BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
OSHKOSH PROFESSIONAL POLICE OFFICERS
CITY OF OSHKOSH
(Directive #116 - Overtime)
Attorney Frederick J. Mohr,P.O. Box
1015, Green Bay, Wisconsin 54305, appearing on behalf
of Oshkosh Professional Police Officers Association.
Davis & Kuelthau, S.C. by Mr. William G. Bracken,
Employment Relations Services Coordinator,
P.O. Box 1278, Oshkosh, Wisconsin 54903-1278, appearing on behalf of the City of
Pursuant to the provisions of the collective bargaining agreement between the parties,
Oshkosh Professional Police Officers Association (hereinafter referred to as the Union or the
Association) and the City of Oshkosh (hereinafter referred to as the Employer or the City)
that the Wisconsin Employment Relations Commission designate a member of its staff to
resolve a dispute. The undersigned was so designated. A hearing was held on July 7, 2000,
Oshkosh, Wisconsin, at which time the parties were afforded full opportunity to present such
testimony, exhibits, other evidence and arguments as were relevant to the dispute. A
record was made of the hearing and a transcript was received on July 19th.
The parties submitted
post-hearing briefs and reply briefs, the last of which were received on September 6, 2000,
whereupon the record was closed.
Now, having considered the testimony, exhibits, other evidence, contract language,
of the parties and the record as a whole, the undersigned makes the following Award.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties were unable to reach a stipulation on the issue and agreed that the
Arbitrator should frame
the issue in his award. The Union views the issue as:
1. Did the City violate Directive 116
by failing to offer work to off duty second shift
2. Did the City violate Article IV of
the collective bargaining agreement by failing
to pay Marilyn Harvot overtime for hours worked outside of her regularly scheduled day?
For its part, the City believes the issue to be:
1. Did the City violate the Contract
and Directive 116 when it adjusted the work
hours of Officer Harvot to meet a need to handle activities related to the last day of school at
University of Wisconsin-Oshkosh?
2. If so, what is the appropriate
The issue may be fairly stated as follows:
1. Did the City violate the Contract
and/or Directive 116 on May 12, 2000, when it
adjusted the work hours of Officer Harvot rather than offering the hours to off-duty second
2. If so, what is the appropriate
remedy, both as to Officer Harvot and the off-duty
second shift officers?
. . .
Except to the extent expressly abridged by a
specific provision of this Agreement, the City
reserves and retains, solely and exclusively, all of its Common Law, statutory, and inherent
manage its own affairs, as such rights existed prior to the execution of this or any other
Agreement with the Association. Nothing herein contained shall divest the Association from
its rights under Wis. Stats. Sec. 111.70.
. . .
The normal work day shall consist of eight
(8) hours, and consist of the following schedule:
Five (5) days on duty and two (2) days off
Five (5) days on duty with three (3) days
Officers shall be paid in accordance with
the rates listed in Schedule A. These rates include a ten-dollar ($10.00)
Bi-Weekly briefing pay allowance. Those officers working the 5-2, 5-2 schedule shall
be provided with 16 additional days to be taken as time off during the calendar year. Any
taken off by December 31st shall be forfeited by the employee.
. . .
Work done in excess of the normally
scheduled work day or work week shall be compensated
at the rate of time and one half in either compensatory time or cash as the officer may
compensatory time will be recorded and may be
used during the month in which it accrues subject to the approval
of the department head.
Employees may maintain a compensatory time balance of no more than one hundred sixty
hours. Unused balances of compensatory time or time accumulated in excess of one hundred
(160) hours shall be paid on the first pay period following the quarter in which it was
accrued at the
effective rate of pay when such time was earned. Officers shall not be allowed to carry over
than eighty (80) hours from year to year. The formula for computing the hourly rate shall
be: Bi-Weekly rate + educational divided by 77.2 Hours.
. . .
CALL IN TIME AND COURT
An officer called to return to duty or appear
in Court at some time other than his [or her] regular
scheduled duty day shall receive three (3) hours pay for the call or appearance unless the call
appearance is canceled by 7 p.m. of the day prior to the call or appearance. The officer, in
shall receive time and one-half for the time spent on the call or appearance.
Officers called or scheduled to appear in
court during vacation shall be paid three (3) hours call-in
pay plus time and one-half for time worked and, in addition thereto, shall receive an
of vacation returned. If notification of cancellation is given 24 hours prior to the start of
no call pay is given. If cancellation occurs thereafter, a vacation day return shall be made.
shall be defined to include off-days commencing on the officer's last day of work before the
and his/her first day of work after vacation. This provision shall apply only when vacation
in one week blocks. On trials lasting more than one day, no additional call-in pay shall be
the first day. When an officer is on sick leave or workers compensation, the officer shall be
considered to be working and will receive no extra pay for appearing in court on that date
the appearance does not exceed eight (8) hours.
A call is defined as a request to return to
duty at some time other than the regularly scheduled
time not scheduled at least twenty-four (24) hours in advance and not immediately following
officer's regularly scheduled shift.
No call or Court Appearance shall preclude
an officer from working his/her regularly scheduled
shift except by his [or her] request and upon approval of his [or her] department head. An
called to return to duty and then called
back and told not to return to duty is entitled to one (1) hour of
call-in. If the officer returns to
duty at the Police Department, he/she shall receive 3 hours call time. If the officer declines
no call-in is paid.
. . .
The employer agrees to maintain in
substantially the same manner, all benefits, policies, and
procedures related to wages, hours, and conditions of employment that are mandatory
bargaining not specifically referred to or altered by this Agreement.
. . .
RULES & EVALUATION
The Association recognizes that the
employer may adopt and publish rules from time to time,
however, the employer shall submit such rules to the Association for its information prior to
For this purpose, rules shall be defined as
any rules, regulations, policies, directives, and postings
published by the Department or the city affecting the department. Such rules shall be
the Wage Board Chairman and the Association President and shall also be posted for
record. All such rules shall bear the signature of the Chief of Police or his designee. In the
a dispute to such rules, the Association shall have fifteen (15) days after inception to dispute
rules through the grievance procedure.
Evaluation reports of employees shall be
submitted to the evaluated employee in final form and
identical to those filed in the personnel office and in the office of the Chief of the
. . .
I. As an addition to this Contract, the
parties agree to attach this Memorandum of
Understanding which is the result of a Stipulation entered into between the parties and which
in-service training. The Memorandum of Understanding is as follows:
The parties agree: 1) that the Chief can require employees to
attend in-service training; 2) that
employees will, in the future, have the right to select dates of attendance, based on seniority
and 3) that the City recognizes it has the obligation to bargain the effects of its determination
of in-service training on wages, hours, and working conditions, including, but not limited to,
and compensation while attending.
. . .
RELEVANT POLICIES AND
. . .
116 - Overtime Work Effective Date: 01/29/96
Objective: Standardization of
procedures for overtime assignments
Unanticipated Shift Shortage - A staffing
shortage that occurs within 24 hours of the start of
an affected shift.
Anticipated Shift Shortage - A staffing
shortage that is known more than 24 hours in advance
of the affected shift.
Emergency - An emergency is an
unanticipated circumstance which requires immediate police
action to quell a disturbance or preserve the public peace or safety.
Scheduled event - A known, pre-arranged
activity such as EAA Traffic assignments.
Unanticipated Shift Shortage:
shortages shall be filled by seniority from the preceding shift.
occurring after 4:00 pm, but identified prior to 2:30 pm will be offered by
seniority to Officers working 6:30 am - 2:30 pm and 8:00 am - 4:00 pm. No call in pay
will be paid.
Reasonable efforts will be made to allow
for 2 hours minimum and 4.5 hours maximum
of overtime, but officers may be released at anytime if not needed.
If it is known that
Officers will be needed for more than 4.5 hours, off duty Officers from
the affected shift will be called by seniority.
If no Off-duty
Officers are available, the shortage is to be filled by seniority within the
Anticipated Shift Shortage:
anticipated more than 24 hours in advance will be first offered by seniority
to off-duty Officers from the affected shift, and then by seniority to Officers from the
The scheduling of overtime
for scheduled events such as EAA traffic assignments will be
made available on the basis of departmental seniority unless:
a. The activity requires
special training or unique characteristics which a senior Officer
may not possess.
b. The assignment of a
senior officer results in increased overtime due to the costs of call
c. The time required to
locate the more senior Officer could adversely affect the success
of the operation.
The above provisions do not apply in
emergency situations or extensions of assignments.
. . .
POLICY 200 : PATROL SERVICES
. . .
The Oshkosh Police Department will make
patrol units available twenty-four hours a day, seven
days a week to the citizens of the City of Oshkosh. Shift staffing will be based on calls for
and overall patrol workload.
Continuous 24 hour coverage will be accomplished through the
overlap of established shifts and
by a separate resume for overlap officers. Over-lapping shifts for the first shift will be
with the use of one-on-one cars assigned to that shift. Over-lapping of the second and third
be accomplished with officers assigned to earlier/later shift starting times so as to provide
over-lapping coverage while other officers are in resume.
The Captain of the Patrol Services Bureau
(PSB) will make all shift assignments based upon
seniority, officer preference and Departmental needs.
At the beginning of each shift, and during
the resume for overlap officers, the patrol supervisors
will conduct roll call in the Resume Room of the Safety Building. During this time the
supervisors will notify officers of their assigned patrol number and vehicle, provide
concerning daily patrol activity and concerns assign complaints carried over from the
notify officers of changes in schedules inform officers of new policy and directives and
readiness for patrol.
Each patrol sergeant will be assigned
personnel on the shift for the purpose of formal supervision
and evaluation. During patrol duties, supervisors on duty will be responsible for the
all on-duty shift officers, non-sworn personnel, or any other employee assigned to work
Following resume each patrol officer must
check the assigned vehicles, complete a vehicle check
sheet and begin or continue patrol duties. Unless there is business at the safety building near
of the shift, officers must remain available in their vehicle until five minutes before
termination of the
. . .
There is virtually no disagreement about the facts underlying this grievance.
provides general governmental services to the people of Oshkosh, Wisconsin, including
protection. The Union is the exclusive bargaining representative for the sergeants and
officers in the
Police Department. Marilyn Harvot is an officer who, in May of 2000, was assigned to the
from 6:30 a.m. to 2:30 p.m. She was one of the two least senior officers assigned to that
Officers work eight hour shifts, on a 5-2, 5-3 schedule. They are assigned to their
hours pursuant to Departmental Policy 200, by posting into a vacancy by seniority. The
runs three primary shifts and two overlap shifts:
1st Shift 6:30 a.m. to 2:30 p.m.
2nd Shift 2:30 p.m. to 10:30 p.m.
3rd Shift 10:30 p.m. to 6:30 a.m.
Overlap 8:00 a.m. to 4:00 p.m.
Overlap 8:00 p.m. to 4:00 a.m.
Non-probationary officers are not routinely rotated through the shifts.
May 12, 2000, was the date set for graduation ceremonies at the University of
Wisconsin-Oshkosh. Graduation generates a good deal more traffic than normal and also a
great deal of business
in the evening for some of the bars. In reviewing the work schedules for the day, Captain
Puestohl decided that there should be additional coverage on the second shift. He decided to
the hours of two first shift officers rather than calling in anyone on overtime. Puestohl had
officers polled by seniority to determine if there were any volunteers. There were none, so
10th he called Officers Harvot and Strasser, the two least senior officers,
and told them that they
would work from 10:30 a.m. to 6:30 p.m. on the 12th. Officer Harvot
worked the hours and was paid
her normal rate of pay for the day. Officer Strasser called in sick and no one was assigned
The Union filed the instant grievance on the 12th, protesting the
changing of schedules for first
shift officers instead of offering the time to off-duty second shift officers on an overtime
grievance cited Departmental Policy 200, Directive 116 and the shift preference sheet for
Departmental Policy 200, Section 200.05, deals with the shifts members of the Department
It provides, inter alia, that "[The] Captain of the Patrol Services Bureau (PSB) will make all
assignments based upon seniority, officer preference and Departmental needs." In practice,
means that senior officers are able to claim vacancies on their preferred shifts. An annual
sheet is used to express officer preferences for shifts. Directive 116 is the policy governing
in the Department. It addresses both unanticipated shortages on a shift and anticipated
In the event of an anticipated shortage on a shift, known more than 24 hours in advance, the
requires that the hours be offered in seniority order to the off-duty officers from that shift.
wish to work, the hours are then offered to other officers from the division in which the
The Department denied the grievance, asserting that there was no overtime to be
that it had a practice of changing shift hours. The grievance was not resolved in the lower
the grievance procedure and was referred to arbitration. At the July 7th
hearing, in addition to the
facts recited above, the following testimony was taken:
Captain Jay Puestohl testified that Harvot was assigned to her normal patrol on the
2:30 p.m., when she was reassigned to the graduation ceremony. Puestohl said that he did
schedule officers to this work on an overtime basis because he believed that overtime was not
necessary. In his opinion, the first four hours of the first shift were adequately
covered, but that it would be desirable to have extra coverage on the first four hours of
shift. Puestohl said that he did not normally do the shift scheduling, so he could not be sure,
believed that it was not uncommon to change shift hours for purposes other than training
paying overtime. He conceded that officers select shifts by posting and seniority and that
not normally changed, but expressed the opinion that shift hours could be changed without
overtime, so long as at least 24 hours notice was given before the change.
On cross-examination, Puestohl said that the most common examples of shift
were Water Fest, parades, Fourth of July, student move-in day, any very large student
Community Policing and background investigations. In all of these cases, shift hours are
overtime is not paid. On re-direct examination, Puestohl stated that he was not sure whether
Water Fest and Fourth of July shift adjustments were done on a voluntary basis, but that he
background investigation shift changes were voluntary.
Officer Tom Lichtfuss testified that he has been a member of the Department for 18
is a member of the Association's Committee. Lichtfuss said that he was not aware on any
of a non-probationary officer having his or shift hours involuntarily changed without
overtime pay. He acknowledged that this happened with sergeants, but said that that was
because they had to cover for lieutenants. Lichtfuss expressed the opinion that the
May 12th was to cover an "anticipated shift shortage" under
Directive 116 and the additional hours
should therefore have been offered to off-duty second shift officers as overtime. On
cross-examination, Lichtfuss agreed that there was nothing in the collective bargaining
specified the hours of the shifts or that dealt with changes in hours.
Chief David Erickson testified that he has been with the Department since 1970 and
the Chief of Police for five and a half years. Erickson testified that the number of officers
on a given shift was a decision within the discretion of the shift commander. The factors in
this decision include the day of the week, the time of the year, weather conditions and any
special events. The Chief stated that he was unaware of any restriction in the labor
agreement on his
ability to adjust hours or staffing levels. He cited training as the most common reason for
hours and said no overtime was ever paid for those adjustment, whether the change was
or mandatory. Background investigations, assessment of applicants for the police force and
details were the other common examples. He recalled that when he was the captain of patrol
reassigned junior officers to new shifts on two occasions, without paying premium pay.
seven exhibits, he cited them as examples of officers having their shift hours adjusted without
overtime being paid.
Chief Erickson expressed the opinion that Directive 116 was not relevant to this
it governs overtime distribution and there was no overtime in this case. Nor was there a
overtime here. He observed that Officer Strasser had called in sick and had
not been replaced. Had there been a manning shortage or some other compelling need
Strasser would have been replaced. The Chief said that the Hahn Award clearly gave him
to avoid overtime by adjusting shift hours and that was what was done here.
On cross-examination, Chief Erickson reviewed each of the seven documents he had
about on direct examination and agreed that all of them were cases of voluntary shift changes
training where a specific policy authorized a change in hours.
Additional facts, as necessary, are set forth below.
ARGUMENTS OF THE PARTIES
The Position of the Union
The Union takes the position that there are two glaring defects with the actions taken
City. The manner in which the hours were assigned violated Departmental directives and the
in which Officer Harvot was paid violated Article IV of the labor agreement. Addressing the
these defects, the Union argues that the City violated Directive 116 by failing to offer the
worked by Officer Harvot to off duty second shift personnel. The Directive is clear and
that "Shift shortages anticipated more than 24 hours in advance will be first offered by
off duty officers from the affected shift and then by seniority to officers from the affected
Captain Puestohl testified that he perceived a need for additional staffing on the second shift
graduation day. He knew of this need well in advance. Yet rather than call the off-duty
personnel, he changed Officer Harvot's hours of work. This simply ignores the language of
directive. Even if the graduation is treated as a "scheduled event" the City violated the
the case of scheduled events, extra work must be offered "on the basis of departmental
Either way, the City cannot square its actions with the language of Directive 116.
The City's claim that Directive 116 is inapplicable because, by changing Harvot's
overtime was worked, cannot be accepted. It does violence to other portions of the contract,
specifically the definition of overtime in Article IV: "Work done in excess of the normally
work day or work week shall be compensated at the rate of time and on-half" It also ignores
references in Policy 200 to "established shifts." If the City can simply change officers'
hours of work
to avoid overtime and thus seniority, there are no established shifts and there are no normally
scheduled work days. Accepting the City's view means, in effect, that despite the elaborate
departmental policies and the negotiated provisions of the labor agreement regarding shifts,
and assignments, the employees' work schedules are whatever the City wants them to be,
the City wants them to change. That cannot be reconciled with the principle that contracts
read as a whole, giving full meaning and effect to each provision.
The City's citation of past instances in which schedules were changed without paying
overtime are inapposite. While it is true that officers have worked different hours for events
past, these were voluntary changes. Officer Lichtfuss testified, there has never been an
change in shift hours without the payment of overtime and that practice is the best evidence
parties' understanding of how such situations must be handled. The clear language of the
requires that four hours of overtime be offered to the two most senior members of the second
who were not offered the opportunity to work.
The City also violated the contract in the way in which Officer Harvot was
Officer Harvot was paid only straight time for the hours worked outside of her normal
is undisputed that Officer Harvot normally works the first shift, from 6:30 a.m. to
2:30 p.m. On May
12th, the City directed her to work from 10:30 a.m. to 6:30 p.m.
Article IV of the contract provides
that officers are to be paid time and one-half their normal rate for work "done in excess of
normally scheduled work day" The normally scheduled workday is that established by the
Department under Policy 200, which sets five specific shifts and allows officer to select them
seniority. The clear and unambiguous language of this Article requires premium pay for
of the normal shift and Officer Harvot worked four hours on May 12th that
were outside of her normal
workday. To hold that she is not entitled to premium pay would eviscerate the officers'
bidding rights and destroy the stability they are entitled to in their private lives. It would
contradict the City's own directives. Directive 125, applicable to training, allows for
changes in the
normal work schedule to accommodate training. Voluntary changes do not result in overtime
that Directive, but involuntary changes do yield overtime. There is no similar language
schedule changes under Directive 116, Policy 200 or Article IV. This indicates that the City
such generalized right and mandates a penalty for their unilateral actions in this case.
The City's reliance on the Management Rights clause as authority to create shifts at
is misplaced. That is a general provision and it is axiomatic that general provisions do not
over specific provisions. The rules and directives are incorporated into the contract by
Policy 200 specifically establishes the Department's shifts. Likewise, the City cannot rely on
arbitral precedent it cites. While it argues that Arbitrator Greco's City of Rhinelander case
to this case, the critical facts are not at all similar. In Rhinelander, Greco found that there
relevant contract language requiring overtime for shift changes and a 20-year practice of
changes without paying overtime. Here, the contract incorporates specific policies clearly
the normal shifts, and the practice is that shift changes have been compensated with
overtime. As for
Arbitrator Hahn's 1997 decision in Oshkosh, the arbitrator did rule that the City did have
discretion to change schedules to avoid overtime. However, he made his ruling on an
record. Arbitrator Hahn did not have the benefit of Policy 200 in the record before him, and
did not realize that there were fixed shifts in the Department, modifying management's
that area. Further, the record in that case included evidence of three instances in which
sergeants' schedules had been changed without paying overtime. In this record, there
voluntary changes in shift hours, but there is no evidence of any prior instance where an
had been involuntarily changed without the payment of overtime.
Because the contract language is clear and because the general provisions of the
Rights clause cannot trump the specific language establishing fixed shifts, time and one half
outside of the normal schedule and the order for claiming extra work, the Union urges that
arbitrator grant the grievance, compensate the second shift officers who were entitled to the
additional hours on May 12th, and compensate Officer Harvot for the
change in her shift hours.
The Position of the Employer
The City takes the position that the grievance is without merit and should be denied.
Certainly if the City
decides to schedule overtime, the provisions of Directive 116 govern the distribution of that
overtime. However, the
contract contains no guarantee of overtime, nor anything that can be construed as a
prohibition on the City's right to
adjust schedules so as to avoid creating overtime. The scheduling of hours is a reserved
right of management and it
can only be abrogated by other specific contract language. Arbitrator Hahn made this point
in 1997, when he
considered this same issue in the context of a case involving the adjustment of a sergeant's
schedule. He found that
the City had the right to make such adjustments and that there was no restriction on that
The contract contains no restriction on scheduling, other than the specification that
normal workday is
eight hours and the City's unilateral directives and policies likewise contain no restrictions.
Policy 200 makes
reference to shifts, but it does not define the times of those shifts. The contract does allow
for overtime pay when
officers work in excess of the normal workday, but that is not what happened here. The
normal workday is eight hours
and Officer Harvot worked only eight hours on May 12th. The City notes
that, under Article V, it has the right to
schedule employees outside of normal hours, paying call-in pay if it fails to give 24 hours'
notice, but paying no
premium if it gives adequate notice. Forty-eight hours notice was given in this case, and
thus, no premium was due.
The City argues that arbitral precedent amply supports its position here. In the City
Arbitrator Greco decided that overtime was not due to a dispatcher whose hours of work
were changed, but who still
worked only an eight-hour shift. As with Rhinelander, the grievant here worked the normal
hours and no premium
pay is owed. More to the point, as noted above Arbitrator Hahn ruled in favor of the City's
position when exactly the
same issue arose with respect to sergeants. There is no difference between the rights of
sergeants and patrol officers
under the premium pay and scheduling provisions of this contract and there can be no
different result in this case. This
arbitrator must follow the law of the contract and following that law, as enunciated by
Arbitrator Hahn, he must deny
Finally, the City notes that the Police Department has routinely changed officers'
hours in the past without
paying overtime. Training, festivals, background investigations, Assessment Centers and
Adjustments are all occasions for which the City has changed shift hours of employees
without paying overtime.
Granted that some of these changes were voluntary, others were not, and there is no
evidence that any premium has
In response to the Union, the City asserts that the Union's reliance on Directive 116
is based on a false
premise. The Union assumes that there is overtime work here, and thus, the Directive
controls the assignment of that
work. If this were overtime work, the Union would be correct. However, the City is under
no obligation to schedule
overtime or to make it available. No employer is, except by operation of some specific
contract language. If the City
can avoid overtime by reallocating officers, it is entitled to do so. That is the holding of
Likewise, the Union misunderstands Policy 200. The policy does, as the Union
contends, address the manner
in which shifts are claimed. However, it also speaks to daily assignments and specifies that
"shift commanders must
consider appropriate distribution of officers throughout the city, expected work load, special
events or investigations,
the expertise and input of officers" and requires that shift assignments be based upon
"departmental needs." The daily
assignment given to the Grievant on May 12th was determined by special
events and the needs of the Department.
Nothing in the contract, nor in the Departmental rules, mandates the result sought by
the Union. Moreover,
the issue in this case has already been disposed of by Arbitrator Hahn. Accordingly, the
City asks that the grievance
This grievance arose from the City's decision to change Officer Harvot's hours on
May 12, 2000, so that she
overlapped the second shift by four hours. The central issue in this case is whether the City
has the right to change
a junior officer's shift hours to avoid paying overtime. If it does, the overtime allocation
system of Directive 116 does
not come into play and the off-duty second shift officers had not claim on this work. If the
City does not have the right
to change Harvot's hours, the four hours of second shift work would necessarily have been
overtime and Directive 116
would entitle the second shift officers to a chance at the hours on a seniority basis.
This same issue was addressed in a previous arbitration between these two parties,
involving a sergeant named
Tony Duff whose hours were changed to cover for the absence of a
lieutenant on another shift. In City of Oshkosh (Police), MA-9896 (Hahn, 9/22/97),
arbitrator squarely held
that Directive 116 was only applicable to distribution of overtime hours and that the City had
the right to adjust shift
hours so as to avoid overtime:
. . .
Standing by itself, 116 is persuasive that when there is an
anticipated shift shortage the shortage must be filled
by offering the hours to off-duty officers. However, 116 cannot stand alone but must be
considered in light of the
parties' labor agreement and the practice of the parties. The Management Rights clause is
broad and can only be
specifically modified. That article without modification gives the City the right to assign
officers to shifts as it wishes.
Management would also have the right to determine the number of supervisors per shift.
Thus, without 116,
Management would have the right to determine how it was going to fill a shift shortage.
There is no issue that once the City
decides to fill a shift shortage with off-duty officers 116 applies. The
Directive clearly defines who and how the off-duty officers will be given the opportunity to
work. Directive 116 was
modified and became effective on January 29, 1996. This revision added language
controlling the filling of a shift
shortage in an anticipated situation where the previous 116 only covered emergency and
[Footnote omitted] The Union argues in its brief that under Articles X and XIII of the labor
contract, it would have filed
a grievance if it had thought it was giving up the right to have off-duty officers called in
under the revised 116 that
added the language about anticipated shift shortages. /[Footnote 3 from the original text]
There is, however, no
evidence as to the Union's understanding of 116 other than the instant grievance. The Union
did not offer any
evidence that the City always filled shift shortages under 116 and never transferred officers
to fill a shift shortage so
the City would not have to incur overtime. The Union concedes that the City can do as it
wishes when lieutenants fill
in for other lieutenants. [Footnote omitted] The Union further argues both at the hearing and
in its brief that there is
no need to consider what went before the current 116 because it is only since the current 116
that anticipated shift
shortages were covered. [Footnote omitted]
/[Footnote 3 from the original text]
The Union has the right under Article XIII to challenge directives of
management through the grievance procedure. Article X is essentially a maintenance of
benefits or standards article.
. . .
To rule in favor of the Union's interpretation in this case
mean that in every situation
where there was a shift shortage, the City would be obligated to incur overtime. The record
support this interpretation. The contract itself gives the City discretion as to how it will fill
shortages. The evidence of practice establishes that the City generally exercised that
transferring officers to avoid overtime. In this context, it is unreasonable to conclude that in
unilaterally promulgated directive, the City would give up its discretion to avoid overtime
where possible. If it did give up its right, it is the Union's burden to prove that it did, and
failed to do so.
Directive 116 states as its objective
"Standardization of procedures for overtime
assignments." The word assignment is critical. It implies that first there has to be an
The Management Rights clause absent a specific exception gives management that right; the
in this case, did not offer evidence or argument otherwise. The arbitrator finds that without
is just too large a leap to say that the City is required in every shift shortage situation to
overtime. The more persuasive result, based on the record, is that the City can fill shift
transferring on duty officers to another shift, but when that is not possible and it is necessary
in off-duty officers to an overtime situation, then the procedures of Directive 116 apply. . . .
. . .
In Article XVI of the labor agreement, the parties have agreed that "[The] decision of
shall be final and binding on the parties, subject to judicial review." The plain meaning of
language is that once an issue has been submitted to arbitration, and an arbitrator has
contract, the parties are bound to that interpretation, unless the Award is overturned by a
presumption is strengthened considerably where the parties subsequently negotiate a
agreement without changing the language underlying the Award. Here the Hahn Award was
overturned by a court and the parties negotiated a 1998-2000 contract that leaves all of the
language intact. Thus, unless there are compelling distinctions between this case and the
the Arbitrator is bound to follow the prior arbitrator's holding.
The Union urges that the Award in the Duff case is not controlling for two reasons.
because it deals with sergeants, who are called upon to fill in for lieutenants and act as shift
commanders, while this case deals with routine patrol. Second, because Arbitrator Hahn did
the benefit of Policy 200 in the record before him when he ruled that shift assignments were
to the unfettered discretion of the City. Thus, he may have been right on the record before
his result is wrong when all of the facts are known.
With respect to the argument that the Duff case is distinguishable from this one
involved sergeants, this is the classic distinction without a difference. Reading the record in
cases, it is apparent that sergeants may be called upon to work shift commander and
overtime that is not available to patrol officers. However, that merely goes to whether an
is qualified to work the available hours, not to the employee's right to claim or refuse those
Sergeants and officers are both in the bargaining unit and neither Directive 116 nor the labor
agreement makes any distinction between the rights of sergeants and the rights of officers
overtime procedures are concerned. The type of work that is available to each set of
differ, but the basic rules governing the assignment and/or claiming work for which the
qualified are identical. It is those rules that Arbitrator Hahn interpreted in his Award and
there is no
apparent basis for distinguishing between ranks in applying his Award.
The argument that Arbitrator Hahn did not have Policy 200 in the record of his case
more substantial. While the Chief of Police testified before Arbitrator Hahn that shifts are
by seniority bids and are permanent assignments, the record in that case did not include the
documentary basis for the practice. Arbitrator Hahn's Award contains some language that
read as holding that there is no limitation on the City's right to change officers' shift
Obviously, in light of Section 200.05 of the Policy, any such reading of the Hahn Award is
sweeping. That Section makes reference to "established shifts" and to shift assignments
seniority, officer preference and Departmental needs." The Policy contemplates that officers
claim their regular shifts by exercising seniority rights and that is what in fact happens in the
Department. Officers are not routinely moved from shift to shift and even when changes are
as in this case, the hours are offered on a seniority basis and, if there are no takers, the least
officers are assigned. Thus, the City does not have carte blanche in the method it uses to
coverages in the schedule.
While the fact that Arbitrator Hahn did not have Policy 200 in the record may serve
his dicta somewhat, I am not persuaded that it invalidates his essential holding. Policy 200
contemplates that there will be established shifts and that officers will claim shift assignments
basis of seniority. As noted, the Chief testified in the Duff case to the practice of making
shift assignments by seniority. Arbitrator Hahn was not unaware of the overall substance of
200 when he made his ruling that the City had the right to avoid overtime by adjusting shift
The Union reads the Policy as a guarantee that the shift claimed by seniority will be the
by every officer, every day, no matter what the workload is and no matter what
That reading effectively deletes the words "and Departmental needs" from the list of criteria
making shift assignments under Policy 200. Certainly if the City routinely adjusted officer
there might be an argument that seniority rights under Policy 200 were being ignored. That
the case. All parties agree that an involuntary change in shift hours is an exceptional event
The parties have agreed that an arbitrator's award will be final and binding.
ruled in 1997 that the City had the right to adjust an employee's shift hours to avoid paying
The language and rules underlying his Award are unchanged from that time, even though
been intervening negotiations. The fact that Hahn's Award dealt with sergeants while this
involves patrol officers, does not undercut his reasoning. Neither is the basic holding of his
affected by the fact that he had the substance of Policy 200.05 in the record, but not the
verbiage of the Policy. Because I conclude that the parties and the Arbitrator are bound by
interpretation of the contract and because there are no material distinctions between this
and the one submitted by Sergeant Duff, I accordingly find that the grievance must be
On the basis of the foregoing, and the record as a whole, I have made the following
1. The City did not violate the Contract and/or Directive 116 on May 12, 2000
adjusted the work hours of Officer Harvot rather than offering the hours to off-duty second
2. The grievance is denied.
Dated at Racine, Wisconsin, this 5th day of December, 2000.
Daniel Nielsen, Arbitrator