BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WAUPACA CITY LAW ENFORCEMENT
CITY OF WAUPACA
Mr. John Williamson, Jr., Attorney at Law, appearing on behalf
of the Association.
Mr. Howard Healy, Attorney at Law, appearing on behalf of the
The Association and the City were parties to a collective bargaining agreement which
provided for final and binding arbitration of grievances. Pursuant to a request for
Wisconsin Employment Relations Commission appointed the undersigned to decide a
hearing, which was transcribed, was held on September 25, 1997 in Waupaca, Wisconsin.
hearing the parties filed briefs, whereupon the record was closed on November 18, 1997.
the entire record, the undersigned issues the following Award.
The parties were unable to stipulate to the issue to be decided in this case. Having
the record and arguments in this case, the undersigned finds the following issue appropriate
purposes of deciding this dispute:
Does SOP 97-02 (Vacation Selection) violate the
collective bargaining agreement? If so, what
is the appropriate remedy?
The parties' 1995-96 collective bargaining agreement contained the following
ARTICLE 4 - Grievance Procedure
Only matters involving the interpretation,
application or enforcement of this
Agreement which may arise between the Employer and the association shall constitute a
and shall be processed in the following manner by the Employee or the Association
Committee. Association grievances shall specify the names of the employee or employees
. . .
ARTICLE 17 - Vacations
A. All regular, full-time employees are
eligible for paid vacations as follows:
After 12 months of service
12 working days
After 8 years of
service 18 working days
After 13 years of
service 24 working days
After 18 years of
service 30 working days
B. Vacations for an employee shall not be
cumulative from year to year. The
Chief of Police shall determine vacation schedules provided, however, that in setting
vacations he will
consider requests from employees which are received at least three (3) weeks prior to the
of the requested vacation. Should two or more employees within the same job classification
the same vacation period within the time set by the preceding sentence, the senior employee
given first consideration. No more than two (2) consecutive weeks of vacation may be taken
time unless with prior approval of the Personnel Committee.
. . .
ARTICLE 22 - Maintenance of
Except as modified by the express terms of the
Bargaining Agreement, the Employer
agrees to maintain in substantially the same manner the present terms and conditions of
as are in effect prior to the effective date of this Agreement.
Standard Operating Procedures (hereinafter SOPs) deal with the Police Department's
day-to-day operations. An example of an existing SOP is one dealing with shift selection.
policies are more formal than departmental procedures. Departmental policies specify how
officers are to handle a particular situation while working in the field. Examples of policies
are a use
of force policy and a high-speed chase policy. Policies have to be approved by the City's
Fire Commission (PFC). Procedures are not approved by the PFC; instead, the Police Chief
issues them on his own volition.
A new police chief, Bud O'Neill, started with the City in January, 1997. After
way vacations were selected, he decided that the Department's existing vacation selection
problematic, and that it was necessary to plan vacations better. To accomplish this, he
issued a SOP
dealing with vacation selection. This SOP, numbered 97-02, provides as follows:
To establish a procedure for the
scheduling of vacation time off. The Department wishes to
ensure that all staff are afforded an equal opportunity to schedule time off. To meet
community demands and ensure that adequate staff are available to work, the department is
required to establish scheduling standards
After annual shift selection process
is completed in December, the vacation time off
scheduling process will begin. Based on seniority the following will be performed.
1. First selection
will be for full week(s). Maximum is two consecutive weeks unless
employee makes a request to the Personnel Committee and receives their approval.
2. Selection will
commence with the most senior employee and proceed to the least
3. The full week
selection process will repeat until all full week selections are completed.
4. The selection
of less than a full work week(s) of vacation will be subject to the
A. Based on seniority the process starts with the most senior employee and
proceeds to the least.
B. Employee may select up to six (6) days of vacation/personal days throughout
the year picking up to six (6) different non-consecutive single days.
may keep up to six (6) days (TOTAL) vacation days unscheduled at the
end of the above two selection processes.
A. Employees may use these days during the year as needed subject to the
current contract language (three week notice) and no doubling of staff off on
the same day.
B. All days must be requested to be scheduled no later than September 1 each
Department administrators will
consider requests that may have two employees on vacation
at the same time or a request to schedule/cancel with less than three week notice on a case
by case basis. These exceptions will not be precedent setting, or subject to the grievance
procedure. No overtime will be authorized to meet staffing needs if two employees request
the same day off which would create a shortage of necessary staff to meet department needs.
April 21, 1997
April 21, 1997 H.
Bud O'Neill /s/
The Union grieved the issuance of SOP 97-02. After the grievance was filed, the
implementing the new SOP until the grievance was resolved. Thus, SOP 97-02 has not yet
Insofar as the record shows, this is the first SOP which has been grieved. No SOP
existed for vacation selection.
The Association contends that a past practice exists concerning vacation selection.
disputes the existence of same. Additional facts concerning the alleged practice will be set
the DISCUSSION section.
POSITIONS OF THE
The Association contends that the vacation selection SOP violates the contract. It
following arguments to support this contention. To begin with, the Association sees this
case, in part,
as a past practice case. Consequently, it makes the arguments traditionally made in such
namely that a past practice exists which the Employer unilaterally changed. According to the
Association, the practice was that if an employe requested a vacation three weeks prior to the
in question, the vacation request was granted. The Association argues that the vacation
SOP changed this practice because it imposed restrictions on the taking of vacations which
previously existed. The Association avers that if the City wants to change the existing
must do more than issue a SOP; specifically, it must raise the subject in bargaining. Next,
Association contends the SOP violates two provisions of the contract. First, the Association
the SOP conflicts with Article 17, B of the vacation provision in that it changes times when
may choose their vacations, limits the number of non-consecutive single days of vacation
take, and creates a system which lessens the value of seniority because junior employes could
conceivably be given first consideration for vacation picks rather than senior employes.
Association contends the SOP violates the Maintenance of Standards clause (Article 22). In
Association's view, the SOP substantially affects "the terms and conditions of employment"
bargaining unit employes, so it should have been "maintained in substantially the same
previously existed. In sum then, the Association submits the SOP is violative of both parties'
practice and the contract. In order to remedy this alleged contractual breach, the Association
that I sustain the grievance and rescind the SOP in its entirety. As part of the remedy, the
also asks that the arbitrator order the Employer to "continue their current practice of
The Employer contends that the vacation selection SOP does not violate the contract.
makes the following arguments to support this contention. First, responding to the
practice contention, the City disputes the Association's assertion that a binding past practice
As the Employer sees it, there simply is no such past practice. Next, the City contends the
not violate Article 17, B. The City notes at the outset that Article 17, B
specifically gives the Police
Chief the right to determine vacation schedules. The
Employer submits that the SOP which the Chief issued governing vacation selection
reasonable and consistent with Article 17, B. In its view, the contents of the SOP are simply
expansion of the current language". The City disputes the Association's contention that the
takes away an officer's right to take vacation on short notice. To support this premise, the
attention to the "Exceptions" paragraph in the SOP wherein it provides that "department
administrators will consider requests . . .to schedule/cancel with less than three weeks notice
case by case basis." Finally, with regard to the Association's contention that it violated the
Maintenance of Standards clause, the Employer argues that clause does not apply to the
of vacations because vacation scheduling is specifically reserved to the Police Chief. The
therefore asks that the grievance be denied. In the event however that the arbitrator finds
the SOP to be violative of the contract, the Employer asks the arbitrator to make whatever
are necessary for it (i.e. the SOP) to pass contractual muster.
At issue here is whether SOP 97-02 (Vacation Selection) violates the contract. The
Association contends that it does while the City disputes that contention.
In contract interpretation cases such as this, I normally focus attention first on the
language and then, if necessary, on the evidence external to the agreement such as an alleged
practice. In this case though, I have decided to structure the discussion so that this normal
reversed. Thus, I will address the alleged past practice before looking at the contract
reason for doing so is this: if I address the contract language first and find it to be clear and
unambiguous, there would be no need to look at any evidence external to the agreement (i.e.
alleged past practice) for guidance in resolving this contract dispute. Were this to happen,
could be decided without any reference whatsoever to the alleged past practice. The problem
this approach is that the Association sees this case, in part, as a past practice case. Thus, if
to decide this case without reviewing the alleged past practice, I would not have addressed
the Association's main contentions. I have therefore decided to use this unique structural
review the Association's past practice contention in order to complete the record.
Past practice is a form of evidence commonly used or applied to clarify ambiguous
language. The rationale underlying its use is that the manner in which the parties have
carried out the
terms of their agreement in the past is indicative of the interpretation that should be given to
contract. Said another way, the actual practice under an agreement may yield reliable
what a particular provision means. In order to be binding on both sides, an alleged past
be the mutually understood and accepted way of doing things over an extended period of
Additionally, it must be understood by the parties that there is an obligation to continue
this way in the future.
That said, the focus turns to whether the Association established the existence of a
governing vacation selection. To support its contention that a practice exists, the Association
on the testimony of its sole witness, Jeff Johnson. He testified it was his understanding that
employe asked for vacation three weeks in advance, the employe got the time off. The
contends this action established a binding past practice which the Employer unilaterally
it issued the SOP in question.
Before deciding whether a practice exists, the following is noted about Johnson's
In testifying about his view of the past practice, Johnson cited no specific instances as
Instead, he simply made the blanket assertion just noted. As a result, the record does not
evidence whatsoever concerning the underlying circumstances where previous vacation
Based on the following rationale, I find that even if past Police Chiefs granted
requests which were made three weeks in advance, that does not make it a past practice
entitled to contractual enforcement. The Association's underlying premise that this is a past
case overlooks the fact that not every pattern of conduct amounts to a binding past practice.
is the case here. Although the contract language at issue has yet to be reviewed, suffice it to
that the Police Chief is empowered to determine vacation schedules. By this I mean the
grant or deny an employe's vacation request. The Chief does not have to grant all employe
requests, even those made three weeks in advance. That said, it appears from Johnson's
that Chief O'Neill's predecessor(s) normally granted employe vacation requests if they were
three weeks in advance. Thus, employes were normally allowed to take the time off which
requested. In my view, the key word in the previous sentence is "allowed". When someone
something to happen, they obviously control whether it will or will not happen. I am
is what previously happened with regard to past vacation requests. Insofar as the record
employe ever took vacation without the Chief's approval. Instead, employes requested and
permission from the Chief to take specific dates off. If that had not been the case, and
simply taken vacation without the Chief's approval, then there would be an enforceable
employes (as opposed to the Chief) controlled vacation use because the Employer would have
surrendered its right to control same. Here, though, the Employer never surrendered its
control vacation use even though previous Chiefs normally granted employe vacation
because previous Chiefs granted vacation requests which they thought were consistent with
department staffing does not give employes a right to control their vacation selection in all
circumstances. As a result, I find that no enforceable past practice concern vacation
Having so found, attention is turned to the pertinent contract language. Both sides
the contract language applicable here is Article 17, B. That section is part of the vacation
Section B provides as follows:
Vacations for an employee shall not be cumulative from
year to year. The Chief of Police
shall determine vacation schedules provided, however, that in setting vacations he will
requests from employees which are received at least three (3) weeks prior to the beginning of
requested vacation. Should two or more employees within the same job classification request
same vacation period within the time set by the preceding sentence, the senior employee will
first consideration. No more than two (2) consecutive weeks of vacation may be taken at a
unless with prior approval of the Personnel Committee.
My analysis of this language and its application herein follows. The first sentence
that vacations are not cumulative. This sentence is inapplicable here. The second sentence
of two parts. The first part specifies in plain terms that the Police Chief determines vacation
schedules. Since it is the Chief who determines vacation schedules, employes cannot just
vacation dates they want without the Chief's approval. The Chief still needs to approve the
dates which they select. The second part of the sentence goes on to provide that "in setting
he will consider requests from employees which are received at least three (3) weeks prior to
beginning of the requested vacation." Thus, in determining vacation schedules, the Chief has
"consider" vacation requests which are made within a certain time frame (i.e. three weeks
prior to the
requested time off). Although this sentence does not say so explicitly, I believe it is
implicit that in "considering" these vacation requests, the Chief cannot deny them (i.e. the
requests) for unreasonable, arbitrary or capricious reasons. The third sentence uses seniority
as a tie
breaker in the event of competing vacation requests; the specific language which is used is
employe will be given first consideration." Finally, the fourth sentence provides that
not take more than two consecutive weeks of vacation absent prior approval by the Personnel
Having just reviewed the pertinent contractual vacation language, the focus turns to
which the Chief issued governing vacation selection. After comparing the two (i.e. the SOP
Article 17, B), I find that the SOP conflicts with the contract language in the following
First, 5B of the SOP specifies that "all days must be requested to be scheduled no later than
September 1 each year." The problem with this requirement is that there is nothing in
Article 17, B
that says employes have to choose all their vacation dates for the entire year by September 1.
being so, the inference is that employes can take their vacation days at any time of the year.
requirement specified in Article 17, B for taking vacation is that employes submit their
request three weeks in advance. It is therefore held that 5B of the SOP conflicts with the
language and cannot be harmonized with same. Second, 4B of the SOP limits the number of
non-consecutive single days of vacation that an employe can take. Specifically, it limits
employes to just
six non-consecutive days per year. The problem with this restriction is that there is nothing
17, B that says employes can take just six non-consecutive days of vacation per year. That
the inference is that employes can take all of their vacation in non-consecutive days if they
is therefore held that 4B of
the SOP conflicts with the contract language and cannot be harmonized with same.
Third, the SOP
creates a vacation selection process whereby full weeks of vacation are blocked off before
non-consecutive days of vacation. For example, if an employe selected the entire third week
in July for
vacation, another employe could apparently not select a single day in that same week. In this
scenario, if the employe who selects the full week was the senior employe, this would be
with the third sentence of Article 17, B which provides that if "two or more employes. . .
same vacation period. . . the senior employe will be given first consideration." However, if
scenario just noted the employe who selected the full week was the junior employe, this
be inconsistent with the contract language just noted because the junior employe, rather than
senior employe, would be getting "first consideration". Finally, in the "Exceptions"
paragraph of the
SOP, it provides that "these exceptions will not be . . .subject to the grievance procedure."
problem with this restriction is that there is nothing in Article 4 (the grievance procedure)
specifically excludes vacation denials from being grieved. That being so, the inference is
denials can be grieved.
It is therefore held that this sentence in the "Exceptions" paragraph conflicts with the
language and cannot be harmonized with same.
Having just identified four conflicts between the contract language and the language
SOP, the next question is what action should be taken to rectify same. The Employer
that I "blue-pencil" those portions of the SOP which do not pass contractual muster and leave
remainder of the procedure intact. I decline to do so. In my view, my responsibility in this
is not to rewrite the SOP, but rather to decide whether the SOP does or does not pass
muster. I find it does not pass contractual muster as currently written. 1 As a result, it is ordered
that SOP 97-02 be rescinded in its entirety.
As part of the remedy, the Association asks that I also order the Employer to
current practice of scheduling vacations." I am not ordering the City to do so because, as
previously, no enforceable past practice was found to exist.
Based on the foregoing and the record as a whole, the undersigned issues the
That SOP 97-02 (Vacation Selection) violates the collective bargaining agreement. In
to remedy this contractual breach, the City is directed to rescind SOP 97-02.
Dated at Madison, Wisconsin, this 13th day of February, 1998.
Raleigh Jones /s/
Raleigh Jones, Arbitrator
1. In light of this finding, it is unnecessary to address the
Association's contention that the SOP also
violates the Maintenance of Standards clause. As a result, no comment is made concerning