In August 2002, a battalion chief with the City of East Providence, Rhode Island Fire Department was diagnosed with prostate cancer. The battalion chief missed 44 days of work. The City treated the battalion chief’s absence as being attributable to sick leave, not an on-the-job injury.
Local 850 of the International Association of Fire Fighters contested the City’s decision, contending that the parties had included in their collective bargaining agreement a state law providing that cancer is presumptively treated as an on-the-job illness.
The City argued to an arbitrator that the state law did not apply to all Rhode Island communities; instead, the “presumptive causation” law only applied to those communities that participated in the optional retirement law, a program in which the City did not participate.
The Arbitrator declined to get into the dispute as to what state law provided or did not provide. While noting that the City made an “interesting legal argument,” the Arbitrator eventually concluded that state law was ambiguous as to the City’s obligations.
In the absence of clear contract language or overriding state law, the Arbitrator turned to past practice to resolve the grievance. Noting that on two prior occasions, the City treated the time away from work as work-related injury leave and not sick leave, the Arbitrator found that the City was bound by the past practice it created. The Arbitrator ordered the battalion chief to be made whole for any lost sick leave and benefits.
City of East Providence, Rhode Island, LAIG 6238 (Altman, 2004).
This article appears in the August 2005 issue