Local 937, Chelsea Fire, and Attorney Barrault Take on City of Chelsea And Defeat Chief's Baseless Sick Leave Abuse Policy

February 06, 2019

A neutral arbitrator, after hearing arguments and evidence presented by the Chelsea Fire Chief, concluded that his four-day suspension of a veteran firefighter violated the collective bargaining agreement’s promise to discipline only for just cause. Attorney Leah Barrault represented Chelsea Firefighters, Local 937, in this arbitration. This Award flatly rejects the idea that sick leave use is excessive or abusive merely because the firefighters use more than their co-workers. Further, the Award affirms the traditional just cause principle that an employer cannot discipline an employee for violating a rule or expectation that the employer never notified employees about.

Chelsea Fire, like many Fire Departments, has no policy or guideline about what constitutes inappropriate or excessive sick leave. In October 2017, the Union and Chief agreed to require physicians notes when firefighters are absent for four consecutive shifts or more.

In January 2018, the Grievant was out sick for seven consecutive tours. Upon his return, the Grievant provided a physician’s note that verifying the absence for the first three tours. The Chief regarded this note as insufficient but never told the Grievant about this concern or discipline the Grievant. Rather, the Chief waited until April 2018 to suspend the Grievant, for “utilizing an unacceptable and unreasonable amount of sick leave.” The Chief’s four-day suspension referred to the January 2018 sick leave as being unsupported by medical documentation, subsequent use of sick leave, the Grievant’s failure to provide medical documentation for 2017 sick leave absences in 2017.

The Arbitrator applied traditional and established concepts of just cause to conclude that the Chief’s reasoning was unsupported and unreasonable. A basic “test” of just cause is for the employer has to notify employees about a work rule or performance expectation. After all, any kindergartener knows it’s unfair to be disciplined for violating a rule you weren’t told about. That is exactly the kind of logic applied by the arbitrator.

The Arbitrator found that the Chief’s basis for determining excessive amount of sick leave lacked any factual basis. “I find no evidence of an established rule, regulation, policy or directive establishing a limit on the number or frequency of sick days that may be used by department employees in general.” And, as a result, the Chief never communicated what constitutes “excessive sick use” to firefighters. The arbitrator even questioned whether a such an expectation, even if communicated, could be applied in an equitable fashion. “[I] t is not clear how such a rule or policy could be imposed fairly and reasonably, particularly if an employee suffers a legitimate illness or injury that disqualifies them from work for an extended period of time.” The arbitrator voided the suspension for this lack of notice.

The Arbitrator highlighted other problems with the Chief’s rationale. First, the Chief improperly based the suspension in part on Grievant’s undocumented 2017 sick leave because there was no policy requiring documentation until October 2017. Second, the Chief never told the Grievant at the time that the physician’s note produced in February 2018 was insufficient to document the January 2018 leave.

The Arbitrator rescinded the suspension and order the City of Chelsea to make the firefighter whole for wages and benefits lost because of this contract violation.