Court Upholds Arbitrator’s Award On Leave And COVID Quarantine

Written on 01/05/2023

Jacob Donley is a police officer em­ployed by the Village of West Salem in Wisconsin and is a member of the West Salem Police Association. In September 2020, Donley attended a work-related training event and was exposed to an individual who tested positive for the COVID-19 virus. As a result of this exposure, Donley’s police chief ordered him to quarantine for a period of 14 days.

Donley had been scheduled to work 92 hours over that 14-day period and, according to the parties, the Village initially paid him for all 92 hours. Three months later, the Village’s administrator determined that the Village had made a mistake and that Donley had been overpaid for his period of quarantine. The administrator cited the Families First Coronavirus Response Act, which provided that certain employees were eli­gible for up to 80 hours of paid sick leave for a COVID-19-related quarantine.

A supervisor informed Donley that he should have received 80 hours of pay, rather than 92 hours of pay, for the period that he was in quarantine. The supervisor advised him that there were several options to address the overpay­ment – 12 hours of pay could be deducted from a subsequent paycheck or Donley could designate the 12 hours as holiday pay, sick pay, or vacation pay. Of these options, Donley elected to designate the 12 hours as holiday pay.

The Association filed a grievance on Donley’s behalf, referring the matter to arbitration. The Arbitrator sided with the Village, reasoning that “boiled to its essence, the Association is actually arguing that Donley should not have been obligated to use any type of leave. Essentially, the Association contends that once Donley was scheduled to work 92 hours, the Village was contractually obligated to pay him for 92 hours even if COVID exposure led to a reasonable order that he stay home for two weeks. I do not find there to be any contract provision that creates that obligation.”

The Wisconsin Court of Appeals upheld the Arbitrator’s opinion. The Court noted that “here, the question is whether the Arbitrator exceeded his powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. Under this standard, we will not vacate the Arbitrator’s decision merely because he made some error of law or fact. The Arbitrator has exceeded his powers only if his decision demonstrates perverse misconstruction or positive misconduct, if he manifestly disregard­ed the law, if his decision is illegal, or if it violates strong public policy. To overcome the presumption of validity, a party opposing the award must present clear and convincing evidence that the award is invalid.

“In this case, the Association does not demonstrate that the Arbitrator exceeded his authority by disregarding or modifying any plain language in the collective bargaining agreement. That is, the Association does not point to any provision guaranteeing in plain language that an officer who is scheduled to work certain hours will be paid for those hours, whether or not the officer actually works them.

“Even if we were to assume that another construction of the provisions of the collective bargaining agreement was possible, we would not vacate the arbitration award on that basis. As our supreme court has explained, even mistakes of judgment, mistakes of either fact or law, are not ground for review of or setting aside an award. Here, the Arbitrator offered a reasonable interpretation of the provisions of the collective bargaining agreement argued by the parties, and the Association has not shown by clear and convincing evidence that the Arbitrator’s decision should be vacated.”

West Salem Police Association v. Vil­lage of West Salem, 2022 WL 15024949 (Wisc. App. 2022).

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