BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
THE VILLAGE OF GERMANTOWN
THE GERMANTOWN PROFESSIONAL POLICE
LOCAL 301 LABOR ASSOCIATION OF AMERICA,
Attorney James R. Korom, vonBriesen, Purtell & Roper,
Attorneys at Law, 411 Office Building, Suite 700, P.O. Box 3262,
Milwaukee, Wisconsin 53201-3262, appearing on behalf of the
Mr. Patrick J. Coraggio, Labor Consultant, Labor Association
Wisconsin, Inc., Suite 24, 2835 Mayfair Road, Wauwatosa, Wisconsin
53222, appearing on behalf of the Association.
The Village of Germantown, hereinafter referred to as the
Village, and the Germantown Professional Police Association, Local
301, Labor Association of America, Inc., hereinafter referred to as
the Association, are parties to a collective bargaining agreement
which provides for final and binding arbitration of grievances.
Pursuant to a Request for Arbitration, the Wisconsin Employment
Relations Commission appointed Edmond J. Bielarczyk, Jr., to
arbitrate a dispute over the denial of overtime. Hearing on the
matter was held in Germantown, Wisconsin on January 10, 2001.
Post-hearing arguments were received by March 23, 2001. Full
consideration has been given to the evidence, testimony and
arguments presented in rendering this Award.
During the course of the hearing the parties agreed upon the
"Did the Village violate the collective bargaining agreement by
not offering authorized overtime on August 29th, 2000 and August
30th, 2000 to Officer Jeffrey Schnell?"
"If so, what is the appropriate remedy?"
. . .
ARTICLE V OVERTIME
. . .
Section 5.07 Officer Staffing
Procedure: Officer staffing
problems shall be resolved by the supervisor on duty following
these sequential steps:
1. Assign the relief-shift officer next
scheduled to work
with a practicable change of reporting time.
2. Assign an officer not
scheduled to work but normally
scheduled during the hours which require a replacement on
a seniority basis.
3. Assign on a seniority
basis the officers not scheduled to
4. Assign extended
hours either or both to an officer on
duty and to an officer next scheduled to work on a
The parties agree that any alleged violations of the above
procedure will be processed through the grievance procedure up to
and including arbitration if necessary. Furthermore, the parties
agree that if a bargaining unit employee, or other non-supervisory
employee, makes an error in judgment which could be in conflict
with the above procedures, the Employer will not be held
responsible for this infraction.
Finally, the parties agree that no employee
will be allowed to
volunteer or be assigned to work overtime on both of his two (2)
consecutive days off if the shifts on both days are eight and one-half (8½) hours or
longer. This does not preclude an officer from
working eight and one-half (8½) hours on one of his off days and
then working overtime on his following off day provided that the
overtime assignment is less than eight and one-half (8½) hours in
This procedure can be circumvented in an
purposes of this paragraph, an emergency is defined as some sudden
and unforeseen event which takes place without prior notice and
utilizing the list would be impractical. Except in cases of an
emergency, a Supervisor will not be assigned to replace a police
officer when there are two or less police officers assigned and
available to work a shift, and the period of 4:00 P.M. to 3:00 A.M.
shall have three or less police officers assigned and available
before a Supervisor is assigned.
At the commencement of the hearing the parties submitted the
following stipulation of facts:
The parties to this Stipulation of Fact are the Village of
Germantown, hereinafter referred to as the "Village" or the
"Employer" and the Labor Association of Wisconsin, Inc., for and on
behalf of its affiliate local, The Germantown Professional Police
Association, hereinafter referred to as the "Association".
The above referenced parties acknowledge
and agree to the
following facts as set forth below.
1. The Village and the
Association have a collective bargaining
agreement for calendar years 1999-2001 which was in full force
and effect at all times material hereto, a copy of which is
enclosed herein and attached hereto as Appendix A.
2. That Officer Jeffrey Schnell
is a member of the Germantown
Professional Police Association and is covered under the
collective bargaining agreement referenced in paragraph 1, at
all times material hereto.
3. That on Sunday, August 27,
2000, Captain Craig Evans advised
Patrol Officer Raymond Borden that Borden would be going to
the State of Ohio on Tuesday, August 29, 2000 to pick up a
4. That Officer Borden and
Sgt. Brian Henning went to the State
of Ohio with Captain Evans to pick up the new department
vehicle on Tuesday, August 29, 2000.
That Officer Borden and Captain
Evans returned to the Village with
the vehicle on Wednesday, August 30, 2000.
That Officer Borden was paid 16½ hours of
overtime for driving to
the State of Ohio and returning with the new department
That Officer Jeffrey Schnell is senior to Officer Borden
available to work the overtime on Tuesday, August 29 and
Wednesday, August 30, 2000.
That Officer Schnell would have accepted the overtime if
have been offered.
That Officer Schnell put in a request for 21 hours of
which he would have received had he been allowed to drive to
Ohio to pick up the new department vehicle.
That Officer Schnell's overtime card was denied, a copy
of which is
enclosed herein and attached hereto as Appendix B.
That grievance 2000-53 was filed with the Village, a
copy of which
is enclosed herein and attached hereto as Appendix C.
On September 6, 2000 at 9:30 a.m. Step 1 was initiated
Jeffrey Stieve and Jeffrey Schnell with the Chief of Police
and subsequently denied on the same date.
That on September 19, 2000, the Association advanced
to Step 2 and a written response was received from Paul E.
Brandenburg, Village Administrator, denying the grievance by
letter dated October 2, 2000, a copy of which is enclosed
herein and attached hereto as Appendix D.
That on October 5, 2000, the Association filed a request
initiate Grievance Arbitration with the Wisconsin Employment
Relations Commission (WERC) and a joint request was made on
behalf of the Village and the Association to have Edmond J.
Bielarczyk, Jr. appointed as Arbitrator, a copy of which is
enclosed herein and attached hereto as Appedix E.
That on November 1, 2000, the WERC appointed
Edmond J. Bielarczyk,
Jr. as arbitrator and a letter of confirmation was sent to
both parties, a copy of which is enclosed herein and attached
hereto as Appendix F.
That the language in question relative to this grievance is
in Article V, Section 5.07 of the collective bargaining
That the language found in Article V, Section 5.07, was
a previous contract arbitration case in 1994, a copy of which
is enclosed herein and attached hereto as Appendix G.
That the language found in Article V, Section 5.07, was
grieved in November of 1999. A copy of the grievance (#99-33)
was filed with the Chief of Police, a copy of which is
enclosed herein and attached hereto as Appendix H.
19. That the language in Article V, Section 5.07
Staffing Procedure, was placed into the collective bargaining
agreement during calendar years 1986-1987 and the four part
procedure has remained the same through all of the contract
agreements up to and including the one currently in full force
and effect. Excerpts from the collective bargaining
agreements is enclosed herein and attached hereto as Appendix
20. That neither party to this
grievance has raised any procedural
The Association argues that Article V Overtime, Section
5.07, is not clear and unambiguous and to assist the Arbitrator the
Association has provided testimony and exhibits regarding the
bargaining history that led up to the inclusion of the contested
language in the parties' collective bargaining agreement. The
Association also points out that in a previous decision regarding
the language of Article V Overtime, Section 5.07, and Officer
Daniel Ryan, the Arbitrator therein noted neither side had offered
testimony regarding bargaining history, Village of Germantown
(Police Department),Case 35, No. 51273,
MA-8551 (Ryan Award).
Therein, the Arbitrator found for the Village noting Section 5.07
did not apply to overtime created by special assignments. The
Association asserts that with the above in mind it presented
testimony from Officer Michael Yogerst and Officer Michael Eggers.
The Association points out both officers testified that the
language was a result of correcting problems with the assignment of
overtime, and, both testified that Section 5.07's intent was to
address all overtime situations.
The Association acknowledges that holidays are not staffed in
accord with Section 5.07, but avers this and the Ryan Award are the
only exceptions to the Section. The Association points out the
procedure for staffing holidays has been an accepted practice for
a sufficient period of time to establish it as a past practice.
The Association asserts the testimony of Yogerst and Eggers was
unrefuted by the Village. The Association also argues the
testimony of Captain Craig Evans, who was a member of the
Association's bargaining team when Section 5.07 was
originally drafted, failed to provide a definitive explanation as
to what he believed to be the intent of Section 5.07. The
Association points out that Captain Evans did acknowledge that
Section 5.07 was created to correct a problem with the distribution
of overtime. The Association also points out that Captive Evans
testimony that his recollection was not the same as Yogerst and
Eggers was not accompanied by any expounding of what his
understanding of what was the intent of the language. The
Association contends that the Village's failure to provide
witnesses who could testify as to the intent of Section 5.07 should
give the undersigned reason to pause due to the fact no bargaining
unit history was provided in the Ryan Award.
The Association points out also Captain Evans testified that
since the Ryan Award he had interpreted the decision to mean that
when special occasions came up at the last minute he could select
anyone he wanted for an overtime assignment. However, the
Association points out, Evans also testified that whenever the
Village had time to post overtime, it had been posted and the
Village would go by seniority when filling the position.
The Association contends there is no nexus between the Ryan
Award and the instant matter. The Association notes that in the
Ryan matter the Village had argued it would not be logistically
practical to follow the procedures of Section 5.07 because the
Wisconsin State Patrol was in control of the unit, there were a the
number of unforeseeable factors and there was a need for
specialized training. Herein the Village was in complete control,
the unforeseeable factors would occur regardless of who was
assigned the overtime, and there was no need for specialized
The Association also argues the language of the agreement
supports the Association's position and that it must be applied to
all overtime assignments that are not the result of emergencies.
The Association avers that the supervisor on duty shall resolve
staffing problems by following the steps of Section 5.07. The
Association contends that had the parties intended to limit Section
5.07 to only cover shift shortages the language could have been
easily drafted to do so. The Association points out the parties
did not limit the circumstances. The Association contends the
purchase of a vehicle is a problem but it is not a sudden and
unforeseen event. The Association also contends that Section 5.07
is not limited to instances where a police officer is absent from
a shift and replacement of that officer is not mandated by minimum
staffing requirements. The Association contends that a plain
reading of Section 5.07 reflects an intent to apply the procedure
to all staffing problems except in cases of emergencies. The
Association also contends the overtime that occurred on August
29th, and August 30th, 2000 was not a result of an
The Association would have the undersigned sustain the
The Village argues the Association is contending the Village
is bound by a "stand-alone" past practice of distributing all
available overtime via seniority. The Village argues the
Association can not claim that Section 5.07 as written can apply to
the instant matter. The Village also argues that the undersigned
can not add to the collective bargaining agreement and to do so
would go beyond the authority given to the arbitrator by the
collective bargaining agreement. The Village asserts there is no
language anywhere in the collective bargaining agreement which
addresses in any shape, manner or form, the distribution of any
overtime opportunities except those caused by officer staffing
problems under Section 5.07. In support of this position the
Village points to the Ryan Award wherein the Arbitrator verified
that Section 5.07 is not followed for a wide variety of overtime
opportunities. The Village argues the Association is not asking
the undersigned to apply Article 5.07 but to provide for strict
seniority selection. The Village asserts there is no language
within the four-corners of the collective bargaining agreement
which would compel granting the grievance.
The Village contends that because it has used seniority based
system for some types of overtime in the past the Association
argues it is required to use a seniority based system for all
overtime in the future. The Village asserts the Association should
seek such a change at the bargaining table. The Village points out
the Association did not seek a change in the language after the
Ryan Award and the Association is therefore bound by that
interpretation of Section 5.07.
The Village also points out that the Association is attempting
to apply an alleged past practice to a new situation. The Village
argues the instant matter was a unique situation and not bound by
any alleged past practice. The Village argues that this was not a
situation like parades where the overtime was known for certain for
weeks in advance, the starting and ending times where known in
advance, the notices where up for weeks in advance, the identity of
the person selected would have no financial impact on the Village,
and there was no need for tie breakers. The Village also points
out that the Association did not dispute that if performance of a
function takes a person beyond the end of their shift, that person
has been consistently allowed to continue to perform that function
on overtime without the necessity of any other officer being called
in to relieve them.
The Village asserts Captain Ryan did not know in advance when
he would be leaving or on what day he would be leaving. By using
an on duty officer he saved overtime dollars consistent with the
practice testified to by the Association's witnesses. Officer
Borden continued his straight time assignment, and, after twenty-two (22) straight hours
Officer Borden had two (2) days scheduled
off. Officer Schnell would have had to report to duty after six
The County would have the undersigned deny the grievance.
In the 1995 Ryan Award the Arbitrator held that Section 5.07
was not intended to include overtime created by special
assignments. The assignment of Borden to go to the State of Ohio
to pick up a vehicle was clearly a special assignment. As the
Village noted, the Association
had the opportunity during negotiations on successor agreements to
rectify what the Association perceived to be the intent of the
language of Section 5.07. There is no evidence the Association
chose to do so. The parties have readopted the same language it
two (2) successor collective bargaining agreements. Having
readopted the same language the undersigned finds the parties have
also adopted the interpretation of Section 5.07 in the 1995 Ryan
The undersigned finds the following. An on-duty employee,
Borden, was given a special assignment that resulted in overtime.
The timing of the assignment was based upon; 1, the acceptance of
a bid for a vehicle, 2, the approval of the purchase by appropriate
officials, and 3, the creation of a purchase order and check. It
was only when all this was done that Captain Evans could determine
when to leave for Ohio. The undersigned finds it was the burden of
the Association to demonstrate that the Village had, in similar
situations in the past, called off duty employees to offer them
such an assignment before assigning it to an on-duty employee. If,
as the Association has claimed, holiday assignments and the Ryan
Award are the only exceptions to overtime not being assigned in
conformance with Section 5.07, it was the Association's burden to
demonstrate such assignments had occurred, and, that the Village
had used Section 5.07 to make the assignments. However, there is
no evidence that would demonstrate the Village has ever offered an
off-duty employee an assignment that would result in overtime when
an on-duty employee has been available to commence the assignment.
Having failed to do so, the undersigned finds the Association has
failed to meet its burden in the instant matter.
The Association has offered the testimony of two employees,
Yogerst and Eggers, to demonstrate that the intent of the parties
when they originally adopted the language of Section 5.07 was that
it was to cover all overtime assignments. Captain Evans disputed
this, stating he did not believe this was the intent. All three
may have left the bargaining table with their beliefs. The
testimony of Yogerst and Eggers by itself does not demonstrate that
the Village had the same interpretation of Section 5.07. At the
least the testimony of Yogerst, Eggers and Evans is self serving
because there are no documents or bargaining notes which support
their recollection of the bargain that led to the adoption of
Section 5.07. At the most the Yogerst and Eggers testimony is
rendered irrelevant by the failure of the Association to take the
matter of the Ryan Award to the subsequent bargaining negotiations.
The undersigned also finds that contrary to the Association's
claim there is a nexus between the Ryan Award and the instant
matter. Both are special assignments. Neither relates to a
staffing shortage. Both commenced during on-duty time. Both make
operational sense that the employee who started the activity
finished the assignment.
Therefore, based upon the above and foregoing and the
testimony, evidence and arguments presented the undersigned finds
the Village did not violate the collective bargaining agreement
when on August 29 and 30, 2000 it failed to offer overtime to the
Officer Jeffrey Schnell. The grievance is therefore denied.
The Village did not violate the collective bargaining
agreement when it did not offer authorized overtime on August 29th,
2000 and August 30th, 2000 to Officer Jeffrey Schnell.
Dated at Madison, Wisconsin this 14th day of June, 2001.
Edmond J. Bielarczyk, Jr., Arbitrator