4 CIR 27 (1979)


Plaintiff, |
Subdivision, |
Defendant. |


For the Plaintiff:Theodore L. Kessner;

For the Defendant: William A. Harding.

Before: Judges Orr, Kratz and Gradwohl.

ORR, J.:

Trial was had upon the Petition of Plaintiff and First Amended Answer of Defendant. The following facts were either stipulated or uncontroverted.

Plaintiff is an employee of defendant School District of Columbus. Plaintiff was employed under a teacher's contract for the 1977-78 school year (Exhibit 1). Plaintiff advised her supervisor on November 8, 1977, that she was pregnant and expected the birth in April or May of 1978. At this time Plaintiff also advised her supervisor that she had accumulated seventeen (17) days of sick leave and would use her sick leave until she was able to return to work. Plaintiff acknowledged receiving Exhibit 3 pertaining to sick leave, Exhibit 4 pertaining to emergency leave and Exhibit 5 pertaining to maternity leave. Likewise, Plaintiff had received Exhibit 2, which was a memorandum outlining Defendant's policies as to leave. Plaintiff taught on Friday, April 21, 1978, and on April 22, 1978, she entered the hospital in Columbus and gave birth. Plaintiff was released from the hospital on April 25, 1978, and on May 15, 1978 she returned to work.

Plaintiff was granted emergency leave for April 24 and April 25, 1978, (Exhibit 6). On May 22, 1978, Plaintiff submitted a written application for thirteen (13) days of sick leave (Exhibit 7). Plaintiff's application for sick leave was denied by Defendant (Exhibit 8). Pursuant to the grievance procedure which was in effect at the time (Exhibit 9), Plaintiff, through the Columbus Education Association, the recognized collective bargaining representative for Plaintiff, had a hearing before the Superintendent. On December 22, the Superintendent, by written notice, denied Plaintiff's claim (Exhibit 10). On January 12, 1979, Plaintiff referred her claim to the Board of Education in accordance with the grievance procedure (Exhibit 11). On February 1, 1979, Plaintiff was notified by the Superintendent that the School Board had denied her claim (Exhibit 12). Both parties stipulated and agreed that the grievance procedure was followed and that all notices were timely given. Plaintiff thereupon filed this action.

Plaintiff alleges that an industrial dispute exists under Sections 48-801(7) and 48-810 R. R. S. and that the dispute arises out of contracts negotiated by Plaintiff's recognized association which governs the terms and conditions of Plaintiff's employment. Plaintiff alleges further that she is entitled to sick leave with pay in accordance with the terms and conditions of her employment by the Defendant School District and that the Defendant School District should pay her for the thirteen (13) days she has requested.

Defendant argues essentially that:

(1) This Commission is without jurisdiction to grant the relief requested by Plaintiff;

(2) The grievance procedure negotiated by the Plaintiff's association and the Defendant is exclusive and that the Plaintiff, through her association, has waived her right to seek relief before this Commission; and

(3) Under the terms and conditions of the contract negotiated between the Defendant and Plaintiff's association, Plaintiff was not entitled to sick leave pay.

A. COMMISSION'S JURISDICTION. This Commission has the authority to settle all industrial disputes concerning terms, tenure and conditions of employment involving governmental employees and employers, R. R. S. 48-810 and 48-801(7). It has long been recognized that his Commission has jurisdiction to construe and enforce labor contracts in suits properly pending before it. Safeway Cabs, Inc., a Corporation v. Taxi Cab Driver's Union Local 762 , 1 C.I.R. No. 18 (1964); IBEW Local Union 1525 v. City of Beatrice , 1 C.I.R. No. 27 (1970); Westside Education Association v. School District , 2 C.I.R. No. 103 (1974); Springfield Platteview LaPlatte Education Association v. School Dist*7*ict No. 46 of Sarpy County, Nebraska , 2 C.I.R. No. 105 (1974); Service Employers v. Millard School District , 3 C.I.R. 315, (1977); Service Employers International Union Local No. 226 v. Omaha Public School District No. 1 , 3 C.I.R. 644 (1979).

From the undisputed facts, it is apparent that an industrial dispute exists as defined under 48-801(7) R. R. S. and this Commission has jurisdiction to decide such dispute under Section 48-810, R. R. S.

B. WAIVER. Defendant contends that the grievance procedure negotiated by Plaintiff's association is an exclusive remedy and that Plaintiff waved her right to petition this Commission as a result of the negotiations between her association and the Defendant. The grievance procedure in effect at all times pertinent to this case is as follows:

Grievances from employees should be initiated in the following manner:

(a)If the employee has a grievance, he should first discuss the matter with his immediate superior (at the building level the immediate superior is the principal) within five (5) days after the alleged aggrievance occurred in an effort to solve the problem;

(b)If the employee is not satisfied with the disposition of the grievance, he may take it to the Columbus Education Association representative committee for discussion, solution or further disposition. At this level, efforts should be made to solve the problem and a decision will be made as to whether to continue;

(c)If the Columbus Education Association Committee feels that the grievance warrants further consideration, a request will be made for a hearing with the Superintendent within fifteen (15) days from the date of request. The Principal has the responsibility of arranging for a satisfactory time and place for all that are involved. The hearing with the Superintendent may involve, in addition to the employee, a representative from the Columbus Education Association Committee and the Principal, in an effort to solve the problem;

(d)If the Superintendent is unable to resolve the problem, or if the employee is not satisfied with the disposition of the problem, he may request that the Superintendent refer the matter to the Board of Education and ask for a hearing with the Board within thirty (30) days from the date of request;

(e)The Board of Education will determine a time and place for the hearing. The grievant will be notified in writing as to the time and place of the hearing. A representative from the Columbus Education Association Committee, Principal and Superintendent may be invited to participate in the meeting. Final disposition of the problem rests with the Board of Education.

Defendant contends that the language "final disposition of the problem rests with the Board of Education" is in effect a waiver made by the Plaintiff of carrying any dispute beyond the Board of Education decision. Defendant correctly argues that an employee may waive certain rights by a collective bargaining agreement negotiated by his association. See Textile Workers v. Lincoln Mills , 353 U.S. 148 (1957). However, courts have universally held that the waiver must be clear and unmistakable. Insurance Workers International Union AFL-CIO Local 60 , 98 L.R.R.M. 1245, 236 NLRB No. 50 (1978); Mastro Plastics Corporation v. NLRB , 350 U.S. 270 (1956); Tidewater Association Oil Company , 85 NLRB No. 189 (1949); Timken Roller Bearing Company v. NLRB , 325 Fed. 2d 746 (6th Cir., 1963); NLRB v. Southern Materials Company , 447 F. 2d 15 (4th Cir., 1971).

The statement ("final disposition of the problem rests with the Board of Education") does not clearly and unmistakably waive Plaintiff's right to proceed with her dispute to this Commission.Such language appears to mean only that the Board decision is the last step outlined in the grievance procedure. There is no express waiver of a right to recourse in this Commission or of any other potential legal recourse, indeed, from the evidence presented it is clear that Defendant's Superintendent so interpreted the language in question. On February 1, 1979, Defendant's Superintendent wrote a letter (Exhibit 12) to Plaintiff which stated, in part:

"It is not the intent of the Board of Education to jeopardize any certified employee's employment status for the reasons of conditions associated with the birth of a child. Therefore I suggest that you submit a request that the thirteen (13) days in question be classified as a maternity leave. Such a request will not be considered as a withdrawal of your grievance, nor will it be construed in any way to limit any additional appeal of your grievance you may wish to make."

This statement was made by the Superintendent in the same letter in which he advised the Plaintiff that the Board of Education had denied her request for sick leave payment. Exhibit 12 clearly shows that Defendant's chief administrator did not interpret the grievance procedure to be an exclusive remedy.

In Timkin Roller Bearing v. NLRB , ( supra ) the Court held that the union had a statutory right to waive information and that the right could only be bargained away by clear and unmistakable language to that effect. Plaintiff has a statutory right to file a petition with this Commission as provided in Section 48-811, R. R. S.:

"Any employer, employee or labor organization, or the Attorney General of Nebraska on his own initiative or by order of the Governor, when any industrial dispute exists between parties as set forth in Section 48-810, may file a petition with the Court of Industrial Relations invoking its jurisdiction. No adverse action by threat or harassment shall be taken against any employee because of any petition filing by such employee, and the employment status of such employee shall not be altered in any way pending disposition of the petition by the court."

The grievance procedure negotiated by Plaintiff's association and the Defendant School District is not an exclusive remedy and the Plaintiff has not clearly and unmistakably waived her right to file a petition with this Commission as provided for in Section 48-811 R. R. S.

C. INTERPRETATION AND APPLICATION OF AGREEMENT. The remaining issue is whether or not the Plaintiff is entitled to sick leave under the terms of the contract. The sick leave provisions (Exhibit 3) read as follows:

Ten days sick leave each year, for the first three years of a teacher's employment, thereafter, five days a year with a maximum accumulation of sixty days. A perjury statement on the sick leave application form will read as follows: "I declare under penalty of perjury that this is a true and just claim and falsifying this report could result in loss of all or part of my accumulated sick leave." Any misuse of this sick leave policy may result in loss of all or part of the accumulated sick leave. This policy shall go into effect at the start of the 1974-75 school year and it shall not be retroactive. A person who is penalized, may challenge the decision through the grievance procedure.

In cases of absence beyond cumulative sick leave, due to serious illness or injury, the teacher may apply to the Board of Education for additional sick leave days. Additional days up to 60 may be granted.

If the serious illness or injury would necessitate absence beyond 60 school days in a school year, the Board of Education will pay 40% of the teacher's salary for each school day absent in excess of 60, not to exceed the end of the school year.

When a teacher previously employed by the school system returns to the system his/her sick leave accumulation will be discounted five days each year of absence from the staff up to and including three years. After that, no credit will be allowed and he/she will receive only what a first year teacher would.

The maternity leave provisions (Exhibit 5) read as follows:

Married teachers shall be granted maternity leaves without pay or increment, such leave to commence at that point in time as recommended by her physician.

The maternity leave can be for one year and she may be reemployed the following year if a vacancy for which she would qualify exists.

The Plaintiff's contention is that she was sick for thirteen (13) teaching days and that she should be paid under the sick leave position of the 1977-78 contract for all thirteen (13) days. It is undisputed between the parties that Plaintiff had accumulated seventeen (17) days of sick leave, but Defendant argues that she is not entitled to apply sick leave benefits for maternity absences.

The evidence is uncontested that Plaintiff was sick. Plaintiff testified that she was sick for the thirteen (13) days in question. Plaintiff also offered the deposition of Dr. Medlar who testified:

"My opinion would be that during the period (April 22 through May 12, 1978) her activities should have been restricted to care of herself and her newborn infant until the changes that were directly related to her pregnancy and delivery had returned to normal."

Defendant did not offer any evidence as to Plaintiff's condition during the April 22 to May 12, 1978, period. We conclude, therefore, that Plaintiff was sick within the common meaning of the term.

In construing a contract, the entire instrument must be considered and the words given their ordinary and popularly accepted meaning Long v. Magnolia Petroleum Company , 166 Neb. 410, 89 N. W. 2d 245.

Considering both the sick leave provision and the maternity leave provision together, it would seem that they are not mutually exclusive. There is nothing contained in the language of the sick leave provision to exclude sickness due to childbirth. The maternity leave provides for an extended absence from work up to one year and also provides for rehiring. This leave contemplates absences beyond the actual period of disability. On the other hand, however, the sick leave provision applies only to the actual period of sickness.

The Plaintiff was sick for thirteen (13) days. She had accumulated seventeen (17) days of sick leave and under the terms of her contract she was entitled to be paid for the thirteen (13) days in question.

IT IS THEREFORE ORDERED that the Defendant pay unto the Plaintiff her 1977-78 contractual rate of pay per day for the thirteen (13) days claimed.

All Judges assigned to the Panel join in this Opinion and Order.

Filed October 15, 1979.