BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
RACINE POLICE ASSOCIATION
CITY OF RACINE
Mr. Gordon E. McQuillen, Attorney at Law, Cullen Weston
Pines & Bach, appearing on behalf of the Association.
Mr. William R. Halsey, Attorney at Law, Long and Halsey
Associates, Inc., appearing on behalf of the City.
The Association and the City named above are parties to a collective bargaining
which provides for final and binding arbitration of certain disputes, and they jointly requested
Wisconsin Employment Relations Commission to appoint the undersigned as the arbitrator to
the grievance of David Iverson. The undersigned was appointed and held a hearing on June
in Racine, Wisconsin, at which time the parties were given the opportunity to present their
and evidence. The parties completed filing briefs by August 8, 2001.
The parties ask:
Did the City violate Article XV of the collective bargaining
agreement in effect between the
City of Racine and the Racine Police Association when it terminated the pay status of Racine
Officer David A. Iverson? If so, what is the appropriate remedy?
Duty Incurred Injury
1. Three (3) Days or Less: If an employee is injured
during the course of his/her employment and
loses three (3) work days because of such occupational injury or disease, the City will pay
established wages for the time of his/her absence from work.
2. More Than Three (3) Days:
If the employee loses more than three (3) days because of
occupational injury or disease, the City will continue to pay the employee's full wage for
calendar months from the date of said injury. Thereafter, the employee will receive
Compensation payment pursuant to a carrier or self-funded program provided by the City.
Worker's Compensation payments shall continue until the employee qualifies for and receives
disability pension from the Wisconsin Retirement System, or until the employee reaches the
maximum recovery and is able to return to work.
The City will attempt to obtain full or part
time employment of a police nature within the medical
limitations of the disabled employee during the period of disability if the employee is unable
to the position he/she occupied before the disability. The City will guarantee a continuous
equal to the employee's calculated WRF benefit to the employee while his/her disability
being considered. The employee will sign a waiver and pay back to the City any monies
paid by the
City beyond the retroactive starting date of the employee's pension and the Association
assist in such efforts. The employee agrees to pursue a duty-incurred disability pension in a
In order to qualify for the wage continuation
plan set forth above, the employee shall endorse the
compensation check received by him/her from the insurance carrier and turn the same over
3. Non-Duty Incurred Injury:
If an employee loses more than three (3) days because of injury
which is not incurred in the line of duty, positions of a police nature within the capability of
employee may, at the Chief's sole discretion, be made available to the employee in question.
such assignment, which shall be dependent upon availability of such work in the Department,
made on any shift within the Department.
The basic facts are not in dispute. David Iverson was a police officer with the City.
January 5, 1999, he was working as a security guard/police officer at Gilmore Middle School
injured in an incident with a student. He filed an injury report with the City and was off
work for a
couple of weeks. He was given light duty status, and his medical expenses arising from the
were paid by the City or by insurance. His light duty status was terminated around
2000, but he was placed on administrative leave with pay until February 16, 2001, when the
notified him that he would be laid off due to his inability to perform the essential functions
of his job.
Iverson applied for duty disability under Wis. Stats. Sec. 40.65 on January 14, 2000.
disputed that the injury was duty incurred. Iverson applied for a hearing, which was still
the time of the arbitration hearing. The City stipulated that the injury to Iverson was duty
when Iverson was paid Worker's Compensation benefits. The City later received a medical
regarding a pre-existing injury and disputed that the injury or disability was duty incurred.
The language at issue was first negotiated into the labor contract in 1996. James
recently retired from the City after serving 23 years as Human Resources Manager, was the
spokesman in all contract negotiations. The Association was concerned that when an officer
for duty disability, there was a gap between the time he or she was no longer able to work
time he or she received the disability pension. The parties agreed that the City would
equivalent of the Wisconsin Retirement estimated duty disability pension until the pension
approved, retroactive to the time of termination, and then the officer would pay back
the City had paid to them.
The Association brought the issue to the bargaining table. The current representative
bargaining unit was not involved in those negotiations. The City was the final drafter of the
Kozina testified that the intention of the language was to cover officers in the interim period
their termination and receipt of their duty disability pension, and it was for duty disability
Duty disability claims arose frequently during Kozina's tenure with the City. The City has
to certify that the injury is duty incurred or to oppose it. In Iverson's case, the City has
claim that his disability is a result of duty incurred injury.
Kozina testified that the City made payments under Article XV when it had certified
injured was duty incurred. In one case, the City had difficulty recovering money that had
when a person started receiving a duty disability pension. The City has never made
Article XV when it has not certified that the injury was duty incurred.
Kozina further testified that it was never the City's intention to cover officers who
injured off duty, and that the Association never asked for that kind of protection.
During the negotiations for the 2000-2001 contract, the City made proposals to
Article XV, which Kozina characterized as housekeeping or clarifications. It was his
he would never make proposals that would impact a pending dispute, and Iverson's case was
dispute when the proposals were made. The language was not changed in the 2000-2001
THE PARTIES' POSITIONS
The Association asserts that the plain meaning of the language in the labor contract
its position. The 3rd paragraph of Section 2 of Article XV states that the
City will guarantee a
"continuous income," and the Association assumes that term needs no further clarification.
the Association asserts that the phrase "while his/her disability pension is being
cannot mean anything except its plain meaning. To consider something is to think about it
and seriously, according to the American Heritage dictionary. The City apparently proposes
"being considered" is a foregone conclusion, that an officer's eligibility for benefits must
approved before he applied for those benefits.
The Association submits that the language simply does not say that. It also submits
City's argument is circular reasoning. The City reasons that an officer's injuries must be
in order to qualify for benefits under the Agreement, and since the City does not think that
injuries are duty-related, he does not qualify for benefits. But the City ignores the language
he gets benefits while his application for benefits is being considered. Moreover, the City
complete control over the outcome of Iverson's Sec. 40.65 application at this point.
Only the City
has imposed an impediment to a decision by the Employee Trust Funds awarding Iverson his
If the City changed its mind, the benefits would be granted and the City's concerns would
The City believes it can impose this impediment in any Sec. 40.65 case and force the
a status of having no income. The plain intent of the language is that the City bears the cost
preserving an employee's income status quo during the pendency of an
application for duty disability.
If the City's interpretation were allowed to stand, it would shift the economic burden flowing
the officer's injuries from the taxpayers as a whole to the disadvantaged individual officer.
The Association further asserts that the language in dispute would be a nullity if the
argument were to prevail because the City argues that only if Iverson receives benefits is he
to compensation from the City. The City is not the party that is to be doing the
"considering" of his
application for statutory benefits, it is the State of Wisconsin that is "considering" Iverson's
application for benefits.
The Association finds that City's concern of economic loss to be without merit. The
worries that an employee has no incentive to apply for Sec. 40.65 benefits if he or she
be paid by the City. That is not even relevant, since Iverson applied for benefits.
If another employee does not apply, the City can raise that issue before another
Arbitrator. If the
employee's application is denied, then the City may have a case for cutting off the flow of
continuous income, but only then. Moreover, if an employee does not apply for Sec. 40.65
then his or her application for benefits is not being considered, so there can be no claim by
employee for the continuous income from the City under Article XV of the Agreement.
According to the Association, the City's attempt to change the language during recent
negotiations undercuts its argument. Just a few weeks before the City placed Iverson on
leave, the City proposed to insert a provision to limit an employee's payments to 85 percent
regular wages for 3 months. The Association rejected that proposal. Then the City tried to
the language to apply to employees who qualify and receive a duty disability
pension. That proposal
was made less than a week before placing Iverson on unpaid leave. If the language meant
City argues it means in this case, there would have been no need for the City to propose
it. There is no indication in the proposal that the City was merely trying to clarify an
Rather, the City was trying to get the Association to agree to its approach in the Iverson case
valid reading of the contract. When a party attempts but fails to include a specific provision
contract negotiations, arbitrators will hesitate to read that provision into the contract.
The City disputes the Association's contention that because Iverson filed for duty
the City must provide the continuous income benefit while his eligibility for the benefit is
litigated. The title of the contract language is "Duty Incurred Injury." Kozina testified that
language was recently added to the labor agreement, in response to the concern raised by the
Association that officers who were awaiting certification of their disability claim were
sick and vacation benefits. Kozina further testified that this arose in the contest of cases
City was in agreement with the duty disability claim. That is why the continuous income
is included only under the duty incurred injury paragraph. Another section, Article XV(3),
non-duty injures, and that is how the City views Iverson's claim.
The City states that in the event Iverson prevails in his duty disability case, he will be
whole under the duty incurred injury language. Under the Association's interpretation of the
language, anytime an officer applies for a duty disability pension, the City must make
the continuous income guarantee. There is no provision in the labor agreement to require an
to repay the money if the duty disability application were denied. This would result in the
making payments under the continuous income provision in ridiculous situations. An officer
off a ladder at home and suffers a permanent disability would file for duty disability benefits.
Although he or she would have no chance of receiving the disability pension, the City would
forced to pay tens of thousands of dollars to
the officer. Duty disability cases can take a great deal of time to resolve. Iverson's
claim was dated
January 14, 2000, and no hearing was scheduled as of the date of this arbitration hearing.
The City submits that arbitrators have historically rejected contract interpretations that
result in that type of nonsensical result. If one interpretation leads to a harsh or absurd or
result, and another interpretation leads to a just and reasonable result, the latter interpretation
Another allegation in the grievance dealt with Iverson's light duty status. He was
light duty until December 4, 2000, when Human Resources became aware that
Dr. Klein believed he
was permanently disabled. That was consistent with the light duty notification that he
January of 1999. The Department has consistently used light duty assignments only while an
was recuperating. Once a determination is made that an officer is permanently disabled, the
assignment is terminated. Under the non-duty incurred injury provision, light duty
at the Chief's sole discretion. The City acted in good faith in dealing with Iverson. He was
to work on a light duty basis for almost two years. The City exercised its right to have
undergo an independent medical examination, which resulted in all doctors agreeing that he
permanently disabled. The City is exercising its right to contest whether the disability is
duty-incurred. There is no evidence of bad faith in this matter.
In Reply, the Association
The Association responds by stating that the City predicates its argument almost
on the caption of the disputed contractual provision "Duty Incurred Injury." The
asserts that the City's argument must fail because the broad caption "Duty Incurred Injury"
encompasses Section 3 which is captioned "Non-Duty Incurred Injury." The Wisconsin
has adopted the standard rule in construing its enactments that the titles to subchapters,
subsections, paragraphs and subdivisions of the statutes are not part of the statutes. There is
reason that an arbitrator should not adopt the same standard when construing a disputed
in a collective bargaining agreement.
Also, the City concedes that it proposed the language now in dispute, yet it seems to
that the disputed language is ambiguous. Arbitrators traditionally construe the language
proponent of the provision. Moreover, the City ignores the fact that it tried to modify the
in recent negotiations to have it reflect the position it now seeks to have prevail in this
While the City states that Iverson will be made whole if he prevails in his duty disability
is no reference or support for that in the bargaining agreement.
In Reply, the City
The City points out that Association did not rebut Kozina's testimony, and his
entitled to great weight. Kozina has over 25 years of experience labor negotiations and
the proposed language change was not prompted by this case. There was no dispute with
when Kozina made the proposal, and the grievance was filed after Kozina made the
proposal. The Association has not countered the fact that the language in dispute was
control those cases where the City was certifying that the officer was indeed entitled to the
disability pension. The City would not and did not agree to pay the continuous income to
who filed for a duty disability pension for any reason. Such a practice would be abusive and
The City's interpretation of the language of Article XV is preferred for several
and foremost, the contract should be read as a whole. It is unreasonable to just concentrate
words "being considered" without putting them into context. The full paragraph is
The City will guarantee a continuous income equal to the
employee's calculated WFR benefit to
the employee while his/her disability pension is being considered. The employee will sign a
and pay back to the City any monies paid by the City beyond the retroactive starting date of
employee's pension and the Association agrees to assist in such efforts. The employee
pursue a duty-incurred disability pension in a timely fashion.
Clearly, the City was agreeing only to provide income for someone who would receive
benefit down the road, and the City did not agree to take on any extra financial liability.
Association did not even bargain for such a benefit it asked to have the City help out
pension benefit was being considered because of the length of time it took to
receive such a benefit.
The fact that the language refers to the "continuous income equal to the employee's
WRF benefit" reinforces that interpretation. The language further refers to the
The Association now complains that the City's interpretation would mean that it only
continuous income when the disability pension is a foregone conclusion. Exactly. That's
the parties agreed to and nothing more.
I also agree with the City that the language falls under the heading "Duty Incurred
there is different language for "Non-Duty Incurred Injury," both found under Article XV.
language at issue occurs only in the sections related to duty incurred injuries. The heading is
in differentiating between the rights and obligations of the parties under different
The bargaining history also supports the City. Kozina's unrebutted testimony was
Association sought this protection, and the City agreed to it. It was the Association that
issue to the bargaining table. The City was the final drafter of the language, but it was not
proponent of the proposal the Association was the proponent of this proposal. The
City was not
agreeing to take on an additional or an unknown liability, but one which it would recover.
language even demands that the Association assist in recovering money once the pension has
Moreover, I credit Kozina's testimony that subsequent bargaining proposals regarding
disputed language were mere housekeeping and not substantive. His testimony was
former Personnel Director is well known to this Arbitrator from many labor relations settings
is respected by all parties. The dates of the City's proposals are before this grievance was
the City points out.
If the Association wants a broader benefit than the contract allows, it needs to
negotiate it into
the contract. It wants the continuous income whether or not the disability is duty incurred,
contract language does not provide for that and the Association cannot gain that through
where it has not negotiated it. The Association did not even ask for such a benefit in
For all the reasons above, the grievance is denied.
The grievance is denied.
Dated at Elkhorn, Wisconsin this 24th day of October, 2001.
Karen J. Mawhinney, Arbitrator