BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CLINTON PROFESSIONAL POLICE
WISCONSIN PROFESSIONAL POLICE
VILLAGE OF CLINTON
(Kitzman Vacation Grievance)
Mr. Mark Hollinger, Staff Attorney, Wisconsin
Professional Police Association, 340 Coyier Lane,
Madison, Wisconsin 53713, appearing on behalf of the Clinton Professional Police
James H. Fowler Law Office, 20 East Milwaukee Street, Suite 206, Janesville,
Wisconsin 53545-3061, by Attorney James H. Fowler,
appearing on behalf of the Village of Clinton.
Pursuant to the provisions of the collective bargaining agreement between the parties,
Clinton Professional Police Association (hereinafter referred to as the Association or the
the Village of Clinton (hereinafter referred to as the Village or the Employer) requested that
Wisconsin Employment Relations Commission designate Daniel Nielsen as arbitrator of a
the appropriate increment for vacations. The undersigned was so designated. A hearing was
at the Village Hall in Clinton, Wisconsin, on June 2, 1999, at which time the parties were
full opportunity to present such testimony, exhibits, other evidence and arguments as were
to the dispute. The parties submitted post-hearing briefs which were exchanged through the
arbitrator on August 12, 1999, whereupon the record was closed.
Now, having considered the testimony, exhibits, and other evidence, the arguments of
parties, and the record as a whole, and being fully advised in the premises, the undersigned
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties agreed that the arbitrator should frame the issue in his Award. On
grievance documents and the record as a whole, the issue may be fairly stated as follows:
Did the Village violate the collective bargaining agreement when
it paid the grievant for his
vacation time at 8 hours per day? If so, what is the appropriate remedy?
ARTICLE IV SENIORITY
Section 4.01 - Seniority shall be
determined by the employee's length of service as a full-time
officer in the department as of the first date of employment by the Employer.
. . .
Section 4.05 - Full time employees shall
be given preference in regard to selection of regular
work schedules, based on seniority within the Department, except for the regular work
denominated E, assigned to the Community Policing Officer. Any language in this
Agreement to the
contrary notwithstanding, the officer to be assigned to the position of Community Policing
shall be selected by the Chief in his sole discretion, without regard to seniority, and may be
time officer interested in that position. In the event no full time officer is interested in the
the position of Community Policing Officer shall be assigned to the full time officer with the
amount of seniority. . . .
. . .
ARTICLE V GRIEVANCE PROCEDURE
Section 5.01 - Definition: The term
"grievance" means a dispute between the Employer and
the Association concerning the interpretation, application or violation of this agreement. . . .
. . .
Section 5.02 - Procedure: A
grievance shaft be handled in the following manner:
. . .
Step 5: Arbitration: . . .Upon
completion of the hearing, the arbitrator shall render a written
decision to both parties which shall be final and binding except for judicial review. The
consider or decide only the particular issue or issues presented to the arbitrator by the
arbitrator shall be limited to the interpretation or application of the provisions of this
shall have no power to add to, subtract from or modify any of the terms of this agreement.
. . .
ARTICLE VII HOURS OF WORK
WEEK, HOURS AND OVERTIME
Section 7.01 - Regular Work
Schedules: During the term of this agreement, there shall be
defined five regular work schedules, denominated A, B, C, D and E. Each of these
consist of consecutive periods of fifteen (15) calendar days with each such period to consist
(5) days on duty, then two (2) days off duty, then five (5) days on duty, then three (3) days
The on-duty work day shift shall be an eight (8) or eight and one-half (8-1/2) hour shift, as
below. Each scheduled shift shall include a one-half (1/2) hour paid lunch period during
the employee shall be on call. Each shift shall, in addition to the paid lunch period, include
fifteen-minute paid breaks. . . .
. . .
ARTICLE XII VACATION
Section 12.01 - Full time employees shall
earn a period of vacation during the first full year
worked, and during each full year worked thereafter. The period of vacation shall be taken
the year in which it is earned, and
prior to the anniversary of the employee's first day worked. An
employee shall give notice to the
police chief of intent to take vacation time, and the amount of vacation to be taken, at least
days before the vacation is to begin. The police chief shall approve or deny the request in
soon as possible. Seniority shall be the deciding factor on vacation requests submitted under
Section. Shorter notice of intent to take vacation may be approved by the police chief, in the
chief s discretion, absent scheduling conflict. Appropriate notice shall be given to the
the Wednesday before vacation is to begin, for advance of vacation pay. Vacations shall be
year.......................... one (1) week.
During second year................. two
During third and subsequent
years....... two (2) weeks plus one (1) additional day for
the third full year and each subsequent full year up
to a maximum of five (5) weeks.
Section 12.02 - Any full-time employee who
has earned more than two (2) weeks of vacation
shall be required to use at least five (5) days vacation in one block. All remaining days may
in single days or any combination thereof.
. . .
Section 13.01 - Full time employees shall
receive nine (9) paid holidays for which they will
be paid at their straight hourly rate for eight (8) hours as follows:
. . .
Employees shall obtain from the Village
police chief prior approval of the day on which the
floating day may be taken.
Section 13.02 - For each holiday listed in
Section 13.01, an employee shall receive eight (8) hours
pay at the employee's regular hourly rate, whether or not the holiday is worked. If an
works on a holiday, the employee will receive additional pay for each hour worked at one
and-one-half (1-1/2) times
the employee's ordinary hourly rate. Hours actually worked on a
holiday may be paid or
accumulated as compensatory time, at the employee's option, subject to the limitations on
compensatory time contained in Section 7.02.
. . .
ARTICLE XVIII SEPARABILITY, CONDITIONS OF
AMENDMENTS AND SAVINGS CLAUSE
Section 18.01 - This agreement constitutes
an entire agreement between the parties and no
verbal statement shall supersede any of its provisions.
. . .
Section 18.05 This agreement may
not be amended, altered, or added to except by the
mutual consent of the parties in writing.
. . .
The Village provides general municipal services to the people of Clinton, in south
Wisconsin. Among the services provided is police protection. Since 1990, the Union has
exclusive bargaining representative of the non-supervisory police officers of the Village's
Department. The Village and the Union have negotiated three labor contracts in that time,
1991-1993, 1994-1996 and 1997-1999.
Prior to 1994, officers were assigned to one of three work schedules. Two of these
rotated 8 hour and 9 hour shifts, while the third was a consistent 8 hours. In 1995, a fourth
was hired and the parties bargained an additional 8-hour shift. In the current contract, the
schedule was changed to accommodate the addition of a Community Policing Officer (CPO).
CPO works a schedule rotating between 8 hour and 8-1/2 hour shifts, generating 1,936 hours
year. The other officers work flat 8-1/2 hour shifts, generating 2,056 hours per year.
over this contract were lengthy, and the new contract was not signed until August 28, 1998.
schedules were implemented at that time.
Since their first labor agreement, the parties have had a provision for paid vacations:
Section 12.01 - Full time employees shall earn a period of
vacation during the first full year
worked, and during each full year worked thereafter. . . .
Appropriate notice shall be given to the clerk/treasurer, the
Wednesday before vacation is to
begin, for advance of vacation pay. Vacations shall be earned as follows:
During first year.................. one (1)
During second year......... two (2)
During third and subsequent
years.. two (2) weeks plus one (1) additional day for
the third full year and each subsequent full year up to a maximum of five (5) weeks.
. . .
The Deputy Clerk-Treasurer is responsible for tracking payroll. Sandra Mutchler
position until mid-September of 1996. While Mutchler was the Deputy Clerk-Treasurer,
days were paid on the basis of the number of hours the officer was scheduled to work. Thus
officer on a 9-hour shift would receive 9 hours of pay for a day of vacation, while an officer
8-hour shift would receive 8 hours of pay. 1/ Pam Franseen replaced Mutchler.
vacation credit by taking the number of days due the officer and multiplying by 8 hours. In
Franseen started issuing a quarterly report to employes showing the number of hours they
had on the
books for vacation and sick time, and the balances shown were based on 8 hours per day of
When, in the late summer of 1998, she calculated the back pay for the 1997-99 contract
she used eight hours for the computation of vacation pay, although this was not broken out
on the officers' retroactivity checks.
1/ Mutchler kept an
internal record showing an available bank of vacation hours. She figured the hours on the
basis of 9 hours per day of vacation, but employes were in fact allocated vacation in daily
increments. An employe
with five weeks of vacation would nominally be credited with 225 hours. However, that
employe could not take
more than 25 days off, even if all 25 days were scheduled for 8 hours.
In late 1998, the grievant, Brad Kitzman, was assigned to a shift of 8-1/2 hours per
took vacation on November 20, 21, and 22nd. When he got his paycheck on November
27th, he saw
that he had received 24 hours of pay, rather than 25-1/2 hours of pay. The instant grievance
thereafter filed, protesting the Village's failure to pay 8-1/2 hours of pay for vacation days.
Village denied the grievance and it was referred to arbitration.
Additional facts, as necessary, will be set forth below.
ARGUMENTS OF THE PARTIES
The Arguments of the Association
The Association takes the position that the Village has violated the contract. While
Vacation provision may have some ambiguity, there is a clear and consistent past practice
clarifies its meaning. From 1991 through 1996, the Village always paid officers for vacation
accordance with their work schedules. Officers on an 8-hour schedule received 8 hours of
pay for each day of vacation. Those on a 9-hour schedule received 9 hours of vacation pay.
witness, including management's witnesses, confirmed the existence of this practice. A clear
practice is the most reliable guide to what the parties intended by ambiguous language. Thus
practice must be treated as being part and parcel of the collective bargaining agreement. The
must negotiate any change with the Association.
Even if the arbitrator determined that the clear past practice somehow did not
formal part of the contract, the Village cannot unilaterally change the practice. It is well
that a clear and consistent past practice can form an independent and binding commitment.
are presumed to have negotiated the contract on the basis of the then-existing practices, and
the Employer gives unambiguous notice during negotiations that it is terminating the practice,
allowing the Association an opportunity to bargain, it is required to maintain the status
quo ante until
the contract expires. Here, it is undisputed that there were no discussions of the vacation
in the negotiations over the 1997-99 contract. Given this, the Village cannot now repudiate
Finally, even if no practice is shown, the equities of this case require that the
arbitrator fill in
the gaps of the contract with a solution that is fair and equitable for both parties. The
position would cheat the great majority of police officers of pay each and every time they use
vacation. The Village should not receive a windfall and the officers should not suffer a
the result of an ambiguity in the contract.
For all of these reasons, the Association urges that the grievance be sustained and the
officer be made whole.
The Arguments of the Village
The Village takes the position that the grievance is without merit and should be
contract is the source of the arbitrator's authority, and there is no basis to be found in the
for granting this grievance. The vacation language provides for a number of weeks of
on years of service, and everyone agrees that a week means five work days. However, the
is utterly silent as to how many hours constitute a day of vacation.
From 1991 to 1995, the parties followed a practice of paying an officer for a day based
on the number
of hours he or she would have been scheduled to work. From 1996 to the present, vacation
have been paid at a flat rate of 8 hours. At most, the silent contract and the conflicting
yield the conclusion that the parties had no meeting of the minds on this issue.
While arbitrators are frequently invited to engage in "gap-filling" where the contract
there must be some principled basis on which to perform this essentially legislative function.
there is no basis for arbitral intervention. The contract specifically provides that the
not "add to" the agreement, and if the parties have a disagreement, the appropriate answer is
to bargain a solution.
Should the arbitrator feel that gap-filling is appropriate, the Village asserts that he
adopt its interpretation. The Village's position is the more equitable, in that it prevents the
assigned to the shorter work shift from receiving a lesser benefit than officers of equal
work the longer day. There is support for this approach in the contract itself. The parties
agreed that holiday pay is based on 8 hours, no matter what the officer's actual work
have been. Having negotiated this as the basis for other paid time off, it is reasonable to
the parties, had they thought about it, would have adopted the same system for vacations.
For all of
these reasons, the Village urges the arbitrator to deny this grievance and allow the parties to
a solution to this dispute.
The contract gives employes the right to vacation time off with pay. The provision
in terms of weeks (which the parties agree means five work days) and days of vacation. The
work varying hours in a day. Four officers work 8-1/2 hour days, and one works an 8-hour
dispute here centers on how many hours of pay an officer should receive for a day of
The grievance arbitrator's role is to discern and enforce the intent of the parties as
in their collective bargaining agreement. The familiar rule is that clear contract language is
applied, since the intent is self-evident. By definition, clear language is that which is capable
sustaining but one plausible interpretation. If more than one plausible interpretation can be
the language may be said to be ambiguous. Ambiguous language must be interpreted to
its meaning. The language of the vacation article here is silent as to what constitutes the
basis for calculating hours of vacation pay, and both parties concede the existence of at least
Interpreting the Language Used
Absent evidence to the contrary, parties are generally presumed to have used words
same sense throughout their contract. Here the parties have provided for "weeks" and
"days" of paid
vacation. Since a "day" of vacation refers to time off from work, its meaning can be
looking at how a work day is defined by the contract. Section 7.01 of the Agreement
"The on-duty work day shift shall be an eight (8) or eight and one-half (8-1/2) hour shift, as
below. . ." Thus a day of work can mean either 8 hours or 8-1/2 hours. This does not
definition free-floating. Instead, the definition of a work day is contingent, and depends
shift the officer selects. With regard to individual officers, the duration of a work day
at one of the two definitions once the officer's shift is determined. For four of the five
work day within the meaning of the contract is 8-1/2 hours long. For the CPO, it is 8 hours
If a "day" of vacation time off for the grievant is 8-1/2 hours long, it is difficult to
how his vacation pay can be 8 hours, just as it would be difficult to explain paying the CPO
hours of vacation pay if he does not work his 8 hour shift. The essence of the Village's
that there is no connection between the amount of vacation time off and the amount of
but in general the point of a paid vacation is to allow employes to take time off from work
losing pay. Certainly the parties could negotiate some different basis for paying vacation
there is nothing in the contract to suggest that they did so. On the subject of holidays, by
the parties specifically agreed to pay on a flat 8 hour per day basis:
Section 13.02 - For each holiday listed in
Section 13.01, an employee shall receive eight (8) hours
pay at the employee's regular hourly rate, whether or not the holiday is worked. . . .
The language of Article XIII strongly suggests that, where the
parties intended to pay for time off
on the basis of something other than the actual work schedule, they were capable of clearly
that thought. The fact that they did not do so in the area of vacations leads to the inference
intended to treat pay for vacation time off differently than pay for holiday time off.
Reading the contract as a whole, and applying the principles of interpretation related
normal usage of language, provides very strong support for the Association's position in this
The Association makes a strong appeal to past practice, either as proof of the parties'
in crafting the language of Article XII or as proof of a free-standing right to be paid for the
amount of vacation time off. The Village contends that the practice is, at best mixed.
The customary statement of the elements of a past practice is that, in order to be
the practice must be shown to have been (1) unequivocal; (2) clearly enunciated and acted
(3) readily ascertainable over a reasonable period of time as fixed and established practice
by both parties. Because past practice is looked to as an aid to determining mutual intent,
of proof required to show each of these elements varies depending upon the purpose for
practice is being cited. Past practice is generally cited for one of three purposes in contract
1. To prove the meaning of
2. To enforce a benefit or working
condition that is not specifically provided in the labor contract;
3. To amend the actual
language of a labor contract.
In the case of ambiguous contract language, there is some
of mutuality simply by virtue
of the language itself. The parties clearly agreed on something, and thus the arbitrator's task
decide exactly what it was. In that case, the practice does not need to be absolutely clear
consistent, because it is simply one item of proof in the case.
In the case of enforcing an extra-contractual benefit, past practice is the only
mutuality. In that case, there must be strong evidence of the factors proving the practice.
behind enforcement of an extra-contractual practice is that the parties reasonably expect such
practices to be continued, and approach contract negotiations with that expectation. Allowing
unilateral termination of such practices is therefore inequitable, since the other party might
changed its demands in negotiations if it had known the practice would be
mutuality is the essence of a binding past practice, and the existence or non-existence of the
binding practice is a matter of reasonable inferences, arbitrators are far less likely to find
them where management
rights rather than employe benefits are involved, on the theory that management is unlikely
to have intended to be
bound to a particular management practice, and the Union is unlikely to have expected them
to be bound.
Where a past practice is offered to show that the parties have implicitly
otherwise clear provision of the contract, the evidence must be overwhelming. This is
is written evidence of mutuality, and that evidence is contrary to the alleged practice. Thus
of mutuality in the practice has to overcome the contrary proof of mutuality in the contract
In this case, there was a clear practice of paying officers vacation pay for the length
scheduled shifts from the beginning of the labor contracts in 1991 up until September of
the Deputy Clerk-Treasurer was replaced. The new Deputy Clerk-Treasurer believed that
been told in training to pay vacation at 8 hours per day, and she began doing so. Thus for
69 months of this bargaining relationship, there was a clear and consistent practice favoring
Association's interpretation. In the 14 months between Franseen's hiring and the filing of
grievance, there was a consistent practice favoring the Village's interpretation.
With some minor variations, this is not a case of a mixed practice. The Village did
sometimes pay officers for their normal shift and sometimes pay officers for a flat 8 hours.
the Village always paid for the normal shift before September of 1996, and always paid a flat
after that time. The question is what conclusion should be drawn from these two conflicting
practices. For purposes of interpreting the contract language, it is difficult to attach as much
to the post-September 1996 practice as to the practice before that point. The change in the
did not result from collective bargaining or some change in the underlying circumstances. It
place because there was a change in the Village's administrative personnel. If the purpose of
to past practice is to determine what the parties to the contract intended, the fact that
her own motion changed the system says nothing about what the language meant when it was
bargained in 1991. 3/ On the other hand, the fact that the language was administered
the Association's interpretation from the day it was bargained to the day Franseen took over
Deputy Clerk-Treasurer does have some significance in discerning intent. When language is
bargained, there is generally some internal discussion on the employer's side as to how it
implemented and presumably Mutchler, the former Deputy Clerk-Treasurer, had some reason
administering this language as she did after it was first bargained. There is a substantial
that Mutchler's administration of this language reflected actual bargaining intent. There is no
possibility that Franseen's did.
testified that she believed she was told to pay for vacation on an 8-hour basis during her
training by the previous Deputy-Clerk. I have no reason to doubt the sincerity of this belief,
but it seems unlikely
that she is correct. She said she took detailed notes of her training, and that those notes
contain no reference to
this instruction. Moreover, it is clear that her predecessor never paid vacation on that basis,
so it would be very odd
for her to instruct Franseen to do so. In any event, even if Franseen was told this, her
predecessor was not a
bargainer for either party, and she cannot have changed the meaning of the contract simply
by telling Franseen
to change the Village's system of leave accounting.
The contract does not explicitly address the calculation of vacation pay, but it
paid vacation and defines the increments in which vacation can be taken. Thus past practice
case does not serve to prove the existence of some extra-contractual benefit. Instead it sheds
on the meaning of ambiguous contract language. As noted above, where past practice is
used as an
one aid to interpreting contract language, proof of the practice need not be as strong as when
used to establish an extra-contractual provision. Here, the proof of the practice is very
strong up to
September of 1996, when it was changed for reasons having nothing to do with the mutual
the parties. Conclusions drawn from past practice are always in the nature of inferences, but
inference here is quite powerful. The most reasonable conclusion from the conduct of the
administering the contract over time is that Article XII intends that employes' vacation pay
on their scheduled hours, rather than a flat 8 hours per day.
Reason and Equity
Given the choice of two permissible interpretations, it is axiomatic that an arbitrator
favor an interpretation that leads to reasonable and fair results over one leading to
unfair results. The Village argues that it is inequitable for the officers working an 8-1/2
to receive 8-1/2 hours of vacation pay, because over the course of a year this means that the
who works an 8 hour shift, receives less vacation pay than his colleagues. This argument
that vacation benefits are primarily intended to provide vacation pay. A paid vacation is
give employes time off from work without loss of income. If the CPO takes a week of paid
and receives 40 hours of pay, he has received the same benefit as one of his colleagues who
week off and receives 42-1/2 hours of pay. Each has received a week of paid vacation.
the Village's reasoning, it is also inequitable to pay the other officers more per year than the
simply because they work more hours. The difference in annual gross pay, like the
annual vacation pay, is the inevitable result of having officers work different weekly
Fairness is a subjective judgment, and appeals to equity are always something of a
taste. Here the equities are clear and, contrary to the Village's position, they cut in favor of
Association. The inequity here lies in creating a system that gives one officer, the CPO,
vacation while requiring four other officers to lose pay when they take vacation. As
such a result could be achieved through clear language, but it is not a natural inference one
draw from contract language granting employes paid vacations.
The contract grants employes the benefit of paid vacations, and defines that right in
"weeks" and "days." The parties agree that a "week" consists of five days on which
the employe would otherwise be scheduled for work. A day of work under the
contract is either 8
hours or 8-1/2 hours, depending on the employe's chosen shift. While the contract does not
specifically say so, the normal use of language strongly suggests that a day of vacation pay
calculated on the same basis as pay for a day of work. The Holidays article buttresses this
since it expressly provides for a different method of calculation, while the vacation article is
Evidence of past practice likewise indicates that a day of vacation pay should be calculated
basis of the normal work day. That is the basis on which it was paid immediately after the
of the labor contract, when the parties may be presumed to have been giving conscious
the meaning and proper application of the language, and for the ensuing 69 months. The
that practice was not related to bargaining, but to a change in administrative personnel.
interpretation urged by the Village is not mandated by considerations of reason and equity.
contrary, the Village's reading of the language denies four employes the right to fully paid
while granting it to one employe, while the Association's interpretation grants all employes
On the basis of the foregoing, and the record as a whole, I have made the following
The Village violated the collective bargaining agreement when it paid the grievant for
vacation time at 8 hours per day. The appropriate remedy is for the Village to pay Officer
vacation days at a rate equal to his hourly pay rate multiplied by the number of regularly
hours in the shift that would have been worked but for the vacation.
Dated at Racine, Wisconsin, this 15th day of September, 1999.
Daniel Nielsen, Arbitrator