BEFORE THE ARBITRATOR
In the Matter of an Arbitration of a Dispute Between
THE BARGAINING UNIT OF THE
GREEN BAY POLICE DEPARTMENT
THE CITY OF GREEN BAY
Parins Law Firm, S.C., by Attorney Timothy J. Parins, 125
South Jefferson Street, Green Bay,
Wisconsin, on behalf of the labor organization.
Attorney Lanny M. Schimmel, Assistant City Attorney, 100
North Jefferson Street, Green Bay,
Wisconsin, on behalf of the municipal employer.
The Bargaining Unit of the Green Bay Police Department ("the Union") and the City
Bay ("the City") are parties to a collective bargaining agreement which provides for final and
resolution of disputes arising thereunder. The Union made a request, in which the City
for the Wisconsin Employment Relations Commission to designate a member of its staff to
decide a grievance over the interpretation and application of the terms of the agreement
shift reassignment. The Commission appointed Stuart Levitan to serve as the impartial
Hearing in the matter was held in Green Bay, Wisconsin on July 22,1999, with a
transcript being made available to the parties by August 9, 1999. The parties filed written
and reply briefs, with the record closing on September 20, 1999.
The union states the issues as follows:
"Whether the grievance was timely filed and advanced
to the grievance procedure
set forth in the current contract?"
"Whether the assignment of Officer Arts
the afternoon shift violated the collective
The city states the issues as follows:
"Did the union fail to advance this grievance to step three on
grievance process in a timely manner?"
"Did the city violate the collective
bargaining agreement by asking Officer Arts to voluntarily
switch to another shift for a 30-day period; and, if so, what is the proper remedy?"
I state the issues as follows:
"Did the union fail to advance this grievance in a timely
manner, such that it has waived its
right to seek further remedy?"
"If not, did the city violate the collective
bargaining agreement by asking Officer Arts to
voluntarily switch to another shift for a 30-day period; and if the city did so violate the
bargaining agreement, what is the proper remedy?"
GRIEVANCE PROCEDURES AND DISCIPLINARY
GRIEVANCE DEFINITION. A grievance is defined as any complaint involving
wages, hours and conditions of employment of members of the bargaining unit, other than
proceedings conducted pursuant to Section 62.13, Wis. Stats. A grievant may be an
employee or the
Union. Upon the mutual agreement of the parties hereto, grievances involving the same
be consolidated in one proceeding.
3.02 SUBJECT MATTER LIMIT. Only one subject matter
shall be covered in any one
grievance. A written grievance shall contain the name and position of the grievant, a clear
concise statement of the grievance, the relief sought, the date the incident or violation
the signature of the grievant and the date.
3.03 CHIEF INVESTIGATION. The
Chief of the department may confer with the Union
and such employees or other persons he deems appropriate before making his determination.
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 receive a reply in a timely fashion shall
have the right
to automatically proceed to the next step of the grievance procedure. The time limits may be
extended 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
furnish the grievant and the Union representative an answer within five (5) working days
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 after 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
respond in writing within five (5) days after
their decision which shall be made at the next
regularly scheduled Personnel Committee meeting. In reaching their decision, the Personnel
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.
3.07 GRIEVANCE ARBITRATION
(1) ACCESS TO RECORDS. The employee or his/her
bargaining unit shall have access
to the City's investigative file and all other pertinent documents or information once a
action has been meted out, but no sooner than three (3) days after such discipline has been
Access to the employee's personnel file shall be subject to the restrictions of Section
Stats. Nothing in this paragraph shall prohibit or restrict the City from taking a statement of
employee as part of an investigation to determine whether the employee should be
(2) DISCLOSURE OF WITNESSES.
Any time after step 2 of the grievance procedure,
either party may demand a list of witnesses that the other party intends to call by furnishing
party with a list of witnesses of the demanding party. The other party, upon whom the
made, shall respond to that request within three (3) working days of the date of the request.
parties shall be under a continuing obligation to update and supplement the list of witnesses
provided. Any witness not identified in response to a demand before the date of the informal
pre-hearing conference shall not be allowed as a witness in the case in chief in these
(3) DEPOSITIONS. (a) Once a
witness has been identified pursuant to the procedures
set forth above, that witness may be deposed.
(b) Either party may identify witnesses
they intend to call in these proceedings without
receiving a demand from the other party. Upon identification of such witness, the party so
the witness shall, upon notice to the other party, be permitted to depose that witness for
perpetuating testimony for the grievance hearing.
(c) Any depositions taken, whether during the investigation
of the actions leading up to
the discipline or at any point thereafter, may be used by either party at any step in the
procedure as may be otherwise provided by law.
3.08 COSTS. The party initiating the
grievance shall pay for the administrative costs for
initiating arbitration. Any other expenses or costs of the arbitration proceeding, including
fees of the
arbitrator, shall be split equally between the parties. The arbitration hearing shall be
conducted in the
City of Green Bay, at a mutually agreeable time.
3.09 DECISION OF ARBITRATOR.
The decision of the arbitrator shall be limited to the
subject matter of the grievance. The arbitrator shall not modify, add to or delete from the
terms of this Agreement. The arbitrator's decision shall be final and binding.
3.10 REPRESENTATIVES. The
Bargaining Unit may appoint representatives of the
bargaining unit and shall inform the City of the names of the individuals so appointed and of
change thereafter made in such appointments. The City shall allow the representatives the
time to process grievances during the course of the duty day.
. . .
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
provided however that no officer may be temporarily assigned to any duties or projects which
historically been or
normally are performed by or assigned to
Bargaining Unit members as part of their job duties.
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.
5.07 SAFETY STAFFING (1)
Policy. Both the City and the Bargaining Unit keep officer
safety as a foremost priority in all aspects of working conditions. It is recognized that the
safeguard for officers is the police force itself, with each officer receiving protection through
teamwork with, backup for or by, and general interdependency with other officers.
(2) Staffing Requirements.
In order to serve the above general policy, the following
minimum officer safety staffing shall be maintained at all times, subject only to the
subparagraph (3) and Section 5.09 below:
. . .
A minimum of twelve uniform officers shall be on active
patrol duty in the City from
6:30 a.m. until 7:00 p.m. with the exception of the period between the start of the early day
the start of the late day shift. (further text omitted)
5.10 ASSIGNMENT OF POSITIONS.
(1) Assignments to job or duty positions shall be
made only when a vacancy exists, and there shall be no bumping. Job or duty position
be posted and assigned on the basis of seniority amongst those bidding as follows:
. . .
(b) Positions within the uniform Operations Department shall
be assigned to the most
senior police officer bidding.
This grievance concerns the temporary reassignment of Green Bay patrol officer
from the day shift to the afternoon shift in 1996.
In the 1996-98 collective bargaining agreement between the City of Green Bay and
Bay Police Bargaining Unit, the parties agreed to eliminate the position of sergeant. This
resulted in approximately 15-17 sergeants losing that designation. As part of that personnel
transaction, the union was concerned that sergeants would remain on their old shifts, which
less desirable than the ones their seniority might ordinarily allow them to bid for, which
opportunities they missed due to their previously being sergeants. To address this situation,
President Rick Demrow in about August or September 1996 proposed to Police Chief James
that sergeants be allowed to switch to the shift of their choice outside the normal posting
This was a favor the union sought from the chief, which would have involved his providing
sergeants with a unique shift selection process outside the terms of the collective bargaining
At that time, Lewis was aware that an imminent undercover wiretap operation in
with the federal Drug Enforcement Administration would already divert certain personnel
normal shifts, which had mandatory minimum staffing levels. Lewis did not share with
facts about the undercover operation, but he did discuss with him the department's possible
flexibility in making temporary shift reassignments so that the shift movement by sergeants
jeopardize the mandated minimum staffing levels. For general matters of contract
bargaining unit has authorized and designated its President to act on its behalf. Lewis would
allowed the informal shift changes by sergeants if he did not believe that Demrow had
the department temporarily reassigning patrol officers to maintain proper staffing levels.
At around this time, the Commander of Operations, Captain Boncher, approached
Arts, then assigned to the day shift, to ask if he wouldn't mind switching shifts for a 30-day
assignment because of a special project. Although Arts didn't know that this project was the
undercover investigation, he accepted the change. Lewis did not ask Demrow specifically
reassigning Arts from the day shift to the afternoon shift on a temporary basis. Demrow did
understand from his earlier conversations with Lewis that there would be some moving of
between shifts to accommodate the granting of new shift preferences to the former sergeants.
hearing, Demrow testified that the temporary reassignment of Arts fell under what he and
had discussed, although he believed Lewis would have brought the matter to the bargaining
discussed the specific implementation before it was executed.
On October 9, 1996, Commander of Operations Captain Boncher sent a memo to the
Commanders and the bargaining unit that, effective the following day, four officers would be
temporary 30 day assignments. Three officers were moved from various shifts to the
division; Officer Jim Arts went from the day shift (to which he had posted on the basis of
to the afternoon shift, performing his normal patrol duties. In the period between October
10-November 10, 1996, Arts worked 17 afternoon shifts, was off 12 days, took time off on
one day and
was sick on two days.
On October 21,1996, attorney Thomas J. Parins, on behalf of the bargaining unit,
Lewis as follows:
The Bargaining Unit does hereby grieve the recent assignment of
Officer Aerts(sic) to the
afternoon shift from the day shift.
The basis for this grievance is that the job
and shift assignment in question was not posted as
required by Sections 5.01 and 5.10 of the labor contract.
The remedy being sought is the payment of
wages as if the City had called in officers to perform
the duties being performed by Officer Aerts on the afternoon shift.
Arts did not complain about his reassignment, and was
of the grievance until he saw his name
on the grievance in a packet of material at a union meeting. On October 21, 1996, Lewis
replied to Parins
I received your grievance regarding Officer
Aerts, I assume you are referring to Off. Jim Arts.
This is part of your previous grievance of
October 14, 1996 involving an investigation. It has
become apparent that you desire to control the department's flexibility in conducting certain
activities, in spite of the fact that we discussed this at the previous bargaining sessions.
As I previously advised you, the Union
President, Rick Demrow, has been kept appraised of this
project. I believe that these transfers are proper under Sections 5.04 of the contract.
On October 23, 1996, Assistant City Attorney Judith
Schmidt-Lehman wrote to Parins as
It has come to my attention that several recent grievances (Allen,
Buckley, Johnson and
Trimberger) have been presented to Police Chief Lewis outside the time constraints found in
3.06(1) of the Bargaining Contract. This letter will serve to notify you and the Union that,
unusual circumstances, the City intends to strictly rely upon the time constraints found in
of the Agreement. These restrictions were mutually bargained for the benefit of both parties
not be ignored by the City in the future.
If you have any questions or concerns, please let me or Personnel
Director Alexander Little know
so that we may discuss them.
On October 29, 1996 Parins wrote to Personnel Director Little as follows:
Enclosed please find a copy of the grievance regarding the above
referenced matter by the
Bargaining Unit dated October 21, 1996, and the response of Chief Lewis rejecting such
also dated October 21, 1996. We hereby advance this grievance to Step 2 of the grievance
. . .
The city does not have the right to change an officer's shift. An
officer receives a shift
assignment by the bidding procedure in the contract. Once assigned a shift, an officer cannot
"bumped" from that assignment.
The only exception to this rule is found in
Section 5.04 regarding temporary assignments. This
section does not apply to this circumstance as Officer Arts was given a patrol assignment.
assignment of Officer Arts is definitely one which is normally performed by Bargaining Unit
as part of their job duties.
The position taken by the Bargaining Unit
in this case is absolutely no different that now previous
Chiefs have operated in the past. If the City had wanted a change regarding shift assignments
the contract, as administered, this should have been something brought to the bargaining
Over the next several months the parties discussed resolution
numerous grievances, including this
Demrow was promoted to Lieutenant and left the union in February 1997.
Subsequent to the
October 1996 exchanges, he did not have any further discussions regarding the Arts
to leaving the union. At hearing, he could not recall any specific settlement negotiations
grievance at that time, nor could he recall anything that would have kept the union from
it to the personnel committee other than trying to settle it outside of that forum.
On June 19, 1997, Atty. Thomas J. Parins, Jr. wrote to Chief Lews as follows:
I understand from speaking with my father that you would like a
recap of the proposal that we
made to you to settle the outstanding grievances. Our proposal is as follows:
. . .
The grievance regarding Officer Arts temporary
assignment to the afternoon shift is held open at this
time. Discussions as to how to handle this are ongoing.
. . .
This settlement offer, if accepted, will settle all grievances that
are outstanding, except those set
forth above, which were filed or pending prior to March 1, 1997.
On July 31, 1998, following further discussions, the parties executed a Settlement
which provide, in relevant part, as follows:
The City of Green Bay and the Green Bay Police Bargaining Unit
do hereby enter into this
agreement that sets forth the terms and conditions of settlement of certain pending grievances
. . .
8) The following grievances
shall constitute all matters which the Union asserts to be grievances
currently pending between the parties in regard to the labor contract at the date of execution
of this agreement. The listing below is not in any way intended to waive any and all
procedural or substantive rights the City may have in regard to such matters. All other
grievances are hereby withdrawn:
. . .
Arts grievance switch from afternoon to day shift (10/21/96)
9) By withdrawing grievances, or other matters
alleged to be pending, under this agreement, the
Union makes no admission as to the merits of these grievances or other matters, and as such
shall not be construed as a waiver of the right to bring grievances based on the underlying
facts of the grievances withdrawn.
10) By settling the grievances or
other matters alleged to be pending in this agreement, the City
admits no liability and does not waive any procedural or substantive defenses that the City
may have in regard to the merits of the grievances or other matters settled. This agreement
shall not be construed as an admission by the City that any violation of the labor contract
occurred in regard to any of the matters settled hereby.
Arts could not recall whether the parties specifically discussed his grievance during
negotiations following this July, 1998 settlement. He was aware that all of the grievances
listed in the
July 1998 settlement were the subject of mediation before a mediator appointed by the
Employment Relations Commission, and that the city maintained at that mediation that the
should be dismissed because it was untimely.
At some point during the pendancy of this grievance, the exact date not being a part
record, the city experienced turnover in the position of personnel director, also known as the
On December 3, 1998, Human Resources Director James Kalny wrote Atty. Parins,
We were disappointed that you missed the above-referenced
mediation session. As you are
aware, that session was the culmination of many negotiation sessions and the City had spent
considerable amount of time preparing for it in hopes of compromise and removing several
from the table. At the mediation session, it became immediately clear that what was left of
negotiation team lacked the background, leadership, or perhaps the desire, to start talking
compromise. The City offered to settle the very first grievance listed and upon review of the
remaining twenty-six grievances, the association would not agree to the dismissal of even one
those grievances. The mediation session concluded with a suggestion by the mediator that we
together package proposals and submit them to her attention. Her rationale was that this
some movement by both parties. Yet on December 1, 1998 I learned that you have decided
advance all of those grievances to the Personnel Committee. In many cases, these grievances
untimely and we will raise those objections.
However, we also believe that this speaks to
the amount of good faith that you have put into
these negotiations in that you will not follow the suggestion of the mediator or even discuss
matters with us before you take such an aggressive action.
Apart from the reference in Kalny's letter, there is no evidence in the record as to the
which the union advanced the grievance to the personnel committee. On February 4, 1999,
Parins wrote to Ald. Timothy Hinkfuss, chair of the city's Personnel Committee, in part, as
Re: Arts Uposted (sic) Reassignment
Please accept the enclosed material as our
arguments in the above-stated grievances. It is my
understanding that these two grievances will be considered at the next Personnel Committee
and that a response will be forwarded after that meeting. By copy of this letter, I am also
copies of all the material to Mr. Kalny, who is representing the city.
At its meeting of February 9, 1999, the Personnel Committee
denied the grievance, which
denial was communicated to Atty. Parins by correspondence from Hinkfuss dated the
That letter also reminded Parins that the union had 15 days from receipt of the decision to
the grievance to the Wisconsin Employment Relations Commission for arbitration. On
22,1999 the union filed with the WERC its request for grievance arbitration.
POSITIONS OF THE PARTIES
In support of its position that the grievance should be sustained, the union asserts and
There is no question the grievance was timely filed and advanced
to step 2, and timely advanced
from step 3 to step 4. The only issue is the advancement from step 2, the personnel
director, to step
3, the personnel committee.
All of the witnesses testified to the fact that
the city and the bargaining unit were continually
negotiating this grievance, along with numerous others, seeking a package settlement. This
was specifically discussed at mediation in late 1998. When no resolution was made, the
sent to the personnel committee on December 1,1998, and set for committee hearing in
That the union was acting in good faith is shown by the December
3, 1999 letter from Human
Resources Director Kalny to union attorney Parins, in which Kalny states that the
the union to the personnel committee was "an aggressive action." For the city to now come
in at this
arbitration and state that the grievances are untimely because they weren't advanced to the
committee as set forth in the contract is very duplicitous. The city is telling the union to
and attempt a package settlement, and until we do, do not advance them to the personnel
but once the union does advance them to the personnel committee, the city says, ah-ha, these
grievances are not timely. The city should not be able to have its cake and eat it too. If they
negotiating a settlement and want to settle these prior to being advanced to the personnel
they should not be allowed, when they are advanced to the personnel committee, to say they
untimely. Why would the advancement of the grievances to the personnel committee be such
"aggressive action" if both parties did not believe that they were negotiating the settlement of
grievances in good faith, and that the time periods for advancing to the personnel committee
The negotiations also took so long, through
no fault of the union, because the city had a new
Mayor, two new personnel directors, and a new chief. The bargaining unit, in good faith,
the city's request during this period of transition and turmoil, to allow it to get up to speed.
bargaining unit should not be penalized for delaying the processing of the grievances at the
The bargaining unit did not sit back and
deliberately allow this grievance to go stale. There were
definitely extenuating circumstances involved with this grievance, such that the arbitrator
a waiver of the time limitations. The bargaining unit asserts that the grievance was timely
timely brought through the grievance process, and should be decided on its merits.
Regarding the merits, this is a very simple
fact situation. It is undisputed that Officer Arts'
normal shift assignment was the day shift, but was approached by management and asked if
work the afternoon shift as a temporary 30-day assignment, which he accepted. This was not
pursuant to the provisions of Article V in the contract.
The city's argument that this shift change was necessitated by the
change of sergeants to different
posts at the request of the bargaining unit is not credible for several reasons. It is very clear
chief's letter of October 21, 1996 that the shift-change involved only the wiretap
later looked at the section which the chief
cited and realized it did not apply, it had to come up
with some other reason for making the transfer. The city came up with the movement of the
argument. If this was the reason, it would have been so stated in the original letter of
denial. For the
city to come in now and assert that reasoning at arbitration should not be allowed. Also, Arts
with the three other officers that were assigned to the wiretap investigation, further showing
assignment was part of that investigation, not the sergeant move.
Secondly, the argument that this is related to the movement of the
sergeants needs to be
disbelieved because the conversation between the chief and union president in which this
was allegedly made took place in August; the assignment of Arts did not take place until
If the moving of the sergeants had necessitated the movement of some officers, this would
place well before the change in Arts' shift. The chief even set forth that if he had not
officers for the confidential investigation, that the Officer Arts' move would not have been
It should also be pointed out that the city also violated Article
36.01 by making an agreement
with Officer Arts individually that conflicted with the provisions of the collective bargaining
agreement. The city should have posted the assignment or approached the union about the
It did neither but chose to ignore the contract and bargain with Officer Arts individually a
his shift in contravention of the provisions of the contract.
The city's argument equating this to light
duty must also fail as those assignments are being done
pursuant to an agreement and long standing past practice.
Clearly the temporary assignment of Officer
Arts does not fall under the provisions of Section
5.04, which sets forth specific procedures. Specifically, the city failed to give written notice,
required; there is no testimony that the notice was ever sent to the bargaining unit, except
bargaining unit is listed in the "to:" section of the notice. It was the testimony of the former
president that he never received that notice. Also, section 5.04 states that no officer may be
temporarily assigned to any duties normally performed by bargaining unit members, and
there is no
dispute the patrol duties Arts performed were the usual and customary duties of patrol
The specific language of section 5.04 was changed for the
1996-98 contract precisely to protect
against this type of assignment. If the city is allowed to make an assignment like this one it
officers as it pleases to make up for shortages that are created by management. This is
opposite to what the section was designed for.
The real reason Arts was moved to the afternoon shift was so that
the city would not have to pay
overtime. The overtime was created by the temporary assignment of two officers to the
investigation. The chief knew when he made the temporary assignment that it would be
opening that would need to be filled on the afternoon shift. Yet he still made the temporary
assignment. Because of his decision to do the wiretap investigation, the chief now wants to
circumvent the contract so that they don't have to pay overtime. This cannot be allowed.
As remedy, the city should be required to
pay to the bargaining unit an amount equal to 17 shifts
of overtime. In the alternative, the city should be required to pay to Arts directly overtime
hours that he worked outside his normally scheduled shifts.
In support of its position that the grievance should be denied, the city asserts and
Having failed to advance the grievance to
step three for over two years, the union's grievance
is untimely. The union had the right and duty to advance the grievance to the personnel
as of November 11, 1996, yet failed to do so until February 1999. Forwarding a grievance
2 to step 3 some 28 months after constructive denial of the grievance is prima facie evidence
The union argues that alleged ongoing
negotiations somehow acted as mutual consent to extend
the time limits, but it utterly fails to support this allegation with sufficient evidence. First, it
even prove that negotiations were ongoing. But even if they were, that alone would not
the city consented to extend the contractual time limits.
The former union president could not recall
any negotiations being held about this grievance
between October 29, 1996 and February 1997. This official also testified he did receive the
notice that it would not ignore the procedural time limits. The chief testified the union had
repeatedly warned about the timeliness problem with this grievance, and that the union was
to believe that the city consented to an extension.
Even if there were ongoing negotiations in
November 1996 which tolled the timelines, the
agreement of July 31, 1998 affirmed the denial of this grievance and made its advancement
3 in February 1999 untimely. By that July 1998 agreement, which lists this grievance as
the city explicitly stated that it did not waive any procedural or substantive defense. Further,
gave the union notice that it considered this grievance to have surpassed the timeliness
and that this grievance was not negotiated after the signing of the July 1998 agreement.
notice and the complete lack of any further action, the union waited six more months, until
1999, to advance the grievance to the personnel committee. Had the union observed the
time limits, the grievance would have been advanced to the personnel committee no later
Given the excessive length of time which
passed between steps 2 and 3, the union's failure to
present evidence that the city consented to extend the time limits, and the clear denial of the
in July, 1998, the arbitrator lacks jurisdiction to consider the merits of this grievance, and it
As to the merits, the movement of Arts was
contemplated by the agreement between the chief
and the union president, and the union is estopped from repudiating the agreement. The
union president met in August 1996, at the union's request, to discuss the implementation of
elimination of the sergeant position. The parties agreed that sergeants would be allowed to
day shifts without going through the posting process, and that the city could temporarily
officers between shifts to ensure that contractually mandated staffing levels were maintained.
undisputed that the need for Arts to switch shifts would not have arisen if the chief had not
the sergeants to switch shifts, which the chief would not have authorized if the union had not
to allow the temporary switch of other officers, such as Arts. Under this grievance, though,
attempts to reap the benefits of the agreement (the sergeants being allowed to post into day
while repudiating the very limited concession it granted (the temporary shift-switch of
as Arts). This would result in a manifest injustice, and the union should be estopped from
in this grievance.
Also, the established practice of the parties
allowed for Arts' voluntary and temporary switch
from day to afternoon shift, which is different from a reassignment. Contrary to the union's
Arts was not reassigned he voluntarily accepted an offer to temporarily change
shifts. The contract
language on its fact excludes voluntary, temporary changes from the provisions of Article 5,
practice of the parties confirms this conclusion. Indeed, the
union admits that the provisions of Article 5
do not apply to voluntary changes. Past practice is
clear that voluntary, temporary shift changes occur on a regular and frequent basis. While
usually occur in the context of an injury to an officer, it is clear the practice does apply to
voluntary shift change by Arts, so that the grievance should again be denied.
Further, the union's requested remedy is
improper under the circumstances of the alleged
violation. The proper remedy does not include the payment of overtime hours as the position
have been posted for a reassignment of regular hours, thereby creating no overtime. And
overtime payment is the proper remedy, the union's claim (170 hours) far exceeds the actual
of overtime which would have been created (48 hours). Further, as Arts is the employe who
worked this time, if an award is made, it should be paid to Arts.
The union failed to advance the grievance to
Step 3 in a timely manner, and is estopped from
claiming a violation because it accepted the benefit of the agreement which allowed the city
the temporary reassignment of Arts to the afternoon shift. Further, the department did not
collective bargaining agreement, as voluntary reassignments have been mutually recognized
acceptable practice. Accordingly, the grievance should be denied.
In response, the union argues further as follows:
The city has made several inaccurate assertions. Contrary to the
city's brief, the evidence clearly
shows that there was no agreement to allow the chief to temporarily move officers between
he felt necessary. That the bargaining unit agreed to be flexible did not give the chief carte
to move officers as he pleased.
The city knows that its assertions about the
grievance not being advanced to the personnel
committee until February 1999 are simply untrue. The parties made an agreement on July
that left this grievance unsettled. The city failed to mention there was a mediation session on
November 23, 1998, requested by the city. The bargaining unit then advanced the grievances
the date of December 1, 1998; this was the basis for the December 3, 1998 letter from
the city to now attempt to state that the grievance was not advanced until February, and
make it seem as through the grievance sat dormant from July 31, 1998 to February 4, 1999
deliberate attempt to mislead the fact-finder.
The city errs in asserting that this grievance was not processed in
a timely manner. The
bargaining unit in good faith attempted to negotiate the settlement of the grievance and
negotiations did not advance the grievance to step 3. That when it was advanced the
director called it an "aggressive action" is very telling as to the mind set of both the city and
bargaining unit. For the city to now come in and say that there was no response by the
director is ludicrous. There was an agreement to extend the time limits while the grievacne
negotiated, this is clear by the December 3,1998 letter.
The city's contention that the grievance was
not processed timely cannot be upheld. Pursuant to
the collective bargaining agreement, there was mutual agreement here to extend the time
settlement agreement was made, with this grievance being specifically mentioned as being
the unsettled grievances were then subject of a mediation. Obviously, this grievance along
others were being negotiated. The city also mischaracterizes the union president's testimony
regarding the settlement discussions on this grievance
The city knows that February 4, 1999 was
the date the personnel committee held its hearing on
this grievance, not the date the grievance was advanced. There was a request for mediation
through the WERC in August, the mediation was held on November 23 and the grievance
advanced on December 1, all 1998.
The city, making more of the agreement
than there actually was, errs in asserting that the
movement was contemplated in agreement between the police chief and the bargaining unit
The agreement was to allow the former sergeants to move to their desired shifts, and that
have to be some changes to balance the shifts; that is where the agreement stopped. There
any discussion as to how the movement of the officers would be made or that the chief could
changes unilaterally in contravention of the contractual process. The bargaining unit
understanding was that the chief would come to the bargaining unit to discuss how any
would be made. The sergeants moved in August, but Arts' shift change was in October; to
move of the sergeants necessitated the Arts shift cannot be believed, and if followed, would
chief the ability to change shifts as he wanted and effectively end overtime. The bargaining
not agree to this and specifically negotiated against this type of assignment.
The city also errs in stating the collective bargaining agreement
would not allow Arts to take a
voluntary and temporary change in shifts; the collective bargaining agreement does not
and the established practice of the parties does allow for it.
The city further errs in asserting that the
union's requested remedy is improper. The fact of the
matter is that the city did not follow the collective bargaining agreement and is now
sidestep its clear language. The city should have to pay overtime for all hours Officer Arts
because it failed to follow the collective bargaining agreement.
The city knows that the change of shift was
not proper under Sec. 5.04 of the collective
bargaining agreement, and the city is now coming up with different reasons for allowance of
transfer. All must fail. This was an improper change of shift. The city also fails to justify
how it can
negotiate individually with Officer Arts. As to timeliness, the parties were negotiating this
the personnel director level, and it is unfair for the city to now come in to say it was
because it was participating in the negotiation and mediation. Accordingly, the grievance
sustained and the remedy as requested ordered.
Before addressing the merits of the grievance, I must first assess whether it is
me under the process and procedure outlined in the collective bargaining agreement. The city
vigorously argues that the union's delay in advancing the matter to the personnel committee
constitutes a fatal flaw; the union just as vigorously argues against my finding the grievance
The relevant language of the collective bargaining agreement is clear and
failure of a party to file or appeal the grievance in a timely fashion "shall be deemed a
waiver of the
grievance." Thus, if I find as a fact based on the record, taking into account all evidence
circumstances, that the union has been untimely at any one of the steps, I must deny and
There is no dispute about the initial filing of the grievance, the union's appeal of the
chief's denial to the personnel director, or the union's request to the WERC for grievance
all of these steps were taken in a timely manner. The city maintains, however, that
the appeal from
the personnel director to the personnel committee was taken in an extremely untimely
that further consideration of the matter is time-barred.
The union counters that the city itself asked for additional time to allow its new
acclimate themselves, and that there were ongoing settlement discussions and mediation
which effectively tolled the running of time.
There are several aspects of this record that are less than clear. First, the union
established the dates on which the city changed personnel directors, a critical fact in
impact the city itself had on the timely processing of this grievance. Nor did the union
any specificity the date of grievance mediation, or the degree to which this grievance was the
of ongoing negotiations.
Most importantly, neither the city, which argues that the appeal to the personnel
was untimely, nor the union, which asserts to the contrary, entered into the record a single
evidence establishing the date on which that appeal was in fact taken. The city points to the
letter of February 3, 1999 and asserts that the appeal was not taken until then. The union
the city's letter of December 3, 1998, and declares that this establishes the appeal was taken
There are, however, enough relevant facts in the record to complete the necessary
On October 23, 1996, the city informed the bargaining unit's attorney that it intended
"strictly rely upon the time constraints" set forth in the collective bargaining agreement.
correspondence was in regards to other grievances, it did serve to put the bargaining unit on
that the city intended to require adherence to the time limits. Moreover, the city reiterated
position throughout the process.
On July 31, 1998, the parties executed a Settlement Agreement which established that
grievances had either been settled or withdrawn, but that the Arts grievance, among others,
pending. By this agreement, signed by Atty. Parins, Chief Lewis and HR Director Kalny,
explicitly did not "waive any and all procedural or substantive rights" it might have
Whatever flexibility the city may or may not have requested in its earlier
consideration of the
Arts grievance, this July 31, 1998 agreement constituted a denial by the personnel director.
the explicit terms of the collective bargaining agreement, the union therefore had five
in which to present the grievance to the Personnel Committee.
This it did not do. Under the union's statement of the timeline, appeal was taken to
committee by December 1, 1998; under the city's timeline, it was not until two months later.
But even the December 1 date is still four months not the five days called for
collective bargaining agreement -- after the personnel director's denial of July 31. The union
to explain that delay away by pointing to ongoing settlement discussions and the mediation
The union has two problems in making this case. First, it lacked any first-hand
to the specifics of those discussions and sessions. Next, it lacked any effective rebuttal to the
evidence and argument that a willingness to discuss did not entail an agreement to waive time
There are also important policy implications here in considering whether the city's
to continue to discuss these matters constituted an effective waiver of the time limits. Public
favors the peaceful resolution of labor disputes; it is better for the parties to settle their
between themselves than not. An employer with a good faith belief in a procedural defense
untimeliness would not engage in voluntary settlement efforts if to do so constituted a waiver
defenses, thus thwarting efforts at voluntary resolution of disputes. As it has been said, "it
been recognized that a Party who asserts a clear and timely objection to a procedural defenct
other Party's case, may discuss a grievance on its merits without impairing his right to assert
procedural defense." New York Racing Assn., 43 LA 129, 126 (Scheiber, 1964).
There are times when an artificial reliance on process will lead to a manifest
that arbitrators will find a way to finesse the procedural issues in order to address the
ones. This is not such a time.
The city asserted a clear and timely objection to the procedural defect in the union's
namely the untimely manner in which the union advanced the grievance from Step Two to
Pursuant to the terms of the collective bargaining agreement, this failure by the union to
grievance in a timely manner is deemed a waiver of the grievance.
Accordingly, on the basis of the collective bargaining agreement, the record evidence
arguments of the parties, it is my
That the grievance is denied and dismissed.
Dated at Madison, Wisconsin this 14th day of January, 2000.