BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
PUBLIC SAFETY PROFESSIONAL DISPATCHERS'
Mr. Thomas A. Bauer, Labor Consultant, 206 South Arlington
Wisconsin 54915, for the Public Safety Professional Dispatchers' Association, referred
as the Association.
Mr. John A. Bodnar, Winnebago County Corporation Counsel,
448 Algoma Boulevard, P. O.
Box 2808, Oshkosh, Wisconsin 54903-2808 for Winnebago County, referred to below as the
County, or as the Employer.
The Association and the County are parties to a collective bargaining agreement
in effect at all times relevant to this proceeding and which provides for the final and binding
arbitration of certain disputes. The parties jointly requested that the Wisconsin Employment
Relations Commission assign an Arbitrator to resolve a dispute reflected in grievances filed
behalf of Wendy Klabunde, Kathleen Edwards, Janet Anderson, Melody Piper, Dawn
Deb Remer, and Aaron Stollfuss. The Commission appointed Richard B. McLaughlin, a
of its staff. Hearing on the matter was conducted on November 21, 1997, in Oshkosh,
The hearing was not transcribed, and the parties filed briefs and a waiver of a reply brief by
February 2, 1998.
The parties stipulated the following issues for decision:
Did the County violate the collective bargaining agreement by
not paying premium pay to
the Grievants for allegedly training persons other than Dispatchers?
If so, what is the appropriate remedy?
Except as otherwise specifically provided herein, the
management of the Communications
Center and the direction of the work force including, but not limited to, the . . . right to
the methods, equipment, process and manner of performing work, are vested exclusively in
Employer . . .
Persons participating in the training of new dispatchers shall
compensated as follows:
Classroom Training: Persons
providing classroom training as instructors shall be paid at
the rate of time and one half their base hourly rate for all scheduled instructional hours.
spent in the gathering of materials and the preparation of lesson plans shall not be eligible for
On-the-Job Training: Persons
assigned to train one or more dispatcher trainees on the job
as part of their assigned duties shall be eligible for premium pay at the rate of Fifty Cents
per hour for all hours assigned to work in such capacity.
The parties stipulated that this matter poses one interpretive issue which governs a
of grievances. Factually, the grievances submitted into the record turn on two separate
Grievances 97-56 and 97-58 turn on the events of July 3, 1997, 1 while Grievances 97-101,
97-102, 97-103, 97-104 and 97-105 turn on the events of October 27. The overview of the
sketched below will address these events separately, then turn to evidence which is common
all of the grievances.
Grievances 97-56 & 97-58
Wendy Klabunde has been employed by the County as a Dispatcher for roughly
years. She is a certified Field Training Officer, and has trained Dispatchers and patrol
for many years. At roughly 2:00 a.m. on July 3, Doug Abbott reported to her and
gave her a
copy of a document headed: "PATROL FIELD TRAINING CHECKLIST" which is referred
below as the Checklist. Abbott was then in the process of being trained as a County Deputy
Sheriff. The Checklist stated six broad functional areas: Introduction; CAD (Computer
Dispatch); Radio; Phones; Alarms; and D.O.T. Each of these broad areas was broken down
more specific functions. For example, the Introduction portion of the Checklist was broken
into Workstations; Weather Radar; Tornado Grid System; Amateur Radio Equipment; Deaf
Terminal and Dictaphone Logging Machine. The CAD portion of the Checklist was broken
into monitor functions and CAD information. Following each listed area and its functions on
checklist were blank lines which a trainer could initial to document whether the area and
had been explained, simulated or performed by a trainer for a trainee.
Klabunde spent the balance of her shift acquainting Abbott with the Communications
Center. She used the Checklist as her guide for this process, and initialled the Checklist as
explained each function of the Communications Center to Abbott. She did not offer, nor did
Abbott request, hands on experience. Rather, she verbally explained to Abbott the various
functions covered by the Checklist. Klabunde has explained the Communications Center to a
number of law enforcement officers, including County deputies and officers from
served by the Center. This was the first time any County deputy presented her with a
to document a training or an orientation session. Klabunde did not evaluate Abbott's
performance, and did not view him as competent to perform as a Dispatcher at the close of
July 3 shift.
At the close of Klabunde's shift, Abbott reported to Kathleen Edwards, who served,
July 3, as the Dispatcher-in-Charge of the Communications Center. She has worked as a
Dispatcher for roughly seventeen years, and serves as a classroom trainer. She typically
on-the-job training only in the absence of another Dispatcher. She introduced Abbott to
Dispatchers and to their workstations. At the end of her shift, Edwards initialled Abbott's
Checklist for the function of "Workstations" within the major area "Introduction."
Klabunde filed Grievance 97-56, seeking Article 24 premium pay for training Abbott
between 2:00 and 4:00 a.m. on January 3. Edwards filed Grievance 97-58, seeking Article
premium pay for training Abbott between 4:00 and 4:15 a.m. William Wagner, the
Personnel Director and Gary Boyce, the County's Assistant Chief Deputy denied Grievance
and 97-58. Each answer notes the grievances lack any contractual basis.
Grievances 97-101, 97-102, 97-103, 97-104 &
In a memo to Janet Anderson, Melody Piper, Dawn Holmes, Deb Remer and Aaron
Stollfuss dated October 22, Katherine Biggar, the County's Chief Dispatcher, stated:
Just for your info . . . On Monday, October 27th, from about
2:15 PM until approx. 4:30 PM
we will have senior citizens in the Comm Center for about 1/2 hour each. They will actually
plugged in with each of you and you will need
to give them a brief overview of what happens at your position.
These are members of the
Citizens Police Academy and their visit has been authorized by the Sheriff . . .
The Citizens Police Academy seeks to give members of the public, typically retirees,
insight into County law enforcement. On October 27, a number of members of that
came to the Communications Center to observe the dispatching process. Each of the five
Grievants assumed responsibility for instructing four citizens over a two hour period.
Remer testified that each of the Grievants assumed responsibility for an intensive two
instruction in the dispatching process. The four citizens assigned to each Dispatcher sat with
Dispatcher at their workstation, and observed their work. Remer, as the other named
described each function performed by the Dispatcher and responded to any questions the
had. Prior to October 27, Remer discussed the then upcoming event with Biggar. Remer
understood Biggar to be assigning work over which the Dispatchers had no choice.
Remer and the other Dispatchers noted above filed grievances seeking training pay
work with the Citizens Police Academy on October 27. Each of the grievances, however,
that the work took place on November 4. Boyce responded to the grievances in a memo
November 6. That memo states:
On this date, November 6, 1997, there being no contractual basis,
I am denying these
grievances in writing in accordance with Step 2 of the Association grievance procedure;
be advised the Employer, Winnebago County, is unaware of any such alleged training on the
of November 4, 1997.
The Association did not realize that the grievances had erroneously listed November 4
as the date
of the alleged violation until the arbitration hearing.
Evidence of Past Practice and Bargaining History
Wagner testified regarding the bargaining history to Article 24. The first labor
covering Dispatchers was negotiated in 1980 and 1981. Wagner served as the County's
for that agreement. The issue of training pay was brought to the table after the negotiation
parties' first labor agreement. The Association brought the issue because they felt the
function imposed duties on Dispatchers well in excess of the day-to-day duties of the
The parties ultimately agreed to the following side letter, which was executed on January 1,
It is understood and agreed between the Public Safety Building
Board and the Public Safety
Professional Dispatchers' Association that persons participating in the training of new
shall be compensated as follows:
1. Classroom Training: Persons providing
classroom training as instructors shall be paid at
the rate of time and one-half their base hourly rate for all scheduled instructional hours.
spent in the gathering of materials and the preparation of lesson plans shall not be eligible for
2. On-the-Job Training:
Persons assigned to train one or more dispatcher trainees on-the-job
as part of their assigned duties shall be eligible for premium pay at the rate of thirty-five
($0.35) per hour for all hours assigned to work in such capacity.
Wagner understood this provision to apply only to the training of new dispatchers.
stated that the Association had proposed, at the time of the arbitration hearing, an
Article 24 which would provide a fifty cent training premium for the type of instruction
Edwards, Klabunde and Biggar noted that the County may have afforded Dispatchers
training pay for instructing non-Dispatcher personnel at some point in the past. To the extent
payment occurred, it was terminated many years ago.
It is undisputed that Deputies and Police Officers have been given orientation
regarding the Communications Center for at least 15 years. This orientation was created, at
in part, to demonstrate to law enforcement personnel the demands placed on Dispatchers.
Dispatchers and managerial personnel who started the orientation shared a belief that, prior
training, law enforcement personnel often failed to appreciate the burdens shouldered by
It is also undisputed that the training questioned by the grievances did not qualify any
the "trainees" to serve as a Dispatcher. A Dispatcher Trainee undergoes three to six months
training, rotating through each shift every two weeks. The classroom and on-the-job
of that training will cover the same topics noted in the Checklist. A Dispatcher Trainee
however, be worked into the Communications Center, and will be plugged into a workstation
under the constant oversight of a Dispatcher. The Dispatcher Trainee will assume solo
of the workstation only when the overseeing Dispatcher is convinced the trainee can handle
While training Dispatchers, trainers will formally evaluate the performance of the trainee.
Further facts will be stated in the DISCUSSION section below.
THE PARTIES' POSITIONS
The Association's Initial Brief
After a review of the evidence, the Association argues that Klabunde trained Abbott
same fashion she has trained Dispatcher trainees. Abbott provided her with the type of
required to be completed by trainers in the formal training of Dispatcher trainees. Klabunde
testified "that she did not do anything different in training Deputy Abbott than she would
she had been training another dispatcher" with the exception of "hands-on" work. Since she
performed the same type of work she has performed when she has received the premium pay
the past, she should receive that pay in this case.
The "obvious intent" of Article 24 is "to provide premium compensation to those
employees who are assigned to train other employees as part of their assigned duties." Since
County assigned Klabunde, who serves as a trainer, to train Abbott; since she is eligible to
the trainer premium; since the County controls whom it wishes to train; and since the work
performed by Klabunde meets the commonly understood meaning of "training," the
concludes the Article 24 premium must be granted to Klabunde and to similarly situated
The Association then contends that the County's procedural objections to Grievances
97-101, 97-102, 97-103, 97-104 and 97-105 result from a proof-reading error on the
part. The typographical error of listing the alleged training as November 4 instead of
"should not be used as the basis of a timeliness argument." Since the County was aware of
facts underlying the grievances and seeks only "to avoid having the Arbitrator address these
grievances," its timeliness argument should be rejected.
The Association concludes that the grievances should be granted, and that the County
should be ordered to pay the Grievants "fifty cents . . . per hour for all hours" in which they
assigned to train "persons other than dispatchers."
The County's Brief
After a review of the evidence, the County notes that the "majority of the facts in this
are not disputed. Those facts, the County contends, will not support a finding that it violated
Article 24 originated as a side bar to the 1983 labor agreement. This agreement, as
clarified by consistent practice, distinguishes between training "in a formal classroom-type
and "orientation-type functions." Since Abbott's training is of the latter type, the premium
of Article 24 cannot be considered applicable. That Dispatchers testified that they may have
received pay in the past for orientation-type functions cannot obscure that "none of the
could remember any specific instances when a person received premium pay for
doing so." It follows, according to the County, that it has demonstrated a long history
affording premium pay for the orientation-type functions posed by the grievances. That the
Association has attempted to modify the provisions of Article 24 to compel such payment
underscores the evidence of past practice. That undisputed testimony establishes that the
of orienting non-Dispatchers to the Dispatch Center "was originally commenced at the
the dispatchers to provide those persons with a better understanding of the dispatcher's
further underscores the inapplicability of Article 24 premium pay to the grievances.
That Klabunde was required to complete the Checklist for Abbott's orientation
no more "than to record the fact that the officer has actually completed the orientation." It
to prove any deviation from past practice.
It follows, according to the County, that the grievances must be dismissed.
The stipulated issued focuses on Article 24, and governs each grievance. The County
asserted a procedural issue at the hearing, but that issue is not posed regarding Grievances
and 97-58. Those grievances concern on-the-job training, and thus the interpretive issue
the introductory clause and the second paragraph of Article 24.
The introductory clause and the second paragraph mandate that, to be eligible for
pay, a "person" must be "assigned to train one or more dispatcher trainees as part of their
duties." That each grievant is a "person" under the agreement who is eligible to qualify for
Article 24 premium pay is apparent. It is also apparent that Klabunde and Edwards were
"assigned" by the County to play a role in Abbott's training. Beyond this, the orientation
gave Abbott can be considered training without stretching the term "train" beyond its
However, a fundamental difficulty precludes the application of Article 24 to these
grievances. Abbott cannot be persuasively considered a "new dispatcher" or a "dispatcher
trainee." Neither Klabunde nor Edwards considered Abbott competent to perform as a
at the conclusion of his July 3 training. Against this background, it is impossible to conclude
Abbott was anything other than a Deputy Sheriff trainee. No view of the facts could qualify
Abbott as a "new dispatcher" within the meaning of the first clause of Article 24.
To the extent the references to "new dispatchers" or to "dispatcher trainees" can be
considered ambiguous, evidence of bargaining history and past practice favors the County. It
undisputed that the orientation type of training afforded Abbott was originally intended not as
training to perform dispatch duties, but as a means to educate non-dispatchers on the
value of the dispatch function. Wagner's testimony on the creation of the side letter which
evolved into Article 24 stands unrebutted, and establishes that the provision was, at its
a means to reward Dispatchers for the added burdens of training future Dispatchers. Those
burdens should not be underestimated. An on-the-job trainer is expected to formally
trainee, and to work the trainee into the ongoing operation of a workstation. This is not the
of burden imposed on Klabunde and Edwards on July 3.
Evidence regarding past practice is less than consistent, but favors the County's
interpretation of Article 24. There is some evidence that Dispatchers may once have been
for the type of orientation training posed here. No witness could, however, isolate the
or frequency of any such payment. It is apparent that any past payment was terminated long
The source of the persuasive force of past practice is the agreement manifested by bargaining
parties' conduct. In the absence of some indication of a mutual understanding, however,
of past conduct loses its force as an interpretive guide. At most, the evidence of practice
that the parties may, at some point, have agreed orientation type of training afforded
non-dispatchers may have qualified for Article 24 premium pay. That this understanding was
shared at the time of the creation of what has become Article 24, and was, without apparent
objection, terminated years ago precludes finding a binding past practice. Periods of
have predominated over whatever periods of payment exist. This affords no persuasive basis
conclude practice can warrant the premium payment sought here.
The Association contends that the Checklist establishes something more than
occurred on July 3, and that the County has unilaterally extended the training requirement.
existence of the Checklist does underscore the force of the Association's contention that the
orientation performed on July 3 can be considered training. It does not, however, make
a "new dispatcher" or a "dispatcher trainee" as Article 24 requires. That the County may
added to the on-the-job duties of its dispatchers must be granted. The duties added cannot,
however, be considered those accompanying the training of a new dispatcher. That the same
functions noted in the Checklist are covered in on-the-job and classroom Dispatcher training
cannot obscure that Abbott spent a few hours viewing what a Dispatcher trainee must take
to six months to learn.
The difficulty with the Association's position is not that affording premium pay for
orientation training of non-Dispatchers is inherently unreasonable. The difficulty with its
is that arbitration is designed to afford bargaining parties the benefit of their agreement.
24 cannot be extended to the duties posed by Grievances 97-56 and 97-58 without reading the
references to "new dispatchers" and to "dispatcher trainees" out of existence. For premium
to be afforded for the type of training posed here, the parties must first have agreed to do so.
That agreement has yet to be made. Until it has been made it is not enforceable in
To grant the grievances would afford the Association a benefit through arbitration it has yet
secure in negotiation.
The balance of the grievances turn on the orientation training afforded the Citizens'
Academy. At hearing, the County lodged a procedural objection to the processing of those
grievances. That objection is technical in nature, but poses no interpretive issue here.
Even if considered arbitrable, those grievances manifest the same flaw posed by
97-56 and 97-58. The citizens trained on October 27 cannot be persuasively
dispatchers" or "dispatcher trainees." Those grievances, even if separately considered, do
pose any interpretive issue beyond that addressed regarding Grievances 97-56 and 97-58.
The County did not violate the collective bargaining agreement by not paying
to the Grievants for allegedly training persons other than Dispatchers.
The grievances are, therefore, denied.
Dated at Madison, Wisconsin, this 3rd day of March, 1998.
Richard B. McLaughlin /s/
Richard B. McLaughlin, Arbitrator
1. References to dates are to 1997, unless otherwise