BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
THE LABOR ASSOCIATION OF WISCONSIN,
VILLAGE OF EAST TROY
Mr. Kevin W. Naylor, Labor Consultant, The Labor Association
of Wisconsin, Inc., 2835 North Mayfair Road, Wauwatosa, WI 53222, appearing on behalf
of the Union.
Ms. Linda Gray and Ms. Victoria Oleniczak, Gray,
Hudec & Oleniczak, L.L.P., Attorneys at Law, 2847C Buell Drive, P.O. Box 287, East
Troy, WI 53120, appearing on behalf of the Village.
WRITTEN CONFIRMATION OF ARBITRATION
The Union and the Village named above are parties to a 1998-2000 collective
bargaining agreement that provides for final and
binding arbitration of certain disputes. The parties jointly
requested that the Wisconsin Employment Relations Commission
appoint Arbitrator Karen J. Mawhinney to hear and resolve the
grievances of Aleta Bourdo and Dianna Falkenberg. A hearing was
held on April 12, 2001, in East Troy, Wisconsin. At the conclusion
of the hearing, the parties argued their case and the Arbitrator
issued a bench decision, denying the grievance. This document is
a confirmation of that bench decision.
On December 11, 2000, the Grievants were scheduled to work
between 7:30 a.m. to 4:00 p.m. The Village was getting a lot of
snow that day, and Village Police Chief David Fox declared a snow
emergency. Village Trustee Willard Stubbs stopped by and told
Bourdo and Falkenberg that they could go home early if they cleared
it with the Chief first. Bourdo spoke to the Chief around 10:00
a.m. that morning, and the Chief said they could go home. While
Bourdo testified that the Chief said they could go home with pay,
the Chief did not recall discussing the matter of pay. Bourdo told
Falkenberg that the Chief said they would get paid.
Falkenberg did not talk to the Chief that day. Both of them stayed
until early afternoon, when the Chief asked them why they were
still there. Bourdo left at 2:06 p.m. and Falkenberg left at 1:45
p.m. The difference in time was deducted from Bourdo's paycheck
and Falkenberg's compensatory time bank.
Village Administrator/Clerk-Treasurer Kenneth Witt spoke with
Falkenberg on December 11th at about 9:00 a.m. and told her that
employees could leave early if they had any compensatory time or
vacation time to use. Bourdo was also present when Witt said that.
Witt did not speak with Chief Fox about the matter.
Bourdo has worked for the Village for 14 years and recalled
that once before, probably in 1989, she left early in a snowstorm
and was paid for the entire day.
The labor contract does not address the issue of pay for
employees leaving early or being absent due to inclement weather.
The Village has a Personnel Policy Manual that states that there
shall be no pay allowed for hours not worked on bad weather days or
other emergencies, except that employees may use vacation time or
compensatory time with mutual agreement between a supervisor and an
In a bench decision, the Arbitrator denied the grievance
because the labor contract did not provide for pay for leaving
early or being absent in inclement weather or other emergencies.
The evidence is not clear that the employees detrimentally relied
on representations from the Village Chief that they would be paid
where they also received contradictory information from the Village
Administrator. There is no past practice that would be clear and
unequivocal, readily ascertainable over a reasonable period of time
and accepted by both parties. There was only one similar instance
in the past 14 years.
The Village did not violate the collective bargaining
agreement by deducting pay or compensatory time from the Grievants
for time not worked on December 11, 2000.
Dated at Elkhorn, Wisconsin this 16th day of April, 2001.
Karen J. Mawhinney, Arbitrator