BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
THE VILLAGE OF JACKSON
WISCONSIN PROFESSIONAL POLICE
LAW ENFORCEMENT EMPLOYEE RELATIONS
(Krueger et.al. Grievance)
Pursuant to the terms of the 1998-2000 collective bargaining agreement between the
of Jackson (Village) and Wisconsin Professional Police Association/Law Enforcement
Relations Division (Union), the parties requested that the Wisconsin Employment Relations
Commission designate a member of its staff to serve as arbitrator of a dispute between them
concerning whether the Village should pay the four grievants (Krueger, Laabs, Fristad,
overtime pay for attending a Health Fair regarding insurance providers on March 24, 1998.
hearing was held at Jackson, Wisconsin on September 9, 1998 at which time the parties were
a full opportunity to present relevant testimony, exhibits and other evidence and arguments.
stenographic transcript of the proceedings was made. The parties submitted their initial
briefs which were simultaneously exchanged through the Arbitrator on December 2, 1998.
parties waived the right to file reply briefs.
The parties stipulated that the following issue should be determined in this case:
Did the Village of Jackson violate Article VIII of the parties'
collective bargaining agreement by
refusing to compensate the Grievants for time spent at the health insurance meeting? If so,
the appropriate remedy?
Section 8.01 Daily and Weekly
Workweek. The standard workweek or work schedule
shall consist of six (6) on-duty days to be followed by three (3) rest days, 6-3, 6-3. The
workday shall be eight and one-half (8½) hours per day, including a one-half (1/2) hour
period during which time the employee shall be on call. The employee shall be allowed two
(15) minute paid breaks per shift. Under no circumstances shall an employee's shift be
Overtime. All employees who work in excess of their regular (sic) scheduled
workday or work in excess of their regular workweek shall receive one and one-half
(1½) times the
straight hourly rate for all overtime hours worked.
Section 8.03 Overtime
Required. Whenever, in the judgement of the department
head, it is necessary to require employees to work overtime, employees will, if physically
overtime services. An employee may be excused from overtime work if not physically able
perform overtime work or because of a serious personal need of an emergency nature. In
an officer is unable to perform overtime work, a written explanation shall be forwarded to
Director of Public Safety as soon as practicable, upon return to duty.
Computation. For the purpose of computing overtime pay, all hours paid shall
be considered hours worked.
Section 8.05 Call-In
Time. Employees called in to work on other than a regularly scheduled
time shall be entitled to at least two (2) hours work, or pay therefore, at the appropriate
rates of pay regardless of the length of time less than two (2) hours which they may work.
Village reserves the
right to have the employee work the full two (2)
hours. In the event the employee is released
during the two (2) hour period and called back within the same two (2) hour period, any
over said two (2) hour period shall be paid at the appropriate overtime rate of pay based
actual time worked. An employee shall not be entitled to the two (2) hour minimum when
he or she
reports early for a particular shift or remains after the end of his or her shift.
Section 8.06 Training
School. Overtime earned as a result of attending required in service
training, required school sessions or range-time outside the regularly scheduled work shift
paid at time and one-half (1½).
Section 8.07 Court
Pay. All employees who report for court duty during off-duty hours,
shall be compensated at the rate of one and one-half (1½) times the employee's hourly
minimum of which shall be two (2) hours at time and one-half (1½). Any employee
notification of cancellation less than twenty-four (24) hours in advance shall receive the two
minimum call-in pay.
STIPULATIONS OF THE
1. The grievants' hourly wage rates at the time of the March 24, 1998 Health
Lawrence Krueger, Jr. $15.19 per hour
Ron Laabs - $18.82 per hour
Todd Fristad - $17.00 per hour
Mike Bloedel - $19.72 per hour
2. Dave Murphy is the Director of the Public Works Department of the Village,
employe. Murphy's normal work hours are from 7:30 a.m. to 4:00 p.m. Murphy attended
Fair on March 24, 1998, during no more than 30 minutes of his normal working time, and
were not docked.
3. Brian Kober is the Building Inspector for the Village. He is a salaried
attended the Health Fair on March 24, 1998 and his wages were not docked for the period of
that he attended the Fair.
4. Kevin Kirkpatrick is a Police Officer with the Village. Kirkpatrick was on
March 24, 1998, and attended the Health Fair on that date without suffering any deduction
5. Pete Habel was on duty on March 24, 1998. Habel is a Sergeant with the
Police Department. Habel attended the Health Fair for a period of time unknown and no
was made in his pay therefor.
6. Officers Krueger, Laabs and Fristad believed that they had been ordered to fill
application form for the State Plan by the Chief and ordered to attend the Health Fair on
on the same basis as Officer Bloedel testified. Krueger, Laabs and Fristad would have
Bloedel did on these points.
The parties have had a collective bargaining relationship for several years. Since
1998, the Village of Jackson has had 24 hour per day police service. Chief Rosenbauer has
Police Chief in the Village for the past two and one-half years. The Village has a Village
Administrator/Clerk, Del Beaver, who has held that position since 1989. Officer Mike
been Union president for approximately the last four years and works the 6:00 p.m. to 2:30
During negotiations for the 1998-2000 contract, the Village and the Union voluntarily
to change health insurance carriers from Blue Cross-Blue Shield (BC/BS) to the Wisconsin
Employe's Plan (State Plan). No evidence was presented herein to show that the parties ever
discussed the procedural details of this change of carriers. Under the State Plan,
health care providers were available from which Village employes could select. Village
not have the option of staying with BC/BS so that they had to change health care providers in
to maintain their insurance benefits with the Village.
As the Village intended to make the effective date of the new State Plan coverage
1998, it was necessary for Village employes to consider and choose among the eight health
providers in the State Plan, to fill out a form (known as ET-2343) and submit that form on a
basis so that the Village could send it to the State of Wisconsin Department of Employe
no later than April 2, 1998. Therefore, after the Village administration received a March 6,
letter from the State of Wisconsin Department of Employe Trust Funds, it passed that letter
employes. That letter read, in relevant part, as follows:
. . .
We are acknowledging your resolution received on March 5, 1998
for inclusion under the Group
Health Insurance Program. The effective date of coverage is May 1, 1998.
The preliminary instructions and enrollment forms will be mailed
in March 1998.
The Group Health Insurance Applications
(ET-2343) must be completed by the employe,
returned to the employer and received by the Department of Employe Trust Funds by March
1998, 30 days prior to the effective date. We request that you send in your health
days prior to the effective date, but no later than April 2, 1998. If the health applications are
received by this date, we cannot assure that ID cards will be received by subscribers by the
date of coverage.
. . .
The above-quoted letter was distributed to all police officers in their police department
or about March 13, 1998. The document distributed also contained a handwritten message
Chief Rosenbauer dated March 13, 1998 which read as follows:
ALL PD MEMBERS
1) Completed Forms ET-2343 must be
returned to him NLT Fri. March 20, 1998.
2) A General Staff meeting (no OT
authorized) will be held on Monday, 3-16-98 at 9:30 a.m.
to explain the process?
. . .
By memo dated March 10, 1998, Village Administrator Beaver advised all employes
Wisconsin Public Employes group health insurance options, as follows:
. . .
I am scheduling a Health Fair for Tuesday afternoon, March 24,
from 3:30 pm to 5:30 pm. It
is important for you to attend in order for you to discuss the various health care provider
Eight separate tables will be set up for the
various care providers so you can ask specific
This is the only Health Fair I am scheduling, so plan to attend. If
you have specific questions
after the Health Fair, please refer to the contact #'s of the Marketing Representatives below.
will be bringing booklets, etc. to the Health Fair.
I need your enrollment application not
later than 3:30 pm. March 31, 1998, so Madison can
receive it by April 2, 1998.
Compcare Jeanne Blank (414)
Humana Lora Harris (414)
Emphesys Lora Harris (414)
Managed Health Katha Stanley
(414) 345-4620 x 305
Maxicare Marlene Martin (414)
Network-Community Robert Parr
PrimeCare David Wierkiewicz
Standard Plan (BCBSUW) Sandy
Reblin (920) 923-8343
Copies of the above-quoted memo were placed in all police
officers' Police Department mailboxes
on or about March 10. It should be noted that at the bottom of this memo in large letters
handwritten notation "NO OT per Village Administrator". The contact numbers
listed on the memo
of March 10 were those of the eight health care providers available under the new State
By memo dated March 13, 1998 to Chief Rosenbauer, Union President Bloedel
following concerns regarding the Health Fair and the due dates for applications for the new
insurance as follows:
. . .
I have received several notices and an enrollment form regarding
the new health insurance plan
being put into effect. The first item was a letter from Del Beaver indicating a "health fair"
held on 3/24/98 and that applications must be received "no later than 3:30PM, March 31,
3/13/98 I found a copy of a letter from the Dept of Employee Trust Funds along with an
form to select the coverage plan. On this document was a hand written note indicating the
now had to be in "NLT Fri March 20, 1998." Since the Village still has not provided us
information on each plan and has scheduled a "health fair" for 3/24/98 I do not know how
can complete the application by 3/20/98. The application requires each
employee to select a plan and provide names of physicians and
their provider number. Unless
detailed information is provided to each association member prior to 3/20/98 it will be
complete the application. Furthermore, I do not understand why a "health fair" is being held
the applications are due. I have been in the Wisconsin Public Employer's Group Health Plan
I worked in another municipality and each provider published pamphlets that indicated the
hospitals, clinics, and physicians participating in each plan. I would appreciate clarification
apparent contradictory due dates for the application and the necessary information to
application. For those members who do not attend either of these meetings, I would request
Village obtain this information and make it available to each association member. Thankyou.
On March 17, 1998, Chief Rosenbauer responded to the above-quoted memo sent him
by writing a handwritten note on Bloedel's March 13th memo and sending it back to Officer
. . .
1) At the meeting held 3-16-98 the Administrator changed the
due date for the return of ET-2343 to NOON on Thursday, March 26th
2) I will, as always, forward to department
members any information that is given to me!
3) I know very little about this whole
matter and will try to keep you and department members
informed as best I can.
. . .
Also on March 13th, Bloedel wrote to Union Representative Bahr as
. . .
As I anticipated the change (sic) over in insurance is becoming a
real problem. Beaver is planning
on a health fair as he calls it as the only way of getting us any information on the various
however they will not pay overtime for anyone not on duty to attend. I have sent you some
various documents we have received recently as well as a response I sent to Chief
regarding my concerns. I called a couple weeks ago and you were out of town. I would
a call ASAP on Monday as they have scheduled a meeting at 9:30AM and again are refusing
off (sic) duty officers to attend it. Thanks.
On or about March 13, 1998, the Chief took copies of pamphlets from some of the
insurance providers in the State Plan and placed them either in the Police Department's squad
or the garage bay which was serving as a temporary squad room during a transition in the
Department. The Chief did not have pamphlets from all eight providers, but placed one
copy of the
pamphlets available in the Department and told some police officers that the pamphlets were
area and available for them to peruse. Also at approximately this time, Village
out the health care providers' pamphlets in the copier/facsimile area of the Village offices,
adjacent to the Police Department, in the same building. It was common knowledge that
pamphlets were available in the Village office, although Officer Bloedel did not see them
Neither the Chief of Police nor the Village Administrator issued any written notice to
employes announcing the availability of health care provider pamphlets. There was a sign on
where the Administrator had placed health care provider pamphlets that supplies were
that employes should return the pamphlets to that area after they had used them. After
his memo March 13th to Chief Rosenbauer, the due date for the return of the application
forms (ET-2343) was changed to March 26, 1998, and the Health Fair was scheduled to
occur on March 24,
The Health Fair did indeed occur on March 24, 1998 between 3:30 p.m. and 5:30
p.m. It was
held in the basement of the Village Hall where tables were put up for representatives of
providers who were present to answer questions and give out pamphlets. Not all of the eight
care providers were represented at the Health Fair on March 24th. Village Administrator
stated that he arranged for the Health Fair to occur on March 24, 1998, at 3:30 p.m. because
the Wastewater Treatment employes and the Public Works employes would be off work at
during the day, and there was no time at which he could have scheduled the Health Fair so
Village employes could attend soon after their work day ended. Beaver stated that he
employes who were still working as of 3:30 p.m. on March 24 should not suffer a deduction
pay to attend the Health Fair, but that no employes should receive overtime to attend the
if they were not scheduled to work.
Before the Health Fair took place, Beaver and Chief Rosenbauer specifically
whether police officers who were not on duty on March 24 as of 3:30 p.m. should receive
payment for the time they spent attending the health fair. It was Chief Rosenbauer's view
that off-duty police officers should be paid for their attendance at the Health Fair because the
Health Fair had
to do with wages, hours and working conditions at the Village. Beaver disagreed, and
told the Chief that attendance at the Health Fair was non-mandatory, not a work activity and
overtime would not be paid, as employes would not be required to attend the Fair.
It should be noted that no one took attendance or roll call at the Health Fair and that
grievants did not punch in on the Village time clock for their attendance at the Health Fair
24, 1998. The Village Administrator, Officers Kirkpatrick and Habel, the Village
receptionist, as well
as Dave Murphy and Brian Kober attended the Health Fair and received pay during their
hours of work. The four Grievants each attended the Health Fair and Krueger, Laabs and
claimed two hours' overtime for the March 24th Health Fair and Fristad
claimed two hours' overtime
for the March 16th staff meeting and two hours' overtime for March
24th. The instant grievance was
filed and denied by the Village. 1/
1/ The Union and Village made no arguments
regarding Fristad's overtime request for
March 16th and I find that issue is not before me.
The evidence is undisputed that employes of the Department who work beyond their
eight hour work day or beyond a 40-hour week, are eligible for overtime pay, pursuant to
of the collective bargaining agreement. It is also clear that employes can receive overtime
if they do not punch in on the time clock for such activities as being subpoenaed for a
for court; appearances ordered by the Chief; departmental meetings ordered by the Chief;
Village activity known as "Action Jackson". So long as the officer puts in an overtime
form and/or has drafted reports regarding his police work, even if he has not punched in to
will receive overtime pay for these activities. However, no overtime pay is granted to Union
when they meet with individual employes regarding benefits and other matters. Nor is
granted to employes engaged in contract negotiations or who attend arbitration hearings.
It is also clear on this record that Chief Rosenbauer did not order any employes to
Health Fair. Nor did Rosenbauer ask any Department employes to work overtime on March
order to attend the Health Fair. Finally, I note that Village Administrator Beaver is the
supervisor of all department heads, including the Chief of Police, and that the Village
can require employes to perform work, although the Chief of Police is their department head,
the contract. 2/
2/ The delivery of Village packets to Village
Board members on a weekly basis has been
ordered by the Village Administrator and although police work takes a priority over this
work, this work is considered mandatory by police officers and the Village. It is unclear
record whether officers were paid overtime to deliver these Village packets.
POSITIONS OF THE PARTIES
The Union noted initially that the Village Administrator sent a memo to all employes
indicating that they should "plan to attend" the Health Fair. Some Village employes were in
their regular wages to attend the Health Fair. In the Union's view, the Grievants were
become well informed regarding health care providers so that they could complete a health
application. In addition, not all that information regarding providers was available before
Fair. Thus, in the Union's view, attendance at the Health Fair on March 24, 1998 was
under the circumstances and had been directed by the employer, so that each Grievant should
at least two hours' of overtime pay for having attended the Health Fair.
The Union pointed out that the contract does not define hours worked. Thus, a
sense understanding would dictate that the Grievants' time spent at the Health Fair should be
considered hours worked under the collective bargaining agreement. In this regard, the
observed that employes were required to complete an application for health insurance, and
that if the
Grievants had not completed and turned in their applications on time, their insurance would
lapsed. In addition, the Union observed that all of the Grievants had put in all of their
regularly-scheduled hours during the week of March 24, 1998, and that Administrator Beaver
ordered or required them to attend the Health Fair by use of the phrase "plan to attend".
Furthermore, the Police Chief stated at the hearing in this case that he believed that the
constituted a general staff meeting which would normally be compensated at as "hours
these circumstances, the Union urged that the grievance should be sustained.
In addition, the Union argued that the Fair Labor Standards Act supports its argument
the Health Fair should be considered working time and therefore paid on an overtime basis.
the FLSA, only if all four of the following criteria are met, will time not be
overtime/call-in: (1) attendance at a meeting is outside the employes' regular working hours;
attendance is in fact voluntary; (3) the meeting is not directly related to the employe's job;
the employe has not performed any productive work during their attendance at the meeting.
this standard, the Union noted that the Grievants' attendance at the Health Fair was not
it directly affected their employment as the Grievants were led to believe that if they did not
the Health Fair, their present working conditions or a continuation of their employment
adversely affected. The Union noted that the Chief had ordered all employes to fill out form
and that employes could have been disciplined if they had failed to do so. Furthermore,
information available at the Health Fair, the Grievants could not reasonably be expected to
their application forms, as not all health insurance provider information had been available at
Village Hall prior to the Health Fair.
In all of these circumstances, the Union urged that the Arbitrator find that the
been "called in to work" outside their regular shift hours and that they should be paid a
two hours overtime pay for the time they spent at the Health Fair on March 24, 1998.
The Village argued that attendance at the Health Fair on March 24, 1998 did not
work because attendance was purely voluntary and not required or ordered by the Village.
regard, the Village noted that the Grievants performed no required work while they were in
attendance at the Health Fair; that no "department head" had required the Grievants to "work
overtime"; and that, prior to March 24, 1998, Village employes including the Grievants had
on notice that the Health Fair was purely voluntary and would not be considered "work" for
of overtime. In particular, the Village observed that Administrator Beaver's March 10, 1998
on its face, could not constitute an order to appear and participate at the Health Fair. In
fact that Chief Rosenbauer placed a handwritten note on Beaver's March 10 memo to the
no overtime would be allowed by the Village, made it clear that the Village would not pay
overtime for attending the Health Fair.
The Village also argued that Union President Bloedel understood fully that employes
not be paid overtime for attendance at the Health Fair, as demonstrated by his memo dated
13, 1998 to Union Representative Bahr and his memo of that same date to Police Chief
Furthermore, the fact that Bloedel admitted that he punched out before the Health Fair
no roll call was taken, that he wore no uniform to the Health Fair, that he did no police
prepared no reports during the time that he was at the Fair, further support a conclusion that
knew full well that his attendance at the Fair was not mandatory and could not be considered
Any analogy that the Union made to other forms of paid time, in the Village's view,
persuasive of the issues in this case. Thus, the fact that the Village pays officers for
court time and other police work in the community does not require a conclusion that
the Health Fair was in fact required or mandatory such that officers should have received
pay to attend it.
The Village argued that it was under no contractual obligation to hold a Health Fair
the Union could have, but did not, bargain for employes to be paid overtime for their
the Health Fair, during negotiations over the contract which resulted in a change in health
providers. In this regard, the Village urged that the Union should not be allowed to obtain a
through arbitration which it did not seek or gain in negotiations.
In regard to the requirements for coverage of time spent at meetings which could be
considered work time for purposes of overtime payment, the employer argued that attendance
Health Fair was completely voluntary, that the meeting was not directly related to the
police work; that the Grievants admittedly did not perform any police work while they were
attendance at the Fair; and that all of the Grievants were outside their regular work hours
chose to attend the Fair on March 24, 1998. Thus, the Grievants should be found to have
the Health Fair on their own time and the grievance should be denied and dismissed in its
The central question in this case is whether the Grievants could have been led to
their attendance at the March 24, 1998 Health Fair constituted work required by the Village.
regard, I note that Article VIII defines the work week as well as when overtime shall be paid
what basis it shall be computed. I note that Article VIII, Section 8.02 states that all
"work in excess of their regular (sic) scheduled workday or work in excess of their regular
workweek" shall receive time and one-half overtime pay. In addition, Section 8.03 is
"Overtime Work Required" and states specifically that only the "department head" can
employes to work overtime". In addition, Section 8.05 states that "employes called in to
other than a regularly scheduled time" shall receive two hours of call pay at time and
Finally, Sections 8.06 and 8.07 detail that overtime can be earned as a result of attending
training, required school sessions, range time or reporting for court duty all items
that might not
normally be considered overtime work. Conspicuously lacking from the contract is any
requirements for holding health fairs, attending health fairs, or giving employes health care
In this context, and given the fact that the parties submitted no evidence regarding
history surrounding the change to the State Plan for the 1998-2000 collective bargaining
the question arises whether the facts support a conclusion that the Village was obligated to
Grievants overtime pay for attending the Health Fair. The Union has pointed to Village
Administrator Beaver's memo dated March 10 in which he stated "It is important for you to
(the Health Fair) in order for you to discuss the various health care provider options", as a
the Grievants' belief that they had been ordered to attend the Health Fair on March 24, 1998.
opinion, the language of the March 10 Beaver memo fails to rise to the level of a command
In addition, I note that if the Grievants had had any doubt as to whether Beaver's
in his March 10 memo rose to the level of an order, that doubt was dispelled by the
notation placed on that memo by the Police Chief, clearly indicating that no overtime would
granted for attendance at the Health Fair. Yet the Grievants put in for overtime despite these
Indeed, it is clear that Union President Bloedel was fully aware that attendance at the
Health Fair was not mandatory and that overtime would not be granted for attendance
regular work hours, by admissions contained in his memos to Union representative Bahr and
Bloedel each dated March 13. Thus, I disagree with the Union's analysis that employes were
to submit form ET-2343. In this regard, I note that an employe may elect to be covered by
health insurance or elect to remain uncovered. Thus, the fact that forms ET-2343 were due
by a date
certain did not constitute an order to produce them by that date. Rather, the listed due date
constituted a notification to employes that unless they submitted forms in a timely fashion
coverage would lapse.
The fact that the Village paid some employes to attend the Health Fair during their
work hours does not require a conclusion that the Grievants in this case should be paid
their attendance. It is clear on this record that if employes needed further information from
care providers, they were given the providers' telephone numbers in Administrator Beaver's
10 memo. Employes were also given the opportunity to study health care provider pamphlets
without any reduction in pay. The Union offered no evidence to show that employes called
on work time, used Village telephones to make long-distance calls to these providers, or
employes were paid overtime for their time studying pamphlets and/or calling health care
listed in Beaver's March 10 memo if they called during non-work time.
The Union has argued that without attendance at the Health Fair the Grievants could
reasonably be expected to complete form ET-2343. The facts demonstrated that the Union
voluntarily agreed to changes in the Health Insurance article for 1998-2000. Therefore, it
incumbent upon employes to do what was required to maintain their health benefits, even if
the health providers attended the Health Fair and their information was not available to
In all of these circumstances, I find that the Health Fair did not constitute "work"
Article VIII and that the Chief (the Grievants' department head) never required the Grievants
"work overtime" under Section 8.03. The Grievants were not "called in" to work under
and attendance at the Health Fair is not an item listed in or arguably covered by Articles
8.06 or 8.07
as one which would be paid at overtime. In my opinion, the attendance at the Health Fair
was in fact
voluntary. 3/ I find that the facts of this case fail to demonstrate that the Village was
the contract, the circumstances of this case, bargaining history or past practice to pay
overtime pay for their attendance at the Health Fair.
3/ In this regard, I note that no one took
attendance or roll call at the Health Fair, that
employes who were there on their own time did not wear uniforms and that the Chief never
an order to attend the Health Fair. Union President Bloedel also admitted that he did not
perform any police work while at the Health Fair, that he made no reports, and that he did
log any data during this time.
Based upon the relevant evidence and argument in this case, I issue the following
The Village of Jackson did not violate Article VIII of the parties' collective
agreement by refusing to compensate the Grievants for time spent at the health insurance
The grievance is therefore denied and dismissed in its entirety.
Dated at Oshkosh, Wisconsin this 23rd day of December, 1998.
Sharon A. Gallagher, Arbitrator