BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
KEWAUNEE CITY POLICE DEPARTMENT
UNIT LOCAL 1778, AFSCME, AFL-CIO
CITY OF KEWAUNEE
Kewaunee City Police Department Employees Unit Local 1778, AFSCME,
hereinafter referred to as the Union, and the City of Kewaunee, hereinafter referred to as the
City, are parties to a collective bargaining agreement which provides for the final and
arbitration of disputes arising thereunder. The Union made a request, with the concurrence
of the City, that the Wisconsin Employment Relations Commission designate a member of its
staff to act as an arbitrator to hear and decide a grievance over the meaning and application
of the terms of the agreement. The undersigned was so designated. Hearing was held in
Kewaunee, Wisconsin on August 19, 1997. The hearing was not transcribed and the parties
filed briefs and reply briefs, the last of which were exchanged on November 17, 1997.
On October 11, 1996, the Assistant Chief position became vacant when the
incumbent, Dan Kruse, was selected to be Chief of Police. The parties stipulated that Peter
Doperalski was the most senior qualified applicant for the position. James Kleiman was the
next most senior qualified applicant and Frank Salentine was the next most senior qualified
applicant. The Chief arranged for four police department administrators from neighboring
communities to conduct an oral interview of the three candidates. Salentine
scored highest and the Chief recommended to the Police and Fire Commission that his
selection of Salentine be approved. On January 18, 1997, the Police and Fire Commission
approved Salintine's selection and Officer Doperalski filed the instant grievance which is the
subject of this arbitration.
The parties stipulated to the following:
1.Did the Employer violate the collective bargaining agreement by
not awarding the
Assistant Chief position to the senior qualified applicant?
2.If so, what is the appropriate remedy?
Article II - Recognition
A.Bargaining Unit: The
Employer recognizes the Union as the sole and exclusive
bargaining agent for all regular employees of the Kewaunee City Police Department, but
excluding the Chief of Police, supervisory, managerial, and confidential employees.
. . .
Article V - Seniority
. . .
A.Filling Vacancies: In filling vacancies or in
making promotions other than in a
supervisory capacity, preference shall be given to the employees who are oldest in point of
service, provided such employees can qualify for the position to be filled.
POSITIONS OF THE PARTIES
The Union contends that the Assistant Chief position has been and still is included in
the bargaining unit and under Article V, Section B, the most senior qualified employe must
be given the job. It submits that as Mr. Doperalski is the most senior qualified applicant, he
must be given the job. Contrary to the City, the Union insists the position is not
The Union refers to the job description which sets out the extent to which the
Assistant Chief performs as a supervisor. It notes that the "Summary Description" states that
in the Chief's absence the Assistant Chief assumes the Chief's duties and responsibilities. It
argues that merely substituting for a supervisor does not make a person a supervisor. As to
the shift, the Union notes that when the present Chief was the Assistant, he and the Chief
worked the same shift and the Assistant would act in the Chief's absence. With regard to
hiring, it observes that the Assistant Chief has not participated in hiring and the Police and
Fire Commission perform this task. The Union points out that the Assistant Chief can only
discipline in the Chief's absence and yet in ten years, the Assistant Chief only recommended
the discipline of three casual employes and actually disciplined only one after
with the Chief. It terms this
disciplinary authority de minimis. The Union states
that there are only four officers besides
the Chief and a number of casual employes. It surmises that the Assistant Chief may or may
not work with other officers but it stresses that many times two officers work the same shift
and the most senior officer on duty is in charge and all officers must report any performance
inconsistent with policy. It admits that the Assistant Chief does scheduling but there have
been no layoffs, only one promotion in ten years and few grievances, none received by the
Assistant. It concludes that on this record the Assistant Chief is not supervisory. It argues
that the only supervisor is the Chief.
The Union claims that the selection process was flawed and the selection was based
on test scores rather than on seniority. It asks that the grievance be upheld and the position
offered to Doperalski, and if he does not accept, then to Kleiman and then to Salentine with
the affected employe to be made whole.
The City contends that it did not violate the collective bargaining agreement in not
selecting the most senior qualified applicant. It refers to Article V, Section B, which states
that preference is given to the most senior qualified employe when filling vacancies or
promotions "other than in a supervisor capacity" and insists this language must have some
meaning and it must be given effect. It alleges that this cannot refer to the Chief as the
is appointed by statute and not the contract. It insists that this language must apply to the
Assistant Chief because there is no other supervisory position in the bargaining unit. It
that the language is clear and unambiguous and must be given effect. It notes that the
Chief, who was the Assistant Chief for ten years, understood the position was supervisory.
It claims that as it is supervisory, it need not be filled by strict seniority.
The City maintains the position is supervisory and lists the factors that the Wisconsin
Employment Relations Commission considers to determine supervisory status, as follows:
1.The authority to effectively recommend the hiring, promotion,
transfer, discipline or
discharge of employees;
2.The authority to direct and assign the
3.The number of employees supervised and
the number of other persons exercising
greater, similar or lesser authority over the same employees;
4.The level of pay, including an evaluation
of whether the supervisor is paid for his or her
skills or for his or her supervision of employees;
5.Whether the supervisor is primarily
supervising an activity or is primarily supervising
6.Whether the supervisor is a working
supervisor or whether he or she spends a
substantial majority of his or her time supervising employees; and
7.The amount of independent judgment
exercised in the supervision of employees.
The City observes that not all factors need be present, that the actual duties are more
important than the job description, that the supervised employes may be part-time or casual
and a majority of time can be on non-supervisory duties. The City lists the supervisory
responsibilities of the position based on the Chief's ten years of performing them. It asserts
that the Assistant Chief reports directly to the Chief and need not obtain authorization to
exercise his authority, although only some duties are exercised when the Chief is absent. It
maintains that the Assistant Chief is the only person authorized to exercise these functions
all the witnesses agreed that he was in charge in the absence of the Chief regardless of the
seniority of patrol officers on duty at the time. The City describes its force as the Chief, the
Assistant Chief, four full-time patrol officers and four part-time patrol officers who work
different shifts with the Chief working Monday through Friday and all the rest, a 6 - 3
schedule. The City asserts that the Assistant Police Chief has authority to issue oral and
written reprimands and has done so on four occasions. It admits that some duties of the
Assistant Chief are ministerial in nature but others involve independent decision making and
discretion. It states that the Assistant Chief is paid additional compensation in recognition
of the supervisory duties he performs.
It argues that the Chief of Police is undisputedly a supervisor and not a member of
bargaining unit. It claims that it is just as clear that the Assistant Chief, who has all the
and responsibilities and authority of the Chief, especially in his absence, is also a supervisor.
It insists that merely because no action has been taken to have the position removed from the
bargaining unit does not mean the position is not supervisory. It asserts that if the position
is not supervisory, there is no reason to continue such position with its additional
The City contends that it did not abuse its discretion in selecting a less senior
because this is authorized by the contract. The City argues that the Union is attempting to
redefine the contract and to remove the exception for filling supervisory
positions and limiting it to the Chief of Police. It submits the Union wants to do this by
grievance arbitration and not by collective bargaining.
It concludes that the Assistant Chief is a supervisory position which may be filled at
the City's discretion, so there is no contract violation and it asks that the grievance be denied
with costs to be paid by the Union.
In response to the City's reference of Sec. 62.13(4)(a), Stats., the Union contends
the City in the collective bargaining agreement agreed to select the senior qualified
applicant and this must be given effect. The Union rejects the City's argument that the
posting procedure does not apply to the Assistant Chief because the only promotion under
the contract is to Assistant Chief and there would be no point of having a posting procedure
because there are no other positions into which employes could bid. The Union insists that
Dan Druse was promoted to Assistant Chief by seniority so the City's explanation does fit
The Union disputes the City's argument that the language which mentions
"supervisory" positions does not refer to the Chief because that position is not in the unit and
if the Assistant Chief is also supervisory, it too would be excluded from the unit. It points
that the recognition clause excludes supervisory positions, yet the Assistant Chief has been
in the unit since its inception. The Union asserts that the criteria set forth in Sec.
111.70(1)(o)1, Stats., is not met because the supervisory duties of the Assistant Chief are at
most de minimis. It argues that the dominant role of Assistant
Chief is due to his seniority.
The Union objects to what it describes as a sinister threat by the City to abolish the position
of Assistant Chief, should it be determined that the position is not supervisory. It claims the
City is being vindictive and acting in spite or attempting to persuade the Union to drop its
litigation. The Union maintains that it is stretching the facts beyond credulity to suggest that
four patrol officers need two full-time supervisors. It submits that the senior applicant be
awarded the position.
The City contends that the law, applied to the facts of this case, can
only lead to the
determination that the position of Assistant Chief is supervisory.
The City has referred to Sec. 62.13(4)(a), Stats., which provides that the Chief of
Police will appoint subordinates with the approval of the Police and Fire Commission. In
Glendale Professional Policemen's Association vs. Glendale, 83 Wis.2d 90, 264
N.W.2d 594 (1978), the Wisconsin Supreme Court held that the Chief's authority to
subordinates could be limited by the parties' collective bargaining agreement. There, as here,
the agreement provided that a vacancy shall be filled by the most senior qualified applicant.
Here, it was stipulated that the most senior applicant was qualified, thus the most senior
applicant's appointment would not violate Sec. 62.13(4)(a), Stats.
The City argues that it did not violate the agreement because the position of Assistant
Chief is supervisory. The Recognition clause, Article II, A. excludes supervisory employes
and Article V, B. excludes supervisory positions from the seniority requirement. Generally,
the determination of whether a position is supervisory or not is a
statutory determination made by the Wisconsin Employment Relations Commission in a
clarification proceeding. The undersigned must determine if the position is supervisory to
determine whether the City violated the parties' agreement, so the determination of
supervisory status is contractual and not statutory. The parties are free to have the
Commission make a statutory determination.
The City has listed the factors that the Commission traditionally uses in determining
whether a position meets the statutory definition set forth in Sec. 111.70(1)(o), Stats. It must
be noted that the Assistant Chief has been included in the unit since it was formed and is still
in the unit. It would appear that, as supervisory positions are excluded, the position is not
supervisory. There was no evidence of a change in duties such that the position is now
supervisory. This however is not sufficient to conclude the position is not supervisory and
the undersigned will review the seven factors set out in the City's brief in determining the
In determining the supervisory status of certain employes, the quasi-military
organization of police departments presents unique problems. 1 Generally, officers of higher
rank will have the authority to issue orders to subordinates, regardless of a determination of
supervisory status. The Commission has based its determinations on the authority held and
exercised and have found officers to be supervisors where they have demonstrated a high
of supervisory responsibility. The Commission has found sergeants to be non-supervisory
where they had no role in the hiring decisions or transfer decisions, could not recommend
promotions, conducted evaluations which were only preliminary, and shared many work
features with those whom they oversaw. 2 A
lieutenant who had the authority to call in
replacements, change work schedules, and approve days off, but who performed the same
duties as patrol officers, had no role in grievance adjustments, did not conduct written
evaluations, and was often the only officer on duty was not a supervisor. 3 Another
lieutenant whose disciplinary role was limited to preparing reports of wrongdoing by lower
ranking officers, who made only routine assignments as shift commander and directed
deputies and sergeants at accident scenes was not a supervisor. 4 It even found a chief
deputy in command of a department on a regular basis to be nonsupervisory because he did
not make any notable supervisory decisions. 5
Here, the Assistant Chief does not participate in the hiring process and has never
anyone nor effectively recommended same. There appears to be no transfers and only one
promotion which is the position in issue here. As far as discipline, it appears
that the Assistant Chief in ten years gave one written reprimand to a part-time officer
gave three verbal reprimands.
As far as directing and assigning the work force, it appears that this would occur
the Chief is absent and nothing suggests that these would be other than routine assignments.
The number of employes supervised on a regular basis would be one or more. Occasionally,
in the absence of the Chief, it would be more. The ratio of supervisors to staff favors the
Union. The level of pay is established by the contract
which certainly would not be for supervisory status but may be due to a number of
factors which are traditionally part of the negotiation process including additional
responsibilities in directing patrol officers which is more supervising an activity than
supervising employes in a labor relations sense. The Assistant Chief has prepared the work
schedules for the last ten years. The Assistant Chief works the same schedule as patrol
officers and performs the same work as patrol officers a majority of his time. It would
that the work of the Assistant Chief is like that of a lead worker. The record establishes the
amount of independent judgment exercised in supervising employes is very small. The
Assistant Chief has not yet been assigned to perform any meaningful evaluation of patrol
Not all seven factors need be present for a position to be found supervisory but the
factors must be present in sufficient combination and degree to warrant such a finding. An
evaluation of the evidence in this case fails to establish that the Assistant Chief possesses a
sufficient combination of the seven factors or sufficient meaningful authority to be deemed
supervisory. It is concluded that the Assistant Chief is a lead worker and not a supervisor.
Having concluded that the Assistant Chief position is not supervisory, the City
violated Article V, Section B by its failure to offer the position to the most senior qualified
applicant. The appropriate remedy is to immediately offer the position to the senior
Peter Doperalski, and if he declines it, then to James Klieman, and if he declines it, then to
Frank Salentine. If Doperalski or Klieman take the position, he shall be made whole by
granting him the difference in pay between the Assistant Chief rate and Patrol Officer rate
retroactive to February 1, 1997.
Based on the above and foregoing, the record as a whole and the arguments of the
parties, the undersigned issues the following
The City violated the collective bargaining agreement by not awarding
Chief position to the most senior qualified applicant. The City is directed to
immediately take action in accordance with the discussion set out above to remedy its
violation of the agreement. The undersigned will retain jurisdiction for a period of thirty
days from the date hereof solely for the purpose of resolving any dispute with respect to the
Dated at Madison, Wisconsin this 11th day of December, 1997.
Lionel L. Crowley, Arbitrator
1. City of Madison, Dec. No. 11087-A
2. milwaukee county, dec. No. 74855 (WERC, 10/87).
3. City of Kiel, Dec. No. 11370-A (WERC, 3/85).
4. Portage County, Dec. No. 19798-A (WERC, 2/93).
5. Menominee County, Dec. Nos. 23353 - 23355 (WERC,