BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GREEN BAY POLICE BARGAINING UNIT
CITY OF GREEN BAY
Mr. Thomas J. Parins, Parins Law Firm, 125 South Jefferson
Street, Suite 201, P.O. Box 1626, Green Bay, Wisconsin 54305, appearing on behalf of the
Mr. Daniel M. Olson, Assistant City Attorney, City of Green
Bay, 100 North Jefferson Street, Room 200, Green Bay, Wisconsin 54301-5026, appearing
on behalf of the City of Green Bay.
The above-captioned parties, hereinafter referred to as the Union and the City
were parties to a collective bargaining agreement which provided for final and binding
grievances. Pursuant to a request for arbitration, the Wisconsin Employment Relations
appointed the undersigned to decide a grievance. A hearing, which was transcribed, was
held on May
27, 1999, in Green Bay, Wisconsin. Afterwards the parties filed briefs and reply briefs,
the record was closed on September 28, 1999. Based on the entire record, the undersigned
the following Award.
The parties were unable to stipulate to the issues to be decided in this case. The
the issues as follows:
5985 Page 2
1. Was the grievance timely filed and advanced
pursuant to the grievance procedure set forth
in the current contract?
2. Were the assignments which
are the subject of this grievance proper under the conditions as
set forth in Section 5.04 of the current contract?
The City framed the issues as follows:
1. Whether the Union's two-year delay in advancing
this grievance to the Personnel Committee
is unreasonable and should be deemed a waiver of the grievance?
2. Whether wiretap duties have
historically or normally been assigned to or performed by some
segment of the Union?
Having reviewed the record and arguments in this case, the undersigned finds the
appropriate for purposes of deciding this dispute:
1. Was the two-year delay in advancing the
grievance to Step Three of the grievance procedure
reasonable under the circumstances?
2. If so, did the confidential work assignment in
question violate the CBA?
3. If so, what is the appropriate remedy?
The parties' 1996-1998 collective bargaining agreement contained the following
. . .
1.03 MANAGEMENT RIGHTS. The Union recognizes the
prerogative of the City, subject to
its duties to collectively bargain, to operate and manage its affairs in all respects in
its responsibilities, and the power and authority which the City has not abridged, deleted or
by this Agreement, are retained by the City, including the power of establishing policy
to hire all employees, to determine
qualifications and conditions of continued employment, to
dismiss, demote, and discipline for just cause, to determine reasonable schedules of work, to
the methods and processes by which such work is performed. The City further has the right
establish reasonable work rules, to delete positions from the Table of Organization due to
work, lack of funds, or any other legitimate reasons, to determine the kinds and amounts of
to be performed such as pertains to City government and the number and kinds of
perform such services, to change existing methods or facilities, and to determine the
and personnel by which City operations are to be conducted. The City agrees that it may not
the above rights, prerogatives, powers or authority in any manner which alters, changes or
any aspect of the wages, hours or conditions of employment of the Bargaining Unit, or the
this agreement, as administered without first collectively bargaining the same or the effects
. . .
GRIEVANCE PROCEDURES AND DISCIPLINARY
. . .
3.04 COMPUTATION OF TIME. The days indicated at each
step should be considered
a maximum. Days shall mean working days Monday through Friday, excluding holidays.
of the party to file or appeal the grievance in a timely fashion as provided herein shall be
waiver of the grievance. The party who fails to reply in a timely fashion shall have the right
automatically proceed to the next step of the grievance procedure. The time limits may be
by mutual consent.
3.05 WAIVER OF STEPS. Steps in the
procedure may be waived by mutual agreement
of the parties.
3.06 STEPS AND PROCEDURE.
(1) STEP ONE. The grievant or a
Union representative on his/her behalf shall have the
right to present the grievance in writing to the Chief within fifteen (15) working days after
the Union knew or should have known
of the event giving rise to such grievance.
The Chief shall furnish the grievant and the Union
representative an answer within five (5) working days after receiving the grievance.
(2) STEP TWO. If the grievance is
not satisfactorily resolved at the first step, the
grievant or the Union representative shall prepare a written grievance and present it to the
Director within ten (10) working days of the Chief's response. The Personnel Director shall
the grievance and respond in writing within five (5) calendar days of his receipt of the
(3) STEP THREE. If the grievance is not resolved at the
second step, the grievant or the
Union representative shall present the written grievance to the Personnel Committee within
working days of the Personnel Director's response. The Personnel Committee shall review
grievance and respond in writing within five (5) days after their decision which shall be made
next regularly scheduled Personnel Committee meeting. In reaching their decision, the
Committee may hold a fact-finding hearing after having received a written statement of fact
position by each party. The grievant and the Union shall be given a five (5) day notice of
(4) STEP FOUR. If no agreement is
reached in step 3, the dispute may be referred to
arbitration. The party desiring arbitration shall, within fifteen (15) days of receiving the
Committee decision, petition the Wisconsin Employment Relations Commission for
a copy of such petition sent to the other party.
. . .
5.01 ASSIGNMENTS IN GENERAL. Assignments to shift
positions shall be by seniority
among those persons possessing the qualifications for the position to be filled. Assignments
made and persons with appropriate qualifications and seniority may bid for shift positions
a vacancy exists in such position. In the case of Detective Sergeants, seniority shall mean
. . .
5.04 TEMPORARY ASSIGNMENTS. The Chief may, upon
written notice to the Bargaining
Unit, temporarily assign officers to special duties or projects for a period of up to 30 days;
however that no officer may be temporarily assigned to any duties or projects which have
been or normally are performed by or assigned to Bargaining Unit members as part of their
If the assignment is voluntary, no premium pay shall be earned by the officer. An officer's
performance of any temporary assignment shall not impact on promotion (excepting that such
increase the officer's personal knowledge or experience), and shall not become part of the
personnel file or work record for promotional purposes.
Among its many governmental functions, the City operates a police department. The
is the collective bargaining representative for the City's non-supervisory police officers. The
and the City have been parties to a series of collective bargaining agreements (hereinafter
parties' most recent CBA contained, among its provisions, a grievance procedure culminating
arbitration and a provision dealing with temporary assignments.
This case involves a temporary work assignment for a confidential investigation
conducted in October, 1996.
In early October, 1996, the Department was working with the Drug Enforcement
Administration (DEA) on a drug investigation. What made this particular investigation very
for the Department is that it involved a wiretap. Wiretaps are rarely performed by members
Green Bay Police Department. According to the record evidence, the Department has
three wiretaps in the last 28 years. This figure includes the wiretap involved here.
The DEA asked the Department to supply personnel to help conduct this wiretap on
suspects, and the Department agreed to provide five employes. The Department's Police
James Lewis, selected Detectives Massey and Molliter and Officers Trimberger, Thomas and
for this assignment. Four of these five employes are not the most senior employes in the
The employes selected for this assignment were not selected because of their seniority.
testified he selected these five employes for this particular assignment because they had a
knowledge of the people being investigated.
On October 9, 1996, the Department's Commander of Operations, Captain Boncher,
the Department's Shift Commanders via a written memo that officers Arts, Thomas,
Kraus were having their shifts changed due to a "temporary 30-day assignment."
The above-referenced memo was also addressed to the Union. Rick Demro, who was
Association's President at the time, testified that while he was orally apprised of the
investigation and the temporary assignments, he did not receive a copy of the October 9,
Attorney Tom Parins testified that this memo did not arrive at the Parins Law Firm and that
he nor his father, Attorney Tom Parins, Sr., received a copy of same.
On October 14, 1996, Attorney Tom Parins, Sr., wrote a letter to Police Chief Lewis
he grieved the above-referenced temporary assignments on behalf of the Union. The
contended that the temporary assignments should have been posted pursuant to
Sec. 5.10 of the
On October 16, 1996, Lewis responded in writing to the grievance. He essentially
In doing so, he raised two defenses: one was that the union president had been apprised of
assignments in question and the other was that the assignments were proper under Section
On October 23, 1996, Parins appealed the grievance to the City's Personnel Director,
Little. Little did not respond to this grievance in writing within five calendar days as
specified in Step
Two of the contractual grievance procedure.
That same day (October 23, 1996), then-Assistant City Attorney Judith
a letter to Attorney Tom Parins, Sr., wherein she indicated that several recent grievances had
presented "outside the time constraints found in Sec. 3.06(1)" of the CBA. She then went on
notify him "and the Union that, absent unusual circumstances, the City intends to strictly rely
the time constraints found in Section 3.06 of that Agreement," and that said time constraints
be ignored by the City in the future."
On October 31, 1996, the parties met to discuss several outstanding grievances. The
grievance was one of the grievances that was discussed. It is undisputed that in that meeting,
parties mutually agreed to hold the instant grievance in abeyance for a period of time because
sensitive nature of the investigation. It is disputed though how long the grievance was to be
abeyance. According to the City, it was to be held in abeyance until the temporary
According to the Union, the grievance was to be held in abeyance until the confidential
Pursuant to a provision in the CBA (specifically Sec. 5.04), the longest that a
assignment can last is 30 days. The temporary assignment involved herein lasted 30 days.
Lewis testified that the confidential investigation involved herein lasted "just short of 30
both the temporary assignment and the confidential investigation ended by early to
Shortly after this grievance was filed, Little resigned as personnel director. After he
City's personnel function was shared for about six months between Green Bay Mayor Paul
Brown County Personnel Director James Kalny. The City's personnel functions were then
consolidated with the County. While this consolidation occurred, Kathy Koehler was the
interim personnel director. Insofar as the record shows, Koehler did not request of the
the instant grievance be delayed, or continue to be held in abeyance. Koehler never
writing to the instant grievance. After the consolidation of the City/County personnel
completed, Kalny became head of the department. The consolidation of the two departments
effective January 1, 1998.
In November, 1997, the Union raised the instant grievance with Kalny. This was the
he (Kalny) had heard of it. When the Union raised it, Kalny did not request an extension of
the Union to research it, to "get up to speed with this grievance", or to give a response to
Instead, he verbally advised the Union that he considered the grievance "stale", and would
it. Kalny considered the grievance "stale" because nothing had happened on it in a year.
responded in writing to the grievance.
In mid-1998, the Union advised the City that it wanted to discuss a large number of
grievances. The City considered some of these grievances to be inactive, while the Union
them to be active. The instant grievance was one of the grievances which the City
inactive. The parties subsequently met and discussed some of these grievances. The instant
was discussed, but was not resolved.
In July, 1998, the parties agreed to mediate about two dozen grievances. As part of
mediation agreement, they prepared a document which listed the grievances to be mediated.
instant grievance was one of the grievances on this list. In agreeing to mediate these
City specifically noted that it was reserving its procedural and substantive defenses for all of
grievances on the list.
A grievance mediation session was held in November, 1998. The instant grievance
discussed at that session, but was not resolved.
On December 1, 1998, the Union advanced the instant grievance to the City's
Committee, which is the third step of the contractual grievance procedure. The Personnel
denied the grievance on January 25, 1999.
The Union then appealed the instant grievance to arbitration.
POSITIONS OF THE PARTIES
The Union initially addresses the City's argument that the Union has waived its right
to to a
decision on the merits. For background purposes, it notes that the City's waiver argument is
on the premise that the Union's delay in processing the grievance from the second step to the
step of the grievance procedure should bar a review of the merits. The Union obviously
In its view, the delay was understandable given the following circumstances.
First, the Union cites the fact that on October 31, 1996, the parties agreed to hold the
grievance in abeyance. According to the Union, the parties agreed to hold it in abeyance
duties of the investigative assignment could be discussed. The Union submits this meant the
the investigation. Although the Union does not identify a time period when it believes the
investigation was completed, it claims that the investigation took longer than the assignment
Second, the Union avers that once the confidential investigation was completed, the
was reactivated to active status. To support this premise, it cites the fact that it had several
with the City "regarding the settlement of this and other grievances." It calls particular
the fact that when the parties went to grievance mediation in November, 1998, the instant
was one of the grievances which was discussed at that mediation.
Third, the Union calls attention to the fact that in the years that this grievance was
(1996-98), there were three different personnel directors in the City: Little, Koehler and
According to the Union, the Personnel Department was in "turmoil" during this period
1997) and each time a new personnel director came on board, the City requested that the
them "to get up to speed" on this grievance. The Union implies that the delay in the
this grievance was attributable to this "turmoil".
The Union believes that the foregoing points prove that it made a good faith effort to
this grievance forward with what it characterizes as "all due speed". According to the
Union, it "did
not sit back and deliberately allow this grievance to go stale." Instead, as the Union sees it,
diligently pursued the grievance. The Union therefore argues that the delay involved here
reasonable under the circumstances, and should not bar a review of the merits.
With regard to the merits, the Union asks "the Arbitrator to find that the officers
improperly assigned to a temporary thirty (30) day assignment in contravention to the
the contract, specifically Section 5.04". The Union therefore argues that Sec. 5.04
does not apply
to the assignment at issue, and the City's assertion to the contrary should fail.
This contention is premised on the Union's reading of Sec. 5.04. The Union begins
argument about that section by giving an overview of same. It notes that Sec. 5.04 allows
to temporarily reassign officers to special duties or projects for up to thirty (30) days. It
that this section sets forth specific procedures which need to be followed prior to making
assignment, and also limits the types of duties or projects that can be the subject of such a
reassignment. According to the Union, the City failed to follow the required procedures to
a temporary assignment. The Union also contends that the City should have been prohibited
making the temporary assignment in this matter because the temporary assignments that were
do not fit those allowed in the section. It elaborates on these arguments as follows.
First, the Union contends that the written notice requirement of Sec. 5.04 was not
here. It acknowledges in this regard that Demro was verbally apprised by Captain Boncher
temporary assignment was going to be made. The Union submits that the notice referenced
5.04 cannot be verbal though it must be in writing. The Union implies that the
October 9, 1996
memo concerning the temporary assignment would qualify as written notice for purposes of
if it had received same. However, the Union contends it never received that memo. To
premise, the Union cites the testimony of Demro and Parins that they never received a copy
memo. The Union believes that on that basis alone, the City failed to comply with Sec.
Next, even if it is found that the City did substantially comply with the notice
forth in Sec. 5.04, the Union argues that the assignment involved here was not a "special
project" within the meaning of Sec. 5.04. According to the Union, the duty in question was
surveillance, and surveillance duties have historically and normally been assigned to, and
by, bargaining unit employes as part of their job duties. The Union maintains that the City
dress up this particular surveillance by calling it a "wiretap". In the Union's view, though, a
is just another name for surveillance. The Union therefore argues that the job duties that
done here were that of a surveillance, and no evidence was presented by the City that this
surveillance required any special job duties or qualifications to perform. The Union claims
that if the
City is allowed to use Section 5.04 for projects which they create different names for, but the
are the same as duties historically performed by members of the bargaining unit, then this
other provisions in Article 5 useless. The Union asserts that could not have been the
parties intent in drafting Sec. 5.04. The Union therefore seeks a finding that Sec. 5.04
does not apply
to the assignment involved herein.
In order to remedy this contractual breach, the Union asks that the Arbitrator direct
to pay four unspecified officers (presumably the four senior employes in the Department) 170
of overtime each. Under this theory, the Union seeks $5,440 for each of the four
employes. This claim for overtime is based on the Union's assertion that had the Chief not
this particular assignment to the employes he selected, the work done on this investigation
have been done as overtime and been paid as such to the senior employes. If the Arbitrator
believe that overtime is warranted under this theory, the Union seeks overtime pay on an
basis. The alternate basis is this: the Union avers that all five of the employes who worked
confidential investigation worked outside their normally scheduled shifts. As the Union sees
five employes should therefore be paid at the overtime rate for all of the hours they worked
their normally scheduled shift (which the Union once again calculates at 170 hours per
Under this theory, the Union seeks $5,440 for each of the five employes who worked on the
The City initially contends that the Arbitrator should not address the merits of the
because the Union failed to process it to the third step of the contractual grievance procedure
timely fashion. As the City sees it, this untimely appeal has caused the Union to waive its
right to a
decision on the merits.
The City's waiver argument is based on the length of time it took the Union to take
grievance from the second step to the third step of the grievance procedure (i.e. over two
City notes at the outset that the grievance procedure contains what it characterizes as a
advancement right clause" (Sec. 3.04), which allows either side to advance a grievance to the
step without a written response from the other side. The City further notes that that clause
impose a specific time limit on a party's exercise of its default advancement right. The City
that although no specific time limit is contained therein, a reasonableness standard is implicit.
City sees it, such a construction would not give an advantage to either party, and would
underlying policies and purposes of arbitration. The City also maintains that waiting to
grievance can impair the resolution of the grievance due to memory lapses and changes in
Building on the premise that a reasonableness standard is implicit, the City believes
question herein is whether the delay involved in this particular case was reasonable. The
that question in the negative. In its view, the two-year delay which occurred here between
and third steps was unreasonable.
The City makes the following arguments to support its contention that the Union's
unreasonable. First, it avers that the "delay in this case has had a significant adverse effect
resolution of this grievance." To support this premise, it cites what it calls the "equivocation
witnesses" at the hearing concerning pertinent facts. The City maintains that "it must be
that the two-and-one-half-years that has elapsed between the event giving rise to this
the date witnesses were required to recall what happened has rendered all testimony less
accordingly harmed the grievance decision process." Second, the City submits that it put the
on notice, via Assistant City Attorney Schmidt-Lehman's letter of October 16, 1996, that the
intended to strictly adhere to the time requirements in the CBA. Third, the City believes that
parties' abeyance period ended when the temporary assignment ended in November, 1996.
contends that what happened thereafter was that the Union simply unilaterally extended this
period without the City's consent. Fourth, the City asserts that after the abeyance period
November, 1996, absolutely nothing happened on the grievance until November, 1997 (one
later), when the Union raised it with Kalny for the first time. The City notes that when the
raised it, Kalny told the Union that he believed the grievance was stale. As the City sees it,
response put the Union on notice that it could not resolve the grievance informally. The City
that given Kalny's response, the Union could have appealed the grievance to the Personnel
Committee pursuant to the default advancement right clause in Sec. 3.04. It notes however
did not happen until one year later. The City believes there are no compelling reasons for
delay in advancing the grievance, so this delay cannot be justified. The City therefore asks
grievance be deemed waived for failure to be advanced in a timely fashion and dismissed.
In the event that the Arbitrator finds that the grievance is not waived, and addresses
merits, the City argues that the Chief's assignment of the employes to the wiretap assignment
question did not violate the CBA. It relies on two contract provisions to support this
the management rights clause (Sec. 1.03) and the temporary assignments clause (Sec. 5.04).
the former clause for the proposition that it has the right to assign duties and make work
in general, and the latter clause for the proposition that it had the right to make the
assignment at issue here.
The City elaborates on this latter point as follows. With regard to the notice
contained in Sec. 5.04, the City avers that there is "sufficient direct and circumstantial record
evidence to find that the City gave written notice of the temporary assignment at issue" in
with Sec. 5.04. Aside from that, the City contends that even if it did not provide the
notice, the Union did not suffer any harm as a result. To support this premise, it notes that
was able to submit a timely grievance to Chief Lewis.
The City argues that the real issue regarding Sec. 5.04 in this arbitration is whether
duties were historically or normally performed by, or assigned to, bargaining unit employes
of their job duties. The City answers that question in the negative. To support this premise,
notes that the Department has only been involved in three wiretaps during the last 28 years.
City sees it, the fact that there are so few wiretaps establishes, notwithstanding the Union's
contention to the contrary, that wiretaps are different from normal surveillance. The City
that the record evidence establishes that wiretaps have not historically or normally been
by bargaining unit employes as part of their job duties. The City therefore argues that Sec.
the Chief the right to make the temporary assignment which is the subject of the instant
In the event that the Arbitrator addresses the merits of the grievance and finds that
assignment in question violated Sec. 5.04, the City argues that the Union's requested remedy
inappropriate. For background purposes, it notes that the Union seeks 170 hours of overtime
$5,440) for each of the employes who were assigned outside of seniority to the confidential
investigation. The City contends there is no record evidence to support either the Union's
overtime pay in general, or the number of hours claimed. The City asserts that the only
evidence concerning whether the wiretap assignments would have been as overtime, as the
assumes, is Chief Lewis' testimony. The City calls attention to the fact that he testified that
absence of a Sec. 5.04 assignment, he would have made the wiretap assignments in
the regular schedules of the detectives and there would not have been any overtime. The
notes that he testified that no overtime was necessary for the investigation, and if it was, no
department personnel would have been involved because the department would not have done
wiretap. The City maintains that in light of Chief Lewis' testimony, it simply cannot be
the wiretap assignments would have been conducted on overtime. The City also believes
there is no
record evidence to support the Union's alternate remedy theory that the assigned officers
"ordered" by Chief Lewis to work outside their normally scheduled shifts, suggesting that the
assignments were involuntary. The City notes in this regard that the Chief may utilize Sec.
for special projects and duties. In the City's opinion, it would be inconsistent with this
poor management for the Chief to force an unwilling officer to perform such projects or
City therefore asserts that it cannot be assumed that the exercise of Sec. 5.04 authority by the
is inherently involuntary, or in fact was an involuntary assignment in this case as suggested
Union. According to the City, the Union must prove the assignment was involuntary to
claim for an overtime pay remedy for hours worked outside of normally scheduled shifts, and
not done so. The City therefore requests that the grievance and the requested remedy be
Since the City has raised a procedural objection to the arbitrability of the instant
that claim will be addressed prior to a consideration of the merits of the grievance. The
procedural objection is this: the City asserts that the Union has waived its right to a decision
merits because of the delay which occurred in the processing of this grievance. The
arbitrability claim is the threshold issue herein.
My discussion on this point begins with an overview of the part of the contractual
procedure which is pertinent here. Like most grievance procedures, the grievance procedure
herein contains guidelines for filing grievances and processing them through the lower steps
arbitration. Timelines are typically included in grievance procedures to assure expeditious
of grievances. In this CBA, the timelines are found in Sec. 3.06 and are as follows. Step
the filing of the grievance and the Chief's response. It specifies that either the grievant or
has 15 working days to file a grievance to which the Chief is to file an answer within five
thereafter. Step Two covers the appeal to the City's Personnel Director. It specifies that if
grievance is not resolved at Step One, the grievance is to be appealed to the Personnel
ten working days of the Chief's response, to which the Personnel Director is to file a written
within five days thereafter. Step Three covers the appeal to the City's Personnel Committee.
specifies that if the grievance is not resolved at Step Two, the grievance is to be appealed to
Personnel Committee within five working days of the Personnel Director's response, to
Personnel Committee is to file a written response within five days after their next scheduled
Sections 3.04 and 3.05 provide that the timelines and steps contained in Section 3.06 may be
extended and/or waived by mutual agreement. Section 3.04 also provides that a failure to
grievance in a timely fashion results in the waiver of that grievance. Another part of Section
provides that if a party fails to reply in a timely fashion, the other side can automatically
the next step. This sentence, which the City characterizes as a "default advancement right
allows either side to advance a grievance to the next step without a written response from the
side. Sometimes, clauses of this type cut against one side or the other. For example, some
to appeal" clauses state that the union's failure to appeal results in the forfeiture of the
Conversely, some "failure to reply" clauses state that the employer's failure to reply results
granting of the grievance. The language here, though, does not cut against either the Union
City. Instead, it is neutral, and simply provides that when one side fails to respond, the
other side can
automatically advance the grievance to the next step of the grievance procedure. While the
steps already reviewed in Section 3.06 contain express timelines, Section 3.04 does not
timelines whatsoever concerning this automatic advancement to the next step. Thus, Section
does not impose a specific time limit on a party's exercise of its default advancement right.
CBAs do not impose an express time limitation, arbitrators routinely apply a reasonableness
In doing so, they sometimes note that the accumulation of grievances that are filed
but become inactive can disrupt labor-management relations. Additionally, they
sometimes note that
there can be practical difficulties with preparing and presenting cases after witnesses have
away, evidence has dried up, and recollections have grown dim. In accordance with this
accepted view, the undersigned will likewise apply a reasonableness standard to the
right clause. Application of a reasonableness standard to Section 3.04 does not give an
to either side. Moreover, it supports the underlying purpose of a grievance procedure which
process and resolve grievances expeditiously.
Having reviewed the contract language, the focus turns to a review of the following
facts. The grievance was timely filed with the Chief on October 14, 1996, who timely
two days later. The Union then timely appealed it to Personnel Director Little on October
Little did not respond in writing within five days as specified in Step Two. None of Little's
successors as Personnel Director ever responded in writing to the grievance either. The
officially stayed at Step Two for the next two years. On December 1, 1998, the Union
grievance to Step Three by appealing to the Personnel Committee.
It is apparent from the foregoing facts that the "wheels came off" the grievance at
Two things happened at that step that are problematic: first, Little did not respond in writing
grievance within five days of receiving it, and second, the grievance was not appealed from
to Step Three for two years. Suffice it to say here that fault for the former is assessed to the
and fault for the latter is assessed to the Union.
Both sides dropped the proverbial ball at Step Two in the following respect. Little
respond to the grievance in writing and the Union failed to appeal it. While both sides failed
something they should have done in processing this grievance, this is not a situation where,
parlance, the penalties will be offsetting. The following shows why.
When Little did not respond to the grievance as he should have, the Union was
authorized by Sec. 3.04 to sidestep him and advance the grievance to the Personnel
Committee as of
October 29, 1996. While the Union eventually did just that, the problem is the length of
time it took
the Union to do so. Specifically, it took the Union over two years to appeal to the Personnel
Recognizing that two years is an inordinately long period of time, the Union offers a
of reasons which it believes should excuse the delay. In the Union's view, these reasons
the delay which occurred here between Steps Two and Three was reasonable under the
circumstances. I disagree. Based on the rationale which follows, I conclude that the
which occurred here was unreasonable under the circumstances.
The Union's first reason is that the grievance was held in abeyance for a period of
it was filed. It is common in labor relations, indeed routine, for grievances to be held in
after they are filed. Here, the parties agreed to hold the grievance in abeyance for a period
This agreement certainly explains part of the delay which occurred here. However, the
not agree, as is sometimes the case, to hold the grievance in abeyance indefinitely. Instead,
specifically put a cap on when the abeyance period expired. The parties dispute though when
expired: the City believes it was when the temporary assignment ended, while the Union
was when the confidential investigation ended. For purposes of this discussion, it does not
which one it was. The reason is this: both the temporary assignment and the confidential
lasted just 30 days. Since both the temporary assignment and the confidential investigation
early to mid-November, 1996, the abeyance period for this grievance ended at that time (i.e.
mid-November, 1996). It would be one thing if the Union had then sought and obtained an
the abeyance period from the City. However, that did not happen. In point of fact, after the
period ended in November, 1996, the Union did not seek an extension of the abeyance period
City did not implicitly or explicitly grant one. Since the City did not agree to continue to
grievance in abeyance past mid-November, 1996, it was up to the Union to move the
forward pursuant to Sec. 3.04 if it wanted the grievance to remain active. In the absence of
agreement with the City to continue to hold the grievance in abeyance, the Union was not
to extend the abeyance period unilaterally. What the Union essentially asks the undersigned
here is sanction its unilateral and unauthorized two-year extension of the abeyance period.
undersigned declines to do so.
Second, the Union places blame for the delay in the processing of the grievance on
Personnel office. The Union asserts that each time a new personnel director came on board,
requested that the Union allow them "to get up to speed" on this grievance. Since there were
different personnel directors in the City between 1996 and 1998 (i.e., Little, Koehler and
Union is asserting this request was made either by, or on behalf of, all three. That assertion
supported by the record evidence. While Little may have requested that the then pending
be held in abeyance to allow him "to get up to speed", neither Koehler nor Kalny made such
request. Aside from that, even if Little did make such a request of the Union for the
grievances, that was before this grievance was filed because Little left the City shortly after
grievance was filed.
Third, the Union avers that once the confidential investigation was completed, the
was reactivated from inactive to active status. To support this assertion, the Union cites the
the grievance was discussed at several grievance meetings. In the Union's view, these
essentially reactivated the grievance from inactive to active status. The record indicates that
Union and Chief Lewis discussed this grievance (and apparently dozens of others) during
grievance meetings in mid-1997. Then, in November, 1997, the Union raised the instant
with Kalny. This was the first time that he (Kalny) had
heard of it. When the Union raised it with Kalny, he told the Union that he considered
stale and would not discuss it. In characterizing the grievance as stale, Kalny was obviously
a procedural defense to the grievance. If the Union was under the impression at that point
grievance was still being held in abeyance, Kalny's response disabused it of that notion.
Kalny's response put the Union on notice that it could not resolve the grievance informally.
be one thing if the Union had appealed the grievance to the Personnel Committee
Kalny gave his response in November, 1997. However, that did not happen. In point of
Union did not appeal for another year. The Union notes that during 1998, it again discussed
grievance with the City on two separate occasions. However, the fact that the City discussed
grievance on its merits on two occasions in 1998 with the Union did not somehow reactivate
grievance from inactive status to active status. Here's why. As previously noted, Kalny
procedural objection/defense to the grievance in November, 1997. When he agreed to
grievance and other inactive grievances with the Union in 1998, he made it clear to the
the City was reserving its procedural and substantive defenses to same. That being the case,
did not waive its procedural objection/defense to this grievance by discussing it with the
1998. A contrary holding would penalize the City for simply attempting to resolve a
after all, is the very purpose of the grievance procedure.
Having reviewed the Union's proffered reasons for the two-year delay which
and found them wanting, it is concluded that the Union's delay in advancing this grievance to
Personnel Committee was unreasonable under the circumstances. While I am convinced the
did not deliberately allow the grievance to go stale, this was nonetheless what happened.
grievance is therefore not procedurally arbitrable and is deemed waived pursuant to Sec.
Having just found that the grievance is not procedurally arbitrable and is deemed
am precluded from considering the merits of the instant grievance.
In light of the above, it is my
That the two-year delay in advancing the grievance to Step Three of the grievance
was unreasonable under the circumstances. Pursuant to Sec. 3.04, the Union has waived its
an arbitral determination of the merits. The grievance is therefore not procedurally
arbitrable and is
Dated at Madison, Wisconsin this 9th day of December, 1999.
Raleigh Jones, Arbitrator