BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
DePERE POLICE BENEVOLENT
CITY OF DePERE
Parins Law Firm, S.C., by Mr. Thomas J. Parins, on behalf of
the DePere Police Benevolent Association.
Ms. Judith Schmidt-Lehman, City Attorney, on behalf of the
City of DePere.
On April 9, 2001, the DePere Police Benevolent Association, hereinafter the
a complaint with the Wisconsin Employment Relations Commission wherein it alleged that
of DePere had committed certain prohibited practices in violation of the Municipal
Relations Act. Thereafter, the City of DePere, hereinafter the City, filed an answer denying
committed any prohibited practices and requested that the complaint be dismissed and the
deferred to the parties' contractual grievance procedure. The undersigned, David E. Shaw,
subsequently appointed as Examiner in the matter and a hearing was scheduled. At hearing
the undersigned, the parties mutually agreed to defer the matter to grievance arbitration and
that the hearing proceed as a grievance arbitration hearing with the undersigned to proceed as
Arbitrator. The City also waived any technical objections it might have to the grievance
to final and binding arbitration. Hearing was held before the undersigned on July 18, 2001,
DePere, Wisconsin. A stenographic transcript was made of the hearing and the parties
post-hearing briefs by October 29, 2001.
Based upon the evidence and the arguments of the parties, the undersigned makes and
the following Award.
The parties were unable to agree on a statement of the issues and stipulated that the
would frame the issues to be decided.
The Association proposed the following statement of the issues:
Whether the last paragraph of Article 8 of the contract which
addressed requests for off time,
holiday time, and vacation has a meaning as set forth in the past practice of the parties in
administering this provision to allow officers to take off time, holiday time, and vacation as
it does not reduce the staffing level below minimum staffing, with the exceptions of the
and special events, in the manner testified by Sergeant Stephenson.
The City offered the following statement:
Whether the City may unilaterally increase staffing levels pursuant
to Articles 3 and 8 of the
Collective Bargaining Agreement.
The Arbitrator concludes that the issues may be stated as follows:
Did the City violate Article 8 of the parties' Collective Bargaining
Agreement when it denied the
requests of Sergeant Thompson and Officer Van Price to take compensatory time off at the
The following provisions of the parties' Agreement are cited:
The Association recognizes that, except as otherwise provided
this agreement or as may
affect the wages, hours, and working conditions of the members of the Association, the
of the City and its business and the direction of its work force is vested exclusively in the
in that all powers, rights, authority, duties, and responsibilities which the City had prior to
the execution of this agreement customarily
executed by management or conferred upon and
vested in it by applicable rules, regulations, and laws, and not the subject of collective
under Wisconsin law, are hereby retained. Such rights include, but are not limited to, the
a. To direct and supervise the work of
b. To hire, promote, and transfer employees;
c. To lay off employees for lack of funds or other legitimate reasons;
d. To discipline or discharge employees for just cause;
e. To plan, direct, and control operations;
f. To determine the amount and quality of work needed;
g. To determine to what extent any process, service, or activity shall be added,
h. To introduce new or improved methods or facilities;
i. To schedule the hours of work;
j. To assign duties;
k. To issue and amend reasonable work rules;
l. To require the working of overtime hours when necessary in the performance
. . .
Hours of Work
The established schedule of work for shift employees shall
consist of six (6) workdays
followed by three (3) off days on a repeating cycle, with each day consisting of an eight (8)
The established schedule for personnel
assigned to non-shift duties shall be five (5)
eight (8) hour workdays scheduled Monday through
Sunday. The schedule of work for probationary police officers participating in the Field
Program shall be established by the Chief or the Chief's designee. Probationary officers
work alone or fill staffiing needs while in the Field Training Program.
Employees in the classification of patrol
officer assigned to duties of Police School Liaison
Officer or Community Policing Officer shall receive 9 "schedule equalization days" off per
days will be prorated the first and last calendar year of the assignment. Days earned but not
in the same calendar year cannot be accumulated and will be paid out with the last payroll of
calendar year. Employees shall be entitled to take schedule equalization days with the
the Chief or the Chief's designee and in accordance with personnel requirements of the
The annual signing of shift assignments will be followed as
closely as possible; however, the
Administration reserves the right to assign manpower to fit the needs of the department.
Needs of the department for purposes of
this Article include, but are not limited to, situations
involving training programs, schools, special assignments, long-term absences or vacancies,
long-term illness, special events, officer requests, and discipline problems.
Movement of officers from regularly
assigned shifts will not create overtime unless it causes
more than 8 hours of work in a 24 hour period as defined in Article 9.
An employee shall be entitled to change
hours of work when the employee is able to secure
another employee to work in that employee's place provided:
(1) The employee's request for vacation,
holiday, or compensatory time off has been
(2) Substitution does not
impose any additional costs on the City;
(3) The Chief of Police
or the Chief's designee is notified and approves of the
(4) Neither the
department nor the City is held responsible for enforcing any agreement
made between employees. It is understood that the employee's first responsibility is
to the employee's position with the City.
Six day block vacations.
Whenever a shift drops below minimum
staffing because of vacation, it will be increased to
the minimum staffing in the following manner:
The junior officer in the same group
number from a shift with manpower above the minimum
will be reassigned to the shift that is below the minimum.
If two shifts have manpower above the
minimum, then the needs of the department will
determine from which shift the officer will be reassigned.
Less than six day block vacations.
In cases where less than six day block
vacations have been signed in the vacation book and
approved and it causes the staffing levels to drop below the minimum, the Administration
the right to reassign staff giving due consideration to overtime required and then seniority.
The Chief reserves the right to assign staff
to fit the needs of the department when the Chief
or the Chief's designee determines that an emergency situation exists.
Extended Sick Leave.
Any sick leave of three days or more will
be considered extended sick leave and staff will be
reassigned to meet the minimum staffing level in the same manner as the six day block
Short Term Sick Leave.
If an officer calls in sick and his/her shift
is not below the minimum staffing level, then the shift
will work with the staff available on that shift. If an officer calls in sick and his/her shift
below the minimum staffing level, then a replacement will be called by using the call-in book
Communications Center. If no officer volunteers to work, then the junior officer from the
shift will be held over for four hours and the junior officer from the next shift will be
notified to come
in four hours early.
Off Time, Holiday Time, Schedule Equalization Days, and
Vacation Days not Signed in Vacation
Requests for off time, holiday time, and vacation days not
signed in vacation book will be
addressed as to the minimum staffing for the shift requested off. Staff will not be reassigned
accommodate off time, holiday time, schedule equalization days or vacation days not signed
The parties also cite an Addendum to their Agreement which reads, in relevant part,
day of December, 19 95, the City of De Pere and the De Pere
Association, as a term and condition of settlement of the attached Agreement Between the
De Pere and the De Pere Police Benevolent Association for years 1994 through 1996, hereby
1. That the following amendment be
made to the Policies and Procedures Manual of the
De Pere Police Department under the understanding that such amendment shall not be
changed but shall remain in effect during the term of this contract unless such modification is
collectively bargained by the parties:
(1) There shall be a minimum of three (3)
patrol officers on duty at all times during the
power shift (generally 7:00 p.m. to 3:00 a.m.) when the minimum number of patrol
officers on duty shall be four (4). On evenings when Municipal Court is in session,
the power shift shall be scheduled to commence at the same time as
Municipal Court and the four (4)
person minimum shall apply during the rescheduled
power shift. For purposes of this amendment, "on duty" shall include, as determined
under the reasonable discretion of the Chief, circumstances where the officer is
performing duties related to patrol duties or where such officer is available for timely
response. In addition, the Chief shall have the authority from time to time to assign
officers not within the bargaining unit (i.e., Captains or Chief) as one of the above
described officers on duty at the time that such non-union member is regularly
scheduled to work, provided, however, that any person so assigned shall be prepared
and able during the shift in question to respond to any request for assistance in the
same manner and effect as a member of the Association would. In addition, it is
understood that uniformed sergeants will be considered "patrol officers", officers
performing Municipal Court duty, officers at Brown County Court for testifying
purposes, officers delivering prisoners to Brown County Jail, and other similar patrol
related duties, shall be considered "on duty" for purposes of determining minimum
staffing levels. It is also understood that investigators (plainclothes personnel
performing investigatory functions) shall not be included in the minimum staffing level
requirements of this provision.
The City maintains and operates the DePere Police Department and David Tellock is
of Police. The Association represents the Department's protective occupation personnel for
of collective bargaining and contract administration.
In 1991, the parties agreed to an addendum setting minimum staffing levels for the
who would be counted or not counted toward those levels, and providing that the Chief could
himself or Lieutenants to be an officer on duty to meet the minimum staffing requirements.
December of 1995 the addendum was amended, in part in recognition that the position of
had been eliminated and replaced with Captain, and was made part of the parties' 1994-1996
Agreement which was reached in 1995. 1/ Also agreed upon for inclusion in that Agreement
wording that is now the last paragraph of Article 8 and which is in issue in this case.
1/ The City noted that
the addendum was not attached to the current agreement, but posited that this was simply an
oversight. That is consistent
with the Chief's testimony in that regard, and both parties take the position they are still
bound by the 1995 Addendum.
The parties reached agreement on their current Agreement in October of 2000.
there were discussions and written communications between the Association and the Chief
changing the work schedule. The Association also requested a change in the number of
allowed off on vacation; from two in a 24 hour period to 1 off per shift. The Chief
implemented a new work schedule and on December 6, 2000, Captain Koser issued the
memorandum which reads, in relevant part, as follows:
To: All Patrol Personnel
From: John R. Koser, Captain
Subject: 2001 Shift Bulletin
Attached with this memo is the revised shift
bulletin for 2001. Please sign the bulletin as directed
by the procedure noted on the bottom of the shift bulletin. You will also need to be made
issues not addressed on the bulletin itself.
. . .
The new shift bulletin allows for one officer
to be "off" per shift. The 8pm to 4am shift is to be
counted with the 10pm to 6am shift. For the purposes of this directive, "off" time is
vacation, holiday, compensatory or sick time. At times, this may include long term illness.
As of January 1, 2001, the effective date of
this shift bulletin, if one officer is already "off" on a
shift and another officer calls in "sick" on the same shift, the shift supervisor of the previous
use discretion to replace the "sick" officer based on his/her awareness of current call volume,
of calls, and overall need of the presence of another officer. Supervisors should not go
acceptable department staffing minimums as per contract. We will evaluate the effectiveness
practice and possibly make modifications as needed.
Vacation will be signed per shift with one
officer off per shift. No more than two sergeants may
be on vacation at any given time. Again, the 8pm to 4am shift is to be signed and counted
10pm to 6am shift.
We hope this new shift bulletin more
adequately addresses our department needs for 2001.
This dispute involves the denial of requests to take compensatory time off. On
2000, Grievant Sergeant Thompson submitted a request to take 24 hours of compensatory
for his regularly scheduled shifts on January 29, 30 and 31, 2001. On January 2, 2001,
Thompson's request was denied by Captain Koser on the basis of "staffing needs". On
2001, Grievant Officer Van Price submitted a request to take 8 hours of compensatory time
January 10, 2001. On January 5, 2001, Officer Van Price's request was denied by Captain
the basis that "minimum non-sick shift staffing levels for 2 p.m. to 10 p.m. is 4
Sergeant Thompson and Officer Van Price grieved the denial of their requests as a violation
last paragraph of Article 8. There is no dispute that granting either request would not have
in falling below the minimum staffing level required in the addendum, nor was there any
or circumstances taking place on either day that would have required additional staffing
Association witnesses testified that prior to this, requests to
compensatory time off were
routinely granted as long as it did not result in falling below the minimum staffing level on
shift, except in the case of "special events" that required higher staffing levels or if the
already been placed on the schedule for Bike Patrol for the time the officer was requesting to
off. According to those witnesses, what the parties agreed constituted such "special events"
for the most part holidays and events such as "Celebrate DePere", and similar events that
large gatherings of people into the City or created potential problems requiring more staffing.
Chief Tellock and Captain Janz testified that in the past management had made the
to grant or deny requests to take compensatory time off based upon the staffing needs of the
Department, as determined by management. Chief Tellock conceded that it was "generally
requests for compensatory time off had been granted as long as doing so did not result in
below the minimum staffing levels, absent specific events or circumstances that required
Chief Tellock conceded that the Grievants' requests to take compensatory time off
denied on the basis of the policy of allowing only one officer to be "off" per shift as set forth
December 6, 2000 memorandum and that there were no special events or
circumstances that occurred
on those days.
The parties attempted to resolve their dispute through the contractual grievance
but were unsuccessful and proceeded to arbitration before the undersigned.
POSITIONS OF THE PARTIES
The Association takes the position that the Grievants' requests to take compensatory
should have been granted, as doing so would not have resulted in falling below the minimum
levels and there were no special events or circumstances on the days in question that would
required higher staffing levels. In support of its position, the Association asserts that the
of the last paragraph of Article 8 is ambiguous with regard to when requests for off time will
granted, stating that such requests "will be addressed as to the minimum staffing for the shift
requested off." There is no dispute as to how that language has been administered in the
Absent special events or circumstances, requests for compensatory time off were granted as a
of course, as long as it did not bring the number of officers on the shift below the minimum
levels. Chief Tellock testified that such requests were granted on a "automatic" basis prior
December 6, 2000 memo from Captain Koser.
Arbitrators have consistently held that where past practice has established a meaning
ambiguous language, that practice becomes part of the contract language itself and can only
terminated by mutual agreement, i.e., by rewriting the ambiguous language of the agreement.
language of Article 8 is ambiguous as to how requests for compensatory time off will be
regarding minimum staffing, and the practice of the parties addresses that ambiguity, the
automatically granting such requests, if it does not drop the number of officers on the shift
minimum staffing, absent special events or circumstances, must be maintained.
The Association does not dispute the City's right under Article 3, Management
establish (increase) staffing levels, however, that does not give the City the right to
the contractual right of officers to take time off. Article 3 contains an exception to the
Rights, stating: ". . .Except as otherwise provided in this Agreement or as may affect the
hours and working conditions of the members of the Association. . ." Thus, while the City
establish staffing levels that are above the minimum staffing levels in the contract, it may not
management rights to unilaterally make other changes in the benefits and contractual rights in
While the witnesses agreed that special events or circumstances that require additional
officers to be on duty have been exceptions to the right of officers to take compensatory time
down to the minimum staffing level, it is also clear that what constitutes "special events" and
circumstances was subject to negotiations. Sergeant Stephenson testified that the practice
that the City articulated a legitimate reason for the need for additional staffing on a particular
and if there was disagreement, the parties met and worked out the
differences. While the City disputes this and argues that management unilaterally made
decisions as a matter of management rights, the only evidence the City was able to offer that
occurred in the past was City Exhibit 10, a letter from Chief Tellock to the Association's
November of 1995, referencing a disagreement as to whether or not "bike patrol" was to be
considered a special event or circumstance that would prevent an officer from taking
time off. The Chief rejected the grievance on the basis that management could make those
without conferring with the Association. However, Chief Tellock conceded that after the
sent, the City changed its position and he sat down with the Association and worked out a
acceptable solution. The duty to meet and confer before denying a request for time off is an
enforceable right. Oneida County (Sheriff's Department), Arbitrator Jones, 1/2000.
In its reply brief, the Association first asserts that the City concedes that the
requests for compensatory time off were denied on the basis of the staffing requirements set
Captain Koser's December 6, 2000 memo. The staffing level in that memo is different from
staffing level set forth in the 1995 addendum to the Agreement (City Exhibit 3) which,
the City, sets forth staffing requirements that are controlling. As the City concedes that
Koser's memo set staffing level requirements in excess of the minimum staffing requirements
to in the Agreement, and that the Grievants' requests were denied on the basis of the staffing
in the memo, and as the Chief testified that the requests would have been granted under the
of the Agreement, the grievances should be upheld.
The Association also asserts that the City cannot rely on the last sentence of the last
in Article 8, as it has no relevance to the issues in this case. That language must be read in
conjunction with other provisions of Article 8 relating to the subject matter of "shift
The language simply makes clear that an officer's compensatory time off request will not be
where it would drop the staffing levels below minimum staffing, even though potentially an
could be reassigned from another shift to bring staffing levels up to minimum staffing.
The Association disputes the assertion that the City's right to determine staffing levels
the contractual minimum is at issue. While the City may establish how many officers it has
at any given time, this does not give it the right to change the terms of the labor agreement.
Whatever decisions the City makes regarding staffing levels must be administered under the
conditions of the Agreement. The December 6 memo is a unilateral change in contractual
Further, the Agreement itself provides that the City cannot unilaterally change staffing levels.
1995 addendum establishes minimum staffing requirements under the Agreement and reads,
"1. That the following amendment be made
to the Policies and Procedures Manual of the DePere
Police Department under the understanding that such amendment shall not be unilaterally
but shall remain in effect during the term of this contract unless such modification is
bargained by the parties:"
Captain Koser's December 6, 2000 memo unilaterally changes minimum staffing levels
of the above provision.
Finally, the City's assertion that the past practice claimed by the Association is
unenforceable is simply wrong. The City argued that there was no clear standard as to what
constituted a special circumstance that would justify no compensatory time off. As
argued, when special events or circumstances occurred that required staffing above the
compensatory time off requests were not allowed and when there was disagreement in that
the parties met and conferred and worked out a mutually-agreeable methodology. Chief
conceded that was the case. While Captain Janz was more equivocal in that regard,
testifying that management decided when and under what circumstances such requests were
his testimony must be taken with a "large grain of salt." Janz testified that he oversees
time off records, however, he knew of no officer or date where a compensatory time off
been turned down, and he testified that he did not even know why the Grievants' requests
turned down. The only evidence the City produced that showed any disagreement between
Association and the City was with regard to the Bike Patrol. The testimony regarding that
established that the parties met and conferred, and worked out a mutually-agreeable solution.
the City claims that this "standard" is not sufficiently clear to be enforceable, that is not the
Most importantly in this case, there were no discretionary standards needed or employed for
request. The testimony was clear that the requests were turned down solely because of the
officer off at a time rule of the December 6, 2000 memo and that there were no special
police services on the days in question. That being the case, the only question as to the
the time off requests in this case is what minimum staffing level was to be used. The City
"only one off at a time" minimum staffing standard in Captain Koser's memo, but should
the minimum staffing level of the Agreement.
The Association requests that the grievances be sustained, and that the City's actions
to have violated the parties' Agreement.
The City first notes that it and the Association are parties to a collective bargaining
and are further subject to a minimum staffing agreement appended to their agreement since
that they have continued operating and interacting as though the addendum still controls,
it is not officially appended to their current agreement. The City further notes that in 1997
commissioned a staffing study to evaluate staffing service levels in the City and that the
result of that
study was a recommendation to implement four new patrol officer positions. The City's
Council adopted the study and has increased staffing positions by three to date. In December
2000, the Police Department administration implemented a new shift staffing bulletin, the
which was to permit one officer off on vacation per shift. This was an increase from what
permitted off in the past, which was only two officers off in a 24-hour period. The change
requested by Association members, however, the new shift bulletin also implemented a new
level requirement in excess of the minimum staffing addendum. This resulted in a maximum
officer off on vacation, comp time, holiday, or other accrued leave per shift. The City
that the Grievants' request for compensatory time off were both denied based upon the
of the department, as set forth in the December 6, 2000 memorandum.
The City notes that the Association argues that its members have the right under
Article 8 of
the Agreement to take compensatory time off, subject to limited exceptions, and provided
staffing levels are met. This alleged right is predicated upon a combination of contract
(Article 8) and an alleged "past practice" which allowed comp time off when minimum
met, subject to "agreed upon" exceptions. In order for the Association to prevail, it must
that the contract language is ambiguous. If it is able to do so, then to establish a binding
to clarify ambiguous contract language the Association must show that the alleged practice is:
unequivocal; (2) clearly enunciated and acted upon; and (3) readily ascertainable over a
period of time as a fixed and established practice of the parties. Celanese Corp. of America,
LA 168, 174 (Arbitrator Justin, 1954).
The City first asserts that the contract language at issue is not ambiguous; rather, it
the City's contention that the provision does not equate with an automatic right to
off provided minimum staffing levels are met. The second sentence of the last paragraph of
8 is instructive, and provides, "Staff will not be reassigned to accommodate off time, holiday
schedule equalization days or vacation days not signed in the vacation book." If, as the
claims, the reference to minimum staffing in that last paragraph were intended to mean that
requests would be granted so long as minimum staffing was maintained, the above-cited
would not be needed. The City notes that the Association stipulated that it is not claiming
minimum staffing requirement is a required or "maximum" staffing level. The City asserts
above sentence is meant to
restrict one's ability to use comp time. The Association's position ignores the sentence
that no maximum or required staffing levels are implicated by their theory that the language
last paragraph creates a qualified right to compensatory time off. While they argue that the
Department could call in officers on overtime if they wanted higher staffing levels than the
that is exactly the situation the sentence cited above does not require. Minimum staffing, as
to compensatory time off under Article 8, must be looked at in terms of a discretionary right
management to grant with a minimum not to go below, and not as a required number to look
As to the alleged practice, the Association relies upon a verbal "agreement" with the
assert that a past practice exists which requires requests for compensatory time off to be
limited exceptions for special events. Testimony was to the effect that there is no clear
what would constitute a special circumstance which would justify not giving compensatory
and that every situation was to be considered by itself. Other testimony was presented to the
that the agreement was, in effect, a requirement that the administration "justify" the need for
additional staffing to the Association. Thus, the record is not clear, even among Association
members, as to the parameters of any so-called "agreement". Further, an agreement to
compensatory time off on a case-by-case basis is not the same as a right to take
off, Officer Dahl having testified that whether a special circumstance warrants denial of
time off depends upon the circumstances.
According to the City, management has not interpreted and administered the language
question to mean that there is no right to compensatory time off; rather, the staffing needs of
Department is the determining factor in evaluating a request to take compensatory time off.
According to the City, the record is replete with clear instances where management
utilized its prerogative to manage the Department and set staffing levels consistent with the
of the Common Council. Examples included the Bike Patrol, as well as "Celebrate DePere",
and the county fair. Further, management has on schedule postings indicated "no more off"
when staffing levels are above the minimums. The Association's recognition of
authority to deny time off in those circumstances is inconsistent with its position that there is
to take that time off in other circumstances. Each time management exercised its rights to
Department there was a protest by the Association. It was only after such protest that the
discuss the need for the additional staffing and in some circumstances (bike patrol) work out
accommodation whereby Association concerns were addressed while the additional staffing
added. If there is any practice then, it is a practice of management consistently exercising its
to determine the staffing needs of the Department.
The City concludes that even under the Association's interpretation of the
"agreement", it is
neither unequivocal nor clearly enunciated or acted upon, even by their own testimony over
what has occurred over the past 10 years. The best that can be said as to the parameters of
the so-called "agreement" is that it "depends on the circumstances." Clearly, such
parameters as "it
depends" cannot support a finding of a binding past practice to take compensatory time off.
In its reply brief, the City reasserts that the Association has failed to establish the
elements for finding a binding past practice, and asserts that the Association itself cannot
whether the practice alleged was one of an "automatic right" to compensatory time off,
minimum staffing levels are met, or whether the practice was a "duty to meet and confer."
an unequivocal, clearly enunciated mutual practice, there is no "past practice" by which to
the City's conduct in this case. Further, the Association seems to argue that lack of
when they believe they have a right to compensatory time off somehow brings about an
discretion" analysis. The Association fails to realize that absent specificity and mutuality
the details of the alleged practice, there is no practice. The issue is not an abuse of
issue is whether there is a binding past practice sufficient to govern the conduct of the parties
absence of clear contract language. The Association has failed to show that such a past
exists other than the City's practice of invoking its management discretion to determine the
needs of the Department.
Last, the Association misquotes Chief Tellock in describing his testimony. Rather
conceding a "automatic" right to compensatory time off, the Chief's testimony, read in its
underscores the discretionary nature of determining the staffing level needs of the
Department on any
given day, and any given shift. The Chief's position on the non-automatic nature of the use
compensatory time off is best described in his November 6, 1995 letter to the Association
The City concludes that the Association has failed to establish a binding past practice that
require the City to grant compensatory time off upon demand, assuming minimum staffing
met. The City requests that the grievances be denied.
The first issue in dispute is whether or not the wording of the last paragraph of
Article 8 is
clear and unambiguous. The City asserts the language is not ambiguous and essentially
it leaves to management the discretion to grant or deny requests to take compensatory time
upon what it determines is the needed staffing level for the shift in question. The Arbitrator
The wording of the first sentence simply states that such requests "will be addressed as to
minimum staffing for the shift requested off." "Minimum staffing" could mean (1) the
staffing levels set forth in the 1995 addendum to the Agreement; or (2) the minimum staffing
management determines is
needed for that shift based upon special circumstances, e.g., special events or holidays;
or (3) it could
mean, as the City asserts, whatever staffing level management decides to provide. The
in this regard, and the degree of discretion, if any, management may exercise if the
level would be met if the request was granted, is not so clear from the wording in question
practice, if it exists, is to be disregarded.
The Association asserts that "minimum staffing" refers to the minimums in the 1995
addendum and that management must justify denying a request to use compensatory time off
those minimums would be maintained if it were granted, and relies upon past practice to
contention. The evidence in the record with regard to past practice is the testimony of a
Association witnesses who testified that an officer's request to take compensatory time off
granted unless it would result in being below the minimum staffing level for that shift (set
forth in the
1995 addendum), or unless there was a special event that would justify requiring a staffing
the minimums in the addendum, or the requesting officer was already in the schedule for
on the requested day off. The Chief conceded in his testimony that that had been "generally
prior to the December 6, 2000 memorandum, although he attempted to describe it more as an
exercise of discretion on management's part. Captain Janz testified that whether the
staffing level would be met was only one of the factors he looked at in deciding whether to
request to take compensatory time off, and that it also depended upon the service level he
provide at that time.
From the testimony, it is concluded that there has been a practice that requests to take
compensatory time off were generally granted if it would not result in falling below the
staffing level set forth in the 1995 addendum for the shift in question, absent special events
circumstances that management determined would require staffing above the minimum. 2/ It
appears that there has developed a common understanding or "agreement" between the
certain events, e.g., Celebrate DePere, constitute such a "special event". There was also an
understanding or "agreement" as to how the Bike Patrol would be handled with regard to
or denying such requests. As the Association asserts, a past practice that gives meaning to
contract language may not be unilaterally altered or terminated.
2/ While witnesses
acknowledged that Captain Janz would at times note "no more off" on the schedule, the only
evidence as to specific
instances (City Exhibits 9, 11 and 12), show this occurred when there were special events
scheduled on the shift in question or it was a holiday.
The undersigned does not agree, however, that a history of the parties' working out
disputes when there has been disagreement as to whether
an event or circumstances justified denying requests to take compensatory time off amounts
to a binding "practice" of meeting and
conferring. Such instances are examples of management exercising its right under
Article 3, Management Rights, and Article 8, paragraph 4, to determine
the staffing needs of the Department in a given situation. Management exercises its
discretion and the Association exercises its right to challenge the
reasonableness of management's decision as it affects the rights of officers to take time off.
While it appears that they have usually been able to reach an
accommodation when this has occurred in the past, that reflects a good functional
relationship, but does not necessarily create a contractual right.
The City's interpretation of the last paragraph of Article 8 appears to be that it
clear that compensatory time off will not be granted in any case if it would result in falling
minimum staffing level for that shift, and creates no right in the employee to take the time
if it would not result in falling below the minimum. That interpretation is too narrow. The
sentence states that, "Requests for off time . . . will be addressed as to the minimum staffing
shift requested off." If the parties intended this to mean that such requests will be granted or
at management's discretion based upon its determination of the Department's staffing needs,
seemingly would have stated that. The reference to the "minimum staffing" in the first
along with the second sentence, does make clear that such requests will not be granted if
would result in falling below the minimum staffing level (in the 1995 Addendum) and that
not be reassigned in order to increase staffing on that shift in order to grant the request 3/.
However, it also infers that if granting the request would not cause the staffing level to fall
minimum for that shift, it will generally be granted, and the practice reflects this has been
interpretation. It is not, however, an "automatic" right to have the request granted, as
has reserved the right, both in Article 8 (where "needs of the Department" are defined) and
3, Management Rights, to determine whether there are circumstances that will require a
staffing level on a given shift or day. Again, that determination is subject to challenge based
3/ This clarification in
the second sentence is necessary as reassignment is utilized in some cases of signed vacation
and sick leave under other
provisions of Article 8.
The City asserts it made a determination that the City has grown in area and
that a staffing level higher than the contractual minimums is now required on an everyday
While management has the right to determine the level of services it will provide (i.e., the
staffing level), as it impacts the ability of officers to take compensatory time off under the
paragraph of Article 8, the contractual minimum staffing level set forth in the 1995
remains the standard by which requests to take compensatory time off will be granted or
absent special events or circumstances that would require a higher level of staffing on the
shift or day
in question. To conclude otherwise would make meaningless the reference to "the minimum
for the shift" in that provision of Article 8, and would also
effectively unilaterally amend the minimum staffing levels set forth in the 1995
to paragraph 1 of that addendum. 4/
4/ While the parties had
discussed work schedule changes and changes in vacation procedure prior to management
implementing the changes
and the new policy of only one "off" per shift, it is clear neither party considered those
discussions to be "negotiations" or the change to have been
mutually agreed upon.
In summary, the last paragraph of Article 8 infers that a request to take compensatory
off will generally be granted if it will not result in falling below the minimum staffing level
shift, unless management determines there are special circumstances that will require a
above the minimum for that shift. As with any management decision, such a determination
ultimately subject to challenge on the basis of its reasonableness under the circumstances. 5/
consistent with both the wording and the practice of the parties.
5/ If there is a dispute in
that regard, as with other disputes over their respective contractual rights, the parties might
be able to reach a
mutually-agreeable accommodation as they have at times in the past, or it may have to be
resolved through their grievance procedure.
In both instances in issue in this case, it is undisputed that management's denials of
requests to take compensatory time off were not based not upon a determination that there
special circumstances requiring a higher staffing level on those days, but upon the new policy
one "off" per shift. As Chief Tellock concedes that the requests were denied on the basis of
policy, and not on any special circumstances that required a staffing level above the
minimum for the shifts in question, and given that granting the requests would not have
falling below the minimum staffing levels for those shifts, it is concluded that denial of the
violated the last paragraph of Article 8 of the Agreement.
Based upon the foregoing, the evidence, and the arguments of the parties, the
undersigned makes and issues the following
The grievances are sustained. The denial of the requests of Sergeant Thompson and
Officer Van Price based upon the policy of only one "off"
per shift, without any other circumstances to justify a need to deny the requests, violated
Article 8, Hours of Work.
Dated at Madison, Wisconsin, this 1st day of February, 2002.
David E. Shaw,