BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN PROFESSIONAL POLICE
LAW ENFORCEMENT EMPLOYEE RELATIONS
CITY OF WISCONSIN RAPIDS (POLICE
Attorney Richard Thal, General Counsel, Wisconsin Professional
Police Association/LEER Division, 340 Coyier Lane, Madison, Wisconsin 53713, appearing
on behalf of the Wisconsin Professional Police Association.
Ruder, Ware & Michler, S.C., by Attorney Dean R. Dietrich,
500 Third Street, P.O. Box 8050, Wausau, Wisconsin 54402-8050, appearing on behalf of
the City of Wisconsin Rapids.
Wisconsin Rapids Professional Police Association, hereinafter Association, and City
Wisconsin Rapids, hereinafter City, are parties to a collective bargaining agreement that was
at all times relevant to this proceeding and which provides for final and binding arbitration of
disputes. The Association filed a request to initiate grievance arbitration on March 6, 2001.
Commissioner Paul A. Hahn was appointed to act as arbitrator on March 8, 2001. An
hearing was scheduled and took place on May 24, 2001 in the City of Wisconsin Rapids,
The hearing was not transcribed. The parties were given the opportunity and filed post
The parties' post hearing briefs were received by the Arbitrator on July 2 (Association) and
2001 (City). The parties were given the opportunity and declined to file reply briefs. The
closed on July 6, 2001.
Has the City violated the Collective Bargaining Agreement by
failing to promote Officer
Robert Webster to the Safety Officer position? If so, what is the appropriate remedy?
Whether the City violated the Collective Bargaining
by assigning Safety Officer
duties to Officer Robert Webster. If so, what is the appropriate remedy?
Whether the City violated the Collective Bargaining
by failing to promote Officer
Robert Webster to the Safety Officer position. If so, what is the appropriate remedy?
. . .
The City recognizes the Wisconsin Rapids Professional Police
Association as the sole and
exclusive collective bargaining representative for all regular full-time and regular part-time
enforcement employees with the power of arrest employed by the City of Wisconsin Rapids,
excluding supervisory, managerial and confidential employees.
. . .
RESERVATION OF RIGHTS
The City possesses the sole right to operate City government and
all management rights repose
in it, but such rights must be exercised consistently
with the other provisions of the labor
agreement. These rights, which are normally exercised by
the Chief of Police, include, but are not limited to, the following:
A. To direct all operations of City
B. To hire, promote, transfer,
assign and retain officers in positions with the City and to suspend,
demote, discharge and take other disciplinary action against officers, pursuant to the
and under the rules and regulations of the Department and the Wisconsin Rapids Police and
Fire Commission. No officer shall be disciplined or discharged without just cause and
the right to proceed under Article 24 (Grievance Procedure) of this Agreement.
C. To lay off officers from
their duties because of lack of work or for other legitimate reasons
(subject to 62.13(5)).
D. To maintain efficiency of City
government operations entrusted to it.
E. To introduce new or improved
methods or facilities.
F. To change existing methods or
G. To determine the methods,
means, equipment and personnel by which such operations are to
H. To take whatever action
which must be necessary to carry out the functions of the City in
situations of emergency.
I. To take whatever action is
necessary to comply with State or Federal law.
J. To establish reasonable
work rules, policies, regulations, and job duties consistent with the
K. To establish schedules of work
consistent with the labor agreement.
L. To determine the number,
structure and location of departments and divisions within the
Police Department; the kinds and amounts of service to be performed by the Police
Department, and the number and kind of positions and job classifications needed to perform
M. Any policy or procedure
which affects wages, hours, and conditions of employment will be
N. No right reserved by this
Article shall be exercised in a manner inconsistent with any other
provision of this contract.
. . .
The procedure under this Article provides an orderly method to
present and settle grievances
which may arise between the Association and the City, as to the meaning or application of or
compliance with the provisions of this Agreement. It is a further purpose of this grievance
to assure observance of the terms and work relationships set forth in this Agreement. The
procedure is available to the Association and is limited to matters covered by this Agreement.
limits may be extended by mutual agreement of both parties.
. . .
F. The decision of the
arbitrator shall be limited to the subject matter of the grievance and shall
be restricted solely to interpretation of the contract. The arbitrator shall not modify, add to,
or delete from the express terms of the Agreement.
. . .
PROMOTION, SUSPENSION, DISMISSAL AND REDUCTION IN
. . .
Promotion to the position of Sergeant, Detective, and Safety
Officer shall be determined by the
Chief of Police.
. . .
The parties have agreed to a 5-2, 5-3 work schedule. The patrol
officer assigned Safety Officer-type duties in the schools will be scheduled the hours of 8:00
a.m. until 4:00 pm.(sic) when working
in the schools.
The Detectives and Safety Officer will
continue to work a 5-2 work schedule. As much as
reasonably possible, the Detective Sergeant and School Liaison Officer shall work the hours
a.m. until 3:30 p.m. and the other Detectives shall work from 8:00 a.m. until 4:00 p.m.
A. Detectives and the Safety
Officer, when working a forty (40)-hour week annually, shall have
4-1/2 days as gained by the Patrol, due to their 5-2, 5-3 work schedule credited to their
STATEMENT OF THE CASE
This grievance involves the Wisconsin Rapids Professional Police Association and the
of Wisconsin Rapids. (Jt. 1) The Association alleges that the City violated the parties'
bargaining agreement by refusing to promote Safety Officer Robert Webster (Grievant) to a
permanent position of Safety Officer. (Jt. 2)
The City established a Safety Officer position in its Police Department in 1974.
officers filled the position of Safety Officer until July of 1997 when then Safety Officer Bill
retired. Prior to Officer Voight's retirement, then Chief of Police, Robert A. Ziegert,
recreate the Safety Officer position by establishing a Safety Officer Coordinating position and
or four Safety Officer Assistant positions. (Jt. 8, June 5, 1997) 1/ When the
Association learned of
the Chief's proposal, then Association President Claud D. Ostram wrote letters to City
Director Jim Jansky and Chief of Police Ziegert, expressing an interest in bargaining the
made to the Safety Officer position. (Jt. 6 & 7) The parties were unable to resolve the
the Association with the new Safety Officer program and the Association filed a grievance on
about May or June of 1997 alleging that the City violated Articles 34 and 39 of the parties'
bargaining agreement by implementing a new Safety Officer program. (Jt. 8) The
requested as a remedy for the grievance to bargain with the City over contractual issues
their "impacts upon scheduling, compensation, hours, vacation, etc." (Jt. 8)
1/ Joint exhibit 8 is a
multi-paged exhibit. Reference to individual documents are noted by date where
In a letter dated June 11, 1997 to Andy Dewitt, Association
Grievance Official, from Human
Resource Director Jansky, a meeting was scheduled between the parties on June 26, 1997, to
the Chief's Safety Officer program and the Association's grievance regarding
that program. (Jt. 8) In a letter dated June 26, 1997, from Chief of Police Ziegert to
Ostram of the Association, the Chief affirmed what the Chief understood to be the resolution
Association's grievance. In that letter the Chief set forth a Safety Officer Coordinator
description and stated that the position would be appointed by the Chief of Police for a
period of two
years; such appointment could be revoked by the Chief of Police for cause. (Jt. 8) At
that point, the
City regarded the grievance as settled.
After a meeting of the parties' labor/management committee on August 27, 1997, the
of Police wrote Andy Dewitt, now Association President, a letter raising what "appears to be
difference of opinion as to the status of the grievance regarding the Safety Officer position
resulting changes regarding same." In the letter, the Chief asked President Dewitt for a
to the Association position on the current status of the grievance. (Jt. 8) President
to Chief Ziegert in a letter dated September 2, 1997 indicating "the grievance is held in
allow management some latitude in getting this program running." (Jt. 8) The letter
"WRPPA reserves the right to move forward with this grievance at any time its members are
satisfied with the direction or impact the changes are placing upon them." President Dewitt's
September 2, 1997 response to the Chief's June 26, 1997 letter also stated that the
issue with only one item, the duty hours for Grievant "when assigned Safety Officer duties."
The City did not implement Chief Ziegert's changes to the Safety Officer program but
Safety Officer duties to the Grievant during the 1997-1998 school year; the Grievant has
those Safety Officer's duties through the date of the arbitration hearing.
The City and the Association negotiated a contract change for the 1998-2000 labor
between the parties (Jt. 1) modifying the first paragraph of Article 33 to read:
The parties have agreed to a five two, five three
work schedule. The Patrol Officer assigned
Safety Officertype duties in the schools will be scheduled the hours of 8:00 a.m. to
4:00 p.m. when
working the schools.
The City has compensated the Grievant at the contractual Safety Officer rate of pay
continued through the date of the arbitration. (Jt. 9) In a June 17, 1998 letter from Jansky to
Jansky stated that the City was treating Grievant's position as Safety Officer as a temporary
appointment to allow the new Chief of Police the opportunity to evaluate the position. (Jt. 9)
labor/management committee meeting of the parties on January 24, 2000 the City stated that
still undecided whether to promote the Grievant permanently to the Safety Officer position
the position would remain an "assigned position" until further notice. (City 1) In September
the City included among its initial bargaining proposals for the 2001 labor agreement a
the language of Article 26, filling the Safety Officer and Detective positions, by promotion,
be deleted. (Jt. 11)
The City continues to take the position that the grievance was resolved in 1997 and
new language added to Article 33 establishes that a patrol officer will be assigned Safety
duties and that the City is not required to promote an officer to the Safety Officer position.
Association claims the grievance was never resolved and only held in abeyance since it was
in May or June of 1997, and that the failure of the City to promote Grievant to the Safety
Officer full-time position led to the grievance resulting in this arbitration. (Jt. 2)
The parties processed the grievance through the grievance procedure of the parties'
bargaining agreement. The Association appealed the matter to arbitration. Hearing in the
held by the Arbitrator on May 24, 2001 at the City Hall in Wisconsin Rapids, Wisconsin.
was raised as to the arbitrability of the grievance.
POSITIONS OF THE PARTIES
The Association takes the position that the language of Article 26 provides that
to the position of Sergeant, Detective and Safety Officer shall be determined by the Chief of
and that this contractual term requires the Chief of Police to fill the Safety Officer position
promotion. Citing case law, the Association argues that management's right to determine
may be restricted by a collective bargaining agreement and when such an agreement requires
vacant position be filled by promoting an employee to that position the employer is obligated
the position by promotion. This, the Association submits, requires the City to fill the Safety
position by promotion and not by temporary assignment. The Association points out that by
temporary appointment to the Safety Officer position the Grievant's appointment can be
simply by a negative performance appraisal, whereas an Officer appointed to the Safety
position by promotion would be protected by the "just cause" standard of the collective
The Association submits that the City argument that the grievance should be denied
the Association's May, 1997 grievance concerning these issues was settled should be rejected
the parties never settled the 1997 grievance. The record, the Association posits, shows that
was held in abeyance to allow the City the opportunity to determine whether it wanted to
the Safety Officer programs as former Chief Ziegert proposed. The Association submits that
is no evidence in the record of any agreement between the parties to settle the 1997
The Association takes the position that the new scheduling language in Joint 1 that
under Article 33 "the Patrol Officer assigned Safety Officer-type duties in the schools will be
scheduled the hours of 8:00 a.m. to 4:00 p.m. when working the schools" only governs
the scheduling of Patrol Officers who are assigned to work "Safety Officer-type
duties," and does not
govern the scheduling of the Grievant as Safety Officer because in fact the Grievant is the
Officer and not a Patrol Officer assigned Safety Officer-type duties. The Association avers
was never any intent to change the status of the Safety Officer position to a position filled by
assignment or appointment by the additional language added to Article 33 of the parties'
The Association takes the position that the City's September 2000 bargaining
deleting the language filling the positions of Detective and Safety Officers by promotion,
the City knew that it had to negotiate changing the Safety Officer position to an appointed
but that proposal was never agreed upon and never incorporated in the parties' collective
agreement. 2/ Lastly, the Association takes the position that nothing in Article 33 or in the
bargaining history nullifies the Article 26 language that requires the City to do what it should
done long ago, and that is to promote the Grievant to the Safety Officer position.
2/ There is no evidence
in the record regarding a successor to Joint Exhibit One.
In conclusion the Association requests that the Arbitrator
the grievance and submits
as the appropriate remedy an order that the City promote the Grievant to the Safety Officer
The City takes the position that two critical articles of the parties' agreement are in
Article 26 provides that the Patrol Officer will be promoted to the position of Safety Officer
determined by the Chief of Police: Article 33 provides that a Patrol Officer is assigned
Safety Officer-type duties. The City submits that the issue in this case is whether the City
may assign Safety Officer
duties to an Officer or whether the City is required to promote an Officer to the Safety
position. The City submits that the new language added to Article 33, resulting from the
of the previous grievance, is controlling in this dispute and not Article 26.
The City presents case law that when an agreement contains two conflicting articles
agreement is ambiguous and must be interpreted under applicable arbitration case law. The
submits that applicable contract interpretation standards support its position that the City may
Safety Officer's duties and that it need not promote an officer (Grievant) to the Safety
position. The City argues that the new language in Article 33 was adopted more
recently than Article 26, that the parties added the language to Article 33 as a result of
grievance settlement and therefore, the parties' past practice establishes that the City may
Safety Officer duties to an Officer.
The City recounts the 1997 discussions regarding Chief Ziegert's proposal to recreate
City's Safety Officer program and argues that the record, particularly the documentary
proves that the only objection that the Association made to the Chief's Safety Officer job
as an appointed position, was the Association's understanding that the Safety Officer
would work an 8:00 a.m. to 4:00 p.m. shift. The City submits that Association President
his 9-2-97 letter (Jt. 8) to Chief Ziegert states as their only concern that "it is our
Officer Webster will work 8:00 a.m. to 4:00 p.m. when assigned the Safety Officer duties."
submits that the Association's letter to Chief Zeigert clearly and unequivocally establishes
Grievant will work an 8:00 a.m. to 4:00 p.m. shift and that the City may assign Safety
to Officer Webster. The City further argues that the Association's letter did not in any
issue with the job description of the Safety Officer which clearly provides that it will be an
The City lastly argues that the Association has acquiesced to the City's determination
appoint Safety Officer duties to a Patrol Officer rather than promoting an officer to the
position. Discussing applicable case law, the City points out that in 1997 the Association did
to challenge the City's position that it was not going to promote an Officer to Safety Officer
assign those duties on a temporary basis. The City avers that the record establishes that in
City informed the Association that "the City is currently compensating Robert Webster at the
Officer rate under a temporary appointment to that position." (Jt. 9) The City argues
that as of that
letter, almost a year after the initial announcement of the change in the Safety Officer
the Association knew that the City was taking the position that Safety Officer was a
appointment and yet the Association refused to either take its grievance out of abeyance at
or file an entirely separate grievance. The City submits that by remaining silent the
acquiesced to the City's position that it could assign Safety Officer duties to the Grievant;
Association accepted the City's conduct as a mutual and binding practice. The City further
the acquiescence argument by pointing out that in a January 24, 2000, labor/management
the City again reminded the Association that the Safety Officer position, in response to the
of whether it would be made a permanent position, would remain an assigned position until
notice. The City submits that even then the Association did nothing to challenge the City's
Lastly, the City argues that its proposal to eliminate the Article 26 promotion
it relates to Detective and Safety Officer, was only to recognize that the 1998-2000 labor
(Jt. 1) language presented a conflict between Article 26 and Article 33. The City
argues that its
proposal was only to clarify the agreement between two conflicting articles and does not
the City believed that it was required to promote an individual into the Safety Officer
In conclusion, the City asserts that the standards of contract interpretation prove that
may assign Safety Officer duties to the Grievant, as it has done from the 1997-1998 school
present, and that the Association failed to challenge the City's decision, a silence that clearly
establishes that the Association acquiesced to the assignment of Safety Officer duties. The
requests the Arbitrator to dismiss the grievance in its entirety.
This arbitration involves an interpretation of the parties' labor agreement. The two
provisions of the agreement that are the substance of the dispute are Article 26, which
an officer be promoted to the position of Safety Officer and Article 33 which states that
Officer duties are assigned to an officer. The Association states that Article 26
controls and the
Grievant should be promoted immediately to the Safety Officer position which he has held on
temporary basis for almost four years. The City takes the position that Article 33 controls
Chief of Police can and has assigned Safety Officer duties to the Grievant without promoting
to a full time position.
The City does not rely on the Reserved Rights Article of the Agreement, and the
only mentions it to the extent that the City cannot exercise a right that is in conflict with a
provision of the Agreement, in this case, Article 26. (Jt. 1) The City argues that the two
are in conflict, thereby, supporting the City's argument that the agreement is ambiguous.
the two provisions on their face could be considered in conflict. Article 26 requires the
position to be filled by the Chief by promotion, affording the officer certain protections
Agreement. Article 33, however, allows the City to assign Safety Officer duties to any
without any necessity of promotion to the full time position. The two provisions could be
by finding that there will be a full time Safety Officer who receives the position through
(Art. 26), and Article 33 merely means that other officers can be assigned Safety Officer
an as needed basis, for example when the regular Safety Officer needs help or is absent. If
analysis were all that was before me, I think the Association might have a stronger case but
not the situation.
The parties do not dispute most of the facts in this matter which are established by
documents, primarily contained in Joint Exhibit 8. There is little issue that historically up to
position of Safety Officer (hereinafter simply referred to as position) was a full time position
a number of officers. There is no dispute that in 1997 the Chief of Police intended to change
situation by creating a safety officer coordinator and several assistant positions. More
the position was to be appointed for a two year period. The Association responded but did
specifically challenge the Chief's plan to assign or appoint the position but only requested
on the impact, which the City agreed to. (Jt. 6 & 7) The
Association confirmed this request to
bargain impact in its undated grievance of 1997. (Jt. 8)
The parties did bargain which was confirmed in the record by a June 11, 1997
letter from the HR Director to the Association President. (Jt. 8) The results of the
confirmed in a letter dated June 26, 1997 from the Chief to Association President Ostram
summarized in some detail the Chief's understanding of what had been agreed to in the June
bargaining meeting. (Jt. 8) The Chief's letter makes clear that no longer would an
promoted to the position but would be appointed to the duties of Safety Officer for a two
and that the officer could be removed for cause including a negative performance evaluation.
at this point that the parties disagree on a key issue and that is whether this bargaining
the Chief's letter resolved the grievance. The City argues the grievance was settled and the
Association agues that it was not settled.
The resolution of the grievance issue evidently was still before the parties at their
1997 labor/management meeting. On August 27th the Chief wrote
Association President Dewitt
asking what was the current status of the grievance and what the Association considered were
particulars of the position. (Jt. 8) Dewitt responded with a September 2, 1997
letter saying the
grievance was held in abeyance to give the City latitude in getting the program running. The
specific item mentioned in this letter were the hours the Grievant would work "when
Safety Officer duties." (Jt. 8) At this point, I find that the Association would have to
have had clear
knowledge that the Chief did not intend to promote Grievant to the position but only intended
appoint Grievant to the position under the plan clearly spelled out in the job description for
Officer contained in the Chief's June 26, 1997 letter. It is also notable that in his
September 2, 1997
letter to the Chief, Dewitt uses the word "assigned" when speaking of Grievant's assignment
Safety Officer duties.
I agree with the Association that there appears not to have been a settlement of the
Association's 1997 grievance, but I am not sure that is of much help to the Association. As
argues, there is the doctrine of acquiescence, and I believe the Association in August of 1997
the first step in violating that doctrine. I also find that there was no agreement between the
to hold the grievance in abeyance, only the declaration by the Association.
In a June 17,1998, the City confirmed that it was paying the Grievant the position
called for by the labor agreement. More importantly, the letter from the HR Director stated
Grievant was receiving the pay "under a temporary appointment to that position."
(Jt. 9) At this
point in time the Association again knew that Grievant was not going to be promoted to the
The Association did not respond. I cannot but wonder why the Association continued to hold
1997 grievance in abeyance if it objected to the appointment of Grievant to the position
promoting Grievant to it. I find that by this time it would be reasonable on the City's part to
the grievance was resolved, particularly as to the assignment part of the Chief's restructuring
Further confirmation of the City's position came during a labor/management meeting
January 24, 2000 when in response to a specific Association question, whether the position
would be made permanent, the City responded that it would continue to remain an
until further notice. (City 1) The Association did nothing to challenge this position by
forward their 1997 grievance or instituting a new grievance. Perhaps the Association thought
eventually the Chief would make the Grievant's job permanent. There is nothing in the
indicate why the Association, almost three years later, continued to not challenge the City
believe the passage of time and significant evidence made it clear that the City had no
promoting Grievant to the position.
It was not until the current grievance subject of this arbitration was filed on
2000 that the Association challenged the temporary assignment of Grievant to the position.
I agree with the City that the Association violated the acquiescence rule. I do not find that
Association acted in bad faith. However, there is good reason for the rule. It prevents one
from ambushing another by holding back until a more convenient or strategic time a
another party's action or reliance. I believe it is reasonable to assume that the City's
position regarding the Safety Officer position and the Association's lack of a challenge
City to reasonably assume that it was not in violation of the labor agreement in changing the
from one filled by promotion to one filled by assignment. I believe the Association had an
that if it did not agree with the City's actions it could not wait over three and one half years
challenge that action. As I said earlier, while I agree there was no mutual settlement of the
grievance, there also was no agreement between the parties that the Association could hold
grievance in abeyance allowing the Association to challenge the City's revamping of the
time that it wished.
The Association introduced a City bargaining proposal for a successor or 2001
the current agreement (Jt. 1) to argue that this was evidence that the City knew it could not
assign the position but had to promote an officer to it. (Jt. 11) The meaning of that proposal
parties seem to agree was to delete the language in Article 26 that the Safety Officer position
be filled by promotion. The City counters that given the fact that the Article 33
was negotiated in the current agreement and therefore came later than the Article 26
language all the
City was trying to do was clear up conflicting language. 3/ As I have noted above, there is
evidence in the record that a successor agreement to Joint Exhibit one has been negotiated
there evidence on the status of bargaining on any specific proposals.
3/ Only Inspector Rude testified as to any
bargaining history. Rude (a member of the City's bargaining team)
testified that the reason for the City's proposal to change the language of Article 26 (Jt. 11)
was that the City
"looked at the Safety Officer position as an assignment starting with Grievant, not as a
promotion." Rude further
testified that the Article 33 language was added to include the Safety Officer shift
schedule when Grievant or any
other officer was assigned the Safety Officer duties.
I further find that the fact that the Article 33 language assigning the Safety Officer
an officer was placed in the agreement (Jt. 1) covering the years 1998-2000, after the
of the position in 1997 and the ensuing discussions, lends weight to the City's argument that
Article 33 language meant the Safety Officer duties could be assigned.
I do not reach all of the City's arguments as I find that the Association acquiesced,
inaction, to the City's decision in 1997 to assign the Safety Officer duties to an officer, the
rather than promote Grievant to the position. A party to a labor agreement, in this case the
Association, has an obligation to pursue a remedy if it believes the other party, in this case
has failed to live up to the labor agreement. In the alternative, in this case, the Association
to secure an agreement from the City that it could challenge the City's decision at any time.
Association therefore has failed to meet its burden to prove a contractual violation by the
Based on the foregoing and the record as a whole I issue the following
The City did not violate the labor agreement by its failure to promote the Grievant to
position of safety officer. The grievance is denied
Dated at Madison, Wisconsin this 17th day of July, 2001.