, where the language used is “pay for time lost” or “paid
leave of absence” while attending the funeral of a family member,
arbitrators generally have denied such pay when the employee was
already on vacation or otherwise not scheduled to work. …

Of course, past practice may affect the arbitrator’s decision. Thus, in

one case where the contract contained no funeral leave clause but did
provide for maintenance of working conditions, the arbitrator ruled
that the employer was required to continue an established practice of
granting up to three days’ funeral leave. In another case, an existing
funeral leave policy, recognized by both parties, of not including
payment of such benefits during any period of paid absence from
work (such as vacations) was deemed by the arbitrator to have carried
over into the new contract provision dealing with paid funeral leave.

It has been found that the existence of a funeral leave clause preempts
the use of any other clause for similar type of leave. Id. @ 1040-
1042; footnotes omitted.

V. Past Practice Makes Another Appearance

As noted in the treatise just quoted, past practice may influence an

arbitrator’s decision about funeral leave. However, as this arbitrator has

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observed on more than one occasion, appeal is made to the doctrine of past

practice in situations in which it has no applicability. See, for example,

UFCW Local 867 and Cargill Salt Co, 03-2 ARB ¶ 3560 (Cornelius Arb

2003); Okonite Co, 01-2 ARB ¶ 3830, 28 LAIS 3805 (Cornelius Arb 2001).

This is another such case, as the Sheriff’s Department contends that it has

established a past practice of interpreting and applying the funeral leave

provisions in a reasonable and consistent manner. Indeed, much of the

testimony presented by the Department concerned this putative consistency,

and the point is made again in the Employer’s brief @ 13.

The Union responds to the claim of past practice as follows:

Sheriff Wilson apparently instructed new Undersheriff Terry Walker to

undertake a review of the Department’s records to determine how funeral
leave had been applied in the past. However, the Sheriff had no
information as to when the particular deputy was notified of the death,
the date of the funeral or the number of days requested by the deputy in
connection with any of the examples of past application.2 The Sheriff
also agreed that a typical funeral occurs within four days after the death
of the individual. Given the current scheduling practices of the Employer,
it is not common for employees to work more than three days in a row.
Despite extensively researching the issue, the Sheriff had no evidence
that any employee had requested non-consecutive work days for funeral
leave in the past and had been denied. There was no evidence concerning
any practice that varied the three, four or five work day provisions of the
contract concerning this benefit. As a result, this entire line of questioning
was immaterial to the Employer’s claim that the word “consecutive”
must be inserted into the contract.
______________________

2 Sheriff’s Department employees are not required to take all of the

funeral days they are allowed under the contract, and many chose not to

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 do so. For some, work is a welcome distraction when trying to sort out
the implications of the death of a close family member. Union’s brief @
4.1

The paucity of examples of prior grants of funeral leave militates

against a finding of past practice. Besides testifying about the dispatcher’s

and Grievant’s cases, the Sheriff testified about only 5 other instances of

funeral leave granted during the period 2000-2004. He also mentioned in

passing that he himself had been the recipient of such leave in 1987, when

both of his parents were killed in an automobile accident on Christmas Eve.

The Sheriff was uncertain as to the details of most of these instances,

making comparisons impossible. Moreover, it was the current Undersheriff

who in fact reviewed Department records and uncovered the 5 instances

mentioned above. While the former Undersheriff was called from retirement

to bolster the Sheriff’s testimony, it was insufficient to establish a practice.

The fact that the Department largely changed from 8-hour to 12-hour

shifts further muddles matters. Today, some employees still work 8-hour

shifts. See, for example, CBA, Article 21, Section 2. Despite the introduction

of 12-hour shifts, the language of the funeral leave provisions has not been

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The Sheriff suggests somewhat gratuitously that “[i]t was unnecessary for the grievant to take leave on
either Wednesday, April 28 or Thursday, April 29, 2004, because the funeral was not actually held until
Monday, May 3, 2004.” Employer’s brief @ 12. The arbitrator is, of course, unconcerned with any
subjective “need” for funeral leave and considers only the requirements of the CBA and Grievant’s
fulfillment of them.

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changed, even though it cannot be applied literally to shifts which overlap

calendar days.

The evidence simply does not meet the criteria for a past practice. Hill

& Sinicropi, Management Rights (BNA 1986) @ 20-64; Elkouri & Elkouri,

supra @ 630-645. Indeed, the supervisor’s grant of non-consecutive days of

funeral leave to the dispatcher demonstrates that the putative practice is not

well known, even within the small Sheriff’s Department. As in Cargill,

supra, the case is one for contract interpretation by the arbitrator.

VI. Interpretive Difficulties

VI.A. Day Versus Shift

The first difficulty that the arbitrator has with the funeral leave

language is that it refers just to days and not to shifts or to days and shifts.

For example, a 3-consecutive-day period of funeral leave (say Monday-

Wednesday, for the sake of definiteness), for an employee who works the

6PM-6AM shift and normally would work those days, actually extends over

4 calendar days (Monday-Thursday). Unfortunately, the term “day” is not

defined anywhere in the CBA.

As a result, the parties seem to agree on a flexible definition of “day”;

they appear to treat it as meaning a period of 24 consecutive hours, geared to

an employee’s shift. The Sheriff expresses their understanding as follows:

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 The number of days to be paid by the Employer for funeral leave is
determined by the employee’s work schedule in relation to the date of
the funeral, which is typically the last day of the leave period.
Employer’s brief @ 10.

Thus, in the example just considered, the employee’s 3 days of funeral leave

would begin at 6PM on Monday and end at 6PM on Thursday, thereby

covering three 24-hour periods. The issue presented is whether a period of

funeral leave must consist of consecutive days.

VI.B. End Point Versus Beginning

Although the CBA specifies the end point of a period of funeral leave,

and the parties appear to agree on the end point,2 it does not specify a

beginning, and that omission is the source of the current conflict. At least in

the instant case, the Sheriff marks the beginning by counting 3 consecutive

days back from and including the day of the funeral: Monday (funeral;

Grievant normally would have worked), Sunday (off day), Saturday (off

day). The Sheriff then considers on which of those days Grievant normally

would have worked. Inasmuch as Monday was the only such day, the Sheriff

awarded Grievant just one day of paid funeral leave.

2
Arguably, there is some ambiguity in the phrase, “which period shall terminate with the day following
the funeral.” However, in the case before the arbitrator, the parties do not raise the issue, and its resolution
is unnecessary for a decision here, since leave for the Wednesday and Thursday preceding the funeral is the
only question presented. The arbitrator merely assumes without deciding that the last leave day is the day
of the funeral.

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 VII. Analysis Of The Funeral Leave Language

The Sheriff contends that the funeral leave provisions place a ceiling

on the amount of paid leave to which an employee is entitled, rather than

setting a minimum. Employer’s brief @ 9-10. In that regard, the Sheriff

clearly is correct, as the CBA plainly states, “Wages shall be paid only for

the days included … which would be the days the employee would normally

work.” Thus, if a relative dies one day and is buried the next, an employee

could receive at most 2 days’ paid funeral leave, regardless of his

relationship to the deceased, and then only if the employee normally would

have worked those days.

The Union counters that the CBA merely specifies “work days”, and

nothing in the funeral leave provisions requires them to be consecutive.

Union’s brief @ 9. The Union is correct on both points. The word

“consecutive” or its synonym does not appear anywhere in those provisions.

Indeed, “working days” are required to be consecutive only once in the

CBA, in Article 6, Section 8.C (regarding loss of seniority): “for three (3)

consecutive working days”.3

3
Compare CBA, Article 21, Section 2.B (regarding overtime): “in a seven (7) consecutive day period”;
Article 23, Section 2.F (regarding shift changes): “a thirty (30) day continuous period”; Article 26, Section
3.B (regarding vacation time): “taken in consecutive days”; Article 29 (regarding long-term disability
insurance): “period of ninety (90) continuous calendar days”.

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 Even in this instance, it appears that “consecutive working days” does

not mean consecutive calendar days, for a couple of reasons. First, when

“calendar days” are meant, that phrase is used in the CBA. See Article 13,

Sections 3.D (regarding bumping rights) and 4.A (regarding notice of

layoff); Article 17, Section 1 (regarding posting of notice); Article 18,

Section 3 (regarding posting of notice); Article 29 (regarding long-term

disability insurance).

Second, the Sheriff’s Department operates 24/7, so that every day is a

“working day” for the Department as a whole. As a result, “working day”, as

used in the CBA, refers to a day on which a particular employee works or at

least is scheduled to work. Thus, if an employee works on Thursday and

Monday and is not scheduled to work and does not work on any of the

intervening Friday, Saturday or Sunday, then Thursday and Monday are

“consecutive working days” for that employee.

Except as noted in Article 6, “working days” is unmodified

throughout the CBA:

Article 11, Section 4 (regarding the time limit for an appeal): “within
five (5) working days”

Article 26, Section 1 (regarding vacation time): “ten (10) working

days”, “fifteen (10) working days”, “sixteen (16) working days”,
“seventeen (17) working days”, “twenty (20) working days”

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 Article 35, Section 5 (regarding sick leave): “exceeds five (5) working
days”

For these reasons, the arbitrator must agree with the Union, that days of

funeral leave need not be consecutive.

Grievant’s funeral leave could not have begun any earlier than

Tuesday, the day he first learned of his grandmother’s death. However, he

did not qualify for funeral leave on Tuesday, because he was not scheduled

to work that day. He first qualified on Wednesday and Thursday, days he

was scheduled to work. He did not qualify on Friday, Saturday or Sunday,

again because he was not scheduled to work. He qualified on Monday, the

day of the funeral, another day on which he was scheduled to work. In point

of fact, Wednesday, Thursday, and Monday were consecutive working days,

insofar as Grievant is concerned.

VIII. The Sheriff’s Principal Defense

In opening statement and again in the brief, the Sheriff asserts:

The Employer contends that the contract language and its context
clearly requires an interpretation that funeral leave is limited to
consecutive days off only. Any other interpretation would result in an
absurdity, because certain express provisions of the labor contract
would thereby be rendered meaningless. Employer’s brief @ 2;
emphasis supplied.

From the hearing, both the Union and the arbitrator understood the

Sheriff to be referring to a particular sentence in the CBA:

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 Given the clarity of the contract language, the Employer is primarily
attempting to defend this issue based on the second sentence in Section
8.A. That sentence reads, “Wages shall be paid only for the days included
in the three (3), four (4), or five (5) days which would be the days the
employee would normally work.” In its opening statement, the Employer
rested its entire case on the fact that the Union’s interpretation would
render this sentence meaningless. Apparently, the Employer will argue
that the term “included” implies that the three days has to be consecutive
and only those days of the three “consecutive” days which were normal
work days would be paid leave. … Union’s brief @ 7-8.

Curiously, in the brief, the Sheriff never specifically identifies those “certain

express provisions” that would be rendered meaningless.

While the arbitrator wholeheartedly agrees with the many rules of

contract interpretation urged by the Sheriff (Employer’s brief @ 7-9), he does

not discern the lucidity of language or the clarity of intent that the Sheriff

perceives in the funeral leave provisions. The clause, “for a period not to exceed

three (3), four (4), or five (5) work days as provided below, which period shall

terminate with the day following the funeral,” is unclear, standing alone. Indeed,

the measurement “period” may not be delimited by work days.

Although the “period” is said to end after the funeral, the very day of the

funeral itself may not qualify for paid funeral leave, because it may not be a

normal work day, as the next sentence states, “Wages shall be paid only for the

days … the employee would normally work.” Thus, if the employee would not

normally work on the day of the funeral, he is not paid for that day, even though

he must attend the funeral to be eligible for any paid leave at all.

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 Similarly, the day an employee receives news of a relative’s death, which

marks the beginning of the measurement period, may not be a normal work day.

Moreover, the parties agree that overtime days do not qualify for funeral leave,

so that if an employee hears of a death and misses scheduled overtime as a

result, he is not entitled to paid funeral leave instead. Union’s brief @ 8,

Employer’s brief @ 11.

Nothing about the arbitrator’s interpretation renders any provision of the

contract meaningless, nor does it violate the express limitation on his authority

found in Article 11, Section 3.D:

The Arbitrator shall have no power or authority to alter, amend, add to

or subtract from the terms of this Agreement, nor to make any
recommendation with respect thereto.

The word “consecutive” simply is not in the funeral leave provisions, either

explicitly or by necessary implication.

IX. Observations

The foregoing conclusions seem to comport with common experience.

As illustrated by the dispatcher’s reaction to the news of her grandfather’s

death, it is the news of death that may have the greatest emotional impact

and hence result in the greatest need for time off from work. If there is a

substantial amount of time between the death and the funeral, as may happen

if there is difficulty in recovering or even identifying the body or

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transporting it to the location of the funeral, the funeral itself may be

somewhat anticlimactic. It would seem unduly harsh to rigidly measure

funeral leave based solely upon a 3-consecutive-day period ending with the

day of the funeral.

The result does not really undermine the Sheriff’s position about

consistency, a policy frequently desirable in the workplace. But consistency

alone cannot trump the language of a labor agreement, and “being

consistently wrong can hardly be sanctioned as right.” Dennard v Richards

Group, Inc, 681 F2d 306, 318; 3 EBC 1769, 1779 (CA 5, 1982). This is not,

of course, a case of the Sheriff being consistently wrong; rather, it seems to

be a matter of first impression. The instant situation simply never seems to

have arisen before.

Award

For all the foregoing reasons, the grievance is SUSTAINED. Grievant

is to be credited with paid funeral leave for April 28 and 29, 2004. The

vacation time he used to cover April 28 is to be restored to him, as is the

comp time he used for April 29. He is to be treated in all respects as if his

time had been properly credited.

Dated February 16, 2005

_____________________________
E. Frank Cornelius, Arbitrator

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