BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN PROFESSIONAL POLICE
VILLAGE OF ELM GROVE
Mr. Mark Hollinger, Staff Attorney, Wisconsin Professional
Police Association, 340 Coyier Lane, Madison, Wisconsin 53713, appearing on behalf of the
Ms. Andrea Steen Crawford, Village Manager, Village of Elm
Grove, 13600 Juneau Boulevard, Elm Grove, Wisconsin 53122-0906, appearing on behalf of
Pursuant to a request by Wisconsin Professional Police Association/LEER Division,
"Association," and the subsequent concurrence by the Village of Elm Grove, herein
undersigned was appointed arbitrator by the Wisconsin Employment Relations Commission
March 16, 1999, pursuant to the procedure contained in the grievance-arbitration
provisions of the
parties' collective bargaining agreement, to hear and decide a dispute as specified below. A
was conducted by the undersigned on May 11, 1999, at Elm Grove, Wisconsin.
A transcript was
received on June 8, 1999. The parties did not file briefs.
After considering the entire record, I issue the following decision and Award.
The Association frames the issues as follows:
Did the Village of Elm Grove violate Article XIX
(Holiday Pay) of the 1998 2000
Collective Bargaining Agreement when it calculated holiday pay based on a 7.746 hour
rather than an 8.0 hour workday. If so, what is the remedy?
The Village frames the issues in the
Did the Village of Elm Grove violate
Article 19, holiday pay of the 1998-2000 collective
bargaining agreement when it calculated holiday pay based on a 2014 work year as compared
work year. If so, what is the remedy?
Based on the entire record, the Arbitrator frames the issues as follows:
1. Did the Village of Elm Grove violate Article XIX
Holiday Pay by the manner in which
it calculated holiday pay for the Grievants?
2. If so, what is the remedy?
During negotiations for the successor collective bargaining agreement, the Association
proposed a schedule change for its dispatchers from a five day on, two day off schedule to a
four two, four two, four two, four one schedule. The purpose of the proposed schedule
to allow employes off on different days of the week as opposed to consistently the same day.
five two schedule comes out to 2080 hours per year for unit employes while the latter
equivalent to 2014 hours.
The Association and the Village ultimately signed a new agreement that runs from
through 2000. The parties agreed that there would be a one percent wage increase in effect
January 1, 1998, which increased the maximum hourly wage from $13.55 to $13.69.
The new schedule was implemented in March, 1998, with the wage rate again being
from a maximum of $13.69 to a maximum of $14.14. This increase in the wage rate was
to offset the reduction in hours from 2080 to 2014 so that the annual in-pocket dollar amount
not be reduced to unit employes due to the decrease in hours of the new schedule.
There was no discussion during bargaining of holiday pay or the method of
The parties agree that the January 1, 1998 holiday was correctly calculated at
is $13.69 times eight hours. The Village paid the other nine holidays at $14.14 times 7.746
which also equals $109.52.
On December 9, 1998, Tammy Ostroski, Renee Alverez, Carolyn Kiefer and
filed grievances which raised the issue of whether the Village violated Article XIX
Holiday Pay by
failing to make proper payment to the Grievants. Regarding the relevant facts, the
that the agreement "provides that employees shall receive a year end payment for the
identified in the Agreement. The Employer made payment, to the grievant, based upon
per day rather than 8.0 hours." The Village denied said grievances. In her letter to
representative, Thomas W. Bahr, dated January 14, 1999, Village Manager Andrea
noted the following:
. . .
At the January 6th meeting, the WPPA position
was further defined through a series of questions
which you posed and answered.
Did we negotiate a 4.02% increase in
holiday pay? No.
Did we negotiate any change in the
pay provision? No.
You asserted that the requested 4.02%
increase in holiday pay from 1997 to 1998 is the result
of the negotiated settlement. In conclusion, the WPPA position on the calculation of the
holiday pay was defined based on the following example using the highest wage category
with no step
increased during the year.
EXAMPLE 1 WPPA methodology
for calculating holiday pay
January 1, 1998 $13.69 x 8
hours = $109.52
9 other holidays $14.14 x 8
hours = $113.12 per holiday
x 9 holidays
Total 1998 holiday pay requested
$1,127.60 represents a 4.02% increase
over 1997 holiday pay of $1084.
While it is true that contract negotiations did not include a
discussion of a 4.02% increase in
holiday pay or a change in the contract language outlining holiday pay, WPPA did negotiate
proposal for 1998 called for a one percent increase in total compensation for a full-time
at the highest pay range with no step increase during the year. Chief Haig represented that
pay dispatchers did, in fact, receive a 1% increase in total compensation for 1998 including
holiday pay compensation thereby satisfying the Village's negotiated contractual obligations.
. . .
My philosophy in negotiating and
administering contracts is to treat all employees fairly and
equally. When a specific contract clause calls for an alternate methodology for a benefit
it is adhered to. In the absence of specific language, all employees are treated equally. In
of holiday pay, a consistent methodology was used in the calculation. Village employees
with a 1950
hour work year received 75.0 hours in holiday pay. Employees with a 2021.5 hour work
received 77.75 hours in holiday pay. Employees with a 2080 hour work year received 80.0
holiday pay. Dispatchers with a 2014 hour work year received 77.46 hours in holiday pay.
In conclusion, I find that the contract does
not identify a specific methodology for calculation of
holiday pay, but that the Village has satisfied the negotiated wage agreement by providing a
percent increase in overall wages including a one percent increase in holiday pay. I further
this methodology is consistent with the manner in which other employees are compensated
pay based on the number of hours worked annually. Therefore, I do not concur with your
pay calculation as outlined in Example 1 above and the additional $32.40 per dispatcher
At issue is whether the Village violated Article XIX Holiday Pay by the
manner in which
it calculated holiday pay for the Grievants. The Association argues that the Village violated
aforesaid contractual provision by calculating holiday pay based on 7.746 hours instead of 8
The Village takes the opposite position.
Article XIX Holiday Pay provides that "All regular full-time employees shall
be entitled to
holiday pay." Said article, however, does not expressly describe what constitutes holiday
Bargaining history does not shed light on its meaning.
The Village argues that because the holiday article contains no formula for calculating
pay and other contract provisions contain the formulas for calculating benefits noted below
Village may calculate holiday pay on a basis other than eight hours. In particular,
the Village points to Article XVII which provides that the Village will grant paid sick
leave at the rate
of eight hours for each calendar month worked and to Article XXIII which sets out a
schedule and uses the word "days" referencing the number of days off. The Village is
pointing out that arbitrators frequently apply the principle to express one thing is to exclude
Elkouri and Elkouri, How Arbitration Works, 5th Edition,
page 497 (1997). The contract, on its face,
appears to support the Village's position that it properly paid holiday pay based on 7.746
The Association argues, contrary to the above, that past practice supports its position.
regard, the Association maintains that the Village has always calculated holiday pay by
the employees' wage rate times the number of hours they worked in a day which is eight
However, in the absence of a written agreement, "past practice" to be binding on both parties
be (1) unequivocal; (2) clearly enunciated and acted upon; (3) readily
ascertainable over a reasonable
period of time as a fixed, and established practice accepted by both parties. Elkouri and
supra, page 632. The Village provided unrebutted testimony and evidence that
it calculated holiday
pay in the past based on a consistent methodology which provided that eight hours is the
only within the context of a 2080 hour work year. Dispatchers now work a 2014 hour work
Pursuant to the Village's methodology that work year computes to 77.46 hours of holiday
is clear from the foregoing, that the Village has not always accepted the practice of paying
eight hours of holiday pay except under the old work schedule. Therefore, the Arbitrator
argument of the Association.
The Village argues that it has honored the terms of the negotiated agreement by
one percent increase in the holiday pay benefit. In fact, there is no dispute that the parties
a one percent wage increase effective January 1, 1998, which increased the maximum
from $13.55 to $13.69. There is also no dispute that for the January 1, 1998 holiday
correctly paid dispatchers $13.69 times eight hours which equals $109.52 or a one percent
over the holiday pay for the 1997 holidays. (Tr. 44) The Village also points out that the
holidays in 1998 were paid at $14.14 times 7.746 hours which also equals $109.52 for the
percent increase over the 1997 holiday pay.
The Association argues, contrary to the above, that the Village's failure to pay the
holidays at $14.14 times eight hours violates the parties' agreement reached during collective
bargaining. However, as pointed out by the Village, the parties did not negotiate a four
increase in the holiday pay benefit (which the Association's holiday pay formula would result
any other change in the holiday pay provision. Thomas Bahr, bargaining representative for
Association, confirmed same when he testified at hearing that when the schedule changed in
1998, the hourly rate changed upward to offset the reduction that otherwise would have
the annual wages of the employe. (Tr. 12) In other words, the hourly wage rate upon
implementation of the schedule change was agreed to be increased to a proportional amount
percentagewise to the number of the cut in hours so that there would be no loss in in-pocket
to the full timers. (Tr. 12-13) The disputed holiday payments
by the Village resulted in no loss in in-pocket dollars to the Grievants. As noted
above, it resulted
in a one percent increase in holiday pay. This was consistent with the parties' agreement for
percent across-the-board increase effective January 1, 1998. The Association's request
to sustain the
grievances would result in a four percent increase in the holiday pay benefit, something the
Association did not bargain successfully for at the bargaining table. The Association should
allowed to accomplish in grievance arbitration something it did not even attempt at the
It is true, as pointed out by the Association, that the Village's method of calculating
pay is based on a different number of hours in a work day (7.746 hours) than the number of
employe takes off for a holiday (8 hours). However, the Association offers no persuasive
that this violates the collective bargaining agreement.
Based on all of the foregoing, and absent any persuasive evidence or argument to the
the Arbitrator finds that the answer to the issue as framed by the undersigned is NO, the
Elm Grove did not violate Article XIX Holiday Pay by the manner in which it
pay for the Grievants.
In reaching the above conclusions, the Arbitrator has addressed the major arguments
parties. All other arguments, although not specifically discussed above, have been
reaching the Arbitrator's decision.
Based on all of the above and the record as a whole, it is my
The grievances are denied and the matter is dismissed.
Dated at Madison, Wisconsin, this 23rd day of July, 1999.
Dennis P. McGilligan, Arbitrator