BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF CEDARBURG
CEDARBURG POLICE OFFICER'S
LOCAL 223, THE LABOR ASSOCIATION OF
Mr. Kevin W. Naylor, Labor Consultant, Labor Association of
Wisconsin, Inc., 2825 North Mayfair
Road, Wauwatosa, Wisconsin 53222, appearing on behalf of the Cedarburg Police Officer's
Ms. Kaye K. Vance, City Attorney, City of Cedarburg, Cook
& Franke, S.C., 660 East Mason
Street, Milwaukee, Wisconsin 53202-3877, appearing on behalf of the City of Cedarburg.
City of Cedarburg, hereinafter referred to as the City, and Cedarburg Police Officer's
Association, Local 223, the Labor Association of Wisconsin, Inc., hereinafter referred to as
Union, are parties to a collective bargaining agreement which provides for final and binding
arbitration of grievances. Pursuant to a request for arbitration the Wisconsin Employment
Commission appointed Edmond J. Bielarczyk, Jr., to arbitrate a dispute over the overtime
pay of an
employe. Hearing on the matter was held in Cedarburg, Wisconsin on July 1, 1997.
arguments and reply briefs were received by the undersigned by August 11, 1997. Full
has been given to the evidence, testimony and arguments presented in rendering this Award.
During the course of the hearing the parties agreed upon the following issue:
"Did the employer violate the collective bargaining
agreement by denying Officer Biliskov's
December 16, 1996 overtime request?"
"If so, what is the appropriate remedy?"
5.01 - Workweek
Defined. The standard workweek for all employees shall continue
as follows: Forty (40) hours per week on the basis of eight (8) hours per day. The
then consist of five (5) days worked in succession followed by two (2) days off in
four (4) days worked in succession followed by two (2) days off in succession.
5.02 - Compensatory Time Off and
Overtime. All hours worked in excess of eight
and one-quarter (8 1/4) hours on a regular workday and all hours worked on an off day,
court time and training shall be compensated in pay or compensatory time off on a time and
basis. Employees called in for duty outside of their scheduled workweek shall be credited
least two (2) hours each time they are called in for duty, regardless of the time worked. The
maximum accumulation of compensatory time off for any employee at any time shall be forty
hours, except that the Police Chief or designee may exercise discretion to allow an
excess of forty (40) hours. Such requests shall be in writing and the Police Chief or
have the right to deny any request for compensatory time off, however, in no instance may
employee be allowed to take compensatory time off on a day which does not leave at least
employees on the schedule. Employees shall be allowed to carry over up to twenty-four (24)
of compensatory time left on the books at the end of the year provided that any time carried
only be taken as off-time and cannot be cashed out.
. . .
5.04 - Work
Schedules. The Police Chief or his designee shall continue to establish
regular work schedules; provided, however, no employee shall be required to change his
having a twenty-four (24) hour notice of the change. Any changes that occur with less than
twenty-four (24) hour notice shall result in the employee being paid an additional one-half
(1/2) hour for each
hour worked outside of his normally assigned shift, unless the change is necessitated by
. . .
Among its various government operations the City operates a Police Department
employs Patrolman Joseph Biliskov, hereinafter referred to as the grievant. At the
of the hearing in the above-referenced matter the parties agreed upon the following
1. There is a Collective Bargaining
Agreement in full force and effect between
the City of Cedarburg and the Cedarburg Police Officer's Association, Local 223 of the
Association of Wisconsin, Inc. at all times material to this dispute.
2. That the Grievant, Patrolman Joseph
Biliskov is a member of the Association
and is covered by the Collective Bargaining Agreement.
3. That Police Officers holding the rank of
Sergeant are included in the bargaining
unit and are covered by the Collective Bargaining Agreement.
4. That on December 16, 1996, Officer
Biliskov was assigned to work his
regularly scheduled 11:00 p.m. to 7:00 a.m. shift.
5. That Patrol Officers Richard J. Leach and
Scott A. Miller were also scheduled
to work the 11:00 p.m. to 7:00 a.m. shift on December 16, 1996.
6. That Patrol Officers Timothy A. Buege,
Joseph B. Kell and Sergeant Glen
Lindberg were originally scheduled to work the 3:00 p.m. to 11:00 p.m. shift on
December 16, 1996.
7. That Sergeant Glen Lindberg called in sick
at 11:47 a.m. on December 16
8. That after Sergeant Lindberg called in sick
the Dispatcher asked Sergeant Paul
Jacobs to look over the schedule for December 16, 1996.
9. That at approximately 1:00 p.m. on
December 16, 1996, Sergeant Jacobs
called Patrolman Biliskov and notified him that his regularly scheduled 11:00 p.m. to 7:00
on December 16 was being changed to begin at 7:00 p.m. and end at 3:00 a.m.
Lindberg called in sick.
10. That schedule changes must be approved
by Chief Rees or his designee.
11. Sergeant Paul Jacobs is a member of the
Association and is covered by the
Collective Bargaining Agreement.
12. That Sergeants have the authority to make
schedule changes and have done
so in the past.
13. That on December 16, 1996, Chief Rees
returned after lunch and sometime
thereafter notified Sergeant Jacobs that there was no need for Patrolman Biliskov to change
14. That at approximately 3:00 p.m. Sergeant
Jacobs called Patrolman Biliskov
and told him he did not have to report to work at 7:00 p.m. and could report to his usual
15. That Patolman Biliskov worked his regular
11:00 p.m. to 7:00 a.m. shift on
December 16, 1996.
16. That on December 16 no third shift officer
called in sick.
17. That on December 17, 1996, Patrolman
Biliskov submitted an overtime report
requesting two hours of overtime pay.
18. That this request was subsequently denied
and the present grievance was filed
as a result.
19. That at approximately 4:22 p.m. on
October 29, 1991, Patrolman Richard
Leach was called in to change from an 11:00 p.m. to 7:00 a.m. shift.
20. That Patrolman Leach was later called and
notified that he would be put back
on his normal shift, 11:00 p.m. to 7:00 a.m.
21. That on October 30, 1991 Patrolman
Leach submitted an overtime request for
two hours of overtime pay.
22. That Patrolman Leach's request for
overtime was originally denied by Sergeant
23. That Lieutenant Caldwell reversed
Sergeant Stroik's denial and approved
Patrolman Leach's overtime request.
24. That the present grievance was filed and
processed through the grievance
procedure in a timely manner, and that neither party is raising the question of arbitrability.
Dated this 1 day of June, 1997.
CEDARBURG POLICE OFFICER'S
ASSOCIATION, LOCAL 223
Kevin Naylor, Labor
CITY OF CEDARBURG
Kaye K. Vance, City
The record also demonstrates that in 1991 when Patrolman Leach's shift was
changed it was due to a vacation request by another employe.
The Union contends the City is required to pay the grievant overtime in a manner
consistent with the language of Article V, Hours of Work, and the Leach grievance which
in 1991. The Union argues the City is attempting to gain through arbitration what it should
the bargaining table. The Union also asserts the City's claim that the Leach matter was not a
grievance is not supported by the facts and that the City's payment to Leach of overtime was
mistake but compliance with the clear meaning of Article V.
The Union contends the undersigned must not allow either the Union or the City to
circumvent clear-cut language. If there is more than one interpretation the Union stresses the
arbitrator should than apply the language that fulfills the intent of the parties who negotiated
language in question. When interpreting the language, arbitrators routinely consider the
history, intended purpose and any previous grievance settlements. The Union asserts the
of Article V speaks for itself. The Union argues the intent of the parties was to reduce the
schedule changes that occurred prior to the 1990-91 collective bargaining agreement. The
contends that management retains the right to change an employe's shift provided the
receives a twenty-four (24) hour notice. The Union asserts the intended
purpose of the language was to limit the City's ability to change an employe's shift
ample notice or extra compensation. The Union also asserts that to give the City the right to
reschedule an employe's shift time and again with little or no notice so long as the employe
originally scheduled hours leads to an absurd result and flies in the face of the intent of the
The Union also asserts that the issue before the undersigned was voluntarily resolved
parties when they resolved the Leach grievance in 1991. The Union argues who better than
parties themselves to determine the intent and purpose of the language in question. The
contends the Leach grievance is identical to the instant matter. The Union argues the fact the
grievance was resolved just four (4) months after the parties reached agreement on the
language supports its position. The Union points out that Leach received compensation
fact he did not work outside his "normally assigned shift". The Union contends the City
Leach settlement was a mistake can only be viewed as an attempt to undermine the grievance
procedure and circumvent their duty to bargain. The Union stresses the original decision to
Leach compensation was made by a fellow bargaining unit member and this decision was
by the City. The Union also asserts that the City's claim that Leach's grievance was not a
but a mere "discussion" is without merit. The Union further asserts that the City has failed
demonstrate a changed circumstance which would support their new interpretation of Article
Union also asserts that the instant matter is not similar to canceled court time. The Union
the inconvenience to the grievant is not minor or the Union would not have found it
negotiate language to cover the matter.
The Union would have the undersigned sustain the grievance and direct the City to
grievant whole by paying him two hours pay at time and one half.
The City asserts no violation of the collective bargaining agreement occurred when
Police Rees directed Sergeant Jacobs to inform the grievant to report for duty at his regular
time. The City contends that Article V has three (3) prerequisites which must be met before
pay is earned. The first, a change in the normally assigned shift that occurs with less than
hours (24) notice, was not met because the grievant worked his normally assigned shift. The
additional pay for each hour worked outside the normally assigned shift, was not met because
grievant worked his normally assigned shift. The third, the change was not necessitated by
was not met because the first call to the grievant was due to the illness of Patrolman
The City asserts the Union's case is not consistent with the language of the agreement
the because the call to the grievant informing him he would be working his normally
is not a work schedule change and is not covered by any provision of the
agreement. The City argues there is no past practice which supports pay for not
working. The City
also asserts the Leach single incident is seven (7) years old and distinguishable from the
matter. The City points out that Leach was waiting to be picked up outside his home, was in
when the call came in stating he would have no shift change, and the necessitation for the
not for an illness. The City argues there was no grievance and no past practice established
paid Leach two hours. The City contends the Union is attempting to achieve a reporting pay
and no such clause currently exist in the agreement. The City argues it had the right to
how many officers were needed to be on duty and it acted to not add the grievant to a shift.
The City also points out that Article V provides for call in pay to compensate an
making a special trip into work. It requires an appearance by the employe. The City
provision does not apply to the instant matter.
The City would have the undersigned deny the instant grievance.
The fundamental facts in the instant matter are not in dispute. The grievant was
home and informed his work schedule was being changed. Instead of reporting for work at
regular schedule, 11:00 p.m., he was to report at 7:00 p.m. for duty. The change was made
result of illness to another employe. In accord with Article V, the grievant was not eligible
additional pay for this change. The grievant was then called and told to report at
11:00 p.m., his
original scheduled starting time. The grievant reported to work as directed and then
request for overtime pay which was denied. The Union has argued that the failure by the
City to pay
overtime violates the parties collective bargaining agreement and a previous grievance
The undersigned finds the 1991 Leach matter is distinguishable from the instant
Therein the initial change was due to another employe's vacation request and the employe
was in the
act of reporting to work when the second change was made (the employe was in uniform
outside to be picked up when the second call came in). Herein the initial change was due to
employe's illness and the employe was informed several hours prior to the change to report
normal starting time. While the Union is correct in that the grievant may have been
by the City's actions, the two matters are not identical and are distinguishable from each
they are distinguishable, the fact the City paid Leach two (2) hours pay is not binding on the
the instant matter. Thus the undersigned finds this is the first time since the parties agreed to
language set forth in Article V, Section 5.04 that the City has changed an employes work
reassigned the employe back to his normal work shift when an illness has occurred.
Section 5.02 of the collective bargaining agreement states an employe is to receive a
of two hours of pay if the employe is called into work outside the employe's scheduled work
While the first call to the grievant would have directed him to come into work outside of his
work week, Section 5.04 provides the employe is not to receive additional compensation for
schedule change if the change was due to illness. There is no dispute the first call to the
would have changed his shift due to an illness. Therefore, while the grievant was directed to
to duty at a work schedule outside his normal work week it was due to an illness and Section
does not apply. The record also demonstrates, as the City pointed out, the grievant did not
any duties outside of his normally assigned shift or work week because of the second call.
Section 5.02 and Section 5.04 do not apply to the instant matter. The undersigned concludes
because the grievant did not perform any work outside of his normal work week or work
the City did not violate Article V of the collective bargaining agreement when it denied him
Having found that the 1991 Leach matter is not precedential to the instant matter and
found that the City's actions did not violate Article V of the collective bargaining agreement
undersigned concludes, based upon the above and foregoing and the evidence, testimony and
arguments presented that the City did not violate the collective bargaining agreement when it
the grievant's December 16, 1996 overtime request. The grievance is denied.
The City did not violate the collective bargaining agreement when it denied Officer
Biliskov's December 16, 1996 overtime request.
Dated at Madison, Wisconsin, this 18th day of December, 1997.
Edmond J. Bielarczyk, Jr. /s/
Edmond J. Bielarczyk, Jr., Arbitrator