BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN PROFESSIONAL POLICE
LAW ENFORCEMENT EMPLOYEE RELATIONS
FOR AND ON BEHALF OF ITS AFFILIATE LOCAL
BROOKFIELD DISPATCHERS AND CLERICAL
CITY OF BROOKFIELD
Ms. Shana R. Lewis, Cullen, Weston, Pines
& Bach LLP, Attorneys at Law, 122 West Washington
Avenue, Suite 900, Madison, Wisconsin 53703, appearing for Wisconsin Professional Police
Association, Law Enforcement Employee Relations Division, for and on behalf of its
315, Brookfield Dispatchers and Clerical Association, referred to below as the Association.
Ms. Nancy L. Pirkey, Davis
& Kuelthau, S.C., Attorneys at Law, 111 East Kilbourn Avenue, Suite
1400, Milwaukee, Wisconsin 53202, appearing on behalf of City of Brookfield, referred to
the City or as the Employer.
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 parties jointly requested that the Wisconsin Employment Relations
Commission appoint Richard B. McLaughlin, a member of its staff, to serve as Arbitrator to
a grievance captioned by the parties as No. 01 416, filed "on behalf of the membership."
the matter was held on January 30, 2002, in Brookfield, Wisconsin. Sarah A. Reinicke
transcript of the hearing, and filed it with the Commission on February 13, 2002. The
briefs and reply briefs by April 1, 2002.
The parties' did not stipulate the issues for decision. I have determined the record
Did the City violate the Agreement when it denied Patricia
Zingale's request to use
compensatory time for her shift on September 30, 2001?
If so, what is the remedy?
ARTICLE VI HOURS OF
. . .
Section 6.03 - Switch of Work Days: Employees
who wish to switch their work days with
another employee who is qualified shall obtain permission from their supervisor. No
overtime is to
be incurred as a result of the switch. Any switch that takes place may not involve more than
people, provided that not more than two people will be allowed to fill the void created on
of the switch. It is the responsibility of the switching parties to ensure that payback is
ARTICLE VII - PREMIUM
. . .
Section 7.02 Compensatory Time
Off: Compensatory time off may be accumulated up
to a maximum of forty (40) hours at any one time and may be taken off after a written
been submitted to the Chief of Police or the Chief's designee as provided below. Such
be subject to the approval of the Chief of Police or the Chiefs designee and dependent upon
requirements. An employee desiring to use compensatory time shall give written notice of at
(5) calendar days, but not more than forty-five (45) calendar days prior to the desired date,
however that in case of emergency, the notice may be less than five (5) calendar days and
may be oral,
if ratified subsequently by writing. If it appears thirty (30) days prior to a particular day that
more applicants for the day than can be granted in the opinion of the Chief, no further
shall be received and the
designation or designations of whom is to
be granted the day as a compensatory off day shall be
on the basis of bargaining unit seniority. Vacation requests shall have priority over requests
holidays or compensatory time off. Holiday and compensatory time off requests shall be
equally. Compensatory time off which is on the books as of January 1st of each year which
been approved for time off shall be paid on the next regular pay check at the previous year's
However, an employee may submit a written request to carry over compensatory time but it
approved by the Chief of Police or his designee prior to the first of the year.
. . .
Section 7.05 Authorized Overtime for
(a) Whenever overtime is authorized by the Employer
with less than five (5) days notice, the
following procedure will occur.
1. Ask for volunteers of the Dispatchers
working to extend their shift by having one
person work four (4) hours over and one person come in four (4) hours early. . . .
2. If no one volunteers
to work, the Employer shall assign a (qualified) Dispatcher with
the least amount of seniority . . .
(b) Whenever overtime is authorized by the Employer
more than five (5) days in advance, the
following procedure will occur.
1. Whenever a dispatch vacancy occurs, and
overtime is authorized, the Employer shall
post the overtime schedule . . .
. . .
Section 8.03 Procedure for Selecting
the Holidays Listed in Section 8.01 and the
Floating Holidays listed in Section 8.02: All the holidays referenced in
Section 8.01 and the two
(2) floating holidays referenced in Section 8.02(10) can be taken off at any time during the
a written request has been submitted to the Chief of Police or the Chief's designee as
Such request shall be subject to the approval of the Chief of Police or the Chief's designee
dependent upon staffing requirements. . . .
. . .
Section 9.03 Vacation
Selection: Employees wishing to guarantee a vacation selection
may do so by making their selection on a calendar provided by the Employer for this purpose
to February 1st. Employees shall select at least one (1) five (5) day
vacation block. The remainder
of the vacation entitlement may be selected in blocks of not less than one (1) day. Conflicts
resolved by granting the request of the senior employees.
Vacation . . . requests shall be in writing and submitted to the
Chief of Police or the Chief's
designee as provided below and shall be subject to the approval of the Chief of Police or the
designee and dependent upon staffing requirements. . . .
Section 28.01 Exclusive
Rights: The Association recognizes the right of the Employer
and the Chief of Police to operate and manage its affairs pursuant to law, and the exclusive
the Chief of Police to promulgate reasonable departmental rules and procedures which do not
to or impact on mandatorily bargainable issues. The following rights are among those
management consistent with the terms of this agreement and applicable City, State and
(a) To direct the operations of the Police
. . .
(i) To determine the need for and to schedule
The Association filed the grievance on September 4, 2001 (references to dates are to
unless otherwise noted), alleging a City violation of Section 7.02 for denying Patricia
request for "four hours comp time off for Sunday, September 30." The grievance form
City made no attempt at determining the availability of other dispatch staff before denying
The facts are essentially undisputed. In July, Zingale and her sister began to plan a
shower to celebrate the birth of Zingale's baby. Zingale reviewed work schedules, and
that the City had scheduled three dispatchers for her shift on September 30. She spoke with
dispatchers, and concluded that staffing for September 30 was sufficient to permit her to use
time. She and her sister then planned the shower for that date.
The City has authorized twelve positions to staff its dispatch center. At the time of
arbitration hearing, the City had eleven dispatchers. The City uses three shifts for the
staff the dispatch center. Day watch runs from 7:00 a.m. until 3:00 p.m. Early watch runs
p.m. until 11:00 p.m. Late watch runs from 11:00 p.m. until 7:00 a.m. For the
summer including her
baby shower, Zingale worked the day shift.
Joseph Amodeo, the City's Director of Services, is responsible for shift assignments.
Dispatcher Ann Riedelbach assists him with the creation of the work roster. Riedelbach
works the second shift, but worked the day shift for much of the summer of 2001. In 2001,
changed from a 5/2 work cycle to a 4/2 work cycle. Early in the year, Riedelbach recreated
schedules to place dispatchers into their off groups. These groups define the "2" off-day
the 4/2 cycle, and are set months in advance. Changes inevitably occur. The City posts
schedules in a roster that uses a single page for each calendar day. These schedules are
at least one month beyond a current calendar month.
The City maintains minimum staffing for the dispatch center. Two dispatchers per
shift is the
minimum staffing level. Typically, the City assigns four dispatchers per shift. Regular days
various forms of leave mean that the City typically has a maximum of three dispatchers per
actually on duty.
Contractually, employees cannot submit a comp time request more than forty-five
to the requested time off. On August 16, 2001, Zingale submitted a written request to use
of comp time on September 30. Sergeant Joe Mozina responded to the written request on
30. He completed the request form by noting "Denied Staffing." Prior to making the
Mozina reviewed the roster and determined that two dispatchers were available for duty on
September 30. To grant the request would, therefore, drop the center below minimum
did not speak with other dispatchers, nor did he take any other action to attempt to find a
for Zingale. Typically, Mozina responds to a written request for comp time by
or approval and forwarding the recommendation to Amodeo for final determination. In any
neither employee typically takes action beyond checking the roster if the roster shows that
a request drops the center below minimum staffing.
After Zingale started the planning process for the baby shower, a series of events
that affected September 30 staffing levels. Brenda Wenzel, another day watch dispatcher,
Family Medical Leave in July to permit her time off due to the birth of a child. Wenzel had
the leave in January, seeking time off from mid-July through mid-October. The City
leave, and filled the day watch vacancy by moving Riedelbach onto the day watch. On
August 1, a
dispatcher then in training resigned without notice. On the same day, Riedelbach submitted a
request to change her already approved vacation. Amodeo approved the requested change
following day. The net effect of the change was to make September 30 the fifth day of
scheduled week of vacation. The effect on Zingale was that Riedelbach became unavailable
minimum staffing purposes on September 30. Thus, when Mozina reviewed the roster to
to Zingale's request, granting it would have dropped the center below two dispatchers on the
When Zingale learned that her comp time request was denied, she discussed the
Amodeo. Amodeo informed her that she should attempt to switch shifts with another
She responded that her pregnancy made a switch difficult. Her ability to return the switch
difficult to plan given the uncertainty of a pregnancy as well as the uncertainty of the timing
maternity leave. She attempted to work out a switch with other dispatchers, but determined
with Amodeo again. During the second conversation, she asked whether the City would
overtime for the second half of her shift if she worked the first half. She viewed this request
similar to one granted Dispatcher Rauenbeuhler earlier in the year, and argued that denying
request worked a hardship on her. Amodeo was not, however, willing to approve overtime
requested, informing her that hardship cases turned on unforeseeable events. Ultimately
found another dispatcher with whom to switch shifts, and she was able to attend her
baby shower. She made the request to switch shifts on September 26. The City approved it,
completing the paperwork for the approval process on September 30.
Amodeo testified that the City calls overtime to permit employees to take comp time
to unforeseen and exigent circumstances. He did not believe the baby shower posed such
circumstances. He testified that Zingale had been involved in two instances that warranted
authorization of overtime to permit her use of comp time. On May 14, 2000, the City
comp time when her husband, a police officer, was injured while on duty. To cover her
City called in another dispatcher on overtime. On October 22, 2000, Zingale
requested to use comp
time on October 23 to attend to her mother, who had experienced complications during
City approved the use of comp time and called in overtime to cover her absence.
Amodeo estimated that the City receives roughly one dispatcher comp time request
day. Mozina testified that he receives one to two requests per work week. The City denied
than five percent of the comp time requests made in calendar year 2000, and
something less than fifteen percent of the requests made in calendar year 2001. The
City may deny
previously approved comp time when unanticipated circumstances force center staffing levels
two dispatchers per shift, but attempts to avoid this as a general practice.
The City honors dispatcher requests to take vacation in a one-week block, and
overtime to permit this. Amodeo added that he does not normally use overtime to permit the
of a single vacation day, although he did approve the use of overtime to grant
to append a day of vacation to a one-week block. The City does not authorize overtime to
the use of comp time or a floating holiday absent exigent circumstances. Mozina once called
dispatchers to assist a switch between dispatchers when an unanticipated request for sick
threatened the previously authorized comp time of a dispatcher who had made plans relying
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Association's Initial Brief
After a review of the evidence, the Association
contends that Zingale complied with express
contract provisions when she submitted her comp time request to Mozina, who denied the
due to staffing concerns. This focuses the grievance on the phrase "dependent upon staffing"
The phrase is ambiguous regarding "what action, if any, is required of the parties."
however, no clear contractual requirement that employees determine the availability of
to making a comp time request. Section 7.02 "does not include language requiring that an
seek a replacement for his or her shift rather than using earned compensatory time." Nor
section make this action a prerequisite to a comp time request. Since Section 7.02 did not
the requirement, there is a solid basis to infer that no such requirement exists.
Nor do other contract provisions establish the requirement. Section 7.05 states that
"may post overtime in a variety of circumstances, and for a variety of reasons, including to
employee to use earned compensatory time." This does not support the City's action "to
burden on her." City policy to post overtime only for "five-day vacations and FMLA leave"
contractual basis. Section 6.03 permits shift switching, but "does not suggest that it is an
to using earned compensatory time." That an employee has responsibility to repay for a
shift made the alternative onerous to Zingale, who "was pregnant and would soon be on
to take care of her new baby."
Past practice is unhelpful. Mozina testified he has, on occasion, phoned dispatchers
in switching shifts. Amodeo has posted overtime to permit dispatchers to add a day to
vacation to create a one week block. Thus, City practice in applying Section 7.02 is
Nor is City practice clearly enunciated, readily ascertainable over a period of time or
accepted by the parties. To enforce City policy as binding would produce the absurd result
favoring untimely requests. It follows that there is no binding practice to resolve the
Section 7.02 to the grievance.
Relevant arbitration precedent suggests that "dependent upon staffing" demands
City than simply looking at the schedule." The City "could contact employees . . . to
whether any other employee is available to serve as a replacement . . . or the City could post
Section 28.01 demands that the City exercise its management rights in a fashion that
be characterized as arbitrary or capricious. The City's exercise of discretion in assisting
with comp time requests turns, according to Amodeo, on "exigent circumstances."
evidence shows "exigent circumstances" means no more than that "some dispatchers received
treatment and some did not." Thus, City policy has no basis in Section 28.01.
Section 28.01 is a strong management rights clause, and imposes not just authority,
responsibility on the City. Thus, the City must be held responsible to determine the
staffing to permit comp time usage. Since Zingale was able to use comp time, no financial
is needed in this case. However, the Union "requests a cease and desist order" that "the
City may not
unilaterally import a provision into the contract that requires dispatchers to seek their own
replacements rather than use earned compensatory time."
The City's Initial Brief
The City states the issues for decision thus:
Whether the City violated Section 7.02 of the collective
bargaining agreement when it denied
the Grievant's request for comp time on September 30, 2001 due to staffing needs of the
If so, what is the appropriate remedy?
After an extensive review of the evidence, the City contends that the language of
Section 7.02 "is
very plain and unambiguous", providing "discretion to the Chief of Police or his designee to
when comp time requests should be granted." The language also clearly makes comp time
"dependent upon staffing requirements."
The Association's attempt to undercut this language has no support in the evidence.
City's minimum staffing level of two dispatchers per shift is undisputed, and acknowledged
Zingale's attempt to schedule her baby shower on a day when three dispatchers had been
Her request, however, was invalidated by two events. The first was the use of FMLA by
dispatcher and the second was Riedelbach's use of one week of vacation. These two events
"the City could not grant the Grievant's request for comp time without either dropping below
minimum staffing levels or incurring overtime to cover the shortage."
Nothing justifies placing the burden of finding a replacement on the City. The
contains no "language which imposes such a burden" by giving "dispatchers the unrestricted
take compensatory time off" or by requiring "the City to incur overtime . . . so that a
take their requested compensatory time off." Nor does the contract require the City "to
calls seeking volunteers to cover the requested time off."
Nor is there evidence of practice to support the Association's claim. The
"involved adding one additional day to a 1-week block of vacation" and the City will honor
requests. The City will not call in overtime to permit the use of comp time except in exigent
circumstances. A baby shower does not meet this standard and the Association's request
seeks that "the personal plans or desires of employees override public safety and the efficient
effective operation of the Department." The request seeks an absurd result. What evidence
of past practice indicates only that the dispatcher's request was for an unforeseen event that
"qualify for FMLA leave due to the serious health condition of the employee or a family
Thus, the Association's request lacks contractual and factual support.
Nor can the City's denial be characterized as arbitrary or capricious. Maintaining
staffing is recognized as a valid employer interest in arbitration precedent. The City's
"protect public safety and to efficiently operate the Department" cannot be faulted. The City
concludes by requesting that "the grievance be denied and dismissed."
The Association's Reply Brief
The Association argues that the City's policy treats requests to use single vacation
days in the
same manner as comp time requests. Thus, its action toward Rauenbuehler belies its
the Association cannot offer examples demonstrating City authorization of overtime to cover
day leave requests. In fact, Amodeo's testimony establishes that "he has posted overtime for
dispatchers seeking to use compensatory time, holiday hours, and single vacation days." Nor
these instances be distinguished from Zingale's request. To adopt City assertions of an
circumstances" policy condones the absurd result of favoring "the employee who submits an
request rather than the employee who plans
ahead." Viewed as a whole, the evidence establishes the reasonableness of Zingale's
request to be
treated consistently with other dispatchers who successfully requested City assistance in
staffing to accommodate a comp time request.
The City's arguments fail to rebut the Association's proof that the City acted
capriciously when it denied Zingale's request. There is no dispute that the City acts
assure minimum staffing levels. The weakness in the City's case "occurred when it failed to
and apply Section 7.02 in a uniform and consistent manner." More specifically, "the City
interpret consistently the phrase dependent upon staffing. Mozina and
Amodeo testified that they
have undertaken affirmative action on behalf of dispatchers who were seeking time off.
request seeks no more than this.
The City's commitment to minimum staffing can not, in any event, relieve it from its
obligation to take affirmative steps to determine if minimum staffing can be met before it
comp time request. As established by relevant arbitration authority, the City can contact
directly to secure a replacement or post overtime "to provide an incentive for employees to
a replacement." Active use of these options should make it easier for the City to maintain
Nor do Zingale's personal reasons for the comp time request have any direct bearing
conduct: "The issue is not whether the minimum staffing level imposed by the City is
which party has the responsibility for determining the availability of the staff, the employer
employees." The evidence establishes that the City "must explore staffing availability before
an employee's request to use earned compensatory time."
The City's Reply Brief
The City contends that the Association mistakenly argues "that the City is requiring
to first seek a replacement before requesting compensatory time off." In fact, the "City has
placed such a requirement on the dispatchers." Rather, the City reviews each request, "then
grants or denies the request based on staffing needs." That the City informs employees of
possibility of switching shifts under Section 6.03 is a courtesy, not a mandate. The evidence
establishes that the City has never required an employee to secure a replacement prior to
comp time request.
Nor will the evidence establish a contractual basis to require the City to seek
prior to acting on a comp time request. The Association's arbitration precedent is
because it rests on entirely different language from a consent agreement.
Association arguments that the City could post overtime to accommodate Zingale's
ignore that the management rights clause permits the City to determine "when overtime will
incurred" and that the issue "is whether the contract requires the City to incur overtime
facts." Pushed to its logical conclusion, the grievance seeks the "patently absurd" result that
should hire more staff so that whenever an employee wishes to take a day off, other
immediately available to cover that shift." This position lacks any contractual or factual
is there any basis for the Association's assertion that the City's denial of Zingale's request is
and capricious. The Association's critique of the City's "exigent circumstances" policy
Zingale has twice been a beneficiary of the policy and that the purpose of overtime is to
unforeseeable circumstances. Even ignoring inaccuracy in the Association's characterization
Amodeo's testimony, there is no persuasive basis to support its assertion of City
The Association mischaracterizes the evidence regarding past practice. Over a two
period, the City acted on three hundred eighty six comp time requests, granting all but
"creates a past practice on the circumstances by which compensatory time off will be
denied." Zingale's conduct establishes common knowledge of minimum staffing levels. In
Association arguments to the contrary, the evidence establishes a practice regarding when
may deny requests off to meet its minimum staffing levels of two (2) dispatchers per shift."
herself had a prior comp time request denied without filing a grievance. The Rauenbuehler
shows no more than the consistency of "the City's practice of approving overtime to grant an
employee's request for a 5-day block of vacation." Further evidence cited by the Association
short of establishing inconsistency on the City's part, thus establishing the propriety of the
"application of minimum staffing requirements to decide requests for compensatory time
City concludes by requesting that the "grievance be dismissed with prejudice."
I have adopted the Association's statement of the issues.
There is not, in my view, a great
deal of difference between the parties' statements. The City's is more detailed, focusing on
7.02. The Union's appropriately notes that the application of Section 7.02 draws on other
Section 7.02 is the interpretive focus. On its face, the section establishes that comp
usage at a specific time is not guaranteed. The first sentence establishes that comp time
taken" upon written request. This makes its usage at a specific time something less than an
The second sentence of Section 7.02 makes comp time usage "subject to . . .
approval" by the
Chief or the Chief's designee. Other references underscore the exercise of discretion. The
sentence of Section 7.02 closes the application process if "there are more applicants for the
can be granted in the opinion of the Chief." The use of the plural "applicants" coupled with
Chief's "opinion" underscores that there is a discretionary process potentially covering
The second sentence further establishes that the discretion includes "staffing
The combination of "dependent upon" with "staffing requirements" establishes that comp
will not jeopardize the dispatch center's operation. The agreement links, but separates
requirements" and supervisory approval. This means the supervisory discretion is not
staffing requirements. Thus, the first two sentences of Section 7.02 make comp time usage
of discretion. Staffing considerations are a valid, but not the sole, consideration within that
This discretion has contractual limits. Under Section 28.01, the City must act
external law and "the terms of this agreement." Beyond this, the section establishes that the
the Chief can "promulgate reasonable departmental rules and procedures." There is no
the policies testified to by Amodeo have been "promulgated," and it may be impossible to
them. In any event, the discretion at issue here is the decision to grant or to deny an
request. Section 28.01 remains applicable. It would be an unpersuasive reading of that
conclude that City discretion to deny comp time is broader under unwritten policies than
promulgated rules. Thus, the City's case-by-case exercise of discretion under Section 7.02
Against this background, the specific exercise of discretion by City representatives in
Zingale's request must be examined. In my opinion, the circumstances surrounding
establish that the City's denial was a reasonable exercise of the discretion granted under
From Mozina's initial denial through Amodeo's meetings with Zingale, City
based their conduct on the minimum staffing policy. There is no dispute regarding its
reasonableness. Zingale's review of the roster prior to establishing the shower date manifests
the parties accept the policy as fundamental to center staffing.
The City's denial does not rest solely on Mozina's initial review of the roster for
30. Zingale met with Amodeo twice to flesh out the basis for the denial. The dispatch
by the first week of August, understaffed based on the resignation of a trainee and on
Without regard to the resignation, the trainee had not yet acquired sufficient proficiency to
toward minimum manning. Wenzel's leave, although expected, moved Riedelbach to the
Her August 1 vacation change meant she could
not count toward minimum staffing on the day watch for September 30. Section 7.02
mandates that vacation requests "shall have priority over . . . compensatory time off." Thus,
City's approval of the vacation change cannot be faulted. Its conclusion that granting
request would put it below minimum staffing has a valid contractual basis rooted in
not traceable to the City's creation.
The Association contends that the City could have authorized overtime to grant the
The issue here, however, is not whether the City could do so, but whether the contract
compels it to.
The Association has not established a persuasive contractual basis for the asserted
Section 7.05 and Section 28.01(i) make the approval of overtime a discretionary act on the
part. Section 7.02 specifies a pay out for unapproved comp time. This undercuts the
the City was under a clear contractual compulsion to authorize the overtime sought by
cover her comp time usage.
Nor is there an established basis in past practice for the asserted compulsion to
overtime or to poll staff. Mozina's assistance to a dispatcher who made plans based on
approved comp time does not bear directly on Zingale's request. Mozina assisted a
on an unforeseen illness of another dispatcher. The dispatcher Mozina assisted had made
reliance on already approved comp time. Zingale's request was for a foreseeable event
to the request for approval of comp time. This does not make supervisory assistance
improper or a bad idea, but highlights that Mozina's conduct in that matter is distinguishable
this grievance. The binding force of past practice is rooted in the agreement manifested by
parties' conduct, and Mozina's conduct in one case has no clear bearing on this one. Beyond
the language of Section 6.03 cautions against drawing the City into employee switches.
The Rauenbuehler situation can, as the Association notes, be considered City action
single day of vacation. However, "(v)acation requests", under Section 7.02, "shall have
requests for . . . compensatory time off." Rauenbuehler, unlike Zingale, made a "vacation
The single day was, in any event, appended to an existing one-week block, and Section 9.03
the significance of one-week blocks. This contractual basis is stronger than that the
asserts for Zingale.
The strength of the Association's contractual argument is that the reference to
on staffing" in Section 7.02 implies active consideration of staffing by the City. From the
Association's perspective, this can involve the polling of staff or the authorization of
City's view, taken to its extreme, is that the mechanical consideration of the roster to
minimum staffing is sufficient to comply with Section 7.02.
On the broadest contractual level, neither party's view, if taken to its extreme, is
unequivocally grounded in the labor agreement. The Association's has the weakest
ground. Its reading of "dependent on staffing" affords no evident basis to deny a comp time
An order to report coupled with overtime can secure staffing. Thus, any comp time request
arguably be granted. Such a view is not reconcilable to the discretion granted the City under
7.02, 7.05 or 28.01. Polling of the staff is a less onerous demand, but is at best implied
reference to "dependent on staffing." The broad implication is difficult to apply specifically.
should supervisors poll staff? The City can receive one or more comp time requests per day.
if restricted to denials based on minimum staffing, it is less than evident what the polling
When must the City authorize overtime? Can a supervisor "suggest" a shift switch?
The City's view that mechanical consideration of the roster to determine
levels complies with Section 7.02 has contractual support, since Section 7.02 expressly
time usage "dependent on staffing." However, this view breaks down if pushed to its
noted above, Section 7.02 demands the exercise of a discretion that includes, but is not
staffing considerations. Mechanical consideration of the work roster ignores the full range of
discretion authorized by Section 7.02. Similar considerations establish that the City could
condition the granting of comp time on employee effort to secure a shift switch. The
discretion granted in Section 7.02 is rooted on City, not employee, action.
In sum, Section 7.02 makes the granting of comp time usage a discretionary act by
or the Chief's designee, and makes staffing a relevant and potentially determinative
On the facts posed by the Zingale grievance, the City's actions are reasonable. The City did
create the circumstances putting it below minimum staffing for September 30. City approval
Riedelbach's vacation change preceded Zingale's request, and, in any event, has contractual
over it. Nothing in Section 7.02 or Section 7.05 grants a basis to compel the City to
overtime for September 30. There is, then, no proven violation of the labor agreement.
Zingale's request is effectively a claim for individual equity. The claim has some
force viewed as a matter of fact. The celebration of a birth is a one-time event, and Zingale
comp time reserve to cover it. She planned it well in advance, and checked the work roster
committing to a day. However, even ignoring the contractual basis for the claim, the facts
unequivocally establish the claim for equity. The evidence does not address why comp time
form of leave requested. Nor is it evident why the shower needed to fall on a work day.
the weekend was best for guests, and weekends for most people follow a 5/2 schedule, not a
If, however, the date turned on the convenience of a particular guest, or if the date could
on a non-scheduled work day, the claim for equity is less compelling. No conclusions are
on this record, but these considerations highlight that the force of the claimed equity is less
More significantly, however, the claim for equity lacks a solid contractual basis. The
Association asserts the denial of the request leads to the absurd result of favoring untimely
over timely requests. This overstates City policy. That the City responds to unforeseeable
differently than to foreseeable absences is a reasonable distinction. The Association's view
ignores that Zingale's plans predate City approval. Section 7.02 mandates that requests be
more than forty-five (45) calendar days prior to the desired date." Her reliance on City
the request predated the contractually set period for making the request. The contract
timing of the requests and the act of discretion necessary to approve the request. Arguably,
the Association's case could read both out of existence.
Another grievance regarding City denial of comp time is pending, and the
undertaken above cannot address facts beyond those in evidence. This reflects that the City's
implementation of Section 28.01 and 7.02 turns on a case-by-case basis. Whether it is
desirable to address comp time usage as a departmental rule must be left to the process
in Section 28.01. Unless an arbitrator is to assert authority reserved to the parties, the
established by Section 7.02 must proceed on a case-by-case basis.
That the City acts based on its minimum staffing policy does not, standing alone,
"dependent on staffing" reference. Section 7.02 calls for the exercise of supervisory
states that staffing is a relevant and potentially governing consideration. Rote City reliance
minimum staffing policy exposes it to two levels of risk. The first level is that under Section
City policy must be consistent with the terms of the agreement. Thus, the minimum staffing
cannot be applied to defeat other contractual rights, such as comp time usage. The second
risk is that to the extent the City relies solely on the minimum staffing policy to address a
request, it exposes itself to the risk that specific circumstances may show its rote application
reasonable regarding an individual request.
The degree of that risk must be left to the parties to evaluate regarding other facts.
grievance, even though the City totals the number of comp time requests differently than I
evidence does not indicate reason to believe that City actions toward Zingale eliminated or
impermissibly curtailed comp time usage. As noted above, her conferences with Amodeo
that the City consider the specifics of her request against its minimum staffing policy. Her
was for a valid reason, and her concern for the day understandable. This cannot change the
the absence was foreseeable or that compelling the use of overtime to cover it lacks a
The Employer did not violate the Agreement when it denied Patricia Zingale's
compensatory time for her shift on September 30, 2001.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 15th day of May, 2002.
Richard B. McLaughlin, Arbitrator