BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
THE SHOREWOOD POLICE ASSOCIATION
THE LABOR ASSOCIATION OF WISCONSIN, INC.
THE VILLAGE OF SHOREWOOD
(Court Time Minimum Grievance)
Mr. Patrick J. Coraggio, Labor Consultant, and Mr.
Benjamin M. Barth, Labor Consultant, on behalf of the Association.
Davis and Kuelthau, S.C., by Mr. Daniel G. Vliet, and
Mr. Joel S. Aziere, on behalf of the Village.
The above-captioned parties, herein "Union" and "Village", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Shorewood, Wisconsin, on October 24, 2001, at which time the parties agreed that I
my jurisdiction if the grievance is sustained. The hearing was not transcribed and the parties
thereafter filed briefs that were received by December 6, 2001.
Based upon the entire record and arguments of the parties, I issue the following
Since the parties were unable to jointly agree on the issue, I have framed it as
Did the Village violate Article VI of the contract when it refused
to pay a minimum of 3 hours
court time pay to officers Kevin Carini and Ilya Levkov for their February 28, 2001, court
and, if so, what is the appropriate remedy?
Officers Kevin Carini and Ilya Levkov are members of the Shorewood Police
On February 28, 2001 (unless otherwise stated, all dates herein refer to 2001), they were
to be witnesses in circuit court in Milwaukee by 1:30 p.m. They reported in full uniform to
station at about 1:00 p.m., picked up a patrol car, drove it to the courthouse, and returned to
police station at 2:10 p.m. Both officers were scheduled to work from 2:45 p.m. to 11:00
day, and they did so. On March 5, they requested 3 hours minimum court time under
Article VI of
the contract. Their request was denied by then-Captain Michael Meehan.
Meehan previously took care of all records relating to court time between 1985-2000.
testified that the contractual overtime provision in Section 6.01 applies to "anything that
with the shift", either before or after; that officers on the 10:45 p.m. to 7:00 a.m. late shift
always received a minimum of 3 hours court time because they are off duty when they
witnesses in court; that officers on the 6:45 a.m. 3:00 p.m. day shift do not get
court time because
they serve as witnesses anytime during their shift; and that officers on the 2:45 p.m.
11:00 p.m. shift
do not get court time because their court time is added to their regular shift, which is what
here. Meehan added that while the City is willing to pay Carini and Levkov overtime for the
they worked between 1:00 p.m. and 3:00 p.m. on February 28, it is unwilling to pay
minimum 3 hours court time they requested. He also said that Carini and Levkov were in
when they went to court on February 28 and that they were on duty when they returned from
and reported back to work.
On cross-examination, Meehan testified that he does not know what duties Carini and
performed when they returned back from work on February 28; that no one on that day told
report to supervision; that the City in past contract negotiations proposed to change the prior
minimum court time to 3 hours (Employer Exhibit 1); and that there is no written document
that employees do not receive 3 hours minimum court time if that time is contiguous to a
POSITIONS OF THE PARTIES
The Association contends that Article VI is clear and unequivocal in providing for a
three-hour guarantee for the court time of off-duty personnel and that the testimony here
position. As a remedy, the Association requests that the grievants be fully compensated by
to them three hours court time at time and one-half and that the Village pay such court time
The Village contends that the grievance is without merit because the Association has
to meet its burden of proving that the Village has violated the contract; because
Article VI is "plain
and unambiguous on its face" in providing court pay only for off-duty personnel; and
grievants here were on duty when they reported to the station house at 1:00 p.m. It also
past practice supports its position and that, "Nothing in the record supports the grievants'
This case mainly turns on the interpretation and application of Article VI of the
entitled "Overtime", which states in pertinent part:
Section 6.01: Overtime
be paid at the rate of time and one-half (1 ½) for all hours
worked over eight (8) hours per day or forty (40) hours per week, subject to the provisions
Section 5.03 hereof. The rescheduling of a work shift to avoid payment of overtime will not
permitted unless the officer mutually agrees, and the rescheduling period is not less than
days nor more than sixty (60) days. However, the scheduling of hours worked for a duty
remain under the control and discretion of the Chief of the Police Department as prescribed
Police Department Rules and Regulations. In addition, the Police Chief may continue to
employees' hours so as to avoid any overtime payments when such employees attend the
twenty-four (24) hour in-service training program. Subject to the provisions of Federal and
A. Employees of the department shall have
the option of having overtime paid in cash or
compensatory time off.
B. Compensatory time
off, if requested by the employee, shall be at the discretion of the
It is the understanding between the parties that regulation of
compensatory time shall remain
within the guidelines of the Fair Labor Standards Act where it applies to law enforcement
and that the work period shall be twenty-eight (28) days in length. Wages received while on
will be limited to eight (8) hours of straight time per day.
Section 6.02: A recall to
duty for any reason will be paid at the rate of time and one-half
(1½) with a minimum guarantee of two (2) hours.
6.03: A guaranteed minimum of three (3) hours at time and
one-half (1½) will be
paid for court time for all off-duty personnel. (Emphasis added).
The key phrase here is the one linking court time to "all off-duty personnel."
Here, since the grievants' regular work shift did not begin until 2:45 p.m., it can be
that they reported for court duty before their scheduled shift, hence supporting the Union's
they were not on duty when they reported to the court. On the other hand, since they
reported to the
station in uniform at 1:00 p.m. to pick up a squad car to drive to the court for their
p.m. appearance, it also can be argued that they were on duty at that time. Given these
conflicting interpretations, it is apparent that the phrase "off-duty personnel" is not as clear
Moreover, that phrase and Section 6.03 as a whole must be read alongside Section
mandates overtime for "all hours worked over eight (8) hours per day. . ." This language
provides that officers can have their shifts extended, provided that they are paid overtime
do so. This language, however, does not address what is to be done when officers report in
their scheduled shift so that they can pick up a squad car and go to court as witnesses.
This case also turns on whether the guaranteed three-hour minimum for court time
for in Section 6.03 supercedes the overtime language of Section 6.01. Looking only at the
the contract, I find that the contractual language is ambiguous and that it therefore is
consider whether any binding past practices have arisen over this issue.
As to that, Meehan testified that the Village in the past has paid court time under
contracts only if such court time was not directly contiguous to an officer's
shift. That is why, said
he, only employees on the 11:00 p.m. 7:00 a.m. shift got the minimum guarantee
appeared in court after their shift ended and after they no longer were on duty. Since
testimony was uncontradicted, it must be credited. Hence, it must be concluded
that a well-developed past practice has arisen to the effect that the minimum guarantee
for court time
is to be paid only in those limited circumstances and not in the kind of circumstances found
involving officers on the 2:45 p.m. 11:00 p.m. shift.
The parties, after all, must have been aware of this practice when they agreed to the
contract language. That language therefore "will be presumed to have the meaning given it
practice." See Mittenthal, "Past Practice and the Administration of Collective Bargaining
Agreements", Proceedings of the National Academy of
Arbitrators (BNA, 1961), p. 30, 56.
Moreover, if "a particular practice is not repudiated during negotiations, it may fairly be said
contract was entered into upon the assumption that this practice would continue in force."
Id., at 49.
That is the situation here.
In light of the above, it is my
1. That the Village did not violate Article VI of the contract when it refused to
minimum guarantee of three (3) hours court time to officers Kevin Carini and Ilya Levkov
February 28, 2001 court appearance.
2. That their grievance is therefore denied.
Dated at Madison, Wisconsin this 3rd day of April, 2002.