The Forecast Calls for a Chance of Arbitration


The weather has become a hot topic, with cool temperatures still moving into many of our areas. Weather conditions can lead to a flood of issues for employers and employees, often reaching highs in workplace grievances and resulting in cold fronts of labor arbitration.

Is your office prepared for the next storm and its aftermath?

Wild, Wild Weather

Arbitrator William P. Daniel in AFSCME Michigan Council 25, 126 LA 589, held that the employer did not violate the collective-bargaining agreement when it refused to grant an employee paid leave due to inclement weather, where she tended to avoid driving during any amount of snow, exceeded the number of inclement weather claims of any other employee, including her own daughter who lived in the same area, and initially claimed illness as the reason for her absence from work but subsequently stated that the driveway was blocked by 10 inches of snow, which was unsupported by weather data.

Prior to this final incident, the grievant had twice called in to work claiming illness and sick pay on days during which it had snowed. Following the first occasion, supervisor M__ explained to the grievant that “she could not simply call in sick to avoid driving in snow.”
The grievant later called out of work on a day with some snowfall, claiming again that she was “sick and not well.” M__ met with the grievant and a union representative to further clarify that she “could not avoid her duty to report for work by claiming that she was sick, unless she was actually ill.” M__ also stated that for future illness-related absences on days coinciding with snowfall, the grievant would be required to supply a doctor’s excuse.

The very next day, it snowed and grievant was again absent from work due to alleged illness, for which she failed to produce the requisite medical documentation. In submitting the leave request two days later, “instead of sick leave she requested ‘personal leave’ on the grounds of alleged ‘inclement weather.’”

M__ denied the request and a grievance ensued.

Arbitrator Daniel determined that the grievant had developed a pattern over the years of avoiding travel when it snowed any amount at all. “In not coming into work, to avoid losing a day’s pay, she has taken advantage of inclement weather claims,” the arbitrator noted.
Considering M__’s insistence that the grievant understand the employer’s policy, Daniel found no basis upon which to conclude the grievant misunderstood “what was expected or that she could not simply claim inclement weather days when she didn’t want to drive in snow.”

Daniel stated that while the amount of snowfall during the days in question resulted in minimal impact on travel, in the event of greater snowfall, the employer may reasonably expect employees to take reasonable steps in ensuring attendance at work, such as arranging for alternate transportation and the clearing of driveways.  

Lastly, acknowledging the grievant’s long tenure, Daniel concluded that “seniority does not act as a license to such individuals to do what is denied to every other employee,” as “each employee is expected to act honestly.”

Similarly relying on a uniform application of workplace leave policies, Arbitrator Robert W. Kilroy in Knauf Fiberglass, 114 LA 304, held that the employer violated the collective-bargaining agreement when it failed to excuse all snow-related absences and required employees residing within city limits to travel into work during a snowstorm, while exempting rural dwelling employees.

The application of the policy, which was based entirely on “geographical assumptions,” was “arbitrary and capricious,” the arbitrator stated. Kilroy rejected the argument that past practice had “established the legitimacy of the rural, city differentia,” finding that past practice is only relevant to interpret ambiguous or non-existent contract language. “Here,” Kilry continued, “we are interpreting the mechanical application of an unequivocal” policy.

Which Way Does the Wind Blow?


A review of data provided by Bloomberg BNA's Arbitration Award Navigator shows that of the 78 arbitration awards involving emergency leave, employers prevailed in 53.8% of cases, unions prevailed in 32.1% of cases, and 14.1% of cases involved mixed prevailing parties.

While there’s still a chance of arbitration, review your collective-bargaining agreement to clear up any cloudiness in your understanding of weather-related provisions. Maintaining good visibility, at the very least, will help you in riding out the storm and cleaning up the damage.

Access timely and reliable insight and information on a wide range of labor and employment issues with a free trial to the Labor & Employment Law Resource Center .