BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MENASHA CITY HALL AND POLICE SUPPORT
LOCAL 1035-B, AFSCME, AFL-CIO
CITY OF MENASHA
Godfrey & Kahn, S.C., by Attorney James R. Macy, 219
Washington Avenue, P.O. Box 1278, Oshkosh, Wisconsin 54903-1278, appearing on behalf
of the City of Menasha.
Mr. Richard C. Badger, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, P.O. Box 2825, Appleton, Wisconsin 54915.
At the joint request of the parties, the Wisconsin Employment Relations Commission
designated the undersigned, Thomas L. Yaeger, herein the Arbitrator, to hear and decide a
dispute concerning whether part-time employe Karen LaChey, herein the Grievant, was
certain prorated fringe benefits. A hearing was held in the City of Menasha, Wisconsin, on
1999, and was transcribed. The record was closed on September 13, 1999, upon receipt of
of the parties' written briefs.
The parties were unable to stipulate to a statement of the issue.
The Union would state the issue as follows:
1. Did the City violate the agreement when it failed to
provide the Grievant with prorated
benefits based upon all time paid and/or worked in 1998?
2. If so, what is the appropriate
The Employer would state the issue as
1. Did the City violate Notes D of
the agreement when overtime hours were not included in
the calculation for the proration of benefits to be paid to the permanent part-time Complaint
The Arbitrator frames the issue for
determination as follows:
1. Did the City violate Article VIII,
Notes, paragraph D, of the agreement by not including
Grievant's 1998 overtime hours worked when it calculated Grievant's 1999 prorated fringe
2. If so, what is the appropriate
ARTICLE VIII WAGES
. . .
. . .
D. Regular part-time employees shall
receive prorated fringe benefits based upon the amount of
time worked in a calendar year compared to the amount of time normally worked by a
regular full-time employee during the same period. In determining the proration, all time
paid shall be considered
. . .
The City's Police Department's support staff includes the positions of regular
Complaint Clerk and regular full-time Complaint Clerk. The part-time schedule consists of a
cycle of work days whereby the employe works two days "on duty," followed by five days
then three days "on duty," followed by five days "off duty." The full-time schedule is 5-2,
has a similarly staggered schedule. Both positions typically work 1 out of 3 eight-hour shifts
in a 24-hour period.
Also within the same Department is the Relief Clerk position. That person's duties
are to fill
in for the regular part-time Complaint Clerk or the regular full-time Complaint Clerk when
absent. The Relief Clerk position is not within the bargaining unit and operates on an on-call
From November, 1990 until June, 1996, Darlene Kraus held the regular part-time
Clerk position. From 1992 to 1996, the City provided to Kraus, on an annual basis, written
calculations of her eligible prorated fringe benefits. For example, on January 2, 1996,
the City wrote
to Kraus that she had worked a cumulative of 1,709 regular, vacation, sick leave and floating
hours in 1995, and, therefore, was eligible for 82% of prorated full-time fringe benefits
January 1, 1996 (1,709 hours divided by 2,080 hours equals 82%). There were no
included in this example. Nor were there overtime hours included in the City's other prior
written calculations to Kraus. In June, 1996, Kraus left the regular part-time Complaint
position and took the regular full-time Complaint Clerk position.
On July 30, 1996, Grievant Karen LaChey was hired as the regular part-time
This was the same position that Kraus had vacated. Prior to this time, Grievant had worked
On January 8, 1998, Grievant filed Grievance Nos. 98-1 and 98-2. These grievances
separate from the instant dispute and grievance, Grievance No. 99-1, which will be stated
Both of the 1998 grievances allege violations of Article VIII, Notes, paragraph D of the
In those grievances, Grievant stated that in calendar 1997, she received 50% prorated fringe
based upon her 680 hours worked over five months, and that a normal full-time employe
worked approximately 866.65 hours during that same time period. Therefore, she believed
calendar 1997 proration should have been higher than the 50% actually prorated and paid by
On January 12, 1998, the City provided to Grievant written calculations of her
benefits for 1998. The City wrote that she had worked a cumulative 1,704 regular, vacation,
leave and floating holidays hours in 1997, and therefore, was eligible for 82% of prorated
fringe benefits effective January 1, 1998 (1,704 hours divided by 2,080 hours equals 82%).
On February 20, 1998, Grievant, the City and the Union settled Grievances Nos.
and 98-2. That settlement agreement stated, in pertinent part:
1. prorated benefits for the part-time complaint clerk in
1997 should have been based comparing
all hours paid in 1996 for the position of part-time complaint clerk, whether worked by
or Karen LaChey, compared to regular full-time hours (2080 hours). The total hours worked
was 1078.25 hours, or 51.8% of regular full-time hours.
. . .
10. Local 1035B Grievances 98-1 and
98-2 are dropped with prejudice.
Attached to the above-noted settlement agreement was a single typed sheet showing
Kraus and Grievant had cumulatively worked, 1,078.25 hours for 1996. The sheet
regular, vacation, sick leave and floating holiday hours for a total of 1,078.25 hours. Also
to the settlement agreement were computer printout sheets, entitled "Employee Pay Inquiry,"
detailing Grievant's hours for 1997. These sheets showed that, in addition to Grievant's
vacation, sick leave and floating holiday hours, Grievant had worked 32.08 overtime hours in
However, the 32.08 overtime hours were not added to the enumerated hours for the "Total
1078.25." The settlement agreement was signed by Grievant, the City Attorney Jeff Brandt,
Local Union President Birdie Steiner.
Sometime during 1998, the full-time Complaint Clerk resigned. As a result, the City
mandated that its clerks, including Grievant, fill in and cover that person's shifts until
another full-time Complaint Clerk could be hired and trained. Consequently, Grievant and
others were required
to work 12-hour shifts instead of their normal 8-hour shifts. As a result, Grievant worked
overtime hours in 1998.
On January 5, 1999, the City provided written calculations to Grievant of her eligible
fringe benefits for 1999. The total amount of eligible prorated fringe benefits was lower than
Grievant had expected. This was because the City had again not included the Grievant's
overtime hours performed in 1998. The City determined that Grievant had worked a total of
regular, vacation, sick leave and floating holiday hours in 1998, and, therefore, would be
63% of prorated fringe benefits effective January 1, 1999 (1,320 hours divided by
2,080 hours equals
63%). Attached to the City's correspondence was a computer printout detailing Grievant's
for 1998. The printout, entitled "Employee Pay Inquiry," showed that Grievant worked
regular, vacation, sick leave and floating holidays hours, and had worked 125.15 overtime
On January 9, 1999, Grievant wrote to the City and questioned its January 5,
calculations. The Grievant stated that her 125.15 hours of overtime were not included when
determined the total number of hours worked for purposes of her prorated fringe benefits.
also stated that had the City included her overtime, she would be entitled to a 69% proration.
City responded in writing that the Grievant's proration is based upon her regular hours only,
overtime hours fluctuate and cannot be promised or predicted, and that this was figured the
had been done previously for Grievant and for Kraus, Grievant's predecessor, for many
On January 15, 1999, the instant Grievance No. 99-1 was filed alleging a
violation of Article
VIII, Notes, paragraph D of the agreement. The grievance requests all unpaid benefits,
leave, clothing allowance, floating holidays, vacation and insurance premiums.
Pursuant to the agreement, the matter was appealed to arbitration, and the Union filed
request with the Wisconsin Employment Relations Commission.
Additional facts, as necessary, will be set forth below.
POSITIONS OF THE PARTIES
The Union argues that the City violated the agreement when it failed to credit
all hours worked and paid for in 1998, including overtime. In support of its conclusion, it
the settlement of two prior grievances involving the Grievant. Those grievances concerned
or not the City should base proration on the hours worked solely by Grievant in 1996, or
also had to include those hours worked by Grievant's predecessor, Kraus. The City agreed,
prejudice, to count all hours worked "for the position" rather than counting only those
worked by the
The Union believes the relevant contract language is simple and unambiguous, i.e.,
paid is considered time worked. The City's claim of ambiguity due to its involvement of
grievances with Grievant is not supported. Just because one part of Notes, paragraph D has
subject of dispute does not mean that that entire section is subject to dispute and/or various
interpretations. Since Grievant was required to work significant overtime (125 hours) for
since she worked and was paid for that overtime, then she is entitled to have the City count
overtime hours when calculating her prorated benefits. Moreover, there is no dispute
worked and was paid for 125 overtime hours in 1998. Therefore, she is entitled, by virtue
agreement's language, to count those hours toward her prorated fringe benefits. If this
denies counting those hours, he would have to read nonexistent language into the contract,
overtime hours are to be excluded. The agreement's "all time paid" language is
The Union also insists that the City's argument of waiver and/or acquiescence must
rejected for several reasons. First, prior to 1998, the part-time Complaint Clerk's overtime
were minimal and would have had little impact when calculating fringe benefit levels.
exclusion of overtime hours would have been an easy mistake or it would have been easy to
that overtime hours were included when calculating prorated fringe benefits. This is
because the Grievant enrolled in the City's group health insurance program, an expensive
benefit, while her predecessor had not. Thus, it is easy to understand why Grievant was
concerned about how the City's calculations were performed. Second, and more
Grievant's 1998 overtime hours were mandatory that she could not refuse to perform. Third,
Union had asserted a similar waiver argument, in spite of the agreement's clear language,
City would justifiably cry foul. Therefore, the Union deserves no less consideration on this
Although Kraus trusted the City was properly calculating her hours, she was unaware
overtime was not included in the City's calculations. Further, it is ridiculous for the City to
overtime hours should not be counted because they can be manipulated by employes. This is
overtime can only be considered as time worked, regardless of whether or not they can be
"manipulated." This is especially true since Grievant had no option to reject the 125 hours
overtime and, therefore, the issue regarding manipulation becomes irrelevant. Grievant
she could not refuse to accept the 125.15 overtime hours. This makes the City's refusal to
them in its calculation of Grievant's prorated benefits all the most unfair. Nonetheless, all
hours should be counted since all were worked and paid.
Regarding the City's waiver argument, i.e., the Union did not explicitly bring up the
overtime issue in the prior 1998 grievances, the Union rhetorically wonders whether such a
conclusion is in the best interests of the parties. This is because the Union never agreed to
overtime hours from the definition of time paid and/or worked, Krause was unaware that her
hours were not being counted and assumed that they were counted, and Grievant worked a
number of overtime hours in only her second full year of 1998. The City's argument that
waived the right to include overtime is, therefore, preposterous.
The Union also rhetorically questions the City's response to a potentially similar
when interpreting the agreement's military leave provision. Under Article XXI of the
City is required, in addition to granting time off, to pay an affected employe the difference
his or her regular pay and the actual military pay received. Past practice, however, has been
City continues to pay the employe his or her wages while on duty, and that the employe
to the City whatever military earnings he or she receives. Assume, hypothetically, that an
who has performed military duty, has been paid his regular wages by the City and that the
does not reimburse the City for money received from the military. Also assume that this
goes on for
a number of years and during the
course of two contracts. (The Union states that this scenario is based on actual events
another City employee in a different bargaining unit a few years ago whereby the parties
the City was entitled to reimbursement of the military payment even though the City failed to
reconcile its own books and failed to request reimbursement.) Thus, when the City realizes
mistake and demands that it be reimbursed the military pay, the City cannot be said to have
its right to enforce Article XXI by not demanding it. Article XXI's language clearly
states that the
City is only obligated to make up the difference in pay.
The City insists it did not violate the agreement when overtime hours were not
included in the
calculation for the proration of benefits to be paid to the permanent part-time Complaint
1999. It argues it has never entered overtime hours into the calculation of total hours for
prorated benefits for the part-time employes. Every year the City communicated by memo
explanation of how the previous year's hours were figured to each individual part-time
From 1992 to 1996, the City outlined the Grievant's predecessor's hours and how they would
figured into the calculation of her prorated benefits. Within the context of those memos,
was not listed as a calculation for the total. When the City notified Grievant by memo on
1998, regarding her proration of benefits for 1998, there was no reference to the inclusion of
in that memo. This was consistent with the other memos sent to other part-time Complaint
Furthermore, there were two prior grievances over the issue of how to calculate the previous
hours for determining benefits for the part-time employes. Throughout the discussions
those grievances, overtime and the calculation of overtime hours were discussed, including
or not overtime should be included in the calculation of benefits. During those discussions,
indicated that overtime was not guaranteed and that it was controllable by the part-time
Clerk. The resolution of those prior grievances specifically excluded the calculation of
that, in the final calculation, the parties excluded overtime from the total calculation.
The City also contends the contract language as to the treatment of overtime hours is
A review of that language reveals that it does not specifically include overtime hours in the
of time worked to prorate benefits. While a reference is made to paid time, a comparison is
to hours normally worked by full-time employees. The language does not indicate whether
time reference is intended to compare hours normally worked by the part-time employes.
leave and holidays may be time paid for a time when the employe normally works, overtime
The language does not indicate whether one is to compare all paid time for the part-time
as compared to all paid time, including overtime for the full-time employes. Nowhere in the
does it state that "overtime" hours are defined as hours to be included in the proration of
In total, the language is unclear.
The City also asserts that the agreement in this case requires that part-time employes'
will be prorated based on the amount of time worked in a calendar year compared to the
time normally worked by a regular full-time employe. If the City is required to include
hours, the result is not an "apples to apples" comparison. The language calls for a
comparison of the
time normally worked by a regular full-time employe to that of a
part-time employe. If one were to
include the overtime hours of the part-time employe, one would have to include the overtime
of the full-time employe in order to gain a true comparison. Also, the essence of the
Complaint Clerk is to fill in those normal hours not covered by the full-time Complaint
opportunity is there for the part-time Complaint Clerk to gain the normal hours of the
Complaint Clerk, but not to gain further benefits with overtime. Under the Union's
argument, a part-time Complaint Clerk could gain full-time hours as well as more than 100%
of benefits by adding
overtime. This is a nonsensical result. Further, the part-time Complaint Clerk has some
the amount of overtime. This is one of the reasons the parties have not historically included
Thus, the Union's interpretation of the calculation of overtime would not be reflective of
parties intended. The intention of the parties was not to allow part-time employes the ability
enhance their level of fringe benefits by accumulating both normal hours and overtime hours.
The City also argues that there is a past practice that supports the City's decision not
include overtime hours in the proration of benefits for Grievant, and that past practice has
unequivocal. Further, the Union was aware that the City took the position that it had the
to prorate benefits without including overtime hours. First, there has been one part-time
Clerk since approximately November of 1990, and that Clerk has received prorated benefits
to the contract. Second, every year the City would communicate to the employes by memo,
outline of the calculation of their fringe benefits. Third, the City gave its employes annual
regarding their proration of benefits. Furthermore, the Union filed two grievances in 1998
respect to the calculation of fringe benefits. In each grievance the issue was either settled or
Union accepted the City's denial as shown by the Union's failure to advance them to
settling, Grievant voluntarily agreed to the City's calculation of determining hours wherein
was excluded from the final calculation. The settlement documents encompassing those
listed overtime, but specifically excluded overtime in their calculations of hours for benefit
Moreover, the parties discussed the issue of overtime as a part of those settlements and why
would not be included in the calculation. The grievances were settled with overtime being
In conclusion, the City argues it has authority to do what it did, has done so
historically in the
past, and thus, did not violate any express provision of the agreement. The Union had
of this and accepted this binding practice. Furthermore, the parties resolved this issue when
settled their prior grievances. As such, if the Arbitrator rules in favor of the Union, he
giving the Union something through grievance arbitration which the Union could not obtain
collective bargaining or through prior grievances. The City notes that
Article IV of the agreements restricts the Arbitrator's authority to the four
corners of the agreement.
In essence, the Union asks this Arbitrator to ignore the long history established between
regarding this issue, and this Arbitrator to exceed his authority.
The Union argues that the language of Article VII, Notes, paragraph D is clear
unambiguous because of the last sentence of the clause which states "all time paid" shall be
considered "time worked." Standing alone, it does appear clear on its face. However, that
cannot be read in isolation because it is not the only language governing proration. Rather,
be read in conjunction with the prior sentence of paragraph D, and when that occurs,
apparent that the words "all time paid" can have more than one plausible meaning.
language is susceptible to more than one plausible interpretation it is deemed to be
this case, the City's practice relative to what hours it considered as "hours worked" is
a plausible construction of "all time paid" other than the meaning argued for by the Union.
practice treats "all time paid" as being those hours not worked, but for which the employee
sick leave, vacation, and floating holidays. These would have been shifts/hours the
not work, but was absent with pay. The Union argued paid overtime work also should be
as "time paid" and therefore "hours worked."
Both of these interpretations of the clause are plausible. Thus, I have concluded the
in dispute is ambiguous. I believe the preferred approach to interpreting ambiguous language
first look to the parties' conduct over time to see if there is evidence of their conduct that
light on or aid in the interpretation of the ambiguous language. In the instant case, there is
First, the City has historically excluded regular part-time Complaint Clerks' overtime
from "all time paid" when calculating prorated fringe benefits. Since at least 1992, on
a yearly basis, the City has communicated with the regular part-time Complaint Clerks and
them with the formula used to determine the level of proration of their benefits. The formula
historically been used by the City has included regular hours, vacation, sick leave and
hours, but not overtime hours. This was consistently done for many years and never grieved
employes or the Union.
Further, the prior grievance settlement agreement supports the City's contentions.
Grievant and Union entered into a binding settlement agreement to her earlier grievances
98-2) challenging the City's proration calculations. It is most significant that the same
formula was used by the City and that the work sheets attached to the settlement agreement
overtime in the computation of the proration percentage. In particular were two work sheets
"Employee Pay Inquiry" for the Grievant with a column titled "ovt." (overtime).
calculation showed that Grievant and her predecessor had worked a cumulative 1,708.25
1996, and enumerated the specific types of hours that
were included in the total hours paid: regular, vacation, sick leave and floating
holiday hours. This
list of enumerated hours did not include overtime hours. It excluded any overtime hours in a
fashion to the formula used by the City on an annual basis since 1992. It is also significant
Grievant signed the settlement agreement on February 20, 1998. That was after she had
City's January 12, 1998 letter setting out the hours worked breakdown for 1997 that was
determine her 1998 level of proration of fringe benefits. Again, the City had not included
overtime hours she had worked in 1997. Thus, Grievant knew, or should have known
settlement discussions leading up to signing of the settlement agreement pertaining to her
proration that she was agreeing not to include overtime hours. Further, the Union President
she was present during the discussions leading up to the settlement agreement and executed
agreement on behalf of the Union without overtime hours being a part of the settlement
the Grievant's 1997 proration.
The undersigned is persuaded that the City's consistent practice of not including
hours worked by the part-time Complaint Clerks, and providing them each time with the
excludes any reference to overtime hours worked, coupled with the binding settlement
is the best evidence of what the parties to the contract believed was an acceptable
paragraph D. The undersigned finds the practice and settlement compelling evidence that the
interpretation of paragraph D is the preferred construction because it is drawn from what the
have found acceptable. Thus, given the past practice of the City's application of the
overtime, the effect of the Grievant's prior settlement agreement governing her 1997
the City's reasonable expectation that the issue of overtime as applied to the Grievant was
by that settlement agreement, the Arbitrator concludes that the City did not violate the
collective bargaining agreement by not including Grievant's 1998 overtime hours when it
her 1999 prorated fringe benefits.
Based upon the foregoing and the record as a whole the undersigned enters the
The City did not violate Article VIII, Notes, paragraph D, of the parties' collective
agreement by not including the Grievant's 1998 overtime hours when it calculated Grievant's
prorated fringe benefits.
Dated at Madison, Wisconsin, this 13th day of December, 1999.
Thomas L. Yaeger, Arbitrator