BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LABOR ASSOCIATION OF WISCONSIN,
for and on behalf of its affiliate local THE
TELECOMMUNICATORS' ASSOCIATION, LOCAL 507
VILLAGE OF GERMANTOWN, Wisconsin
(A.Hadler grievance dated 5-14-96)
The parties jointly requested that the Wisconsin Employment Relations Commission
designate the undersigned Marshall L. Gratz as arbitrator to hear and decide a dispute
concerning the above-noted grievance, arising under terms of the parties' 1994-95 Agreement
(Agreement) which had expired but remained in effect pending results of negotiations
regarding a successor agreement. The Commission designated the undersigned Marshall L.
Gratz as the Arbitrator.
The grievance was heard by the Arbitrator at the Germantown Police Department
Conference Room on November 16, 1996. The proceedings were not transcribed, however
the parties agreed that the Arbitrator could maintain a cassette tape recording of the evidence
and arguments presented at the hearing for the Arbitrator's exclusive use in award
The parties submitted initial and reply briefs, the last of which was exchanged by the
Arbitrator on February 13, 1997, marking the close of the record. On February 15, 1997,
Arbitrator received a letter in which the Village objected to consideration of portions of the
Association's reply brief.
At the hearing, the parties authorized the Arbitrator to decide the following issues:
1. What shall be the disposition of the
grievance contained in Exhibit 5?
The grievance referred to in the stipulated issue, above, is
described and quoted at
length in the BACKGROUND set forth below.
PORTIONS OF THE
Article III - Management Rights
Section 3.01: - The Village
possesses the right to operate the Police department and all
management rights repose in it. These rights include, but are not limited to, the following:
A. To direct all operations of the Police
B. To establish reasonable work rules and
schedules of work consistent with the terms
of this Agreement.
. . .
F. To maintain efficiency of Police Department operations.
. . .
Section 3.02: These rights shall be exercised
consistently with Chapter 111 of the
Wisconsin Statutes and the express terms of this Agreement. Nothing herein contained shall
divest the Association of any of its rights under Wisconsin Statutes.
. . .
ARTICLE V - GRIEVANCE PROCEDURE
. . .
Section 5.05: The arbitrator shall neither add to,
detract from, nor modify the
language of this Agreement in arriving at a determination of any issue presented that is
for final and binding arbitration. The arbitrator shall have no authority to grant wage
increases or decreases. The arbitrator shall confine himself to the precise issue(s) submitted
for arbitration. The decision of the arbitrator within the limits of his authority shall be final
and binding on the parties.
. . .
ARTICLE VI - SENIORITY CLAUSE
Section 6.01 - Seniority:
Seniority shall be determined by the employe's length of service
as a full-time dispatcher retroactive back to the last date of hire. . . .
. . .
Section 6.03 - Shift Preference: Dispatchers shall be
assigned shifts by seniority
preference. Effective October 1, 1992, and each year thereafter, during the month of
of each calendar year, but not later than the 1st of the month, the Employer shall post shifts
for the forthcoming calendar year. Posting will close on November 1st. The employees
bid for the shifts, and where more employees bid for a shift than there are openings, the
senior employee(s) bidding for the shift shall be awarded their shift selection. Employees
whose initial selection is not approved shall be given an opportunity to bid on the shifts that
remain open until all shifts are filled. Employees shall be advised of the shift assignments as
soon as possible, but not later than November 15th. The shift assignments shall go into
as of January 1st of each year, or as soon as practicable, thereafter.
A. Mutual trading of shifts, whether single
days or weeks, shall be allowed with at
least 48 hours notice so long as such trading does not require the Employer to pay overtime,
and with the approval of the Chief or his designee.
B. Single day shift trades will be
completed within fourteen (14) days of the date of
the initial shift trade.
. . .
ARTICLE XII -- WORK DAY AND
Section 12.01 - Work Day: A
normal work day for all employees shall consist of working
eight (8) consecutive hours on an established shift. All employees shall be entitled to a thirty
(30) minute paid lunch break during the tour of their shift. Employees shall have at least
sixteen (16) hours off between shifts except for the employees on relief shift or if mutually
agreed otherwise between the employee and the Employer.
Section 12.02 - Work Week
Cycle: The normal work week cycle for dispatchers shall be
five (5) days on duty followed by two (2) days off, followed by four (4) days on duty
followed by two (2) days off and then repeating the cycle.
. . .
ARTICLE XIV - OVERTIME
Section 14.01 - Overtime:
Overtime is any time worked by an employee at the direction
of the Village in excess of the normally scheduled work week and work day. Employees
working overtime shall be compensated for such time at the pay rate of time and one-half
based on their normal hourly rate of pay. Overtime will be computed at the next highest
quarter (1/4) hour. Employees who are called in prior to their regularly scheduled shift shall
be allowed to complete their full regular shift unless mutually agreed otherwise.
. . .
ARTICLE XV - STAFFING
Telecommunicator staffing vacancies shall be resolved by the
Communications Supervisor or supervisor on duty, through following these sequential steps:
1. Assign the full-time or the regular
part-time dispatcher normally scheduled during
the hours which require a replacement;
2. Assign the noon - 8 P.M. or 8:00
P.M. - 4:00 A.M. dispatcher next scheduled to
work with a practicable change of reporting time;
3. Assign on a seniority basis the full-time
dispatchers not scheduled to work and if
not available the regular part-time dispatcher;
4. Assign extended hours equally to the
dispatcher on duty and the dispatcher next
scheduled to work. With the concurrence of the supervisor and the individuals involved,
extended hours may be assigned on an other than equal basis.
. . .
ARTICLE XXXIII - AMENDMENTS AND SAVINGS
Section 33.01: This Agreement
may not be amended except by the mutual consent of the
parties in writing.
. . .
ARTICLE XXXIV - CONDITIONS
Section 34.01: This Agreement
constitutes an entire Agreement between the parties and
no verbal statement shall supersede any of its provisions.
. . .
The Village and Association are parties to collective bargaining agreements, including
the Agreement. The Agreement was executed on January 24, 1994 and by its terms covered
calendar years 1994 and 1995. The Agreement's terms remained in effect at all material
in 1996 while negotiations of a successor were pending. The Agreement covers a bargaining
unit consisting of the non-supervisory Telecommunicators (also referred to as dispatchers)
employed by the Village.
The Grievant has been employed by the Village as a Telecommunicator since about
1992. She is also a member of the Association's bargaining team participating in the
negotiations for a successor to the Agreement which were pending and unresolved at the time
of the hearing in this case.
The Village employs seven Telecommunicators, all full time, to cover the Village
Police Department's around-the-clock emergency services dispatch operation.
On November 7, 1995, Grievant and her fellow employes received the results of their
seniority-based shift selection process in memorandum form, specifying which of the shifts
offered by the Village in that process each had selected. Those shifts consisted of three
permanent shifts (one each for day shift, second shift and third shift) and four relief shifts.
The relief shifts were identified on that as: "Relief Shift Day Shift/11:00AM-7:00PM,"
Shift Third Shift.8:00AM-4:00PM," "Relief Shift Based Off 7:00 PM - 3:00 AM" and
Shift Based Off Second Shift." When the employes were originally asked for their shift
preferences, the Village's October 1, 1996 memorandum described the relief shifts without
using the term "based on," as follows: "Relief Shift (11AM-7PM; Day Shift, 2nd Shift),"
"Relief Shift (11AM-7PM & 2d Shift)," "Relief Shift (11AM-7:PM; Day Shift; 3rd
and "Relief Shift (7PM-3AM; 2nd Shift; 3rd Shift)."
For 1996, based on her seniority and shift preferences, Grievant was assigned to the
last of the relief shifts listed above. Grievant had previously selected and worked the
permanent third shift in 1994 and the first shift relief shift in 1995.
The grievance giving rise to this case relates to one of the monthly Telecommunicator
work schedules that is routinely posted by the Village 20-30 days in advance of the first day
of the month it covers.
That grievance, in its amended form as contained in Exhibit 5, was dated May 14,
1996 and signed by the Grievant on May 31, 1996. In it, Grievant alleges that the Village
violated Arts III, VI, VII, XV and "any other appropriate article," and posits the following
Issue, Facts, and Remedy:
The grievant, Jacqi Hadler, alleges that
employer violated the expressed and
implied terms of the collective bargaining agreement by switching her normally scheduled
1. That there is a collective bargaining
agreement in force and effect between the
Village of Germantown and the Germantown Telecommunicators' Association, represented
by the Labor Association of Wisconsin, Inc.
2. That the grievant is a member of the
Germantown Telecommunicators' Association.
3. That on May 14, 1996,
Communications Supervisor, Sue Mourey, posted a staff
Duty Schedule wherein the grievant was scheduled to work the hours of 12:00 midnight to
8:00 a.m. on Sunday June 2, 1996 and Monday June 3, 1996.
4. That the grievant's normal shift is from
7:00 p.m. to 3:00 a.m.
5. That as a result of this change in
reporting time the grievant was required to report
for duty nineteen (19) hours early.
6. That as a result of this unilateral change
in schedule the grievant did not receive two
(2) full days off pursuant to Article XX - Work Day and Work Week.
7. That as a result of this unilateral change
in schedule the grievant did not receive
sixteen (16) hours off between shifts pursuant to Article XII - Work Day and Work
8. That this unilateral change in the
grievant's schedule is an unreasonable exercise of
The grievant respectfully requests that the
employer cease and desist from violating
the expressed and implied terms of the collective bargaining agreement. The grievant further
requests that the employer pay her at the rate of time and one-half for all hours worked
outside of her normally scheduled hours. If this grievance should proceed to arbitration, the
grievant respectfully requests that the arbitrator award the above remedy, as well as any
remedy deemed appropriate by the arbitrator.
That amended grievance was ultimately submitted to arbitration as noted above. At
the arbitration hearing, the Association presented testimony of the Grievant and rested its
in chief. The Village presented testimony by Mourey and Chief of Police Gerald Blum and
rested its case in chief, concluding the evidentiary hearing.
The work schedules in evidence reveal that the Grievant was scheduled to work
4PM-Midnight on May 30, 1996, and scheduled to work next from Midnight-8AM on June
Additional background is set forth in the summaries of the
parties' positions and in the
DISCUSSION which follows.
POSITION OF THE PARTIES
In its initial brief, the Association argues as follows. Pursuant to Sec. 6.03, the
Grievant chose to work a relief shift which commences at 7:00 PM and ends at 3:00 AM
Section 12.02 defines the normal work week as five days on duty followed by two days off,
followed by four days on duty followed by two days off duty, and then repeating the cycle.
As stated in the grievance, the schedule in question included a unilateral change in Grievant's
starting time that required her to come to work nineteen hours earlier than normal thereby
violating her Sec. 12.02 right to have two days off.
Agreement Sec. 5.05 limits the Arbitrator's role to construction of the contractual
language as agreed to by the parties (citing published award) and to the issue submitted by
the parties regarding whether the Village violated the Agreement. The Arbitrator's role is
to determine whether the Village made a good bargain when it agreed to the terms of the
Agreement or would experience unanticipated costs and difficulties in staffing if a violation
is found in this case.
The Association filed the instant grievance to protect its existing contractual rights,
not to gain a new benefit. The language in Sec. 12.02 is clear and unequivocal, so the
Association should not be forced to bargain again for a benefit already provided by the
The Village's efforts to supersede that clear contract language based on past practice
have failed. The evidence shows that the Association is unaware of any such practice and
no such practice exists. The Village's evidence relates to a period of less than three years,
which the parties negotiated only one interim Agreement, involving only one parallel and
ungrieved incident, and in surrounding circumstances in which the Village unilaterally
eliminated part-time employes some time in late 1993 and then assigned four of the seven
bargaining unit members to a relief shift.
The alleged practice also lacks the necessary element of mutuality of understanding
by the parties as to the meaning and application of Sec. 12.02. The Arbitrator should
disregard Mourey's testimony that she asked the two first shift
Telecommunicators how the scheduling had been done in the past and created schedules
including the one at issue here consistent with their description of past scheduling. Section
33.01 precludes amendments of the Agreement by other than the exclusive bargaining
representative, and Sec. 34.01 precludes verbal agreements from superseding the terms of the
Agreement. If the Village is allowed to solicit binding Agreement interpretations from
individual members, the collective bargaining process will be damaged beyond repair.
No grievance was filed regarding the Village's having similarly changed Grievant's
schedule for May 26, 1996, but this was due to Grievant's attempt to find a replacement on
her own rather than to the Association accepting the propriety of the Village's actions. In
event, if the Grievant mutually agreed to the change in starting time, the Village would have
been able to cause the employe to start 19 hours early
without violating the Agreement.
However, the record establishes that Grievant did not agree to the instant 19 hour deviation
from her normal schedule of two off days. The Village's actions in this case reflect a
assumption that Telecommunicators who are assigned to a relief shift have waived their Sec.
12.02 rights to work a 5-2, 4-2 work week and can be ordered to work a 5-1, 4-1 work
While no grievance was filed when Grievant was previously scheduled to start 3
early at 4:00 PM [on May 30, 1996], the inconvenience involved is significantly different
less than that involved in the 19 hours early change at issue in this case. While depriving an
employee of three hours off between shifts may be viewed as reasonable under certain
circumstances, the same cannot be said for ordering an employe to report 19 hours early on
one of her off days.
The work schedules in evidence show "that each employe within the bargaining unit
is normally scheduled to work a 5-2, 4-2 schedule. This amounts to a total of 64 hours off
between the last working day of the work week and the first working day of the following
work week." (Union brief at 13) The Village is attempting to reduce Grievant's amount of
time off between work weeks by 19 hours.
The Agreement language shows that sort of latitude was clearly not mutually intended
by the parties. Article XII is divided into two sections to guarantee all unit members a full
complement of off days, even though only non-relief shift employes are protected against
involuntary deprivation of at least 16 hours off between shifts. Clearly the parties
contemplated the probability that a relief shift employe may have less than 16 hours between
shifts due to staffing needs, but there was never any intent to reduce or shorten a relief shift
employe's off days. Thus, unlike Sec. 12.01, there is no exception allowing the Village to
cancel an employe's off day and require the employe to report 19 hours early.
The Village also violated the Agreement by exercising its Art. III right to establish
schedules of work in an unreasonable manner. It is not reasonable for the Village to call in
an employe 19 hours early and then claim she has received her full
allotment of time off. Common sense dictates that if the "work day" consists of eight
consecutive hours and the department has three eight hour shifts on which relief shifts are to
be "based," a day off would then be made up of three work shifts, i.e., 24 consecutive
Furthermore, Black's Law Dictionary (5 ed, 357) defines a "day" as "a period
consisting of twenty-four hours and including the solar day and the night. . . [and as] That
period of time, within the limits of a natural day, set apart either by law or by common
for the transaction of business or the performance of labor; as in banking, in laws regulating
the hours of labor, in contracts for so many 'days work,' and the
like. . . ." It is not reasonable
that a full "day off" under the Agreement can be three hours less than a "work day" as
defined by the same Agreement. Indeed Mourey testified that she did not take into
consideration the number of hours an employe had off but rather the days she was off. In
view, five hours makes up one day for purposes of Art. XII. On the contrary, Grievant
should have had sixty-four hours off as was the longstanding practice, not the lesser number
of hours off that she was in fact scheduled off. Furthermore, the Village did not submit any
proof to support its claim that if the Association prevails in this case the Village would
encounter financial hardships so severe and catastrophic that they would be forced to deny
vacation and compensatory time off for the bargaining unit's membership.
The Art. XV Staffing Procedure was put into the Agreement to cover the very type
of situation involved in this case. The Village has just found it easier to cut short the off
of the Grievant rather than follow the procedure in Art. XV and pay overtime.
In its reply brief, the Association argues as follows. The Association is neither
to preclude relief shift Telecommunicators from coming in early if the change in schedule
occurs during the middle of their 5- and 4-day on-duty periods nor to preclude the Village
from scheduling relief shift employes on "bad bump shifts." The Association seeks only to
prevent the Village from cutting a Telecommunicator's off days short without mutual
Section 14.04 expressly provides the Village with the right to schedule training so as
to avoid the payment of overtime, but that the Village must do so in a way that does not
result in the loss of off days. That language further supports the Association's contention
off days were meant to be guaranteed and that the Association did not intend to allow the
Village the right to cut them short as the Village did in this case.
Only 4 of the Village's 20 examples are relevant to the case at hand, because only 4
of those examples involve the Village scheduling an employe to come in 19 hours early. The
other 16 examples relate either to situations in which: the employe's off days were not
shortened by the posted schedule; the employe was paid the overtime premium for working
outside their normal schedule; the employe was working an irregular schedule altogether
rather than the normal 5-2, 4-2 schedule; and/or the employe worked the hours in question
as a result of a trade pursuant to Sec. 13.01.
With regard to the remaining four instances, September 17, 1994 involved Schweitzer
at a time when she was a probationary employe such that she may have been uncomfortable
in filing a grievance. Schweitzer may also have mutually agreed to this change in her
schedule. In any event, the Village should have called her as a witness on that subject if it
intended to rely on this date as relevant to the instant grievance. On January 18, 1995, it is
likely that Welch was willing to agree to the change in her schedule to accommodate a fellow
employe who was absent due to a death in her family; inasmuch as Welch, herself, had taken
time off due to a death in her family earlier in the same week. While Welch came in 19
early on February 26, 1995, we have no evidence or testimony explaining if she was ordered
in or volunteered to work. Regarding May 26, 1995, Grievant testified that she did not see
the changed schedule until after the deadline for filing a grievance had passed, not that she
not see Schweitzer during that time.
The Village's examples, as a whole, show only that the Village has been allowed to
change relief shift hours in the middle of the on duty portions of the work cycle consistent
with the language of the Agreement. The Village's evidence does not show an established
practice sufficient to bind the Association to an understanding that the Village has the right
to require an objecting employe to come in to work 19 hours earlier than normal.
The Yaeger award attached to the City's brief should not be considered by the
Arbitrator because it was not introduced at the hearing. If the Arbitrator decides to consider
Yaeger's decision, then the Arbitrator should also consider the copies of the grievance and
parties' briefs in that case that the Association has attached to its reply brief. In any event,
Yaeger award is not on point with the instant case. Arbitrator Yaeger did not agree with the
Village's claim that staffing problems covered by Sec. 5.07 of the police agreement are
defined as last minute occurrences, but only that that section was not intended to cover
overtime created by special assignments of the sort involved in that case, which are hardly
parallel to the coverage of vacancies arising due to employes taking paid time off.
The instant grievance was not filed because of Grievant's selfishness or the
Association's inability to achieve set schedules for all employes at the bargaining table.
Grievances do not lack merit simply because they are filed during the pendency of contract
negotiations. Had Ms. Mourey contacted LAW, Inc., rather than the bargaining unit
employes working on first shift she would have been told that an employe's off days cannot
be cut short by 19 hours. The Association is pursuing this grievance, not just the Grievant.
For those reasons, the Arbitrator should grant the grievance and the relief requested
The Village changed Grievant's hours consistent with the parties' established past
practice. The Grievant, having benefited from that scheduling system in the past, and
having failed to get it changed in collective bargaining, now seeks to change through
grievance arbitration the parts of it that she does not like.
The times at which relief shift employes are scheduled to work -- as opposed to the
scheduling of permanent shift employes -- have always been subject to variation depending
on various circumstances which may arise. When Grievant selected her current relief shift,
she knowingly accepted the associated potential inconvenience of such changes.
The Village attempts to grant employe requests for vacation time and compensatory
time off if there is adequate notice to the department to change the schedule of a relief shift
dispatcher. Where there is an option, efforts are made by the department to use the relief
employe whose schedule change will be least disruptive. The number of changes in the
schedules of the relief shift employes is directly related to the needs and desires of other
bargaining unit employes for more time off and maximum flexibility in its use.
When Susan Mourey took over responsibility for the schedule, she asked the
dispatchers on duty on the first shift how to do the schedule and has developed schedules
accordingly ever since, including her scheduling of the Grievant in the instant case.
A review of the schedules from the beginning of 1994 shows: (a) that throughout
1994 and 1995, Grievant frequently was granted time off which resulted in a change in the
schedule of a relief shift Telecommunicator. (b) Several examples where Grievant's own
requests for time off led to an individual normally scheduled to work the 7:00 PM-3:00 AM
shift to work midnights, starting 19 hours prior to their usual start time. (c) Several
examples in which the 7:00 PM-3:00 AM relief shift employe was required to come in to
work at midnight on the first day back from her two off days. (d) And notably an instance
where Grievant, herself, experienced the same kind of change that she has grieved in this
but filed no grievance. Grievant offered no satisfactory explanation for not grieving that
change. The schedule posted on April 12, 1996 itself contradicts her testimony that she did
not see Telecommunicator Schweitzer until after the deadline for filing a grievance had
The Village submits that a grievance was filed regarding the instant case but not the
one a few days earlier because it became clear in the interim that the Association's
representatives, including Grievant, were not able to obtain at the bargaining table the change
in existing practice that they are seeking through this grievance. In that regard, the
Association initially proposed permanent shifts for all employes and subsequently offered
language that would limit the Village's flexibility in the use of relief shift employes.
The work schedules are posted every month for all to see. Grievant has worked as
both a permanent third shift employe and as a relief shift employe, so she has seen the
schedule every month as it affected herself and the other employes.
The Union has not pointed to any clear and unambiguous contract language to support
their effort to undo the parties' consistent and longstanding practice reflected in those
Section 3.01.B. expressly reserves to the Village the right to establish "schedules of
work consistent with the terms of this Agreement." The word "reasonable" in that section
applies only to the Village's right to establish "work rules." In any event, the change made
in Grievant's schedule was a reasonable exercise of the Village's scheduling right because it
is no different than other changes the Village has made in employes' schedules over time
without grievances being filed. The change is also reasonable because: scheduling seven full
time dispatchers to provide around-the-clock coverage becomes increasingly complicated as
bargaining unit employes want both more time off and maximum flexibility when using it;
Village has attempted to grant employe requests for vacation and compensatory time off if
there is adequate notice to the department to change the schedule of a relief shift employe;
such schedule changes are not done for the convenience of the department, but only to
accommodate other employes' time off requests; and avoidance of schedule changes of the
kind involved in this case would be unreasonable in that it would force the Village either to
be less accommodating to employe time off requests or to experience substantial
unanticipated costs to bring in another employe on overtime.
Article VI merely establishes the method for assignment of employes to the various
shifts established by the Village. It does not limit the Village's right to establish or vary
employes' schedules of work. Indeed, the Grievant selected and was notified of her
assignment to the "relief shift based off 7:00 o'clock PM - 3:00 o'clock AM" pursuant to
The contention in the grievance that Grievant was entitled to 16 hours off between
shifts is squarely contradicted by the express exclusion of relief shift employes from the 16
hour provision in Sec. 12.01.
Section 12.02 merely describes the normal work cycle for dispatchers as 5-2, 4-2.
That section must have been intended to mean something other than that employes would be
relieved from performing duties during a dictionary-defined two days consisting of 48
consecutive hours, midnight to midnight to midnight, because: the schedules in evidence for
1994-96 show numerous instances where relief shift employes' work schedules were modified
in ways that did not provide them with two days off defined that way; employes are not
charged two vacation days when their shift includes parts of two calendar days; and Grievant
worked only 5 hours on calendar 6-16-96 and 11 hours between midnight and midnight on
the 17th but was neither paid nor eligible for overtime pay for work in excess of eight
" on the 17th" Rather, the language of Sec. 12.02.B., when
interpreted in the context of the parties' clear and unequivocal past practice, reflects
parties simply agreed, for example, to treat the 7:00 PM to 3:00 AM shift as worked on the
"day" on which that shift began. The parties have used the term "day" to mean a payroll
a day on the schedule, and not as a midnight to midnight 24 hour day as defined in the
dictionary. Reading Sec. 12.02.B. in the context of the parties' practice,
Grievant in this case received her two days off. The Arbitrator should adopt that
interpretation, which is consistent with common sense and practice, despite the fact that it
does not comport with a strict dictionary definition of the term.
The Union's reliance on the Article XV procedure for staffing vacancies is also
misplaced. Under the Union's interpretation, every vacation request would cause overtime,
and the Village could never change relief shift employes from a permanent set of regularly
scheduled hours without their permission. Why would there be a relief shift? Why would
there be an exemption of relief shift employes from the Sec. 12.01
16-hours-off-between-shifts requirement? And why would there be evidence of past practice
whereby relief shift
employes have often worked other than the hours their shift is based on without overtime
compensation being paid them? The record establishes that the vacancy staffing procedure
has not historically been utilized to cover vacation or compensatory time off requests, but
only for last minute vacancies, such as sick leave. The Chief testified that that has been true
for both the Telecommunicators unit and the sworn officer unit for several years. Arbitrator
Yaeger's award in the police unit is attached to the Village's brief for reference in that
along with Arbitrator Greco's City of Waupun (Utility) award holding that where, as here,
the same parties negotiate materially the same agreement language in two units of the same
employer's employes, the past practices developed under one are relevant to the
of the agreement in the other. Finally, the language of Art. XV itself contemplates last
call-in situations, rather than a procedure applicable to all requests for time off, in that: the
department would always be able to assign the individuals listed in Sec. 15.01(1), rendering
the other provisions meaningless; and Sec. 15.01(4) refers to the "dispatcher on duty," rather
than including any reference to the dispatcher who "will be" on duty in connection with an
advance notice absence.
In its reply brief, the Village objects to reliance on facts not in evidence relating to
asserted Village unilateral elimination of a part-time employe in 1993 and scheduling of four
of seven employees as relief shift employees. The Village provided evidence amply
the longstanding nature of the parties' scheduling practice. The fact that the parties
negotiated a contract without changing the language governing scheduling supports the
Village's case, not the Union's. The past practice evidence shows seven instances when a
person on a 7:00 PM-3:00 AM relief shift was scheduled to work at midnight, 19 hours
before the start of their shift, on the first day back from their off-days, and that there were
another five times when the 7:00 PM-3:00 AM relief shift employe was directed to come in
to work at midnight on days other than those immediately following their off-day group.
is sufficient frequency to establish a practice. The Union's claim that the past practice
evidence lacks the mutuality of understanding element must be rejected in light of the facts
that: the Association admits it negotiated
the Agreement after four relief shift employes were in place and being used regularly;
Mourey learned how to schedule from the bargaining unit employes themselves; the
department posts the monthly schedule for all to see -- including Grievant, the Association
president, and all other Association officers -- enabling them to observe all of the various
historical instances noted above. Yet, no grievances or objections were ever filed, and
Grievant herself experienced a change a few days earlier similar to the one she grieved in
case and has not offered a valid excuse for not grieving that prior instance.
The parties have agreed to treat an individual working from 7:00 PM-3:00 PM as if
that person worked their entire shift on the day on which that shift began. Arbitrators (citing
published awards) often use an interpretation consistent with common sense and practice even
if it does not comport with a strict dictionary definition of a contract term. The practice
evidence indicates that on numerous occasions employes' off days consisted of less than 64
and in some cases less than 48 hours off because of a change necessitated by a day off
by a fellow bargaining unit employe; that the parties have used the term "day" in the
Agreement to mean a payroll day, i.e., a day on the schedule when the employe begins a
of work. Viewing the Agreement that way, Grievant in this case received her two days off.
For those reasons, the grievance should be denied.
Status of Evidence Not Presented at November 19, 1996
Both parties have objected to consideration by the Arbitrator of facts and documents
referenced in or attached to their counterpart's post-hearing arguments, which were not
introduced into evidence during the November 19, 1996 hearing in this matter.
Both parties' contentions in this regard have merit. The Arbitrator finds it
and necessary to limit the evidence he takes into consideration in this case to
that which was
received into the record at the November 19, 1996 hearing. Accordingly, facts asserted and
documents submitted that are not supported by the evidence adduced on November 19 will
be disregarded. (In that regard, for example, the Arbitrator has found and therefore given
consideration in this case to testimony by the Grievant regarding the Village's unilateral
actions in late 1993 referred to in the Association' post-hearing arguments.)
The Yaeger and Greco grievance arbitration awards attached to the Village's brief
be given only the sort of consideration that the Arbitrator will be giving to the various
published awards cited by both of the parties in their post-hearing arguments. Neither the
Yaeger nor the Greco awards will be treated as evidence in this case. Grievance awards on
which a party relies as evidence need to be submitted along with the balance of the evidence
submitted during the evidentiary hearing to avoid a denial of a fair hearing to the other party.
Claimed Violation of Sec. 12.02
The Association claims that by requiring Grievant, over her objection, to start work
19 hours earlier than her normal 7:00 PM start on Sunday, June 2, 1996, the Village
her of the "two days off" that Sec. 12.02 specifies will be part of all bargaining unit
"normal work week cycle."
In Sec. 3.01.B., the parties recognize that the Village possesses the right, among
others, "to establish reasonable work rules and schedules of work consistent with the terms
of this Agreement." The Arbitrator finds that language makes the Village's right to establish
both "work rules" and "schedules of work" subject to the limitations both that they be
"reasonable" and that they be "consistent with the terms of this Agreement." If the parties
intended to parse the modifiers as the Village asserts, they would have put those rights into
separate sections or used punctuation and/or syntax reflecting such a separation.
In Section 12.01, the parties define the "normal work day for all employes" as eight
consecutive hours "on an established shift." In the same section, they implicitly recognize
a "relief shift" can be an "established shift" by their express reference to "employes on relief
shift." They then differentiate relief shifts from non-relief shifts regarding scheduling by
providing in Sec. 12.01 only with regard to non-relief shift employes that such
have at least sixteen (16) hours between shifts."
In Section 12.02, the parties define the "normal work week cycle" for all employes
without excepting relief shift employes. The normal work week cycle is defined as "five (5)
days on duty followed by two (2) days off, followed by four (4) days on duty followed by
(2) days off and then repeating the cycle."
In Section 14.01 the parties define overtime as any time worked by an employe at the
direction of the Village "in excess of the normally scheduled work week or work day," and
they provide that overtime shall be compensated at a time and one-half premium rate.
Elsewhere in the overtime article, the parties authorize the Village "to schedule training so
as to avoid the payment of overtime," but they require that "[s]uch scheduling shall be done
with prior notice to the affected employe and shall not result in the loss of off days."
The parties have also agreed, in Art. XV, on a series of sequential steps to be
by the Communications Supervisor or supervisor on duty for filling "Telecommunicator
Read together and in harmony with the balance of the Agreement, the provisions
above make it clear that the Village's right to establish work schedules for relief shift
employes is subject to various limitations. Among those are a requirement that the employes
have a 5-2, 4-2 "normal work week cycle" including "two days off" following each 5-day
4-day on-duty portion of the cycle. Because the parties have specified the
normal work week cycle, a schedule that provides the employe with a normal work
cycle consistent with the requirements of Sec. 12.02 must be considered, per se,
within the meaning of Sec. 3.01.B.
It is also clear from Sec. 12.01 that the Village is authorized in at least some
to establish a relief employe's schedule in such a way that the employe has less than 16 hours
between shifts. It follows that the parties recognize and agree that the Village has the right
to vary relief employe work schedules--at least between on-duty days--in such a way as to
cover employe time off requests that the Village has received prior to its preparation of the
posted schedule. Thus, the Art. XV process necessarily applies only to staffing vacancies
the Village is otherwise precluded by the Agreement from covering (or that the Village
chooses not to cover) by exercise of the rights accorded it in the Agreement to establish
The above provisions also leave some questions unanswered. For example, of
precisely what must the "two days off" consist to conform to the requirements of
and 14.04? Is it freedom from work for a period that includes two consecutive periods from
midnight to midnight? Or is it freedom from work for the period of 64 hours characteristic
of the off days on a non-relief schedule? Or is it freedom from work for a period of 48
following the employe's scheduled quitting time? Or is it freedom from being scheduled to
start a shift on two consecutive calendar/schedule days?
Common sense and common parlance, taken together, suggest to the Arbitrator that
"two days off" means freedom from work for a period of 48 hours, because there are 24
in a day, and an employe is not ordinarily viewed as "off" for a period of time if required to
work during any portion of that time.
The Village disagrees. It argues that the parties have defined "day" differently
elsewhere in the Agreement because an employe who is scheduled to work a 7PM-3AM shift
followed immediately by a 4PM-midnight shift would not be paid overtime even though the
employe worked in excess of eight hours between midnight and midnight. The Association's
position also disagrees with the above interpretation. The Association asserts that the parties
have defined "day" differently elsewhere in the Agreement because the normal work week
cycle of 5-2, 4-2 coupled with the normal work day of eight hours work produces two
periods of 64 hours off in each cycle.
Neither of those contentions is persuasive. The overtime language in the Agreement
is not based on the concept of the number of hours worked within a "day" or within any
set measuring period of time. Rather, it is based on the number of hours worked
the normally scheduled work week or work day, i.e., outside of the hours the employe is
scheduled to work by the Village consistent with the terms of the Agreement. The parties'
overtime language therefore does not define a "day" one way or the other. The Village's
contention that two days off can mean 45 hours off--as was the case for Grievant on May
23-26, 1996--is significantly at odds with the conventional meanings of the term day as a 24
period and of "off" duty as meaning not at work during any portion of the "off" duty period.
The Association's contention that a normal work day of eight consecutive hours in a
5-2, 4-2 normal work week cycle produces (and hence mandates) a period of 64 hours off
twice in the cycle begs the question at issue in this case. The Agreement clearly affords the
Village both the right to establish relief shifts and the right to schedule employes on relief
shifts with less time between shifts than it could in scheduling an employe on a non-relief
The question remains to what extent does the "two days off" specification in Sec. 12.02 limit
the Village in its scheduling of employes on relief shifts. The Association's contention "two
days off" means 64 hours off is significantly at odds with the conventional meaning of the
term "day" as a 24 hour period.
The Arbitrator therefore concludes, based on the language of the Agreement, that
"two days off" in Sec. 12.02 means freedom from work for a period of 48 hours from the
preceding scheduled quitting time -- not 64 hours and not less than 48.
The record evidence relating to matters outside the four corners of the Agreement
does not persuade the Arbitrator to conclude otherwise.
The posted work schedules for 1994, 1995 and 1996 show that relief shift employes
were ordinarily accorded a 64 hours off twice during their scheduled work week cycle, but
that on a few occasions they were scheduled such that their "two off days" consisted of less
than 64 hours. While such instances were very much the exception, rather than the rule,
nonetheless occurred and were not met with a grievance or other form of objection by the
affected employe or anyone else.
The Association's contention, that those exceptions should be disregarded absent
affirmative proof of the reason why the employe did not grieve, is not persuasive. Unlike
both the Sec. 12.01 language regarding administration of the 16-hours between shifts
requirement for non-relief employes and the Sec. 14.01 language regarding completion of a
full shift, Sec. 12.02 does not expressly authorize deviations from its terms by mutual
agreement between the employee and the Employer. It is therefore by no means clear that
a schedule providing less off time than is mandated by Sec. 12.02 would be rendered
consistent with the requirements of that section just because an individual agreement to that
schedule has been reached between the employe and the employer. For that reason, and
perhaps others, it was not incumbent on the Village to call the employes and former
involved to inquire why they did not grieve or otherwise object to the schedules involved.
The Village's contention that the work schedule evidence requires the conclusion that
the Agreement permits the Village to schedule relief employes so that their "two days off"
could consist of less than 48 hours (e.g., 45 hours in Grievant's schedule for
1996) is also unpersuasive. The number of instances in which the Village shortened the
employes' off days below 48 is quite limited. More importantly, the language of the
Agreement itself provides that the employes are to be scheduled with "two days off," and the
Arbitrator finds that a period of less than 48 hours must be rejected as inconsistent with that
The evidence concerning parallel Association efforts to resolve its concerns through
the bargaining process do not persuade the Arbitrator that the parties intended "two days off"
in the Agreement to means something other than 48 hours off. The Grievant and Association
had every right to test the extent of their rights to time off under the existing language of the
Agreement while simultaneously seeking to resolve their concerns through the bargaining
Therefore, the Grievant's schedule at issue would violate the "two days off"
requirement of Sec. 12.02 if and to the extent that it failed to provide her with at least 48
hours off duty after her last scheduled quitting time preceding the time she was scheduled to
start work on June 2, 1996.
According to the work schedule in evidence, Hadler was scheduled from
4PM-Midnight on May 30, 1996, and she was next scheduled to work at the very beginning
Midnight on) June 2, 1996. In the particular circumstances referred to in the instant
grievance, therefore, she was accorded 48 hours off, and no violation of Sec. 12.02
Claimed Unreasonable Exercise of Management's
There remains the Association's contentions to the effect that the Grievant's schedule
was unreasonable and hence an action in excess of the rights reserved to the Village in Sec.
3.01 generally and Sec. 3.01.B., in particular.
As noted above, it is the Arbitrator's opinion that because the parties have specified
the normal work week cycle, a schedule that provides the employe with a normal work week
cycle consistent with the requirements of Sec. 12.02, as interpreted above, must be
considered, per se, reasonable within the meaning of Sec. 3.01.B.
To the extent that a schedule does not provide the relief employe with a normal work
week cycle consistent with the requirements of Sec. 12.02, as interpreted above, that
would be, per se, not reasonable within the meaning of Sec. 3.01.B. The
schedule at issue
in the incident described in Exhibit 5 accorded Grievant 48 hours off, so it did not violate
3.01.B. or any other provision of the Agreement.
DECISION AND AWARD
For the foregoing reasons and based on the record as a whole, it is the decision and
award of the Arbitrator on the ISSUES noted above that
The disposition of the grievance contained in Exhibit 5 shall
a. Section 12.02 of the Agreement requires the Village to
schedule relief shift
employes in such a way that their "two days off" consist of at least 48 hours off duty. The
Village's failure to do so would violate both Secs. 12.02 and 3.01.B.
b. The Village scheduled Grievant to work
4:00 PM-Midnight on May 30, 1996, and
Midnight-8:00 AM on June 2, 1996. The Village thereby provided Grievant "two days off"
consisting of 48 hours, and therefore did not violate Sec. 12.02, Sec. 3.01.B, or any other
provision of the Agreement.
c. Accordingly, the grievance contained in
Exhibit 5 is denied.
Dated at Shorewood, Wisconsin this 15th day of December,
Marshall L. Gratz, Arbitrator