Arbitrator Agrees With SEIU Local 509 & Attorney Tod Cochran That Public Employer Cannot Deny Vacation As Punishment

A collective bargaining agreement typically sets forth how much vacation employees earn and how they can use it. Thanks to union bargaining power, union-represented employees generally have a right to use vacation when they want, so long as the employer has sufficient coverage and more senior employees are not seeking to take time off at the same time. Here, the Commonwealth's Department of Children & Families denied a vacation request initially made one year in advance as a form of punishment. Her supervisor instructed her to file the request closer to the actual scheduled vacation. Although DCF always approved the employee's past vacation requests and never denied a request on the basis of employee work performance, DCF denied the request this time, citing the employee's "overdue work."

SEIU Local 509 and Attorney Tod Cochran persuaded a neutral arbitrator that this arbitrary action violated the collective bargaining agreement. The contract made no provision for a denial on this basis (the Union also argued that DCF exaggerated the employer's work performance of the employee). If anything, DCF's denial of a contractual entitlement appeared to retaliate against the employee for taking other contractual benefits -- paid bereavement and sick leave. A serious health condition and her father's death had forced the employee to be out of work a significant amount of time.

As the Arbitrator wrote in her Award, "The Employer's argument, however, appears to tie the availability of a contractual benefit -- the use of accrued vacation time, upon request -- to the Grievant's recent personal and medical circumstances. Inherent in the argument is the contention that because the Grievant had been out of work and her workload had not been fully covered in her absence, she could not take vacation as requested. I find no contractual basis for denying the Grievant's vacation request due to her use of other, legitimate and approved leave."

She directed the Agency to make the employee whole for her "direct, documented loss of vacation costs."