BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MENASHA PROFESSIONAL POLICE
UNION, AFSCME, LOCAL 603, AFL-CIO
CITY OF MENASHA (POLICE
Mr. Richard Badger, Staff Representative, AFSCME Council
40, appearing on behalf of the Union.
Attorney James Macy, Davis & Kuelthau, Attorneys at Law,
appearing on behalf of the City.
The above-captioned parties, hereinafter the Union and City respectively, are parties
collective bargaining agreement which provides for final and binding arbitration of
Pursuant to the parties' request, the Wisconsin Employment Relations Commission appointed
undersigned to decide a grievance. A hearing, which was transcribed, was held on August
in Menasha, Wisconsin. Afterwards, the parties filed briefs and reply briefs, whereupon the
was closed on October 11, 2000. Based on the entire record, the undersigned issues the
The parties were unable to stipulate to the issue to be decided in this case. The
the issue as follows:
Did the City violate the labor agreement when it failed to post the
overtime of May 8, 1998? If
so, what is the remedy?
The City framed the issue as follows:
Did the City violate Article V, A, 4, e of the collective
bargaining agreement when it assigned
an officer to a Career Exposition on May 8, 1998?
Having reviewed the record and arguments in this case, the undersigned finds the
appropriate for purposes of deciding this dispute:
Did the City violate Article V, A, 4, f of the collective bargaining
agreement when it failed to post
the Career Exposition overtime work opportunity? If so, what is the remedy?
The parties' 1998-2000 collective bargaining agreement contains the following
ARTICLE III MANAGEMENT RIGHTS
The City possesses the sole right to operate
the Menasha Police Department and all management
rights repose in it, subject only to the provisions of this agreement and applicable law.
which are normally exercised by the Chief of Police, include but are not limited to the
direction of all
operations of the Menasha Police Department, the establishment of reasonable work rules,
discipline of employees pursuant to Section 62.13, Wisconsin Statutes, the assignment and
of employees within the department, and the determination of the number and classification
employees needed to provide the services of the department. These rights shall be exercised
reasonable manner and shall not be used to discriminate against any employees.
. . .
Article V WORKING CONDITIONS
A. Work Hours.
. . .
. . .
e. Assigned overtime shall be posted by the
Chief of Police or his/her designee; and
mandatory overtime shall not be included in the assignment of sign-up overtime.
f. The current posted
overtime policy will be followed.
. . .
PERTINENT PROVISIONS OF
POLICE DEPARTMENT'S OVERTIME
Section I Chapter V Overtime
. . .
B. OVERTIME RECORD:
1. For the purposes of
offering overtime hours, overtime will be divided into three
overtime. (Special activities, vacation, other planned overtimes.)
Overtime. (Filling unscheduled vacancies and/or being required
to work overtime.)
Overtime. (Parade Duty, Special Assignments, court.)
2. Overtime will be recorded on the
a. Voluntary Overtime list.
b. Mandatory Overtime list.
3. Responsibility for maintaining list.
a. Voluntary Overtime
The Operations Lieutenant shall maintain the voluntary
overtime list and will post scheduled available overtime opportunities.
Mandatory Overtime The Sergeants shall maintain a mandatory overtime
which is to include the hours offered, as well as the hours required to work.
In the event an officer declines the opportunity to fill a staffing need, only four
hours will be credited to his or her total. (Less if hours offered are less.)
Officers accepting the available hours will be credited with the actual number
of hours worked.
Miscellaneous Overtime No list will be maintained for miscellaneous
overtime; however, when practical, such non-typical patrol, investigative or
supervisory assignments that require overtime will be posted. These are
assignments of a non-specific nature (i.e., parade duty, park duty). The
voluntary overtime list will be utilized to record and assign hours.
The Menasha Police Department has a written policy that addresses how overtime
posted and distributed. Section B, 1 of this policy divides overtime into three categories:
mandatory and miscellaneous. The first category (voluntary) covers special activities,
other planned overtimes. The second category (mandatory) covers unscheduled vacancies,
situations where employees are required to work overtime. The third category
apparently for those situations that do not fit categories one or two (i.e. voluntary or
The policy lists the following as miscellaneous overtime: "parade duty, special assignments,
The overtime policy then goes on to state, in Section B, 2, that two overtime lists will be
voluntary overtime list and a mandatory overtime list. The overtime policy then goes on to
Section B, 3, c that no list will be maintained for miscellaneous overtime; however, "when
miscellaneous overtime "will be posted".
The record indicates that the overtime policy just referenced was negotiated in 1992
then-local union president (Charles Sahr) and the then-police chief (Robert Stanke). Sahr is
in the bargaining unit he is now part of the Department's management (a supervisory
Stanke is still the police chief. Both men testified at the hearing that it was their intent
drafted the overtime policy to allow the chief to make miscellaneous overtime assignments
posting them. No union witnesses testified about the bargaining history of the overtime
The record also indicates that in ten previous instances which involved miscellaneous
overtime, the overtime was not posted, but rather was unilaterally assigned to officers by the
The instances where this happened are as follows: attendance at the Governor's Safety
teaching at the Citizens Academy, participation on the RMS Committee, participation in the
crimes area, police artistry, bicycle control, auxiliary police advisor, attendance at DARE
participation in Neighborhood Watch programs, and gang liaison officer. None of these
miscellaneous overtime assignments by the Chief were grieved.
In the latter part of April, 1998, Police Chief Stanke decided he wanted an officer
Police Department to represent the Department at an upcoming Career Exposition at the
of Wisconsin-Oshkosh. It was envisioned that the work at this job fair, hereinafter known as
Expo work, would be about four or five hours long and would be overtime work. This Expo
was unique and not routine. Chief Stanke offered the Expo work to Officer Tim Styka, who
it. In doing so, Styka did not sign a written posting or sign-up sheet for the Expo work
was none; instead, the Chief simply told Styka about the Expo work, asked him if he would
do it, and
Styka indicated that he would.
About a week after he accepted the Expo work, Styka determined that family
prevented him from working it. Styka then asked another officer, Jeff Jorgenson, if he
at the Expo. Jorgenson indicated that he would. Chief Stanke was subsequently informed of
Jorgenson's substituting for Styka at the Expo, and he accepted this substitution. Jorgenson
at the Expo on May 8, 1998. When he did so, this was considered overtime work by the
and he was paid accordingly.
On May 28, 1998, the Union filed a grievance concerning the overtime work
May 8, 1998 at the Expo. The grievance averred that the overtime work should have been
rather than being assigned. The grievance was processed through the contractual grievance
procedure and ultimately appealed to arbitration.
POSITIONS OF THE PARTIES
The Union contends that the City violated the labor agreement when it failed to post
Oshkosh job fair overtime opportunity. This contention is based on the premise that the
work opportunity should have been posted so that all members of the bargaining unit had the
opportunity to apply for it. As the Union sees it, not posting the Expo overtime opportunity
the labor agreement and the Department's overtime policy. It makes the following
support this contention.
First, with regard to the applicable contract language, the Union contends that the
reliance on the Management Rights clause is misplaced. According to the Union, the
applicable here is Article V, A, 4, f which references the posted overtime policy.
Second, the Union agrees with the City that the Oshkosh job fair was miscellaneous
within the meaning of the City's overtime policy.
Next, building on the premise that the work at issue here was miscellaneous
Union relies on the portion of the overtime policy which deals with same. The Union
language clearly means that miscellaneous overtime will be posted "when practical". The
the arbitrator to not ignore this language, but rather to accept it at face value and apply its
meaning. The Union asserts that while this language does restrict the Chief's discretion
it does not unreasonably tie his hands despite the City's protest to the contrary.
Next, building on the premise that miscellaneous overtime is to be posted "when
the Union concedes that there are certainly instances where it is not practical to post
overtime. However, as the Union sees it, this is not one of those instances. According to
the City did not provide a sound reason why it was not practical to post the Oshkosh job fair
assignment. The Union contends that since no reason was shown, the overtime work
should have been posted.
Turning now to the City's past practice argument, the Union acknowledges that all
miscellaneous overtime assignments relied on by the City were not posted and were not
said, it is the Union's position that the Expo work at issue here is dissimilar to the
overtime assignments that were not posted in the past. The Union submits they are
they either required additional training to perform, were training events, or were open to
who expressed an interest in the assignment. As the Union sees it, the City is comparing the
proverbial apples to oranges when it claims it has not posted "non-typical" duties that are
"non-specific" in nature.
In order to remedy this contractual breach, the Union asks for a monetary award for
overtime opportunity. According to the Union, this monetary award should go to Officer
Verkuilen "since he was the officer next in line for such an overtime assignment." The
that if the officer who is to receive the monetary award is in dispute, then the arbitrator
jurisdiction to resolve that matter.
The City contends that it did not violate the collective bargaining agreement when it
an officer to the Oshkosh job fair overtime opportunity. This contention is based on two
premises. The first is that the overtime in question is miscellaneous overtime within the
the Department's overtime policy. The second is that under that policy, miscellaneous
not have to be posted. Putting these two points together, the City avers that its failure to
Oshkosh job fair overtime opportunity did not violate the collective bargaining agreement.
The City submits that two contract provisions are applicable here. First, it relies on
Management Rights clause (Article III). The City reads that clause to give the Police Chief
discretion to manage the Department's workforce. The City asserts that the discretion which
Police Chief used to assign an officer to the Career Expo deserves great deference.
Second, the City relies on the language contained in the Department's overtime
According to the City, the Department's overtime policy specifies, in clear and unambiguous
language, that miscellaneous overtime (which is the type of overtime the City believes is
here) need not be posted, but rather is subject to discretionary assignment by the Chief. The
argues again that the discretion which the Chief used to make the overtime assignment in
to the person he felt appropriate deserves great deference and wide latitude.
Next, if the arbitrator decides that the contract language is not clear, but rather is
the City maintains that the parties' bargaining history and past practice support their position
did not need to post the overtime in question. It makes the following arguments to support
With regard to the parties' bargaining history, the City notes that the current
was negotiated in 1992 between the-then local union president and the police chief. The City
points out that both those witnesses testified that it was their intent when they drafted the
policy to give the Chief the discretion to make miscellaneous overtime assignments without
them. The City also calls attention to the testimony of both those witnesses that the Career
the very type of miscellaneous overtime assignment which was contemplated when they
Department's overtime policy. The City also points
out that no Union witnesses testified concerning the bargaining history of the
policy. That being so, it is the City's opinion that no evidence was presented by the Union
contradict the City's view of the bargaining history. The City contends that if the
overtime policy is interpreted to mean that miscellaneous overtime has to be posted, this will
be a new
interpretation that was not agreed upon by the parties when they negotiated the language.
With regard to the parties' past practice, the City relies on the fact that in ten
instances which involve miscellaneous overtime, the overtime was not posted but rather was
unilaterally assigned by the Chief. The instances which the City relies on are attendance at
Governor's Safety Conference, teaching at the Citizens Academy, participation on the RMS
Committee, participation in the sensitive crimes area, police artistry, bicycle control,
advisor, attendance at DARE graduation, participation in Neighborhood Watch programs,
liaison officer. The City disputes the Union's assertion that the instances just referenced are
to the Expo overtime work. The City avers that since none of these miscellaneous overtime
assignments were grieved by the Union, these instances created a practice concerning how
overtime policy has come to be interpreted by the parties: namely that miscellaneous
overtime is not
posted, but rather is assigned by the Chief at his discretion. According to the City, this
the Chief the right to assign the Expo overtime work to whomever he felt was the
candidate without posting it.
As the City sees it, the Union is asking the arbitrator to redefine the overtime policy.
believes there is no basis for doing so. It therefore asks that the grievance be denied. In the
that the arbitrator finds otherwise and orders a remedy, it is the City's position that the
suggested remedy (i.e. to make Officer Jim Verkuilen whole for the lost overtime
beyond the scope of both the grievance and the record in this case.
At issue is whether the overtime work opportunity in question had to be posted. The
asserts that it did, while the City disputes that assertion. If the overtime work opportunity
had to be
posted, then a contractual violation occurred because it was not posted. Conversely, if the
did not have to be posted, then no contractual violation occurred.
In the discussion that follows, attention will be focused first on the contract language
by the parties. If that language does not resolve the matter, attention will be given to
external to the agreement. The undersigned characterizes that evidence as involving an
practice and alleged bargaining history.
The first contract provision relied on by the City is the Management Rights clause
III). That clause provides, in pertinent part, that the rights:
normally exercised by the Chief of Police, include but are not
limited to the direction of all
operations of the Menasha Police Department, the establishment of reasonable work rules. .
assignment and transfer of employees within the department, and the determination of the
classifications of employees needed to provide the services of the Department.
While this clause gives management the right to do certain things, including the right
to manage the
workplace and direct the operations of the Department, it makes no reference whatsoever to
overtime. The latter point is important here because, as noted above, this is an overtime
Inasmuch as this is an overtime dispute, it logically follows that the contractual language
be most applicable to such a dispute is not the Management Rights clause, but rather the
language. That being so, the focus turns to an examination of that language (i.e., the
In this contract, the overtime provision is found in Article V, Sec. 4. My discussion
begins with the following general overview. Section 4 contains eight subsections. Six of
subsections (namely, a, b, c, d, g and h), deal with how overtime is paid and are not
That leaves just two subsections which are arguably applicable to this case. They are
e and f. Each is addressed below.
Subsection e deals with two categories of overtime which are denominated therein as
"assigned overtime" and "mandatory overtime". Based on a reason that will be identified
later in this
Discussion, the undersigned believes it suffices to say here that this case does not involve
"assigned overtime" or "mandatory overtime". Instead, it involves a different category of
(namely, miscellaneous overtime) which is not specifically referenced in subsection e. That
I find that subsection e is not applicable to the resolution of this case. In so finding, I am
the instant grievance listed subsection e as the contract provision involved. Be that as it
listing is not dispositive here.
The focus now turns to the final subsection of the overtime provision: subsection f.
clause provides thus: "The current posted overtime policy will be followed." The document
referenced in this sentence, namely the "current posted overtime policy", is not contained in
collective bargaining agreement itself. Instead, it is found in a departmental policy manual.
the parties to a contract reference a document in this fashion which is outside the so-called
corners" of their contract, what they are commonly said to have done is to incorporate the
by reference into their contract. In this case, it is apparent from subsection f that the parties
to incorporate "the current posted overtime policy" into the collective bargaining agreement.
doing so, the parties gave a grievance arbitrator the contractual authority to review that
policy and decide whether the Employer complied with same when it made the overtime
Attention is now turned to making that call. Section B, 1 of the overtime policy
there are three categories of overtime: 1) voluntary, 2) mandatory and 3) miscellaneous. In
context of this case, there is no need for discussion on which category applies to the Career
work in question because the parties are in agreement on same. Specifically, they agree that
overtime work at the Career Expo was miscellaneous overtime within the meaning of the
category noted above. While the undersigned accepts that characterization of the overtime in
question, it is specifically noted that the category denominated "miscellaneous overtime"
(Sec. B, 1,
c) lists the following after the phrase "miscellaneous overtime": "parade duty, special
court." Since this listing is not followed by any kind of word or phrase indicating that there
unspecified examples of miscellaneous overtime, it could reasonably be concluded that the
intended this list of three to be all-inclusive.
The overtime policy then goes on, in Section B, 3, c, to state the following:
Miscellaneous Overtime No
list will be maintained for miscellaneous overtime; however,
when practical, such non-typical patrol, investigative or supervisory assignments that require
overtime will be posted. These are assignments of a non-specific nature (i.e., parade duty,
park duty). The voluntary overtime list will be utilized to record and assign hours.
In the context of this case, the part of this paragraph which is applicable here is the
second half of the
first sentence (i.e. the part after the semicolon). That portion specifies "however, when
such non-typical patrol, investigative or supervisory assignments that require overtime will be
posted." I read the phrase "non-typical patrol, investigative or supervisory assignments that
overtime" to refer to the type of overtime listed at the beginning of the paragraph, namely
miscellaneous overtime. Building on that premise, I read the sentence overall to say that
miscellaneous overtime will be posted "when practical". In my view, its meaning is clear
unambiguous, and I accept that meaning at face value. Consequently, I find that Section B,
3, c of
the overtime policy specifies that miscellaneous overtime will be posted unless the Employer
establishes it is not practical to do so.
It is implicit in the phrase "when practical" that there are some situations where it is
practical to post miscellaneous overtime. That being so, the question to be answered here is
the City provided a sound reason why it was not "practical" to post the Expo overtime work.
it did not. First, this was not an emergency situation. The Chief knew of the Career Expo
latter part of April, and it (i.e. the Expo) was not until May 8. As a result, there was no
constraint which precluded the posting of the overtime work opportunity. Second, if the
wanted an officer for the Career Expo with a unique skill or a specific educational
as a bachelor's degree), there is nothing in Section B, 3, c which precludes him from
or qualifications for the particular overtime
work. Accordingly, I find that no sound reason was established why the overtime
work in question
could not have been posted.
The focus now shifts away from the language in the collective bargaining agreement
overtime policy. In litigating their case, the City also relied on evidence external to the
bargaining agreement and overtime policy to buttress their position that it did not need to
overtime in question. Specifically, it relied on an alleged past practice and alleged
Past practice and bargaining history are forms of evidence which are commonly used and
contract interpretation cases. The rationale underlying their use is that they can yield reliable
of what a particular provision means. Thus, arbitrators traditionally look at past practice and
bargaining history when the contract language is ambiguous. The key word in the previous
is "ambiguous". The reason that word is key is because that is not the case here. After
Sec. B, 3, c of the overtime policy, the undersigned found its meaning to be plain and clear.
being so, there is no need in this particular case to resort to using past practice or bargaining
to interpret the meaning of that language. Consequently, the undersigned does not have to
the alleged past practice or the alleged bargaining history.
However, the City sees this case, in part, as a past practice/bargaining history case.
Obviously, were I to decide this case without reviewing the alleged past practice and
history, I would not have addressed the City's contentions regarding same. I have therefore
in this particular case to review the alleged past practice and bargaining history in order to
Attention is focused first on the alleged past practice. In situations where a party
clothe a course of conduct with contractual status, that practice must reflect as many
elements of a
contract as possible. Stated simply, the practice must be the understood and accepted way of
things over an extended period of time. Additionally, it must be understood by the parties
is an obligation to continue doing things this way in the future.
To support its contention that a past practice exists, the City relies on the fact that in
previous instances which involved miscellaneous overtime, the overtime was not posted but
was unilaterally assigned by the Chief. The City avers that since none of these miscellaneous
assignments were grieved by the Union, these ten instances created a practice concerning
overtime policy has come to be interpreted by the parties: namely that miscellaneous
overtime is not
posted, but rather is assigned by the Chief at his discretion. Building on this premise, the
contends that this practice gave the Chief the right to assign the Expo overtime work to
he felt was the appropriate candidate without posting it.
Responding to the City's past practice contention, the Union acknowledges that all the
miscellaneous overtime assignments cited by the City were not posted and were not grieved.
However, in the Union's view, those miscellaneous overtime assignments are dissimilar from
Expo work at issue here.
I agree that the ten instances cited by the City are dissimilar in some respects from
work involved here. For example, it can be inferred from the record that some of these
work assignments required unique skills or special training (such as police artistry work),
training events (such as the Governor's Safety Conference), and some were ongoing
(such as the RMS committee, bicycle patrol and auxiliary officer advisor). In contrast,
the Police Department at a job fair does not on its face require a unique skill, nor is it a
, nor an ongoing assignment.
Having just noted some dissimilarities between the instances cited by the City and the
work in question, it is only fair to note that they share some similarities as well. For
involve work which was considered by the Chief to be miscellaneous overtime, all of the
unilaterally assigned by the Chief and not posted, and none of those overtime assignments
grieved by the Union.
In my view, the similarities between the ten instances cited by the Employer and the
work are more important than their dissimilarities. Overall, these instances show that
of miscellaneous overtime have not been posted. As a result, I conclude that these ten
sufficient to create a practice that miscellaneous overtime work has not been posted, but
been assigned to officers by the Chief at his discretion.
This practice of not posting miscellaneous overtime is contrary to the contract
Previously, I found that Sec. B, 3, c of the overtime policy requires that miscellaneous
be posted "when practical". Thus, the situation present here is that there is contract language
is plain and unambiguous, and a practice which is contrary to that language.
It is a generally-accepted principle of contract interpretation that language which is
unambiguous outweighs or trumps a past practice. Even a well-established and long-standing
practice cannot be used to give meaning to, or countervail, a provision which is clear and
unambiguous. When a conflict exists between the clear and unambiguous language of the
and a long-standing practice, arbitrators usually follow the contract, and not the past practice.
accordance with that generally-accepted view, the undersigned holds likewise. In this case,
practice clearly conflicts with the language in Sec. B, 3, c of the overtime policy. As a
plain language of Sec. B, 3, c of the overtime policy prevails, not the conflicting practice.
Having so found, the focus now turns to the alleged bargaining history. The City
the current overtime policy was negotiated in 1992 between the then-local union president
Sahr) and the current police chief. Sahr is now part of the Department's management.
to both Employer witnesses, it was their intent when they drafted the overtime policy to
Chief to make miscellaneous overtime assignments without posting them. Based on the
rationale, I conclude that even if that was their intent, that does not change the outcome
basic principle which arbitrators traditionally follow in contract interpretation cases is that a
agreement may not be changed or modified by any oral statements made by the parties in
with the negotiation of the agreement. Under this principle, a written agreement
previous negotiations is deemed to embrace the entire agreement. Thus, parol (i.e. oral)
are not allowed to vary the clear meaning of a written agreement. One exception to this
when the written agreement is ambiguous, but here the language in Sec. B, 3, c of the
is not ambiguous. That language has previously been reviewed and its meaning has been
be plain, clear, and unambiguous. That language speaks for itself and presumably
parties' mutual intent.
Given the foregoing, it is concluded that the City violated Article V, A, 4, f of the
bargaining agreement when it failed to post the May 8, 1998 Career Expo overtime work
Having found a contractual violation, the focus turns to the remedy. When an
commits an overtime violation, the remedy which arbitrators most frequently utilize is a
award. The Union asks that such a monetary award be granted here. The undersigned
certainly do so if it could be ascertained from the record who gets the monetary award.
Notwithstanding the Union's assertion to the contrary, I find it cannot be so ascertained from
record. Specifically, I find no support in the record for the Union's assertion in their briefs
monetary award should go to Officer Jim Verkuilen on the grounds that "he was the officer
line for such an overtime assignment." When a record does not indicate who is to receive a
make-whole remedy, some arbitrators retain jurisdiction to resolve that question if the parties
cannot do so.
However, the undersigned has decided not to retain jurisdiction. My rationale for doing so is
if the City had posted the overtime in question, it is unknown who would have signed up for
Additionally, it is unknown what criteria, if any, the Chief would have utilized to determine
to represent the Department at the Expo. In my view, my retaining jurisdiction will not
questions. Finally, I have decided to not award a monetary remedy in this case. Instead, the
I am ordering is this: henceforth, the City is to post all miscellaneous overtime unless it
that it is not practical to do so.
In light of the above, it is my
That the City violated Article V, A, 4, f of the collective bargaining agreement when
to post the Career Exposition overtime work opportunity. In order to remedy this contractual
violation, the City is to henceforth post all miscellaneous overtime unless it establishes that it
practical to do so.
Dated at Madison, Wisconsin this 13th day of December, 2000.