BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
VILLAGE OF HARTLAND
HARTLAND PROFESSIONAL POLICE
LABOR ASSOCIATION OF WISCONSIN,
VILLAGE OF HARTLAND DEPARTMENT
OF PUBLIC WORKS ASSOCIATION
LABOR ASSOCIATION OF WISCONSIN,
Godfrey & Kahn, S.C. by Mr. Jon E.
Anderson, 131 West Wilson Street, P.O. Box 1110, Madison,
Wisconsin 53701-1110, appearing on behalf of the Employer.
Mr. Patrick J. Corraggio, Labor Consultant, The Labor
Association of Wisconsin, Inc.,
2825 Mayfair Road, Wauwatosa, Wisconsin 53222, appearing on behalf of the
The Village of Hartland, hereinafter referred to as the Employer, and Hartland
Police Association, Local 301, Labor Association of Wisconsin, Inc., and, the Village of
Department of Public Works Association, Local 707, Labor Association of Wisconsin, Inc.,
hereinafter referred to as the Union, are parties to a collective bargaining agreement which
for final and binding arbitration of grievances. Pursuant to a request for arbitration the
Employment Relations Commission appointed Edmond J. Bielarczyk, Jr., to arbitrate a
the employe contribution to health insurance. A
procedural question was raised by the Employer and the parties agreed to bifurcate the
have the procedural question resolved prior to hearing on the merits. The parties entered
into a stipulation of fact received by the undersigned on September 7, 1999. Written
received by the undersigned by September 16, 1999. Full consideration has been given to
evidence and arguments presented in rendering this Award.
The parties have agreed to the following issue:
"Did the Union file grievance 99-17 and 99-19 in
a timely fashion?"
STIPULATION OF FACTS (ABSENT
. . .
I - CONCERNED PARTIES
A. The Hartland Professional Police
Association, Local 301 of the Labor Association of
Wisconsin, Inc. which is represented by Mr. Patrick J. Coraggio. Mr.
Coraggio's office is
located at 2825 N. Mayfair Road, Wauwatosa, WI 53222, (414) 258-3300.
B. The Village of
Hartland Department of Public Works Association, Local 707 which is
represented by Mr. Patrick J. Coraggio of the Labor Association of Wisconsin, Inc.
C. The Village of
Hartland which is represented by Attorney Jon E. Anderson of Godfrey &
Kahn. Mr. Anderson's office is located at 131 W. Wilson Street, P.O. Box 1110, Madison,
WI 53701-1110, (608) 251-4670.
II PROCEDURAL ISSUE
Did the Association file Grievance 99-17 and 99-19 in a timely
1. That on September 4, 1985 the Wisconsin
Employment Relations Commission (WERC)
certified the Labor Association of Wisconsin, Inc. (LAW, Inc.) as the sole and exclusive
bargaining agent for the Hartland Professional Police Association.
2. That the Village of Hartland and LAW, Inc., on
behalf of the Hartland Professional Police
Association, have a collective bargaining agreement which has been in force and effect at all
times pertinent to the instant grievance. (Joint Exhibit 1)
3. That the 1997-1999
collective bargaining agreement between the Village of Hartland and
LAW, Inc. (police) contains Article XXII Grievance Procedure which reads in pertinent part
Section 22.02 - Grievance
A. If a difference arises between the Village
of Hartland and the Association as to the
interpretation and application of this Agreement, during the term of this Agreement,
such differences or disputes shall be settled in the following manner. Step
grievant shall submit his/her grievance in writing to the Chief of Police not later than
ten (10) working days from the date of incident or when the officer had knowledge
of the grievance.
4. That on December 21,
1988, the WERC certified LAW, Inc. as the sole and exclusive
bargaining agent for the Village of Hartland Department of Public Works Association.
5. That the Village of Hartland
and LAW, Inc. have a collective bargaining agreement which has
been in full force and effect at all times pertinent to the instant grievance. (Joint Exhibit 2)
6. That the 1997-1999
collective bargaining agreement between the Village of Hartland and
LAW, Inc. (DPW) contains Article VII Grievance Procedure which reads in pertinent part
Steps in Procedure:
1: If any employee has a grievance, he shall reduce his grievance
writing on a form supplied by the Village and present it to the DPW Director within ten (10)
work days after he knew or should have known of the cause of the grievance. . .
7. That the Village of Hartland
and LAW, Inc. negotiated an employee contribution into the
collective bargaining agreement which went into effect January 1, 1994 for the members of
the Hartland Department of Public Works Association.
8. That Article XIII Hosptialization,
Dental & Surgical Care Insurance of the collective
bargaining agreement between the Village of Hartland and the Hartland Department of Public
Works Association contains the following language regarding employee contributions:
Hospitalization, Dental & Surgical Care Insurance: The Employer agrees to
pay a dollar amount up to 105% of the cost of the gross health insurance premium for the
lowest cost qualified plan in the service area of the employer. Employees may select among
other available qualified plans offered by the employer, however said employees shall pay
difference between the amount paid by the employer and the full premium cost of the plan
selected. Effective January 1, 1994, the employee agrees to pay five percent (5%) of the
health insurance plan selected by the employee for single or family coverage. The five
contribution on the part of the employee shall be paid by payroll deduction. . .
9. That the Village of Hartland
and LAW, Inc. negotiated an employee contribution into the
collective bargaining agreement which went into effect April 1, 1994 for the members of the
Hartland Professional Police Association.
10. That Article XI
Hospitalization, Dental & Surgical Care Insurance of the collective
bargaining agreement between the Village of Hartland and the Hartland Professional Police
Association contains the following language:
Hospitalization & Surgical Care Insurance: The Employer shall provide
hospitalization and surgical care insurance through the State of Wisconsin Health Plan and
hundred five percent (105%) of the lowest cost qualified plan for this region offered for
family. . .
Effective April 1, 1994, the officer shall pay five percent
of the cost of the lowest cost
qualified plan in the service area plus the difference between the amount paid by the
the full cost of the plan selected. The officer contribution shall be paid by payroll deduction.
11.That effective April 1, 1994 the Village of
Hartland has been calculating the Employer's
contribution based on ninety-five percent (95%) of the lowest plan.
The implementation of the
employer contribution for health insurance has been consistently applied by the Village from
1994 to the present. This period of time has spanned two (2) labor contracts covering the
period and 1997-1999 period.
12.In October each year employees must
choose the health plan that they will participate in for the
following calendar year. The choice is from the offerings made
available under the State Plan. The
Village distributes to each employee a spreadsheet of cost information to assist employees in
an informed decision. The information details the cost of each plan as well as the employee
pay period depending on the plan selected. The following exhibits reflect information
employees by the Village. For 1999 (Exhibit "A"), 1998 ("Exhibit B"), 1997 ("Exhibit
(Exhibit "D"), 1995 (Exhibit "E")
13.That on or about March 17, 1999, Officer
Jeffrey Noennig, who is the Association President for
the Hartland Professional Police Association, became aware of the
Village's method of calculating
the employee's contribution and thereafter agreed that the Village was incorrectly interpreting
language found in Article XI Hospitalization, Dental & Surgical Care Insurance.
14.That Officer Noennig notified Mr. Patrick
J. Coraggio of this matter via a letter dated March 17,
1999. (Appendix "A")
15.That the Village's Administrator, Mr.
Wallace C. Thiel, also received a copy of Officer Noennig's
16.That after investigating Officer Noennig's
complaint Mr. Coraggio concluded that he agreed with
Officer Noennig and asked Mr. Thiel to respond via a letter dated
March 25, 1999. (Appendix "B")
17.That on April 1, 1999, Attorney Jon E.
Anderson responded on behalf of the Village stating that it
was his opinion that the Village has implemented the employee
contributions in a manner that is
consistent with the intent of the parties. (Appendix "C")
18.That on April 22, 1999, Officer Noennig
filed grievance 99-17 with the Chief of Police, Morton
A. Hetznecker, on behalf of the Hartland Professional Police
Association pursuant to step one of the
grievance procedure. (Appendix "D")
19.That on April 27, 1999, Chief Hetznecker
denied grievance 99-17. (Appendix "E")
20.That on May 3, 1999, Mr. Kevin Naylor,
a Labor Consultant with LAW, Inc. notified the
Village's Administrator, Mr. Wallace Thiel, that the Association
wished to move 99-17 to step two
of the grievance procedure. (Appendix "F")
21.That on May 5, 1999, Mr. Naylor and Mr.
Thiel discussed pursuing an identical grievance on
behalf of the DPW. During this conversation both Mr. Naylor and
Mr. Thiel agreed that the DPW
should file a grievance and that the two grievances should be handled in conjunction with one
22.That on May 6, 1999, Mr. Thiel denied
grievance 99-17 at step two. (Appendix "G")
23.That on May 7, 1999, Mr. Naylor
confirmed that the parties have agreed to have Edmond J.
Bielarczyk, Jr. from the Wisconsin Employment Relations Commission
act as the Arbitrator.
24.That on May 12, 1999, Michael Laguna
filed grievance 99-19 on behalf of the Hartland
Department of Public Works Association. (Appendix "I")
25.That on May 24,
1999, Mr. Thiel denied grievance 99-19 under both step one and two.
26.That the Village is not contesting the
manner in which grievance 99-17 and 99-19 moved through
the grievance procedure after their initial filing date(s).
27.That on June 17,
1999, Mr. Anderson confirmed in a letter to Mr. Naylor that the Village was
willing to bifurcate the hearing to address the "procedural" issues prior
to proceeding to a hearing
on the substantive issues. (Appendix "K")
The Employer acknowledges it has agreed to provide health insurance benefits to
unit members with coverage through the State of Wisconsin Health Insurance Group Health
(State Plan). The Employer points out that each year in October it provides each employe
spreadsheet of requisite cost information. The information details the cost of each program
as the employe cost per pay period. Negotiations, which culminated in the 1994 collective
agreement, specified employes were to pay at least five percent (5%)
of the plan selected. The Employer calculated this intent and implemented it on April
1, 1994. The
Employer points out the method of calculation was not challenged until March 17, 1999
Police Association president, Jeffrey Noenning, challenged the Employer premium
alleging the Employer had incorrectly interpreted the premium contribution language. The
unit's grievance was subsequently joined by another grievance from the Department of Public
bargaining unit. Since the initiation of the grievances the Employer has consistently held that
grievances are time barred and that the Employer has correctly applied the appropriate
The Employer points out that the collective bargaining agreements are clear in
time limitations and procedures which apply to the filing of grievances. The Employer
employe must file a grievance no later than ten (10) working days from the date of the
when the employe had knowledge of the grievance. The Employer concludes the Union has
to follow the prescribed procedure in filing of the instant grievances given that the Employer
the same method of calculation since 1994 and that it has notified each employe as to its
calculation throughout this period.
The Employer argues that when an agreement contains clear timelines for the filing
processing of grievances failure to observe the timelines will result in dismissal if the failure
protested. The Employer stresses that arbitrators must construe technical requirements
ensure that the intention of the parties regarding speedy resolution of disputes is preserved.
Employer argues that given the contractual commitment of the parties the undersigned should
the time limits and procedures.
The Employer points out that neither grievance was filed in a timely manner. The
contends the Union knew or should of known of the Employer's method of calculation long
the filing date of the grievances. The Employer points out that employe cost information for
year 1995, 1996, 1997, 1998 and 1999 was provided reflecting not only the lowest cost plan
a calculation based upon the five per cent (5%) of that lowest cost plan. The Employer
method of calculation is easily gleaned from this documentation.
The Employer argues any questions regarding the calculations should have arisen in
1995, not six (6)
calendar years later. The Employer also points out ten (10) days from the initial action
occurred in 1994.
The Employer also argues that grievances which are not filed on a timely basis are
The Employer stresses the undersigned cannot ignore the clear mandate of the parties that
are to be filed within a certain timeframe. The Employer argues the undersigned should not
the parties time limitations.
The Employer also argues the grievances cannot be processed under the continuing
exception. The Employer contends there are three conditions that must be met to be
a continuing violation: 1, the timeframe is not unreasonably protracted; 2, the grievant offers
and sufficient reason for the late filing; 3, the late filing poses no undue burden to the
Employer argues there has been an unreasonably protracted time period and thus the Union
acquiesced to the Employer's method of calculation, there has been no offer of a good and
reason for the late filing, and that the late filing places an undue burden on the Employer.
The Employer would have the undersigned deny the grievance.
The Union contends that a grievance can be raised when the employe had knowledge
grievance and argues the Employer's denial of the grievance as being untimely fails to
this provision. The Union argues that Association President Jeffrey Noening did not become
of the Employer's method of calculating the employe's health insurance contribution until
1999, and, thereafter Noening took action to grieve the matter. The Union also contends the
matter is an on-going or continuous in nature grievance rather than one connected with a
such as in a disciplinary matter and thus may be challenged upon each occurrence regardless
they first arose and the time restrictions found in the agreement. The Union concludes the
nature of the grievance coupled with the language of Article 5.07 of the agreement clearly
unequivocally supports the Union's request that the merits of the matter be heard.
There is no dispute that the Employer provided all employes with a State Plan
in October of each year since the parties selected this form of insurance in 1994. This sheet
the cost of each available health insurance program and employe pay period costs. The
do not contain the calculations of how the Employer arrived at the sums but merely the sums
Employer arrived at. While the Employer claims these calculations can be easily deduced,
Employer unilaterally made these calculations and has never shared the method of
the Union or any of the employes, only the sums it arrived at. Had the Employer provided
calculations demonstrating how it arrived at the sums the undersigned would agree with the
assertion that the Union has waived the ability to grieve the matter. However, no such
were distributed. Thus, until someone attempted to calculate how the Employer arrived at
there was no knowledge the Employer might be violating the terms of the agreement. Even
undersigned may agree with the Employer that this is an easy calculation to make, there is
in the agreement that would mandate the employes or the Union had a burden to make the
calculations. Thus the undersigned concludes
that until the calculations were made there was no knowledge of a grievable matter.
When the Union
made the calculations it then grieved the matter. The undersigned concludes the matter is
timely and properly before the arbitrator.
The undersigned does note the Employer's concern of the undue burden placed upon
such a late filing. However, Arbitrators tend to limit a remedy in such matters as in the
to the date of filing the grievance, particularly in view of an arbitrator's reluctance to go
four corners of the current collective bargaining agreement. Such an argument is more
questions concerning remedy if the Employer is found to have violated the intent of the
Based upon the above and foregoing and the stipulation and arguments presented by
parties the undersigned concludes the grievances were filed in a timely manner.
The Union filed grievance 99-17 and 99-19 in a timely
Dated at Madison, Wisconsin this 16th day of December, 1999.
Bielarczyk, Jr., Arbitrator