BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SOUTH MILWAUKEE PROFESSIONAL
CITY OF SOUTH OF MILWAUKEE
Mr. Patrick J. Coraggio, Labor Consultant, Labor Association
of Wisconsin, Inc., 2825 North Mayfair Road, Wauwatosa, Wisconsin 53222, appearing on
behalf of the Association.
Mr. Joseph G. Murphy, Attorney at Law, 2013 14th Avenue,
P.O. Box 308, South Milwaukee, Wisconsin 53172-0308, appearing on behalf of the City.
South Milwaukee Professional Policemen's Association, hereafter the Association,
City of South Milwaukee, hereafter the City or Employer, are parties to a collective
agreement which provides for the final and binding arbitration of grievances arising
February 9, 1998, the Association requested, and the City concurred, in the
appointment of a
Commission staff arbitrator to resolve a pending grievance. An arbitration hearing was
April 9, 1998, and subsequently postponed until October 27, 1998. The hearing
was held in South
Milwaukee, Wisconsin. The hearing was not transcribed and the record was closed on
1999, upon receipt of post-hearing written argument.
The parties were able to stipulate to the following statement of the issue:
Did the Employer violate the express and implied terms of the
collective bargaining agreement
when it failed to compensate the three sergeants' shift commander pay in accordance with the
provisions of the collective bargaining agreement?
If so, what is the appropriate remedy?
ARTICLE VIII WAGES
. . .
Section 8.03 Shift Commander
Pay: When members of the bargaining unit are assigned
to act in a higher classification for one (1) or more hours, the employee shall be entitled to
applicable to the duties of the classification being performed.
. . .
. . .
Section 14.03 Final and Binding
Arbitration: If the grievance is not satisfactorily settled
under Step III, it may be submitted to arbitration by either party serving written notice on the
within ten (10) days after the decision of the Human Resources Committee of the Common
. . .
The function and jurisdiction of the arbitrator shall be limited
the interpretation, application
and enforcement of the provisions of this Agreement. The arbitrator shall have no power to
to or delete from the terms of this Agreement, or to change the methods of operation or
rules of the Municipality which are not inconsistent with this Agreement. Any matter
contrary to the functions and jurisdiction of the arbitrator as herein defined shall be returned
parties without decision or recommendation.
. . .
On December 8, 1997, the Association filed a grievance alleging that the City had
the collective bargaining agreement by failing to provide Sec. 8.03 out-of-classification pay
Sergeants who acted as a Lieutenant in the Lieutenant's absence. The Police Lieutenant is the
Commander. The Shift Commander is also referred to as the Watch Commander.
The grievance requested that Sergeants James Ehardt, Glenn Gossett and Dwight
compensated for all lost wages (including, but not limited to, regular pay, overtime pay and
pay wherever applicable) during the life of the 1995-97 collective bargaining agreement. The
grievance was denied and, thereafter, submitted to arbitration.
POSITIONS OF THE PARTIES
The limitations imposed upon the arbitrator under Sec. 14.03 reconciles with the
accepted principle that arbitrators should give clear and unequivocal contract language no
other than that expressed within the four corners of the collective bargaining agreement.
principle has been affirmed by the Courts and by Arbitrator Houlihan in a prior arbitration
Where there is a conflict between past practice and clear contract language, the clear
language must prevail. Additionally, the City was placed on notice that the alleged past
being terminated as of the filing of Grievance 97-98 on December 8, 1997.
Prior to 1982, the contract stated that if a patrolman is required to act as shift
four or more hours, then the patrolman would be compensated at a rate of pay equal to the
Sergeant. Since 1983, the contract has contained the language found in Sec. 8.03.
The change in the contract language establishes that the right to out-of-classification
not limited to patrolman, but rather, extends to all bargaining unit personnel. This change
establishes that out-of-classification pay is not limited to the sergeant's pay, but rather, is the
applicable to the duties of the classification being performed."
Neither the language of Sec. 8.03, nor any other contract language, limits the
Sec. 8.03 to "higher" classifications within the bargaining unit. The fact that the City
sergeants to assume shift commander duties in their absence does not allow
the City to ignore contractually agreed-upon conditions of employment. To conclude
would allow the City to rewrite all job descriptions to circumvent the out-of-classification pay
requirements of Sec. 8.03. The grievance should be upheld.
Section 8.03 does not define the term "classification." As used, the term could mean
grade, rank, or assignment, within the bargaining unit or the police department as a whole.
Read in context, "classification" means a position or job assignment that requires the
to perform duties beyond those normally required to be performed in the employe's position.
it is only when the employe performs duties of some other "classification" that payment may
The terms "Shift Commander" and "Watch Commander" are interchangeable.
"Shift Commander" has always been one of the regular duties of a Patrol Sergeant. In the
years since the parties adopted the language of Sec. 8.03, no sergeant has claimed that he/she
been performing duties beyond the scope of his/her position.
Evidence of past practice may be used to construe ambiguous contract language. The
evidence of the parties' past practices demonstrates that patrol officers who function as shift
commander have received the sergeant's rate of pay. Sergeants have not requested, nor have
been paid, any additional pay for performing as "Shift Commander."
The grievance is without merit and should be dismissed. In the event that the
sustained, any award of back pay cannot extend past November 18, 1997.
Commencing with the 1983-85 collective bargaining agreement, Sec. 8.03 has
When members of the bargaining unit are assigned to act in a
higher classification for one (1)
or more hours, the employee shall be entitled to the salary applicable to the duties of the
In order to determine whether or not an employe is entitled to
Sec. 8.03 pay, it is necessary to
determine if the employe has been assigned to "act in a higher classification." To that end,
determine whether the duties being performed are those of the employe's classification, or of
Inasmuch as Sec. 8.03 does not identify which duties belong to which classification,
language is not clear and unambiguous. Accordingly, evidence of bargaining history and the
past practices may be considered.
Prior to the 1983-85 collective bargaining agreement, the collective bargaining
contained the following language:
3. If a patrolman is required to act as shift commander for one (1)
or more hours, he shall be
compensated at a rate of pay equal to that of Police Sergeant.
A comparison of the old language to the existing language
reveals that the parties deleted the
reference to patrolman and Police Sergeant and replaced them with terms that are more
Thus, the changes in the contract language support the Association's argument that the
intended out-of-classification pay to be available to classifications other than Patrol Officer
out-of-classification pay is not limited to the sergeant's pay. However, the changes in the
per se, do not reflect that the parties had any understanding with
respect to what constitutes "acting"
in a higher classification.
For more than twenty years, the written job description of the Patrol Sergeant has
the following duty: "In the absence of the watch commander, a patrol sergeant is required to
the duties and responsibilities of the watch commander." The position description, on its
supports the conclusion that acting as a shift commander, in the absence of the shift
work of the Patrol Sergeant classification.
Following the adoption of the current Sec. 8.03, Patrol Sergeants regularly acted as
commander for one or more hours, in the absence of the shift commander, and were
the sergeant's pay rate. It is unlikely that such a well-established practice would go
unnoticed by the
Association. It is reasonable to conclude, therefore, that the Association has acquiesced in
practice. Thus, the evidence of the Patrol Sergeant pay practices indicates that the parties
mutually agreed that the assumption of the duties and responsibilities of the shift commander,
absence of the shift commander, is work of the Patrol Sergeant classification.
Following the adoption of the current Sec. 8.03, Patrol Officers received Sec. 8.03
assuming the duties and responsibilities of the shift commander for one or more hours, in the
of the shift commander. Patrol Officers who received this Sec. 8.03 pay have been paid at
classification of Patrol Sergeant, as have Investigators and Detectives who have assumed
As with the Patrol Sergeant pay practice, it is unlikely that the Patrol Officer,
Detective pay practices would go unnoticed by the Association. It is
reasonable to conclude, therefore, that the Association has acquiesced in these pay
the evidence of the Patrol Officer, Investigator and Detective pay practices indicates that the
have mutually agreed that the assumption of the duties and responsibilities of the shift
in the absence of the shift commander, is work of the Patrol Sergeant classification.
In summary, the language of the Patrol Sergeant position description, as well as the
of the parties' pay practices, persuades the undersigned that the assumption of the duties and
responsibilities of the shift commander, in the absence of the shift commander, is a duty of
Sergeant classification. Inasmuch as Patrol Sergeants who are assigned such duties and
responsibilities are not acting in a higher classification, the performance of such duties does
the Patrol Sergeants to the out-of-classification pay set forth in Sec. 8.03.
Contrary to the argument of the Association, such a conclusion does not mean that
may circumvent the requirements of Sec. 8.03 by rewriting other position descriptions, such
Patrol Officer, to include acting as shift commander. The reason being that this award does
solely upon the language of the position description, but rather, also gives effect to the
well-established and mutually accepted practices of the parties.
The arbitrator has relied upon past practices to interpret ambiguous contract language.
Neither party can unilaterally repudiate this type of past practice. Contrary, to the argument
Association, the grievance filed on December 8, 1997 is not sufficient to repudiate the past
relied upon by the arbitrator in interpreting Sec. 8.03 of the parties' 1995-97 collective
Based upon the above and foregoing, and the record as a whole, the undersigned
1. The Employer did not violate the express and implied terms of the collective
agreement when it failed to compensate the three sergeants shift commander pay under Sec.
the collective bargaining agreement.
2. The grievance is denied and dismissed.
Dated at Madison, Wisconsin, this 20th day of April, 1999.
Coleen A. Burns, Arbitrator