BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN PROFESSIONAL POLICE
CITY OF FITCHBURG
(Grievance of Denise A. Miller)
Mr. Mark Hollinger, Staff Attorney, Wisconsin Professional
Police Association/LEER Division,
on behalf of the Association.
Axley, Brynelson, LLP, by Mr. Michael J. Westcott, on behalf
of the City.
The above-captioned parties,
herein "Association" and "City", are signatories to a collective
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
held in Fitchburg, Wisconsin, on August 19, 1998. The hearing was transcribed and both
filed briefs that were received by October 12, 1998. Based upon the record and the
of the parties, I issue the following Award.
The parties have jointly agreed to the following issue:
Did the City violate Section 19.01 of the contract when it refused to pay overtime
to grievant Denise A. Miller for hours worked in excess of eight hours in one day
and, if so, what is the appropriate remedy?
Patrol Officer Miller works an eight-hour shift on a 6-3 rotation wherein she works
days and then is off three days. In addition to performing her patrol duties, she teaches the
program, a chore she regularly performs between 7:00 A.M. and 3:00 P.M. When she is
performing her DARE duties, Miller works various rotating shifts.
There is a testimonial conflict over whether Miller and Sergeant Louis A. Eifert in
October, 1997, discussed Miller's upcoming work schedule. Eifert testified that he then told
Miller that she could choose to either not work on November 9 or that she could work on
November 9 during the 3:00 p.m. 11:00 p.m. shift. Miller, according to Eifert,
chose the latter
option. Miller denied that any such conversation ever occurred.
Miller in any event worked the following shifts:
November 8 11:00 P.M. to 7:00 A.M.
November 9 3:00 P.M. to 11:00 P.M.
Miller on December 2, 1997 (all dates hereinafter refer to 1997), filed a written
wherein she claimed that she should have received overtime pay for the eight hours she
November 9 from 3:00 p.m. to 11:00 p.m. after she completed her earlier 11:00 p.m. to
shift that started on November 8 and ended on November 9.
The City has never paid such overtime for at least the last 16 or so years that the
pertinent contractual language relating to overtime has remained in effect. Moreover, Miller
admitted that no such overtime was paid to her for the 10 or so times she previously worked
kind of short shift giving rise to her grievance. A short shift occurs when an employe
shift, is off duty for the next shift, and then returns to work for the following shift, the net
of which is 8 hours off duty between shifts. That is what happened here when Miller
11:00 p.m. 7:00 a.m. shift on November 8, was off the following shift, and then
her 3:00 p.m. 11:00 p.m. shift on November 9. Such short shifts are routinely
employes on swing shifts, none of whom have ever received the overtime pay claimed here.
addition, Deputy Police Chief Thomas Blatter testified "a day means a shift" and that
have never received overtime for working such short shifts. The City thus has prepared an
showing that employes were not paid overtime when they worked short shifts. (City Exhibit
POSITIONS OF THE PARTIES
The Association claims that
the City is required under Section 19.01 of the contract to pay
Miller overtime because she worked more than eight (8) hours in a "day", i.e. November 9;
because a "day" is a 24-hour period of time; because the City's contrary position is
"illogical and nonsensical and renders that portion of Section 19.01 meaningless";
19.01 is "clear and unambiguous and not susceptible to reinterpretation through practice";
because employes "should be paid overtime for any hours worked in excess of eight (8)
any twenty-four hour period." As a remedy, the Association asks that Miller be made whole
that the City be ordered to cease and desist from "such further contractual violations."
The City contends that "overtime is not owed for working short shifts under the
past practice"; that other evidence demonstrates that "the parties have equated the term 'day'
an 8-hour shift"; that the Fair Labor Standards Act has no application here (which is true and
which is why it is not discussed below); and that Miller's 3:00 p.m. 11:00 p.m. shift
November 9 "was substituted for her convenience".
Article XIX of the contract, entitled "Overtime", states in pertinent part:
Section 19.01 Definition and Rate. Employees shall be paid one and one-half
times their straight time rate for all hours worked in excess of eight (8)
hours per day and in excess of the 6-3 work schedule. Employees shall be paid
two (2) times their normal rate for hours worked after thirteen (13) in succession.
For purposes of computing overtime, the hourly straight time rate of pay is to be
determined by dividing the annual salary by 1950 hours.
. . .
The key term here is "day". Does it refer to a twenty-four (24) hour period as claimed
Association, or does it, instead, refer to an employe's regular eight hour shift as contended
City? If the former, the grievance must be sustained because Miller on November 9 did, in
work more than eight hours in a twenty-four hour period. If the latter, it must be denied
Miller, in fact, did not work more than eight hours on either her November 8 or November
In this connection, the contract elsewhere in Article XVIII, entitled "Hours of
Employment", states in pertinent part:
Section 18.01 Normal Schedule. The normal work schedule shall be six
(6) workdays of eight (8) hours and three (3) days off (6-3).
Section 18.02 Shifts. As far as practical, the employee shall work a
straight eight (8) hours on an established shift. Shifts shall be maintained on the
following schedule: 7:00 am 3:00 pm; 3:00 pm 11:00 pm; 11:00 pm
am; swing shift. With reasonable notice to the affected employees, the Chief of
Police may deviate from the established shift to meet specific needs. The Chief of
Police, in his sole discretion, may assign one hundred percent (100%) of the total
number of employees of the Police Department to work overlapping shifts in the
case of criminal investigation, riots, civil disturbances, strikes, or emergencies, and
the decision of the Chief of Police to do so shall be final and not subject to the
. . .
The Association points out that Section 18.02 expressly refers to "shifts", thereby
the Association's words, that,
"It is reasonable to conclude that if the parties had intended 'day' in Section 19.01
to mean a shift of eight hours. . .then the parties would have used 'workday' as
defined in the immediately preceding article. Section 18.01 juxtaposes the
definition of workday (as an eight hour shift) against that of a
. . .
But if that were true, why is it that bargaining unit members for at least 16 or so
never demanded overtime for working the kind of short shifts found here? After all, if the
contract is as clear as the Association now contends, why is it that employes themselves
sought overtime under such clear language? No adequate answer has been given to this
thereby indicating that the contract is not as clear as the Association claims.
Moreover, the contract does not clearly explain when such a "day" starts: is it at
when the normal 24-hour calendar day starts or does it begin to run at some other fixed time,
at the start of the 7:00 a.m. 3:00 p.m. shift?
The Association acknowledges this problem by pointing out in its brief, at page 10:
is ambiguous, however, is when a 'day', as contemplated in Section 19.01 begins. For
of Section 19.01, if a 'day' begins at midnight, inequities could result." Hence, the
itself recognizes that the definition of a standard 24-hour "day" that runs from midnight to
midnight is inapplicable here because it can result in "inequities" that the Association urges
only be avoided by finding that Section 19.01, in its words, "guarantees employes who work
than eight hours in any twenty-four hour period be paid
for such hours." In other words, the Association claims that a "day" must be defined
to meet the
individual shift and circumstances of each individual employe.
The contract, however, does not expressly provide for that, just as it does not
provide that employes who work "short shifts" are to be paid overtime. Indeed, but for the
of the word "day" in Section 19.01 that the Association itself recognizes is somewhat
the contract is totally silent on this precise issue.
But, even if we were to assume arguendo that Section
19.01 is as clear as the Association
asserts, that does not end the matter because it sometimes is still necessary to consider parol
evidence in the face of such contract language.
The key to interpreting and applying contract language, after all, "is to determine and
out the mutual intent of the parties." See How Arbitration
Works, Elkouri and Elkouri, p. 471.
(BNA, 5th Ed., 1997). Hence, "the standards of construction as used by
arbitrators are not
inflexible. They are but 'aids to the finding of intent, not hard and fast rules to be used to
intent.'" Id, at 474.
That is why:
"Arbitrators seek to interpret collective agreements to reflect the intent of the
parties. They determine the intent of the parties from various sources, including
the express language of the agreement, statements made at pre-contract
negotiations, bargaining history, and past practice. Constructions favoring the
purpose of the provision are to be favored over constructions which tend to conflict
with the purpose of the provision. Moreover, the terms of the collective
bargaining agreement are to be applied in a logical manner consistent with the
language, intent of the parties, and with the entire agreement. The collective
bargaining agreement should be construed, not narrowly and technically, but
broadly so as to accomplish its evident aims." Id., at 479-480. (footnote
If one presupposes, as I do, that an arbitrator's primary duty is to ascertain what the
intended when they agreed to certain contract language and what they intended when they
over that language in subsequent contracts, it follows that there is no merit to the
claim that past practice cannot be considered in determining how the disputed language
applied in the future.
Arbitrator Richard Mittenthal explained why past practices must be considered
contract language in his seminal article on past practices when he wrote:
. . .
By relying on practice, the burden of the decision may be shifted from the
arbitrator back to the parties. For to the extent to which the arbitrator adopts the
interpretation given by the parties themselves as shown by their acts, he minimizes
his own role in the construction process. The real significance of practice as an
interpretive aid lies in the fact that the arbitrator is responsive to the values and
standards of the parties. A decision based on past practice emphasizes not the
personal viewpoint of the arbitrator but rather the parties' own history, what they
have found to be proper and agreeable over the years. Because such a decision is
bound to reflect the parties' concept of rightness, it is more likely to resolve the
underlying dispute and more likely to be acceptable. A solution created from
within is always preferable to one which is imposed from without. (footnote
citation omitted) "Past Practice and the Administration of Collective Bargaining
Agreements" from Arbitration and Public Policy, Proceedings of the
Meeting of the National Academy of Arbitrators", (BNA, 1961), p. 38.
. . .
He added: "The practice, in short, amounts to an amendment of the agreement".
Id, at 42.
He therefore concluded that:
Thus, the union-management contract includes not just the written
provisions stated therein but also the understandings and mutually acceptable
practices which have developed over the years. Because the contract is executed
in the context of these understandings and practices, the negotiators must be
presumed to be fully aware of them and to have relied upon them in striking their
bargain. Hence, if a particular practice is not repudiated during negotiations, it
may fairly be said that the contract was entered into upon the assumption that this
practice would continue in force. By their silence, the parties have given assent
to "existing modes of procedure." In this way, the practices may by
become an integral part of the contract. Id., 48-49.
As a result, stated he:
"Those responsible for the administration of the agreement can no more overlook
these practices than they can the express provisions of the agreement. For the
established way of doing things is usually the contractually correct way
of doing things. And what has become a mutually acceptable interpretation of the
agreement is likely to remain so. Hence, the full meaning of the agreement may
frequently depend upon how it has been applied in the past." Id., at 37.
I therefore conclude that past practice should be relied upon to help resolve this issue,
that is the best indication of how the parties have interpreted and applied Section 19.01 over
As to that, the record establishes that the City has never
paid overtime for short shifts and
that it has defined "day" in Section 19.01 to mean shifts for at least the last 16 or so years
language has been in effect. Indeed, grievant Miller herself testified that she was never paid
overtime for the ten or so times she previously worked short shifts.
The Association tries to downplay the significance of this past practice by asserting:
vast majority of the City's evidence of this alleged past practice was based on the City's
application of Section 19.01 to probationary employes." The record in fact, however, shows
said past practice was also applied to non-probationary employes like Miller, as well as
Jackson, Stetzer, Clauder, Danielson, Kaschub and Gustafson, none of
whom ever complained
about said practice before the instant grievance was filed. Moreover, said overtime has
paid in the 16 or so years that the overtime language of Section 19.01 has been in the
All this constitutes a binding past practice because it: (1), is unequivocal; (2), has been
clearly enunciated and acted upon; and (3), has been readily ascertainable over a reasonable
of time as a fixed, and established practice accepted by both parties. See How
supra, p. 632. By adhering to that past practice here, the City therefore did not
Contrary to the Association's claim, such a ruling will not cause an "illogical and
nonsensical" result that renders this portion of 19.01 "meaningless". In fact, the
past practice here shows that Section 19.01 has been applied in a wholly consistent manner
that it, in fact, has never caused any of the problems claimed by the
Association a fact the
Association itself has tacitly acknowledged by not grieving over this section for the last 16 or
years it has been in the contract.
In light of the above, it is my
That the City did not violate Section 19.01 of the contract when it refused to pay
to grievant Denise A. Miller for working a short shift; her grievance is therefore denied.
Dated at Madison, Wisconsin this 25th day of November, 1998.
Amedeo Greco /s/
Amedeo Greco, Arbitrator