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Afscme Local 444, retired
GED HEO
Some labor history focusing on workplace struggles and contract battles. One of the major issues in dispute on the job as far as my activism was concerned was the issue of sick leave. At least we had it, a benefit of working in the public sector but one time when we filled out a sick leave slip at work, we had to say what we were sick with. Of course, “sick of being at work” is not a valid reason, so people would write headache, stomach upset or whatever. We fought that on the basis that we were not doctors and were not qualified to say what caused us to feel sick that day. There were all other issues around it including how long we had to be off before seeing a doctor. Also the employer dealt with what they call sick leave abuse in a very arbitrary fashion. We didn’t like them having an average use by which they determine abuse. It’s not rocket science to recognize that historically the boss wants you at work all the time and certainly doesn’t want to pay you when sick
The US has one of the worst sick leave (mostly no sick leave) programs in the advanced capitalist economies. We came out of our strike in 1985 with a Sick Leave Verification Program to deal with "abuse" that was adequate. But, contracts are very temporary things as the tendency of the boss is to violate it as soon as the ink is dry. The best defender of rights we have on the job is the worker ourselves. Don’t start work early, don’t violate rules that protect you and the union as a whole and so on. Years later my employer was undermining our negotiated sick leave verification program and by that time we had a family sick leave provision the usage of which was not subject to verification of abuse. I was retired a year or so but wanted to make sure my co-workers understood what we had and that they should defend it which sometimes means a struggle against your own leadership on many occasions.
This is the
history of my local’s sick leave struggles during my years active and I wrote
it in order to help members in the defense of their sick leave rights. I am
sure other rank and file activists like myself in other workplaces and
industries have similar experiences as we did. Perhaps you will find this
interesting reading as well.
Don’t Give Away Your Sick Leave Benefits
Some History on Sick leave Verification (SLVP)
Before I retired from the District in 2004 there was an ongoing attempt by the District to weaken Article 16 (sick leave) of Local 444’s contract. The District’s main concern was sick leave verification. The problem for the District was the clause in Local 444’s contract; in 2003 it was 16.1.6 and in various contracts has been titled, “Limitations”. It has consistently prevented the District from arbitrarily imposing discipline and restrictions on sick leave use, unless the Union agrees to it.
In the last contract that I have, 1997-2003, 16.1.6 states, “A doctor’s certificate indicating time under a doctor’s care, approval for return to work, and any work limitations is required if sick leave extends to ten (10) consecutive workdays or more.”
The only difference between the language here and the corresponding language in the 1974-76 Local 444 contract is that the number five changes to 10. (Article 16 section 1F, Limitations)
It can’t get any clearer than that. YOU DON’T HAVE TO BRING A DOCTORS SLIP UNTIL YOU ARE SICK FOR THE TENTH DAY. That has been the case from 1985 until fairly recently. The exception to this was if the employee was on the District’s Sick leave verification program. The problem, particularly in the past 10 years or so, is that the SLVP, introduced in its present form after negotiations in 1985, is too restrictive for the District, it doesn’t allow them a free enough hand.
History of the SLVP post 1985
Prior to 1985 there were numerous letters of discipline and warnings issued to Local 444 members that also informed them that their sick leave was excessive and that any further use of sick leave would have to be “verified”. Local 444 members were also told to bring in doctor’s slips despite being off sick less than five days. Sick leave verification was also an issue with 2019 members in the Lab at SD1 and it is no coincidence that most ,or all, of this 2019 unit stayed out with Local 444.
At this point in time, the District’s definition of “abuse” was not clearly formulated as confirmed by Don Crum’s memo to Phil Utic and Pete Mitchell dated 10-26-84. Crum advocated using the District’s annual sick leave average which at that time was seven days. This issue was an ongoing one with the District at this time.
The Union, some folks like Richard Mellor, Kathy Cheetham, Wayne Tomasek and Joe Montoya among others, Filed grievances under article XV1-1F of the 1982-85 contract which stated (you guessed it) “A doctor’s certificate indicating time under a doctor’s care, approval for return to work, and any work limitations is required if sick leave extends to ten (5) consecutive workdays or more.”
District’s Defense
The District tried to dodge this powerful clause and claimed that it had the right to verify sick leave any time it wanted and cited another sentence in the famed sick leave clause that states, “All sick leave use is subject to review, verification, and approval by the District” This sentence was in the 1974-76 contract and all subsequent contracts to my knowledge. (I will return to this later) . The Union struck by the strong language in the contract that protected our members and argued that the disciplinary letters were in violation of the five-day clause and attempts to verify even after five days were arbitrary and left the door open to favoritism and discrimination.
How It All Changed
The issue was resolved in the 1985 negotiations while we were on strike. The Union accepted the District had the right to deal with abuse but not to violate our contract by doing so. The 1985 negotiations introduced the Sick Leave Verification Program that didn’t violate our contract (444 members did not have to bring a doctors slip before 5 days per the contract and the District would not demand verification prior to that unless an employee was put on the new program) The program satisfied the Union in that the District had to go through a procedure that would clearly show abuse and had a series of steps to it and wouldn’t be used in an arbitrary or discriminatory manner.
A supervisor would have to compare carefully the employee’s sick leave to the average employee but needed to look for patterns that signified abuse like Mondays and Fridays etc. If the supervisor determined the employee was using excessive sick leave or was an abuser then they counseled the employee and if it didn’t improve, the employee was to be told that they would be placed on the SLVP) The SLVP, a product of union management discussions, was added to PPS&P #20. On May 10, 1985 Artis Dawson sent a memo to Audrey Daniels, then Local 444 President confirming that these discussions had taken place and that the District was modifying its SLVP accordingly.
An important part of the SLVP and something that we will return to is actually the motivation for the District’s renewed offensive. Local 444’s contract stated in Article XV1 1D (1985) that members could use two days sick leave a year for family medical emergencies and it defined family, mother father etc. The Sick Leave Verification Program which the District and Union accepted states, “Sick leave used for family medical emergency use should not be used in calculations for determining abuse or excessive use of sick leave.” The Union wanted this in the SLVP and the District agreed to it. Artis Dawson’s 1985 memo to Audrey Daniels itself confirmed this, “The two days maximum medical emergency use existing in the Memorandum of Understanding will not be used in calculations for the Sick Leave Verification Program.” (Artis Dawson to Audrey Daniels may 10, 1985)
The Union was happy with this agreement and the District agreed to pull all the letters in people’s personnel files relating to this issue. The Tentative Agreement dated 5-13-85 to which this writer was a participant states, “..the Union will agree to drop the arbitration and all grievances filed regarding employees sick leave verification and will not challenge the District’s right to verify sick leave in the future.” The Union accepted the District’s right to verify sick leave under the sick leave verification program. The Union never gave up its defense and rights under the five day clause (now 10) of article XV1. Both parties agreed to drop all proposals regarding sick leave. The District in 1985 had a proposal to “clarify” their right to demand verification using the sentence in the contract “All sick leave use is subject to review, verification, and approval by the District” The Union did not agree that this meant the District could demand a sick leave slip or discipline members prior to 5 days as stated in the contract.
The Sick Leave Verification Program clarified the issue somewhat and the matter was settled….for a while.
After 1985
Naturally, the minute the ink on a contract is dry, the employers try to violate it and take back what they were forced to concede through negotiations. But after 1985 supervisors now had a clear process for dealing with sick leave abuse. They probably didn’t like it because it made them work but it protected Local 444’s members and that was good for the Union. But then things changed. The Family Medical Leave clause was the problem.
Look at these figures:
Number of sick leave days a year that can be used for family Medical Emergency by contract year:
1985-88: 2
1988-91: 3
1991-94: 6
1994-97: 13
Here’s a big problem for the District. The Sick Leave Verification Program stated as clear as a bell that “Sick leave used for family medical emergency use should not be used in calculations for determining abuse or excessive use of sick leave.” But by 1997 this type of leave had amounted to 13 days. Local 444 got this after it was won by 2019. The District was in a panic. People are calling in family sick and we can’t nail them for it because we can’t use thirteen of these days as a calculation for abuse or excessive usage. The District was in trouble. It wanted to eliminate this obstacle.
The 1990’s
All through the nineties whenever over-zealous District supervisors tried to discipline people or get them to bring in doctor’s slips prior to the ten days as stated in Local 444’s contract the Union stopped them. If the employee was sick for ten consecutive work days or more then the District could demand a slip and its other rights under this clause. If an employee was considered an abuser or an excessive user then there was the SLVP and its guidelines. The procedures for the SLVP including sample letters for supervisors to use were outlined in the management manuals. If this was violated it was due to either the lack of a Union presence or a weak Union presence but either case doesn’t deny the Union its rights. I know that myself Roger Martinez,, Cheryl Zuur and others fought the District aggressively during this period demanding they use the SLVP.
By 1994, seeing there were 6 days that could be used to determine abuse, the District had a proposal for a sick leave use standard. To my knowledge they did not get one. By 1997 when myself, Roger Martinez and Cheryl Zuur were in negotiators the District tried again to claim that, according to the contract, it had the right to demand sick leave verification whenever it wanted to. This is what they claimed in 1985 remember. The lead negotiator for the District, a man named Fleming was told about the SLVP program and was told to visit 1985. We had already won that battle over when the District can and cannot ask for a slip or verify. In other words, the District was returning to the same, worn out defense that the contract said, “All sick leave use is subject to review, verification, and approval by the District”. The Union demanded that they use their program but we were defending our contract which made it very clear that a doctor’s slip was not needed prior to the tenth day unless a person was on the SLVP.
Fleming agreed to check out the 1985 agreements and the District attacks on sick leave in 1997 were repelled.
The Present
Since I have retired and since the two people I worked with most closely on these issues, Roger Martinez and Cheryl Zuur, have not been active in the leadership of the Local, I am not sure what has occurred since 1997. What I do know is that during the Presidencies of Robert Lopez and John Hayden, the District found two Union officials who supported their views and made their arguments for them. On more than one occasion I had discussions with Both Hayden and Lopez where they both defended the District’s right to verify and ask for a doctor’s slip anytime. They both refused to use their positions to defend the contract when the infraction involved a Local 444 member that they considered “weak on sick leave”. I have no idea what, if any, agreements they might have made with the District since 1997.
These two presidents made the same arguments that the District made in 1985 only it was the late nineties, early 2000’s and we had the Sick leave Verification Program. If the District didn’t want to use it that wasn’t the Union’s problem, it was based on an agreement with the Local. Our contract was clear and it is what we must defend. Sure, on a first reading it might seem that the statement that the District uses from the sick leave clause gives them the right. But there is history here. The Union had been through that but there was no way Hayden and Lopez would abandon the District’s position. Anyway, even in the worst case scenario, there are two sides in this world, if the language is somewhat vague in any instance, the Union should defend that which best protects its members, not take up the employers’ position.
During the last contract negotiations, despite strenuous objections by Roger Martinez, Cheryl Zuur and Richard Mellor, the leadership of 444 and 2019 made a mistake; they took the issue of negotiating changes in critical PPS and P's, such as this one, off the table. As a result they have now been in negotiations for TWO years. It has come down to the wire now on this issue of sick leave, which the District is determined to change. On Thursday Sept 29 there is a joint special meeting of the locals to discuss and determine what language will be accepted at the table.
FIGHT BACK
Defend the contract. It is clear: “A doctor’s certificate indicating time under a doctor’s care, approval for return to work, and any work limitations is required if sick leave extends to ten (10) consecutive workdays or more.”
The District has a Sick leave Verification Program, they should use it.
If the District doesn’t want to use the negotiated SLVP program it is secondary. The contract still stands. Don’t negotiate away the sick leave rights, don’t let them return to pre-85.
If the District wants to modify, introduce or negotiate another SLVP, the Union should tell them, in no uncertain terms that “we’ll see you at the negotiating table next contract time.” This is what they would tell the Union if the Union made an error that needed corrected.
I hope that this helps clear up some of the misunderstanding about the SLVP. Most importantly, remember, the District wants you at work all the time. To hell with your family, your friends, your leisure, your personal life. And the supervisors get big bonuses if they do their best to make that happen.
In this case the contract is strong, but it is stronger when backed up with a united and conscious membership that is willing to take some sort of collective action to defend it.
Richard Mellor
AFSCME Local 444 retired
South and Central Yards
9-28-05
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