BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
NEW BERLIN PROFESSIONAL
POLICE ASSOCIATION, INC.
CITY OF NEW BERLIN (POLICE
(Grievance of Christine Chialiva)
Mr. Patrick J. Coraggio and Mr. Kevin Naylor, Labor
Consultants, Labor Association of Wisconsin, Inc., 2835 North Mayfair Road, Wauwatosa,
Wisconsin 53222, appearing for the Association.
Seneczko Law Offices, S.C., by Attorney Alan E. Seneczko,
10701 West National Avenue, Suite 200, Milwaukee, Wisconsin 53227, appearing for the
The Association and the City are parties to a collective bargaining agreement which
effect at all times relevant to this proceeding and which provides for the final and binding
of certain disputes. The Association requested and the City concurred, that the Wisconsin
Employment Relations Commission appoint an arbitrator to resolve a dispute as set forth
Commission appointed Dennis P. McGilligan, a member of its staff. Hearing on the
matter was held
on August 28, 2001, in New Berlin, Wisconsin. The hearing was transcribed, and the
briefs and reply briefs by December 26, 2001.
The parties were not able to stipulate the issues for decision. The Association poses
Did the City of New Berlin violate the collective bargaining
agreement between the City and
the New Berlin Professional Police Association when they discontinued the contractual
biweekly pay of Christine Chialiva, after October 13, 2000?
If so, what is the appropriate remedy?
The City frames the issues in the following manner:
Whether the City violated Art. XII of the labor agreement when it
denied the grievant's request
for salary continuation benefits? If so, what is the appropriate remedy?
Having reviewed the entire record, the Arbitrator frames the issues as follows:
1. Did the City of New Berlin violate Article XII of
the collective bargaining agreement when
it informed the Grievant, Christine Chialiva, by letter dated October 13, 2000, that it was no
longer going to provide her with supplemental pay benefits?
2. If so, what is the
Facts Giving Rise to the Instant Dispute
The parties stipulated to the following facts.
Christine Chialiva was hired as a police officer for the City of New Berlin, herein
January of 1997. She was functioning as a police officer on July 13, 1998.
Officer Chialiva, herein "Grievant," suffered a work related injury on July 13, 1998.
Subsequent to the injury, the Grievant presented notes from various physicians who
her from work or restricted her to part-time work, subject to restrictions. These restrictions,
prevented the Grievant from returning to her regular duties from approximately July 1998
On September 4, 1998, and again on January 7, 1999, the City's worker's
insurance carrier, Ace Property and Casualty Insurance, sent the Grievant a letter denying
for worker's compensation.
On September 30, 1998, the Grievant requested supplemental pay benefits pursuant to
On October 2, 1998, the Grievant filed a worker's compensation claim for her work
injury with the Wisconsin Worker's Compensation Division, Department of Workforce
("DWD"). On October 19, 1998, DWD provided "Notice" of the Grievant's application for
on the claim to the City.
On January 5, 1999, the Grievant requested continuation of her salary "in accordance
the contract, section 12.05 until a decision is rendered by" DWD.
On January 18, 1999, the Grievant signed a promissory note pursuant to Article XII,
12.05 of the agreement.
The City and its insurance carrier denied the compensability of the claim and liability
certain temporary disability benefits which resulted in a hearing before Administrative Law
James G. Lawrence on July 19, 1999. At the hearing and at all relevant times herein, the
was represented for purposes of her worker's compensation claim by Attorney Michael H.
On August 23, 1999, Administrative Law Judge Lawrence issued an Interlocutory
finding that the Grievant sustained an injury arising out of her employment with the City. A
petition for review was subsequently filed.
On August 23, 1999, the Grievant filed a claim with the Department of Employee
seeking duty disability benefits under Sec. 40.65, Stats.
On March 31, 2000, the Labor and Industry Review Commission affirmed
Judge Lawrence's findings and order.
The Grievant has received supplemental pay benefits under Article XII from July 13,
through October 13, 2000. By letter dated October 13, 2000 the City advised her that "we
longer willing or able to provide you with supplemental pay benefits."
The Grievant received a total of $22,949.24 in supplemental pay benefits for a total
The Grievant's last full paycheck was through October 13, 2000.
The Grievant has been working light duty Monday, Wednesday and Friday from 6:45
10:45 a.m. as a teleserv officer and since September 5, 2000 has been paid for twelve hours
week/24 hours bi-weekly. Her current bi-weekly pay is $597.84.
By letter dated October 16, 2000, the Association sent Ms. Tamara (Tami) Potkay,
of Human Resources for the City, a letter challenging the termination of the Grievant's
pay benefits. The Association attached a copy of a "Notice of Hearing" scheduled by the
Notice referenced a hearing date of 9/26/2000. The letter added that the hearing concerned
Grievant's claim of permanent disability (i.e. extent of injury) which was heard by ALJ
Phillips Jr. The letter concluded: To my knowledge no decision has been rendered by the
no final resolution has been made in which both parties have exhausted all appeals under the
of Wisconsin statutes."
The aforesaid attached "Notice of Hearing" stated regarding the issues to be heard:
The City responded to the Association on October 18, 2000 stating in material part:
This letter is being sent in response to your October 16, 2000
objection and request for
clarification concerning the termination of Christine Chialiva's supplemental pay benefits
Article XII of the Labor Agreement.
Reading your letter, it appears that certain
basic facts underlying the current situation need
to be clarified.
As you know, Section 12.02 provides for
up to 12 months of supplemental pay benefits in the
event of a difference between an officer's worker's compensation benefits and regular gross
Section 12.03 further explains how that benefit is to be administered while the worker's
carrier is evaluating the underlying compensability of the claim. Sections 12.04 and 12.05
address the payment of that benefit in the event the officer appeals the worker's
carrier's determination on compensability,
end of healing period, etc. Thus, Article
XII clearly relates to claims for worker's compensation
benefits under Chapter 102 of the Wisconsin Statutes.
The problem is that the current situation does
not involve a claim for worker's compensation
benefits. The current situation, the claim that is currently pending and went to hearing on
26, 2000, involves a claim for duty disability benefits under Chapter 40. This claim does
worker's compensation benefits and our worker's compensation carrier has nothing to do
Christine Chialiva's worker's compensation claim ended in March, 2000.
Simply stated, Article XII does not apply
to claims for duty disability benefits.
On October 25, 2000 the Association provided the City with a
Grievance Worksheet which
challenged the City's October 13, 2000 refusal to continue her full salary. The grievance
the aforesaid action violated Article XII, Sections 12.04 and 12.05. The Association
withdrew the Grievance Worksheet on December 1, 2000.
On November 16, 2000, the Grievant advised Human Resources Director Potkay that
making a claim for functional permanent disability and requested continuance of her salary
a written decision by the worker's compensation carrier. In support of her claim, she
attached a letter
from Attorney Gillick to James G. Budish, Attorney for the worker's compensation carrier.
letter Gillick noted that the Grievant was presently also litigating the issue of Duty Disability.
Grievance Chair Jeff Herro presented a Grievance Worksheet dated December 13,
Acting Chief of Police, Daniel Noordyk, protesting the City's failure to respond to the
November 16 request for salary continuation "until a decision of compensability by the WC
The grievance alleged that the City had violated Article XII, Sections 12.03, 12.04 and 12.05
failure to respond.
On December 14, 2000, Noordyk responded to the grievance determining that it
be resolved at that level; identifying that steps two and three of the grievance procedure had
fulfilled; and moving it to step four.
On January 2, 2001, Grievance Chair Herro requested payment for the Grievant to
Resources Director Potkay. Herro noted: "besides filing for 40.65 disability retirement,
Chialiva has also filed for permanent disability under Wisconsin Workers Comp. Laws."
the City to comply with Article XII of the agreement and continue the Grievant's salary and
reimburse her for all lost salary or time as of November 16, 2000.
On January 8, 2001, Human Resources Director Potkay responded to Grievance
denying the Chialiva grievance dated December 13, 2000.
On January 10, 2001, Grievance Chair Herro responded to the above letter taking
the City's interpretation of Article XII, and asking the City to continue the Grievant's full
a final decision on her "outstanding WC Claim for a permanent partial disability."
By letter dated January 19, 2001, Human Resources Director Potkay informed
Chair Herro that "we disagree with your interpretation of the contract for reasons previously
This grievance is therefore denied."
On February 7, 2001, a written grievance was signed by Grievance Chair Herro and
forwarded to the Chief of Police. The grievance noted that in November, 2000, the City was
of the Grievant's claim for functional permanent disability and that as of February 5, 2001,
worker's compensation carrier had not made a decision on the Grievant's claim for 4%
partial disability. The grievance also noted that Section 12.03 provides that "Pending the
decision of compensability by the WC carrier, the employee shall not suffer any loss in
grievance maintained that the City violated the express and implied terms of the agreement
failed to pay the Grievant her full salary until a written decision of compensability by the
Thereafter, the matter proceeded to arbitration.
On July 30, 2001, Administrative Law Judge William Phillips, Jr., determined that
Grievant is entitled to duty disability benefits pursuant to sec. 40.65, Stats., and issued an
her to receive benefits from the Department of Trust Funds.
The City has appealed the ruling of Administrative Law Judge William Phillips, Jr.
Background of the Disputed Contract Language
The parties stipulated to the basic underlying facts leading up to agreement on the
The Association and the City have had a collective bargaining
agreement in full force and
effect at all times material hereto. This agreement contains a provision relating to "Service
Disability," Article XII.
Gary Blunt was the Chairman of the Association Bargaining Committee during
1998 and 1999 and negotiated the collective bargaining agreement for calendar years 1999
Human Resources Director Potkay represented the City in those negotiations.
During those negotiations the language in Article XII Service Incurred
discussed, negotiated and changed.
Gary Blunt testified that the reason for negotiating a change in the language of the
Article was that officers were not receiving wage benefits while off work due to an injury
of their employment when the insurance company denied their claim. Instead, they were
use other benefits they received from the City like sick leave or vacation. This was causing
problems: "the guys thought they were getting screwed over because they're not getting no
during this time."
Human Resources Director Potkay testified that there had been some claims by
claims were denied; they appealed; and while the determination of compensability was
employees were given the option of using sick leave or vacation to cover their absences from
or going without pay. In other words, while the dispute over whether this was work-related
continued they received no wages. They would be given the option of using their other
Association brought this problem to the attention of the City during negotiations and "we
through different language scenarios, we met with the mayor, we talked about the concerns,
agreed on the final language."
During these negotiations, the Association proposed on September 28, 1998, to
Section 12.03 in part as follows:
If a worker's compensation claim is determined to be
related by the City's WC
carrier or if their (sic) is a dispute as to the period of healing, extent of injury, etc. the
appeal the decision of the WC carrier.
In her response to the above offer, Human Resources Director Potkay took "extent of
out and it was ultimately excluded from the final agreement. She took it out because the
"extent of injury" was a separate issue relating to permanent disability. She testified that the
of the injury "is separate from the period of healing which would be the time missed from
we would be required to cover the wages" under the contractual language.
Instead, Human Resources Director Potkay proposed on September 29, 1998 that
12.03 read as follows:
Pending the decision of compensability by the worker's
compensation carrier, the employee shall
not suffer any loss in salary. If deemed compensable, the city will make the proper
the employees salary in accordance with section 12.02.
The concept of "pending the decision of compensability by the worker's
the employee shall not suffer any loss in salary" remained in all subsequent drafts of Section
and ultimately was included in the final agreement.
Human Resources Director Potkay testified that the purpose of Article XII is to
employee from wage loss "pending a decision on compensability." Potkay stated that the
"compensability" was specifically used in the contract and means "whether or not a injury is
to the job." Potkay added that the Article XII salary continuation benefit was intended to be
for twelve months, and that it was not discussed that it would exceed twelve months.
Gary Blunt testified:
Intent of this language in 12.03 is that pending a written decision
from the worker's
compensation carrier, the employee would not suffer any loss in salary. If the worker's
carrier determined that the claim was a compensable one, then it reverts back to
as far as how to pay out that claim.
Section 12.04 simply states that if an employee wishes to appeal
the worker's compensation
carrier's determination on compensability relating to the period of healing, extent of healing,
which in my mind was any disagreement that they wish to appeal with the worker's
compensation carrier, that the employee was entitled to do so under the provisions of the
Blunt stated that Section 12.04 "would go beyond the appeal of the initial worker's
denial" and "would include any litigation relative to an injury on duty" including "a request
for a 4065
pension" relating "to a service incurred disability."
Blunt added: "At the time this was drafted, it was my understanding that DWD would
third-party arbitrator per se to decide the finality of these claims"(relating to injuries
working). Blunt understood: "until the finality of the claim had been decided that the
signing a promissory note would continue to get their full pay."
The 1999-2000 collective bargaining agreement was entered into voluntarily between
and the Association.
1996-1998 Collective Bargaining Agreement
ARTICLE XII SERVICE INCURRED
Section 12.01: Any
absent from work because of disability arising in the course of
his employment shall receive the difference between his Worker's Compensation benefits and
eighty-five percent (85%) of his regular full gross salary for a maximum of twelve (12)
months. (If the tax
laws are revised so that Worker's Compensation benefits are treated as taxable income, this
will be revised to delete the phrase "eighty-five percent (85%) of".)
The Employer agrees to provide claim
forms and assistance in processing a claim pursuant
to the current practice now in existence. Employees shall not lose any salary because of
filing a claim
under this Section. The provisions of Section 40.29, Wis. Stats., shall not be applicable.
. . .
1999-2000 Collective Bargaining Agreement
ARTICLE XII SERVICE INCURRED
Section 12.01 The City
of New Berlin will provide claim forms (WC-12) and assistance in
filing a claim with the city's worker's compensation carrier.
12.02 Any officer absent from work because of a disability, injury or
in the course of employment shall receive the difference between the WC benefit and
(85%) of the regular full gross salary for a maximum of twelve (12) months. (If the tax laws
revised so that WC benefits are treated as taxable income, this paragraph will be revised to
phrase "eighty-five percent (85%) of")
Section 12.03 Pending the
written decision of compensability by the WC carrier, the
employee shall not suffer any loss in salary. If the WC carrier determines that the claim is
compensable, the City will make the proper adjustments to the employees salary in
section 12.02. If the WC carrier determines that the claim is non-compensable, the
adjustment will be made to the employee's
pay, or sick leave bank if appropriate, to compensate
for all money erroneously paid to the employee in relating to filing a claim under this article.
12.04 If the employee wishes to appeal the WC carrier's determination on
compensability, or on the period of healing, extent of healing, etc., the employee may do so
provisions of the Wisconsin Statutes. An employee wishing to exercise his/her right to
do so by filing an Application for Hearing with the Department of Workforce Development
Section 12.05 In the event
that an employee has filed an appeal to the DWD within thirty
(30) days of being notified in writing of the determination of the WC carrier and during that
(30) day period an employee submits a written request, which includes a signed promissory
(Note: The form of the Promissory Note has been initialed by the parties on November 25,
the Human Resources Department to have the City continue the employee's salary while the
is pending, the City shall continue the employee's full salary until the date of the decision of
or the date the employee withdraws his/her request or appeal, if earlier. An employee who
or loses an appeal to DWD is obligated to repay the City for any salary continuation
were granted under this Section. The City will make adjustments to the employee's future
the rate of reduction not to exceed 25% of the employee's gross salary for all regular pay
and 100% of the employee's holiday paycheck, until such debt is repaid. However, if
the City, the employee may choose to repay the City, in whole or in part, by having the City
the appropriate number of days from an employee's sick leave account, vacation account,
If the employee terminates employment with the City without
having repaid the full amount
of the salary continuation payments the employee was obligated to repay, the City shall be
to apply any termination payments owed such employee, including salary, muster, vacations,
compensatory time off, holiday pay, etc., toward such repayment. If there still is a balance
City shall be entitled to apply any amount owed the employee under Section 6.04 (unused
accumulated sick leave) toward such repayment with any balance to be paid by the employee
thirty (30) days of said termination unless the City agrees to some other repayment plan. If
employee fails to repay the City in the agreed upon amount of time, said employee will lose
all benefits provided for in Sections 5.03, 5.05, 5.07 and 5.08. The Association agrees that
event the City incurs legal fees in recovering any amount due
under such Promissory Note, the
Association will be liable for one-half (1/2) of such attorney
fees, up to a maximum of $2,500.00.
POSITIONS OF THE PARTIES
The Association makes the following principal arguments.
The Arbitrator is being asked to interpret and apply the
language found in the agreement.
In doing so, he may not exceed his authority. He may not ignore clear language and rewrite
It was necessary to change Article XII so that employees who suffer on-the-job
not suffer financial hardship, or loss of benefits while an appeal was pending, due to the
company's willful denial of legitimate worker's compensation claims.
Lieutenant Blunt's testimony clearly demonstrates that the Association negotiated the
in Article XII to protect an officer's wages while any appeal was pending. The aforesaid
language "may be some what ambiguous in part, but the intent of the language is crystal
clear as set
forth in the testimony of Lt. Gary Blunt."
If the contract language is clear and unambiguous the Arbitrator need look no further
to ascertain the intent of the parties. However, the Arbitrator may look to other sources to
the parties' intent including, but not limited to, pre-contract negotiations, bargaining history
practice. All of these criteria support the Association's position.
The Association points out that it agreed to safeguards for the City in Article XII. In
the Association argues the City agreed contractually to provide wages and benefits to the
during any appeal process related to an injury sustained in the line of duty.
The City's argument regarding a maximum supplemental payment to worker's
of twelve months lacks merit because it relies on a single sentence in Section 12.02 which
the circumstances described therein an officer will receive salary continuation benefits "for a
maximum of twelve (12) months." This ignores the newly negotiated language currently
Section 12.03 which provides: "Pending the written decision of compensability by
carrier, the employee shall not suffer any loss in salary." It also
ignores the reasons for changing
the language in Article XII in the first place. The Association concludes that any
than Section 12.03 was meant to provide officers with full salary
benefits while a claim is pending
fails the test of reasonableness.
The Association's interpretation of Article XII makes sense and is not absurd. In
the City's argument that the Association's interpretation of the disputed contract language
officers with minor injuries that are disputed more than officers who suffer more serious
injuries" makes no sense because it is the insurance carrier who is responsible for this
insurance carrier bears sole responsibility for the duration of time it takes to resolve claims
of their propensity to deny legitimate claims.
The Grievant's litigation under Sec. 40.65 Stats., stems from her work related injury
13, 1998. While the disputed contract language does not specifically cover any appeal made
employer, its intent is clear to cover the employee and provide benefits while any
appeal related to
an on-the-job injury is pending.
If the Arbitrator applies the plain meaning of the word "maximum" to the facts of the
the Association believes the Grievant is entitled to Service Incurred Disability pay "beginning
the final determination of compensability of a specific WC claim."
The City's interpretation of Sections 12.03, 12.04 and 12.05 ignores bargaining
is also nonsensical when one considers the fact that the twelve-month benefit was already
Article XII prior to the creation of the aforesaid Sections. Consequently, there was no need
Association to make the concessions that it did unless it was for the purpose of obtaining
income protection for officers who find themselves in disputed worker's compensation claims
exceeding twelve (12) months.
The City describes Article XII as "an elaborate mechanism to
address the injured officer's
wage loss in the event of a disputed claim." The Association agrees with this definition.
the Association finds it hard to believe that the City truly believes that an elaborate
as Article XII, could possibly be administered in a "one size fits all" fashion as is possible
benefits like vacation time. This is particularly true due to the uncertainty created by
denials of legitimate claims.
Sections 12.03, 12.04 and 12.05 must be read to supplement and add to the
limit set forth in the Agreement.
Based on the record and the foregoing, the Association respectfully requests that the
Arbitrator sustain the grievance and award the appropriate remedy.
The City summarizes its position as follows.
The provisions and intent of Article XII are both clear and unambiguous.
Under the 1996-98 version of Section 12.01, officers injured at work were entitled to
months of service incurred disability pay, but not if the worker's compensation insurance
challenged the compensability of their underlying injury. The parties therefore created an
mechanism (Article XII) to address an injured officer's wage loss in the event of a disputed
This mechanism compensates officers recovering from work-related injuries for any
they may suffer due to the difference between their worker's compensation benefit, if any,
pay. The benefit is payable for a "maximum of 12 months" and is available even if the
worker's compensation claim is denied by the City's worker's compensation insurance
Section 12.02 creates the benefit; Section 12.03 explains how it relates to the insurance
decision; Section 12.04 sets forth an employee's appeal rights; and, Section 12.05 explains
benefit is payable and/or recoverable in the event of an appeal. Simply stated, the aforesaid
establish how the benefit provided by Section 12.02 is to be administered when the
of an officer's injury or the duration of her recovery are disputed by the
These provisions all work together and must therefore be interpreted accordingly, i.e.
manner that reflects and supports the purpose and intent of the entire Article, and not just
The "maximum" benefit available under Article XII is 12 months of service incurred
pay. This is what the contract expressly provides and this is the only interpretation that is
with the plain meaning of the word "maximum." Moreover, a contrary interpretation would
unreasonable and absurd results, since it would place officers with conceded claims in a less
position than officers with disputed claims.
The Grievant has already received 24 months of service disability
benefits under Article XII.
This is 12 more months that she is entitled to under the contract. She has exhausted all of
available to her under the Article and she is not entitled to more.
The subject matter of the present grievance i.e. the Grievant's claim for permanent
benefits, is beyond the scope of Article XII for a number of reasons.
First, contrary to the Association's assertion, Article XII does not apply to appeals of
for duty disability benefits under Section 40.65 Stats. The Association's own actions in
a claim for duty disability benefits under Section 40.65 Stats., belie its contention.
Second, her request for permanent disability benefits does not relate to any wage
does not involve a dispute concerning the "compensability" of her claim or her "period of
extent of healing," prerequisites for benefits under Sections 12.03 and 12.04.
The purpose of new Sections noted above was to put officers with disputed claims on
same footing as officers whose claims were not meaning that they too would be
entitled to "a
maximum of 12 months" of service incurred disability benefits while their claims were being
Nothing offered by the Association about the history and original intent of the new
rebuts this basic premise.
Nor is the Association's argument that Blunt "intended" Article XII to provide for
benefits supported by any evidence in the record or elsewhere.
The Association's argument that because the contract contains a provision for
benefits paid to officers whose claims are ultimately found to be not work-related (Section
there is no 12-month cap on the benefit is flawed. The right of recovery contained in the
Section provides that the parties "intended" that an officer who received 12 months of
benefits he was
not entitled to has to pay them back, not that the benefits he received during litigation is
The City asserts that the purpose of Section 12.03 is simple: an officer is entitled to
12 months of benefits while his claim is pending, the same as if his claim was never denied
in the first
place. The City adds that the reason for a Promissory Note protecting the City while an
pending is also simple: an officer whose injury is found not to be work-related will have
months of benefits that he was not entitled to.
The Association's position that officers with conceded injuries are limited to just 12
of benefits, even if it takes longer to recover, while officers with disputed injuries receive
benefits, cannot be succeed by blaming the insurance company and its "propensity to deny
The City requests that the grievance be denied.
At issue is whether the City violated Article XII of the collective bargaining
it informed the Grievant by letter dated October 13, 2000, that it was no longer going to
with supplemental pay benefits.
The Association argues for such a violation, while the City takes the opposite
As stated in Barron Area School District, Case 44, No. 59352, MA-11262, pp. 8-9
(McGilligan, 9/01), and Manitowoc County (Sheriff Department), Case 68, No. 59857,
MA-11431, p. 14 (McGilligan, 1/02), contract interpretation involves giving meaning to the
conduct used by the parties in their collective bargaining agreement. Labor and
Arbitration, Volume 1, Tim Bornstein, Ann Gosline and Marc
Greenbaum General Editors, Chapter
9, Contract Interpretation and Respect for Prior Proceedings by Jay E. Grenig,
s. 9.01, 9-3 (1998).
Ideally, contract interpretation results in a determination of exactly what both parties in fact
mind or intended. This ideal is seldom attainable:
In the first place, it is impossible to know exactly what the parties
did have in mind. Moreover,
even if this could be determined, it may be doubted whether very many cases would be
found in which
both parties did have exactly the same things in mind. The best we can do is to approximate
by adopting as a goal something that is more nearly possible of attainment. That goal, must,
however, be fair to both parties to the contract. 2/ Labor and
Employment Arbitration, Id., and the
cases cited therein. (Footnote omitted).
Over the years, arbitrators have looked to the principles of contract interpretation for
guidance in interpreting collective bargaining agreements. In the instant case, both parties
various standards of contract interpretation to support their position. However, the principles
contract interpretation serve only as guides and should not be used as rigid or undeviating
be followed as methodically as though labor relations were an exact science.
Labor and Employment
Arbitration, supra, 9-3 and 9-4.
Many arbitration awards interpreting contracts focus on the intent of the parties.
Employment Arbitration, supra, s. 9.01, 9-4. Here, both
parties rely on the parties' intent when
they negotiated the disputed contract language in support of their respective positions.
they differ strongly as to what was intended when the parties agreed to the disputed contract
language. Consequently, the Arbitrator will consider the purpose of the disputed contractual
provision as a basis for its interpretation. The purpose may be ascertained from the language
contract as well as evidence of bargaining history and the parties' administration of the
Labor and Employment Arbitration, supra, 9-5.
The Arbitrator will also consider the arbitration
awards cited by the parties in support of their position as well as other arbitral precedent.
The Association argues that the clear meaning of Article XII, Sections 12.03, 12.04
is that the City cannot discontinue an employee's salary continuation while any worker's
compensation appeal is pending with DWD. The Association maintains that the City violated
clear contractual mandate when it unilaterally discontinued the Grievant's supplemental pay
on October 13, 2000.
Sections 12.02, 12.03, 12.04 and 12.05 of Article XII pose the interpretative issues,
cannot be considered clear and unambiguous since both parties have made plausible, but
arguments regarding their interpretation. An ambiguity occurs when one asks whether the
(12) month "maximum" salary continuation benefit found in Section 12.02 applies to
an employee has filed an appeal of the worker's compensation carrier's determination to the
There is also an ambiguity as to what kinds of claims are covered by the aforesaid
provisions. The Association believes that the twelve (12) month "maximum" contained in
12.02 does not apply when an officer files an appeal of the carrier's determination pursuant
Sections 12.04 and 12.05. The Association also believes that any appeal resulting from an
injury entitles an officer to benefits under Article XII. The City takes the opposite
parties' arguments demonstrate that the disputed contractual provisions, however, do not
unambiguously provide answers to the questions posed above. The Arbitrator, therefore,
attention to the other criteria set forth above.
The Association initially argues that pre-contract negotiations and bargaining history
its position that Article XII protects an officer's wages while any appeals are pending with
Compensation. The record, however, does not support such a finding.
Lieutenant Gary Blunt was one of the authors of the language now found in
Service Incurred Disability of the 1999-2000 collective bargaining agreement.
During his many years as a union official, Lieutenant Blunt became keenly aware of
concerning disputes over worker's compensation claims filed by Officers Steve Schulte, Kim
and Duane Schlottke.
Lieutenant Blunt testified that Officer Schulte was injured twice during the course of
employment and that on both occasions he filed worker's compensation claims. (Tr. p. 14).
most recent occasion, Officer Schulte suffered an injury to his lower abdomen while booking
suspect. (Tr. pp. 14-15). Officer Schulte's subsequent worker's compensation claim was
denied by the insurance carrier. (Tr. p. 15). He filed an appeal and was eventually
obtaining payment from the worker's compensation provider. Id.
Officer Schulte was also involved in an on-duty squad car accident which resulted in
to his lower back. Id. He filed a worker's compensation claim which was also
initially denied by the
insurance carrier. Id. Officer Schulte filed an appeal and was eventually paid
for the back injuries he sustained in the squad car accident. (Tr. p. 16).
Likewise, Officer Kim Friese "was at the scene of the accident and twisted her knee
subsequently resulted in surgery." (Tr. p. 18). The insurance company denied her worker's
compensation claim. Id. Officer Friese prevailed in her appeal, and she was
for her on-the-job injury. Id.
Finally, Lieutenant Blunt testified that within the last four to five years Officer Duane
Schlottke filed a worker's compensation claim for an on-duty injury that was initially denied
insurance company only to be upheld on appeal. (Tr. pp. 20-21).
In at least two of the above cases, although appeals were successful, the officers
found it necessary to supplement their incomes with other forms of paid time such as sick
the claims were being appealed. (Tr. pp. 16-19).
Lieutenant Blunt testified the membership was frustrated with the insurance
of worker's compensation claims, and these denials had a corresponding negative effect on
(Tr. pp. 21-22). He added that officers were "frustrated to the point where they were and
changing the contract language." (Tr. p. 23).
Article XII of the 1996-1998 collective bargaining agreement was the language that
effect at the time, and "the language that the Association felt was problematic." (Tr. p. 27).
Article XII, officers who were absent from work because of disability arising in the course of
employment received a salary continuation benefit for a maximum of twelve (12) months if
was approved by the worker's compensation carrier. However, officers whose worker's
compensation claim was denied did not receive salary continuation. Instead, they "were
option of using sick leave to cover their absences from work or using vacation or going
(Tr. p. 142). The Association wanted to address this problem: "there would be a dispute
whether this was work-related or not and they would receive no wages while that dispute was
Lieutenant Blunt communicated the above concerns and frustrations of the
membership to both Human Resources Director Potkay, who represented the City in
with the Association, and Mayor Gatzke. (Tr. p. 25). The Association set out to amend
so that employees who suffered "on-the-job injuries would not be made to suffer financial
or loss of benefits while an appeal was pending, due to the insurance company's willful
legitimate worker's compensation claims."
However, contrary to the Association's assertion, this "pre-construction evidence of
of the parties" does not support the Association's contention that any appeal to Worker's
Compensation will trigger the income continuation benefit found in Article XII. The record
that Officers Schulte, Friese and Schlottke filed worker's compensation claims under Chapter
in order to be compensated on a temporary basis while they recovered from
injuries received during the course of their employment. (Tr. pp. 14-21, 154-155).
There is no
persuasive evidence in the record that they filed permanent disability claims under Chapter
Section 40.65 duty disability claims like the Grievant herein. Therefore, this evidence does
support the Association's claim that the Grievant should receive salary protection while she
those kinds of claims.
Likewise, bargaining history does not support the Association's position.
Lieutenant Blunt testified that there was a morale problem because officers weren't
worker's compensation benefits because their claim had been denied, and "they were forced
their other benefits." (Tr. p. 57). Blunt stated: "this was what was causing the morale
guys thought they were getting screwed over because they're getting no wages during this
Id. Blunt explained that the intent of Article XII is to protect an officer from a
wage loss "while
they're getting screwed around by an insurance company." (Tr. pp. 57-58). Blunt added
purpose of the amendments to Article XII "is to protect an officer's wages in the event he
work-related injury that causes him to be absent from work" and "during any appeal
As a result, the service incurred-disability benefit provided in Article XII is expressly
connected to the difference between an officer's worker's compensation benefit and regular
(Section 12.02), or salary loss in connection with disputes over compensability
The words used in Article XII are critical. Liuetenant Blunt acknowledged that the
Worker's Compensation Act incorporated various "terms of art" unique to that law, and that
familiar with those terms. (Tr. p. 51). These "terms of art" include "compensable" and
"compensability," which are used in connection with issues concerning the cause of injury
question of whether it is "work-related." (Tr. p. 52). Blunt also acknowledged that the
continuation benefit provided in Article XII is triggered by disputes over the
"compensability" of a
claim, and that this same reasoning applies to "appeals" under Section 12.04. (Tr. pp. 59,
In addition, Lieutenant Blunt acknowledged that eligibility for temporary disability
under the Worker's Compensation Act depends upon the healing process; more specifically,
question of whether an individual has reached an "end of healing" words that are
also found in
Section 12.04. (Tr. pp. 53-54). The temporary disability benefit is the wage indemnification
officer would receive under the worker's compensation law while recovering from that
p. 53). The wage benefit is two-thirds of the officer's average weekly wage but it's not
If the insurance carrier determines that an officer has reached an "end of healing," the officer
entitled to any further wage indemnity benefits (temporary benefits). (Joint Exhibit Nos. B1,
As pointed out by the City, the above words are critical for two reasons. First, they
in and relate directly to Article XII. They are also consistent with the underlying purpose of
XII: to protect officers from any wage loss they may suffer in the event of disputes about the
underlying cause of their injury or how long it is taking them to recover.
(Emphasis in the original).
Second, they exemplify why the Grievant's present claim has nothing to do with Article XII.
In this regard, the Arbitrator points out that when the Grievant filed her first claim
disability benefits in September 1998 and January 1999, the compensability of her claim was
dispute, as well as the extent of her healing. (Joint Exhibit Nos. B1, B2, B3 and C). She
therefore eligible for, and granted, service disability benefits under Article XII while her
pending. However, these issues were resolved by ALJ Lawrence on August 23, 1999 and by
Labor and Industry Review Commission on March 31, 2000, when the Grievant's injury was
to be compensable and she was awarded temporary disability benefits for her wage loss.
Exhibit Nos. E and F). All of these issues and disputes are consistent with the intent and
Article XII based on bargaining history.
The facts underlying the Grievant's first claim under Article XII must be contrasted
underlying her present claim. On November 16, 2000, the Grievant presented her current
service incurred disability benefits on the ground that she was "making a claim for
permanent disability." (Emphasis in the original). (Joint Exhibit No. H). Attached
to her request was
a letter from her attorney, who specifically noted that the Grievant had "successfully
case as work related." Id. Hence, at the time she requested additional benefits
under Section 12.03,
no dispute existed concerning the "compensability" of her claim for temporary disability
which is received "while the officer's healing." (Tr. p. 54).
Claims for "functional permanent disability" under the Worker's Compensation Act
direct relation to an individual's wage or wage loss a fact recognized by the Union.
(Tr. pp. 54-55).
They compensate an employee for permanent damage to some part of the body. In the
November 16th letter, the Grievant was making a claim for a "4%
permanent partial disability." (Joint
Exhibit No. H). Permanent partial disability benefits ("PPD") are payable regardless of
employee is working. (Tr. p. 74). Applied to the Grievant, a claim for 4% functional PPD
the Grievant to $179/week for 40 weeks, and she would receive the amount whether she was
full time or not at all. (Tr. pp. 54-55, 108).
Section 102.44 and 102.52 Stats., make it clear that permanent disability benefits
an employee for permanent damage to some part of the body. As discussed below, by
reference to "extent of injury" from the final language of Article XII, the parties expressly
contract provision to situations involving temporary disability.
The above facts clearly distinguish the Grievant's PPD claim from her prior claim
essence of Article XII. Article XII is intended to protect an officer from potential wage loss
the compensability of the officer's temporary disability claim and/or period of healing is
disputed. Yet, the PPD the Grievant has requested has nothing to do with her current work
or restricted duty. (Tr. p. 74). In other words, the benefit she is now seeking has no
relation to, and
will not compensate her for, any wage loss she may have suffered or may now be suffering.
In addition, while Article XII references "worker's compensation carrier,"
and "period of healing, extent of healing," there is no reference to duty disability, Section
Stats., or the Department of Employee Trust Funds. Article XII also fails to reference
functional disability." There is no persuasive evidence that the parties agreed to include
in Article XII during bargaining. Bargaining history does not support a finding that said
applies to any situation other than worker's compensation claims for temporary disability.
Finally, the Arbitrator notes that Lieutenant Blunt testified that the issue of
disability" relates to the "extent of injury," another worker's compensation term of art. (Tr.
pp. 71-72). In fact, he used those exact words in one of his proposals to the City for the
(Joint Exhibit No. A1, 9/28/98), but they never made it into the final draft of Article XII.
72-73). In other words, the Association unsuccessfully sought to have Article XII include
disability claims. Arbitrators are reluctant to read a provision into a contract where a party
attempted but failed to include it. Elkouri and Elkouri, How
Arbitration Works, (BNA, 5th Ed.,
1997), p. 502.
Lieutenant Blunt, who at one point testified about the importance of precision when
negotiating contract language, (Tr. p. 49), later stated that such "terms of art" should be
the agreement from his use of "etc." (Emphasis in the original). (Tr. p. 71). The
similarly argues that "great weight" must be given Blunt's testimony that he intended that the
contract language protect officers against financial hardship or loss of benefits while any
an officer related to an injury suffered during the course of employment was pending.
is a well recognized arbitral principle that it is the manifested intent of the parties during
that is to be considered by the arbitrator and not the undisclosed intent. Elkouri and Elkouri,
Lieutenant Blunt's use of the word "etc." is also inconsistent with the dictionary
of the word. "Et cetera" is defined as "other unspecified things of the same
class: and so forth."
(Emphasis added). Webster's II, New College Dictionary,
(Houghton Mifflin Company, 1999), p.
385. Section 12.04 states that if an "employee wishes to appeal the WC carrier's
compensability, or on the period of healing, extent of healing, etc., the employee may do so
provisions of the Wisconsin Statutes." In this sentence
"etc." follows the terms "period of healing" and "extent of healing." As noted above,
relate to the availability of benefits for temporary disability. Applying the dictionary
definition of the
term "etc.", any other terms included by the use of "etc." would also have to relate to
disability benefits. There is no proof in the record that duty disability claims or permanent
claims would fall into this category.
The above application of "etc." is much closer to the City's understanding of the use
in Section 12.04 as meaning "along the same lines" and pertaining to the time it takes an
to recover and be able to return to work. (Tr. pp. 149, 168-169). While issues related to
"permanent disability" and "duty disability" may arise under the Worker's Compensation
is no persuasive evidence in the record that they are included in Article XII by the parties'
"etc." in Section 12.04.
Based on all of the above, the Arbitrator rejects the Association's position that
history demonstrates that all claims pursued by an officer are covered by the income
benefit. It is well settled that a party may not obtain through grievance arbitration what it
through negotiations. Elkouri and Elkouri, Id.
A question remains as to whether there is a maximum supplemental payment to
compensation of twelve months.
The Association first argues that only under the circumstances described in
does an officer receive salary continuation benefits "for a maximum of twelve (12) months."
12.02 states: "any officer absent from work because of" an injury "arising in the course of
employment shall receive the difference between the WC benefit and eighty-five (85%) of the
full gross salary for a maximum of twelve (12) months." However, it provides no other
as to when the maximum should apply. It does not state, for example, that the aforesaid
applies only when the worker's compensation carrier determines that a claim is compensable.
The Association also argues that the City's position that a maximum supplemental
of twelve (12) months applies while claims are being disputed ignores the newly negotiated
currently found in Article XII. That language in Section 12.03 states: "Pending
the written decision
of compensability by the WC carrier, the employee shall not suffer any loss in
(Emphasis in the original). The Association states the "fact is that Section 12.03 was meant
provide officers with full salary benefits while a claim is pending."
(Emphasis in the original).
Section 12.03 doesn't say that. It simply provides that pending a written decision of
compensability by the WC carrier, the employee shall not suffer any loss in
salary. (Tr. p. 28).
(Emphasis added). It doesn't address the issue of an officer appealing the WC carrier's
determination. That is done in Sections 12.04 and 12.05.
Section 12.04 recognizes the right of an employee to appeal the worker's
carrier's determination on issues relating to temporary disability pursuant to Wisconsin
There is no persuasive evidence in the record that it includes "any litigation relative to an
duty" or "a request for a 40.65 pension." (Tr. p. 30). Nor does it say anything about the
time the salary continuation benefit is in effect while an appeal is pending.
Section 12.05 basically states that within thirty (30) days after an employee receives a
determination from the worker's compensation carrier, the employee can file a written
request to the
City which would include a signed promissory note to have their full salary continued during
appeal process. Section 12.05 also provides that "the City shall continue the employee's full
until the date of the decision of the DWD or the date the employee withdraws his/her request
appeal, if earlier." This appears to conflict with the mandate found in Section 12.02 limiting
salary continuation benefit to a "maximum of twelve (12) months." A way to harmonize
provisions, however, is to conclude that the "maximum" benefit available under Article XII
(12) months, regardless of whether a claim is conceded or disputed. This approach
two Sections in a manner that allows all of its parts to work together.
Such an approach avoids the "absurd and unreasonable results" pointed out by the
this regard, the Arbitrator points out that the City demonstrated at hearing that the
proposed interpretation of Article XII provides officers whose claims are disputed with
benefits than officers whose claims are conceded. (Emphasis in the original). (Tr. pp.
other words, officers would actually be better off if the insurance carrier denied their claim.
The Association responds to the City's "seemingly valid" argument that the
is advancing would lead to absurd result by blaming it on the insurance company and its
to deny legitimate claims." Assuming arguendo that the
Association is correct in its attack on the
practices of the insurance company, its reasoning still does not follow.
As pointed out by the City, why "would the parties create a mechanism that limited
with conceded injuries to just 12 months of benefits, even if it took them 24 months or
recover, while providing officers with disputed injuries unlimited benefits?"
The Association explains this absurdity by suggesting that the purpose of Section
12.03 is to
"punish" the insurance carrier for making unfounded denials of worker's compensation
to encourage it to concede claims, but offered no persuasive evidence in support of this
In addition, Sec. 102.18(1)(bp) Stats., provides that DWD may "include a penalty in
to an employee if it determines that the employer's or insurance carrier's suspension of,
of or failure to make payments or failure to report an injury resulted from malice or bad
102.22 Stats., provides penalties for delayed payments due an injured employee. Because
Statutes provide for penalties to the WC carrier for bad faith handling of claims, there would
need to include such penalties in the collective bargaining agreement. There is no persuasive
of bargaining history that supports a finding that the parties intended this to be the purpose of
Finally, the Association asks: "What purpose would be served by Section 12.03 if the
(12) month maximum was meant to be enforced while a claim was pending?" As pointed out
City the answer is simple: "That officer would be entitled to receive 12 months of
benefits while his
claim was pending, the same as if his claim was never denied in the first place."
(Emphasis in the
original). The next question: "Why would the Association have agreed to sign a Promissory
protecting the City while an appeal was pending?" Again the answer is simple:
"Because the officer
whose injury is found not to be work-related will have received 12 months of benefits that he
not entitled to." (Emphasis in the original). This is exactly what happened in the
Based on the foregoing, it is clear that there is a maximum supplemental payment to
compensation of twelve months which applies whether the worker's compensation carrier
a claim or there is an appeal of the carrier's determination.
In view of all of the above, the Arbitrator finds that Article XII provides a salary
benefit in cases of worker's compensation claims involving temporary disability only and this
is paid for a "maximum of twelve (12) months." There is no dispute that the Grievant
Therefore, the Arbitrator finds that the City of New Berlin did not violate Article XII
collective bargaining agreement when it informed the Grievant, Christine Chialiva, by letter
October 13, 2000, that it was not longer going to provide her with supplemental pay benefits.
In reaching the above conclusion, the Arbitrator has addressed the major arguments
parties. All other arguments, although not specifically discussed above, have been
reaching the Arbitrator's decision.
Based on all of the above, and the record as a whole, it is my
The grievance filed in the instant matter is hereby denied, and this matter is
Dated at Madison, Wisconsin, this 11th day of March, 2002.