BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN PROFESSIONAL POLICE
CITY OF WAUKESHA
Case 145No. 60442MA-11616
Mr. Steven J. Urso,
Wisconsin Professional Police Association Executive Assistant,
340 Coyier Lane, Madison, Wisconsin, 53713, appeared on behalf of the Association
Mr. Vincent D. Moschella, Assistant City Attorney, City of
Waukesha, 201 Delafield Street,
Waukesha, Wisconsin, 53188-3633, appeared on behalf of the City
On October 11, 2001, the Wisconsin Professional Police Association and the City of
Waukesha filed a request with the Wisconsin Employment Relations Commission requesting
Commission appoint William C. Houlihan, a member of its staff, to hear and decide a
pending between the parties. A hearing was conducted on January 22, 2002 in Waukesha,
A transcript of the proceedings was made and distributed on February 4, 2002.
and an Association Reply Brief were filed and exchanged by March 14, 2002. This
addresses the termination of Police Officer Cindy Klatt, for failure to comply with the City's
BACKGROUND AND FACTS
Cindy Klatt (formerly Schwartzenberger), the grievant, has been employed by
the City of
Waukesha as a Patrol Officer since June 10, 1991. Ms. Klatt has been subject to the City
Residency requirement throughout her employment with the City. Upon commencing
with the City she signed a "Statement of Residency Requirement" form, which is set forth
lived within the residency area. In April, 2001, Officer Klatt informed the Department that
become engaged to marry an employee of the Racine County Sheriff's Department, who was
subject to a residency requirement. There is no location which satisfies both residency
Officer Klatt requested an exemption from the residency requirement from the Human
Resources Committee of the Common Council. The request was denied by the Committee
Common Council affirmed the denial on June 19, 2001. On August 17, 2001, in anticipation
upcoming marriage, Officer Klatt moved to a Racine County address, and formally notified
of Waukesha of her new address. Two days later she reconfirmed her new address, and
she had no intention of resigning her position with the department.
On August 22, 2001 Klatt and Sgt. Andrews drove the distance from the Police
station to her
new home. The distance measured 33.7 miles and took 51 minutes to drive. Klatt's
reported the drive information and new address to the Chief, and indicated that the new
violated the residency requirement of the labor agreement. On August 27 Chief of Police
Sharrock wrote the grievant, indicating that her residence violated the labor agreement, and
must establish acceptable residency within thirty days or be viewed as having resigned from
employment. In response to the Chief's letter the Association filed a grievance on Klatt's
requested that the Chief rescind his 30 day time limit for compliance. The grievance was
moved through the grievance procedure.
Ms. Klatt was married on September 8, 2001.
On September 28, 2001 Klatt was terminated. On that date Klatt requested a one year
extension of the time period established to satisfy the residency requirement. That request
denied. Her termination was based solely upon her residence.
Klatt was not the first member of the Waukesha Police Department to reside outside
contractually defined residency zone. In approximately 1980 John Dillon, a former City of
police officer was allowed to live outside the residency area for a period of approximately
Dillon married a Police officer who was subject to a conflicting residency clause. He
received, an exemption from the then Chief of Police. Dillon subsequently moved within the
From approximately June, 1989 through September 1992 the Department
Denise Erickson an exemption from the residency rule as she experienced difficulty securing
housing within the residency area.
In July, 2001 Officer Ron Grace was granted a 90 day extension to move into the
area. He had just completed his probationary period, requested, and was granted, an
order to secure a mortgage on a home purchase. The extension was granted "on a
The parties could not agree upon an issue.
The Association frames the issue as:Did the employer violate the
terms of the collective
bargaining agreement when it terminated the employment of Officer Klatt? If so, what is the
appropriate remedy?The City regards the issue as:
Does Cindy Klatt qualify for employment with the City of
Waukesha under Article 21.01 of the
labor Agreement?I believe the issue to be:
Did the City have just cause to dismiss Cindy Klatt?
RELEVANT PROVISIONS OF
THE COLLECTIVE BARGAINING AGREEMENT
ARTICLE 12 GRIEVANCE
12.01 Grievance procedure
grievance is a
dispute and/or difference of opinion raised by an employee or a group
of employees covered by this Agreement involving the meaning, interpretation or
application of the provisions of this Agreement, and any dispute related to wages,
hours and conditions of employment.
. . .
12.02 Authority of Arbitrator: The Arbitrator shall
have the authority to recommend
amendment, modify, nullify, ignore, add to, or subtract from any of the provisions of this
Agreement The decision shall be based solely upon the Arbitrator's interpretation of the
meaning and application of the express terms of this Agreement to the facts of the grievance
. . .
ARTICLE 16 RIGHTS OF
16.01 It is agreed that the rights, functions
and authority to
manage all operations and functions
are vested in the Employer and include, but are not limited to, the following:
A. To prescribe and
administer rules and regulations essential to the accomplishment of
the services desired by the City Council.
B. To manage and
otherwise supervise all employees in the bargaining unit.
C. To hire, promote,
transfer, assign and retain employees and to suspend, demote,
dismiss or take other disciplinary action against employees for just cause.
. . .
ARTICLE 21 RESIDENCY
21.01 Employees will reside within the County of
Waukesha or within twenty (20) minutes of the
Police Station. New employees must comply with this residency requirement not later than
three (3) months after completing their probationary period. This initial period may be
extended for up to nine (9) additional months if a legal hardship would otherwise result.
RELEVANT PROVISIONS OF
PRIOR COLLECTIVE BARGAINING AGREEMENTS
Prior to January, 1998 the parties' residency provision read as follows:
ARTICLE 21 RESIDENCY
21.01 Employees will reside within twenty-five (25)
minutes time of the Police Station subject to
the approval of the Chief of Police. New employees must reside within twenty-five (25)
minutes of the Station not later than three (3) months after completing their probationary
period. This initial period may be extended for up to nine (9) additional months if a legal
hardship would otherwise result.
. . .
STATEMENT OF RESIDENCY REQUIREMENT
I have been informed and am fully aware that as a requirement of
my employment with the City
of Waukesha, I must live within the residency area as designated below and that if I do not
within such area I am required and will move into such area within the time limits of the
of my employment with the City of Waukesha.
SIGNATURE: Cindy L. Schwartzenberger /s/
RESIDENCY AREA AND TIME LIMITATIONS:
21.01 Employees will reside within
twenty (20) minutes time of the Police Station subject
to the approval of the Chief of Police. New employees must reside within twenty (20)
minutes of the
Station and not later than three (3) months after completing their probationary period. This
may be extended for up to nine (9) additional months if a legal hardship would otherwise
. . .
POSITIONS OF THE
The Association contends that the City of Waukesha has not always enforced the
requirement consistently and uniformly for all police department employees covered by the
a collective bargaining agreement. The Association points to Dillon, Erickson, and Grace
concludes that the City has not been consistent in its application of the residency
rule. The Association does not argue that the grievant in this matter is not out of
the City's established residency requirement. But the Association would argue that similar to
people who were granted exemptions, Klatt encountered extenuating circumstances which
resulted in the current situation, and her only recourse was to become out of compliance with
City's restrictive policy. Klatt faces competing and conflicting residency requirements,
she nor her husband can modify. The couple chose to honor the Racine County requirement.
It is the view of the Association that the City failed to give appropriate consideration
Klatt's circumstances when it chose to terminate her employment. Klatt's situation parallels
Dillon. In terminating Klatt, the City failed to extend to her the considerations it extended to
Klatt requested a one year extension, which was denied. Previously Erickson was given a
extension. The Association contends that the City has now chosen to enforce a clause it has
previously chosen to ignore. The Association contends that Klatt is being penalized for the
conduct previously accommodated.
The Association contends that there is no cause for Klatt's termination. She has a
free work record. Her conduct was not so egregious as to warrant termination, the economic
equivalent of the death penalty. This is, in effect, a first offense. There is no evidence in
to suggest that Klatt could not perform her duty living in her new residence. To the
record establishes that she did continue to perform her duty, including being punctual, after
through the date of her discharge. According to the Association, the City has no basis for
termination. The City simply saw an opportunity to terminate her and seized upon it.
The Association argues that the City is not free to disregard its prior exemptions
because the contract language has changed. The Association points out that the residency
requirement has existed for all of the years in question. The language change does not alter
Historically, the City has granted exemptions from the requirement where circumstances
to be appropriate. That was not done here. In fact, an exemption was granted in 2001.
It is the view of the Association that the City has terminated an excellent employee
cause, and now seeks to hide behind the residency requirement for an otherwise indefensible
Klatt's transgression is the desire to live with her husband. The Association seeks
It is the City's view that Cindy Klatt was fully aware of the residency requirement
under throughout her employment. She was aware of the impact of the rule upon her when
request for an exemption was denied. The City contends that the contract requires her to
within the County as a condition of her employment. She does not.
The City points to Article 12 and notes that my authority is carefully circumscribed,
I lack the authority to waive Article 21 or grant an exemption. As to past examples, the City
that those incidents arose under different contract language. Under the prior language the
Chief had the discretion to grant an exception to the application of the residency clause.
authority was deleted from the 1998 2000 contract, and no longer exists. It is the
view of the City
that the different results are a product of the different language, and accompanying standards,
than disparate treatment under similar circumstances.
As to the Grace exemption, the contract allows for an extension for new hires.
a new hire, who had just completed his probationary period at the time of his request. The
applicable to, and controlling, the Grace decision does not apply to Klatt. The City contends
Klatt has no relief available under the collective bargaining agreement, since she has made
unavailable for employment by moving outside the residency area.
The facts underlying this matter are not in dispute. Officer Klatt lives outside the
area established by the collective bargaining agreement. Officer Klatt made a conscious and
decision to live outside the residency zone created by Article 21. The collective bargaining
has contained a residency rule for the entire period of Ms. Klatt's employment. She
acknowledgement of that rule upon her hire, and complied with the requirement for over a
At the time of her move she was advised both orally, and in writing that her new residence
located outside of the residency area. She participated in the measurement of the distance,
that measurement confirmed to her. She was also advised of the consequences of her move.
Klatt was given a 30 day period to re-establish residency, and declined.
The collective bargaining agreement is not ambiguous on this requirement.
provides "employees will reside within the County of Waukesha or within twenty (20)
minutes of the
Police Station." The use of the term "will" is one of command. The Article does not allow
exception for other than "new employees". The Association acknowledges that Klatt lives
the residency area. There is no claim that she is a new employee, within the meaning of the
The fact that officer Klatt is acknowledged to be a conscientious, competent Officer is
irrelevant to this dispute. Article 21 applies universally, and not only to those deemed to be
My view of the issue framed for hearing mirrors that advanced by the Association.
I believe that Article 21 provides the analysis of the just cause question. Article 16 allows
to terminate an employee only where there exists just cause to do so. Ms. Klatt's
presents the question as to the existence of just cause. However, under the terms of this
agreement I am not free to independently analyze her behavior against workplace or arbitral
The parties have come to an agreement over the application of the just cause standard to
matters. Their agreement is reflected in Article 21.
The Association points to the three prior incidents where the City waived application
residency rule. The Dillon and Erickson incidents occurred under the prior contract
language was construed to give the Police Chief some discretion as to the enforcement of the
residency requirement. My reading of the record is that the Chief exercised that discretion
to Dillon and Erickson. That discretion evaporated in 1998. The discretion that once allowed
Police Chief to execute waivers is gone. Whatever practice or interpretive standard that
the deleted words disappeared with the deletion of the words themselves.
The Association points to the extension granted Officer Grace in 2001. Grace
probationary period, and within the three months following completion of his probationary
requested an extension in order to allow him to arrange financing for a home within the
area. Such an extension is expressly addressed, and allowed by the last sentence of Article
Grace is a "new employee" within the meaning of Article 21. Klatt and Grace draw rights
different provisions of Article 21. They are therefore not comparable for purposes of a
Ultimately, the Association would have me direct the Employer to reinstate employee
under circumstances where she lives outside the residency area, in violation of
Article 21. For me
to do so would emasculate Article 21 of all meaning. The contract does not contemplate that
for an Arbitrator.
The grievance is denied.
Dated at Madison, Wisconsin, this 14th day of June, 2002.