BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MADISON PROFESSIONAL POLICE
CITY OF MADISON
The above-captioned parties, herein "Union" and "City," are privy to a collective
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
was held in Madison, Wisconsin, on September 4, 1997. The hearing was transcribed and
parties thereafter filed briefs that were received by November 5, 1997. Based upon the
record and the arguments of the parties, I issue the following Award.
Since the parties were unable to jointly agree on the issue, I have framed it as
Whether December 18, 1994, or January 1, 1995, is the
effective date for the wage
increase provided for in the parties' 1994-1995 collective bargaining agreement.
The parties in 1994 engaged in collective bargaining
for a successor
contract and they in August or September, 1994, reached a tentative agreement which ran
January 1, 1994, to December 31, 1995.
Union President Joe Durkin testified without contradiction that Gary A. Lebowich,
City's then-Labor Relations Manager who no longer is employed by the City, supplied him
a draft contract (Union Exhibit 1), in November, 1994, which stated,
. . .
"Increase all wages by three percent (3%) effective December 19,
1993; an additional three
percent (3%) effective December 18, 1994, and an additional one percent (1%) effective the
payroll period including January 1, 1996.
. . .
Durkin said that the Union in negotiations had earlier expressly asked for a
December 18, 1994,
effective date and that he reviewed said draft and returned it to Lebowich on November 11,
1994, with certain minor changes unrelated to the December 18, 1994, effective date for the
three percent wage increase. Durkin also testified that he subsequently met with Lebowich in
December, 1994, at which time all such matters were resolved.
Durkin added that when he received his first paycheck on January 5, 1995, he
that the City made said three percent increase effective January 1, 1995, rather than
18, 1994, as provided for in Lebowich's own draft; that he then spoke to Lebowich who told
him that January 1, 1995, was the correct date and that the Mayor of Madison wanted the
January 1, 1995, date; that he, Durkin, then protested that the City's last contract proposal
called for a December 18, 1994, effective date; and that he then filed the instant grievance
January 13, 1995, protesting the City's implementation date because, in his words: "I
they were stiffing us by making a change that they didn't make us aware of."
Durkin added that the Union in March, 1995, subsequently signed the 1994-1995
agreement on the express understanding that this question relating to the effective date of the
disputed wage increase remained open and that it would be resolved in arbitration. Lebowich
by letter dated March 2, 1995, (Joint Exhibit 14), agreed to this procedure by stating:
The City acknowledges that the language set forth in Article VIII,
Section A, is currently
in dispute with regard to the effective date of the 1995 pay increase. In the event that a
modification of that provision is required pursuant to an arbitrator's award, a revised copy of
Article VIII shall be attached to the agreement. . . .
Durkin added that the Union's membership approved the new
contract in September,
1994, and that no City representative up to that point had specifically agreed to the
18, 1994, effective date now in dispute. Durkin also acknowledged that Lebowich's
1994, draft (Union Exhibit 1), marked the first time that the City ever expressly agreed to
December 18, 1994, date.
Gale Dushak on behalf of the City sat in on most of the bargaining sessions leading
to the 1994-1995 contract. He testified that the City in those negotiations "did not agree to
pay period other than the one on January 1" and that he costed out the contract for budget
purposes with a January 1, 1995, pay period because that was the date agreed to by the
Asked whether the Union ever specifically said "yes" to a January 1, 1995, effective date, he
answered: "I don't think that specifically, no." He also testified that he changed the
18, 1994, effective date he saw on the City's own contract draft to the Union (Union Exhibit
1), and that all other City contracts had January 1, 1995, as the effective date for 1995 wage
increases. On cross-examination, Dushak said that he has never seen the proposed contract
with a January 1, 1995, effective date.
Payroll Supervisor Pat Skaleski, an accountant in the City Comptroller's office,
that beginning of the year raises for City employes always take effect in "the pay period that
includes January 1;" that January 1, 1995, marked the beginning of a new pay period; that
prior raise went into effect on December 19, 1993, because that date encompassed the
1, 1994, pay period; and that the City historically has always made pay increases effective
the January 1 pay period.
Positions of the Parties
The Union asserts that, unlike most other unions who negotiate with the City, it
traditionally has negotiated contracts with the City that do not include January 1 as the
date and that, as a result, the City cannot unilaterally establish January 1, 1995, as the
date after Lebowich himself had agreed to December 18, 1994. The Union therefore requests
that all affected employes be made whole by the approximately $14,000 in dispute.
The City, in turn, contends that the signed contract here provides for the
1995, effective date and that the Union should not have signed it if it wanted to litigate this
issue. The City also states "no one on behalf of the City up to [the date of the Union's
ratification] had specifically agreed to the December 18, 1994, effective date;" that the City
never agreed to that date across the bargaining table; and that the City traditionally has
negotiated contracts with its other unions which have provided for a January 1 effective date.
The City also argues that the signed contract represents the entire agreement between the
parties under Article 1, Section E, and that Article 6, Section D, prohibits an arbitrator from
amending, modifying, subtracting, adding or ignoring the contract, which it claims is what
Union really wants done here.
This case essentially boils down to which party is to bear the price for the foul up
has arisen between the parties over whether January 1, 1995, or December 18, 1994, is the
correct date for the implementation of the wage increase provided for in the parties'
There are several reasons why the City should bear this price, the main one being
the City's own last draft contract proposal to the Union (Union Exhibit 1), expressly
for the December 18, 1994, date. Since Durkin subsequently returned that draft to the City
with other minor changes unrelated to the December 18, 1994, date, and since Lebowich did
not try to correct that date when he subsequently met with Durkin in December, 1994, the
parties at that point had a binding agreement over this and all other issues. That being so,
City was not entitled to subsequently change the effective date from December
18, 1994, to
January 1, 1995, without further negotiations. Instead, if it believed that the December 18
1994, date referenced in the draft contract was incorrect, it was obligated under the doctrine
of good faith to first bring that matter to the Union's attention before
the January 1, 1995, effective date. The need to do that was all the more glaring since
admitted that the Union in contract negotiations had never specifically agreed to the January
1, 1995, date. That being so, how could the City legitimately believe that it was proper to
unilaterally change the contract in this way? The City offers no plausible explanation to this
However, there is one major fact cutting the other way, i.e., Durkin's admission that
City's November, 1994, draft (Union Exhibit 1), marked the first time that the City had
expressly agreed to the December 18, 1994, date. Moreover, since Durkin, in early 1995
about the City's change of position before he executed the 1994-1995 contract, the Union
free to disregard that tentative contract and to proceed to interest-arbitration over this narrow
issue if it so desired.
Weighing these relative factors is difficult because there are equities in support of
parties. On balance, though, they favor the Union because Union negotiators upon reading
City's own draft contract reasonably assumed that the City had agreed to the December 18,
1994, date and because the City was not entitled to unilaterally establish January 1, 1995, as
effective date after its own chief negotiator had earlier agreed to December 18, 1994. I
therefore sustain the grievance.
In doing so, I find without merit the City's claim that the grievance cannot be
because that entails modifying the contract, which is something that Article VI, Section
the contract expressly prohibits. For here, I am not adding or in any other way altering what
the parties initially agreed to since the City's own draft to the Union contained December 18,
1994, as the effective date for the wage increase in dispute and since Lebowich never
that date when he met with Durkin in December, 1994. That is why it is really the City
is attempting to change the agreed upon contract by deleting December 18, 1994 and by
substituting January 1, 1995, as the effective date. That, it cannot do.
I also find without merit the City's claim that it should not be held to the December
1994, effective date because it has negotiated other effective dates with other unions. What
City has done with other unions is a separate question of whether the City here agreed to the
December 18, 1994, effective date and, if so, whether it should be held to that date.
Moreover, there is no merit to the City's additional claim that the Union should be
to the January 1, 1995, effective date because that is the date referenced in the signed
The record, in fact, shows that the Union signed that contract only after Lebowich by letter
dated March 21, 1995, (Joint Exhibit 14), agreed that any such signing would not constitute
waiver of the Union's claim. That is why Lebowich's own letter to Durkin stated: "In the
event that a modification of that provision [relating to the effective date] is required pursuant
to an arbitrator's award, a revised copy of Article VIII shall be attached to the agreement. . .
As a remedy, the City will pay to all affected police officers the additional wage
they should have received effective with the December 18, 1994, payroll period. In order to
resolve any questions that may arise over application of this Award, I shall retain my
indefinitely. The parties therefore are directed to let me know within thirty (30) days of
whether any such questions have arisen.
In light of the above, it is my
1.That December 18, 1994, was the
effective date for the wage increase provided for in the
parties' 1994-1995 collective bargaining agreement.
2.That the City shall make all affected
police officers whole in the manner described above.
3.That I shall retain my jurisdiction
indefinitely to resolve any questions that may arise over
application of this Award.
Dated at Madison, Wisconsin this 13th day of January, 1998.
Amedeo Greco /s/