BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MENASHA PROFESSIONAL POLICE
LOCAL 603, AFSCME, AFL-CIO
CITY OF MENASHA
Mr. Richard C. Badger, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Godfrey & Kahn, S.C., by Attorney James R. Macy, appearing
on behalf of the City.
Menasha Professional Police Union, Local 603, AFSCME, AFL-CIO, herein the
the City of Menasha, herein the City, requested the Wisconsin Employment Relations
to designate the undersigned as an arbitrator to hear and to decide a dispute between the
undersigned was designated as the arbitrator. Hearing was held in Menasha, Wisconsin, on
1999. A copy of a stenographic transcript of the hearing was received on June 1, 1999.
briefs were exchanged on August 13, 1999.
The parties stipulated to the following issue:
Did the City violate Article IV, Section B, Paragraph 2, of
collective bargaining agreement
when it paid officers grade 5 pay for vacation, sick, training and assessment center days
periods of a grade 6 assignment?
The City also raised the issue of whether the grievance was timely filed.
In 1982 the parties placed the following language in their collective bargaining
Qualified Patrol Officers when assigned to Investigator duties will
receive grade 6 pay for the
actual time on those duties.
Said language remained unchanged in successive contracts, including the 1995-1997
that language for the period of 1982-1997, officers assigned to investigator duties were
at the grade 6 pay rate only for the hours actually spent working as an investigator and were
compensated at the lower grade 5 pay rate for vacation, sick leave, training and assessment
During the negotiations for the 1998-2000 contract, the Union proposed to modify
IV by deleting references to sergeants and by adding school liaison and metropolitan
group assignments to the grade 6 pay language. The City agreed to make those changes and
proposed revised language, which, in the parts relevant herein, became Paragraph 2,
Article IV in the current contract.
On February 13, 1998, the Union filed a grievance contending that the City was
new contract by continuing to pay officers performing grade 6 assignments in the same
manner as it
had done under the prior contract. The City denied the grievance as being both untimely and
POSITION OF THE UNION
The grievance was timely filed. None of the affected officers knew that they had
cause to file
a grievance until they saw their paychecks covering time worked under the new contract. It
two to four weeks for payroll to completely reflect changes in a new contract. Under those
circumstances, it appears very likely that the Union would not be aware of the pay problem
end of January. Further, the dispute constitutes an on-going grievance. Thus, the timeliness
can be resolved by limiting the back pay award to the date on which the grievance was filed.
The City knew or should have known that its proposed language would result in
receiving grade 6 pay while so assigned and that the Union would give the language change
interpretation. The Chief retains the right to assign or to remove any officer from an
assignment, but the new contract language means that grade 6 pay continues during the
when the officers are on paid leave. Because of the new language, the past practice of
officers during an investigative assignment is not relevant.
POSITION OF THE CITY
The grievance was untimely because it was not filed within fifteen calendar days after
officers knew the cause of the grievance. The officers knew they were receiving pay for
worked when they received their first check under the new agreement. The first check was
on January 15, 1998. However, the grievance was not filed until February 13, 1998.
The contract language is clear and unambiguous in stating that grade 6 pay is only
for actual time worked. The phrase "actual time" was continued in the current agreement
prior agreements. The language would have to be read as using the term "whole period" of
assignment in order for the Union's interpretation to be adopted. The Union had knowledge
accepted the phrase "actual time" and the binding past practice attached to it when it adopted
current contract. There was no negotiation in regards to changing the practice with respect
officers are paid while on a grade 6 assignment. Neither did the City intend to change that
If the contract language is found to be ambiguous, past practice mandates that officers
working in a grade 6 temporary assignment receive grade 6 pay only for the time spent
working in the grade 6 assignment and not for time spent on vacation, sick leave, training or
assessment center days. For the foregoing reasons, the grievance should be denied.
ARTICLE IV WAGES AND WAGE
. . .
1. The Chief of Police may assign officers
to serve as OIC's, who will perform certain duties of
a Supervisory Sergeant. These assignments are not permanent.
The selection and duration of such assignments are made at the
discretion of the Chief of Police.
When so assigned as OIC's, officers shall receive grade 6 pay for all hours worked as
an OIC, but
not less than two (2) hours for each assignment.
2. The Chief of Police may assign officers
to various investigative assignments including criminal
investigation, juvenile investigation, police school liaison, drug investigation (MEG) and
reduction. These assignments are not permanent. The selection and duration of such
is made at the discretion of the Chief of Police. Patrol Officers so assigned shall receive
grade 6 pay
for the actual time spent in such assignment.
. . .
. . .
B. Time Limitations
If it is impossible to comply with the time
limits specified in the procedure because of work
schedules, illness, vacations, etc., these limits may be extended by mutual consent in writing.
. . .
D. Steps in Procedure
The grievant, either alone or with one (1)
Union representative, shall present his/her grievance
in writing to the Supervisory Sergeant or Lieutenant within fifteen (15) calendar days after
knew the cause of such grievance or the grievance shall be deemed to have been waived. In
of a grievance the employee shall perform his/her assigned work task and grieve his/her
later. The Supervisory Sergeant or Lieutenant shall, within ten (10) calendar days, inform
employee, and the Union representative, where applicable, of his/her decision.
. . .
The City contends that the instant grievance was not filed in a timely manner because
employes had knowledge of the grievance by January 15, 1998. However, the grievance was
until February 13, 1998, which date exceeds the fifteen-day requirement in the contractual
The record reflects that the employes were paid on the following dates: December
and January 15 and 29, 1998. As asserted by the City, for employes in grade 6 assignments,
paychecks on the above dates showed that those employes were receiving grade 6 pay only
actual time they worked in the grade 6 assignment. The record also shows that it can take
up to four weeks to implement compensation changes. Thus, it is possible that, if the parties
agreed to change the method of compensating employes in grade 6 assignments effective
1998, such a change might have first appeared on the checks received on January 29, 1998.
event, the grievance was filed on the fifteenth day after the cause of the grievance was
However, the undersigned does not find it necessary to determine if the grievance exceeded
contractual time requirement, since the conduct prompting the grievance was recurring in
Each time an employe in a grade 6 assignment was paid at a grade 5 rate the basis for the
was renewed. Consequently, the alleged contract violation was continuing in nature and the
grievance is found to have been timely filed. However, any backpay would commence on
on which the grievance was filed.
The disputed language in Article IV, Section B(2) is not clear and unambiguous on its
Rather, if read alone, the language could be given the interpretation advanced by either
Therefore, it is necessary to look to the bargaining history and the past administration of the
in order to resolve the dispute.
The parties are in agreement that there was a consistent and long-standing past
administering the language as it existed in the 1995-1997 contract and in the prior contracts
back to 1982. Under said practice officers working in a grade 6 assignment received grade 6
for the hours they actually worked and did not receive grade 6 pay for other paid time, such
vacation, sick leave, training or assessment center days. But the Union asserts that said
no longer relevant because of the changes in the language made during the negotiations
in the 1998-2000 contract.
During the negotiations for the current contract, the Union proposed to modify the
existing contract provision by adding certain assignments to those for which grade 6 pay is
and by removing references therein to the position of sergeant. The City drafted language
incorporating those changes, which language was adopted, with only minor changes, as the
provision in the current contract.
The members of the Union's negotiating committee, who testified at the hearing, said
interpreted the new language to mean that officers would receive grade 6 pay for the entire
spent in the grade 6 assignments, rather than only for actual hours worked during the
Thus, the Union's bargaining committee members believed that the new language would
officers to begin receiving grade 6 pay for vacation, sick leave, training and assessment
which time had been paid at the grade 5 rate under the prior contracts. However, the
members of the
Union's negotiating committee never conveyed such a belief or interpretation to the City.
did they ask the members of the City's negotiating committee what the City believed the new
language meant. Such an unexpressed interpretation fails to support the concept that the
language was mutually understood to result in the change seen therein by the Union. The
negotiators never expressed the belief that the revised language, which they drafted, would
the method of payment for hours paid but not worked during grade 6 assignments. Rather,
believed it rewrote the language to incorporate the changes requested by the Union and to
language to the current practice. The revised language retained the phrase "actual time."
continued use of said phrase should have alerted the Union to the fact that the City did not
have the revised language change the existing practice. The Union's interpretation of the
from "actual time on those duties" to "actual time spent in such assignment" is less
the City's interpretation, especially in light of the long-standing and consistent past practice
administering the contractual provision. The undersigned is persuaded that the revised
not alter the past practice. Under the Union's interpretation, the Chief could make grade 6
assignments on a daily basis, which would allow the Chief to not assign an officer to grade 6
when the officer was on vacation, sick leave, etc. Such a result is not logical. The
the City's interpretation to be more reasonable and rational and to be supported by both the
practice and the negotiations for the current contract. The retention of the phrase "actual
found to be limited to the actual time spent performing the grade 6 duties and does not
spent in other pay status, such as vacation, sick leave, training or assessment center days,
grade 6 assignment.
Based on the foregoing, the undersigned enters the following
That the grievance was timely filed; that the City did not violate Article IV, Section
Paragraph 2, of the collective bargaining agreement when it paid officers grade 5 pay for
sick, training and assessment center days during periods of a grade 6 assignment; and, that
grievance is denied and dismissed.
Dated at Madison, Wisconsin, this 16th day of November, 1999.
Douglas V. Knudson, Arbitrator