BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF WAUKESHA
WAUKESHA PROFESSIONAL POLICE
Mr. Steven J. Urso, Wisconsin Professional Police Association,
Law Enforcement Employee Relations Division, 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
On August 23, 2001, the Wisconsin Professional Police Association and the City of
filed a request with the Wisconsin Employment Relations Commission requesting the
appoint William C. Houlihan, a member of its staff, to hear and decide a grievance pending
the parties. A hearing was conducted on December 14, 2001, in Waukesha, Wisconsin. A
of the proceedings was made and distributed on December 26, 2001. Post-hearing
briefs and reply
briefs were submitted and exchanged by March 25, 2002.
This Award addresses the appropriate rate of pay for Officer William
BACKGROUND AND FACTS
William Beglinger, the grievant, has been employed as a Police Officer by the
Police Department since 1981. His rank is Patrol Officer, though he has held a number of
assignments throughout his tenure with the Department. For a portion of 1992 Beglinger
assigned to the Crime Prevention Bureau. In January of 1998 Beglinger was again assigned
Crime Prevention Bureau for that calendar year. That assignment was repeated in calendar
again in calendar 2000. Beglinger remained a Patrol Officer, but was considered to be an
detective, was paid at the Detective rate of pay, and progressed on the Detective pay scale
assigned to the Crime Prevention Bureau. Beglinger signed to work in the Crime
in 2001, but was denied that assignment and placed in the D.A.R.E. program in 2001.
terms of the parties collective bargaining agreement the assignment to the Crime Prevention
is a temporary assignment. Despite the fact that Beglinger was assigned to the Crime
Bureau for three successive years he was never formally promoted to Detective. Upon his
to the D.A.R.E. program, Beglinger suffered a reduction in pay. He caused this grievance
to be filed
alleging that the reduction in pay violates the collective bargaining agreement.
The Waukesha Police Department posts and fills shifts and temporary assignments on
annual basis. The process by which slots are announced and filled begins in August of the
preceding the year for which shifts are posted. The Department posts shifts and temporary
assignments for the upcoming year, and allows for a period of time for bargaining unit
sign for the various openings. Each bargaining unit member is allowed to indicate his/her
for the work. Shift assignments and temporary assignments are announced together, are
a common application timeline, and are filled simultaneously. The Memorandum announcing
1998 Shift/Bureau and Temporary Assignments included the following:
The temporary assignments for 1998 will include positions in the
Division and the Crime Prevention Bureau. Each of these temporary assignments are
intended to be
one year in duration unless circumstances dictate otherwise.
The Memorandum announcing the assignments for 1999
indicated; "The Crime Prevention
Bureau position is being extended for an additional year while a review and reevaluation of
position is undertaken."
The Memorandum announcing the assignments for 2000 provides as follows:
CRIME PREVENTION BUREAU POSITION
In the best interests of the Department and to meet the overall
needs of the Department, The
Crime Prevention Bureau position will be designated as an indefinite assignment made by the
of Police. All current parameters pertaining to the position will remain intact. Continued
to this position will be based upon the officer's personal preference, level of performance,
By late 1999, the City had invested heavily in Beglinger's training in the Crime
position and felt Beglinger was doing a good job. Grant funding for the position was also set
expire and the City was concerned about training another individual for the job, only to have
discontinued. However, a grievance was filed, contesting the right of the Department to set
indefinite time frame for the temporary assignment. That grievance was resolved in August
on the following basis:
The Waukesha Professional Police Association and the City of
Waukesha agree as follows:
1. Temporary assignments in the Crime Prevention
Bureau made pursuant to Article 22 of the
Collective Bargaining Agreement ordinarily will be for one (1) year.
2. At the Chief's discretion,
such an appointment may be for an additional one (1) year Period.
3. Any extension beyond two
(2) years shall be determined on a case-by-case basis and Would
require the Department to meet and confer with the Association.
4. Grievance 99-375 is
withdrawn with prejudice.
5. Any cancellation fees of the
arbitrator shall be divided equally between the Department and
The parties subsequently modified certain provisions of the collective bargaining
to address the duration of temporary assignments. Those changes are set forth below.
The parties did not stipulate to an issue.
The Association views the issue to be:
Did the City violate Articles 3, 16 and 22 of the Collective
Bargaining Agreement when it
reduced the rate of pay of Officer Beglinger? If so, what is the appropriate remedy?
The City regards the issue presented to be:
Pursuant to the contract, what is the proper rate of pay for Officer
William Beglinger for 2001?
I agree with the Association's statement of the issue.
RELEVANT PROVISIONS OF THE
3.05 Dare/Crime Prevention.
A. Officers assigned to the Crime
Prevention Unit will work a 5-2 work week, have
regular duty hours and are not required to report fifteen (15) minutes prior to the start of the
B. Officers assigned to the Crime
Prevention Unit in instructional roles will have duty
hours consistent with the regular school year schedule (e.g., 8:00 a.m. to 4:00 p.m.).
C. Holidays shall be scheduled in
accordance with Article 6.06(B), with vacations
scheduled according to Article 6.05 of this Labor Agreement.
D. When scheduling conflicts arise,
only certified Dare Instructors will be utilized to fill
temporary vacant positions until the return of the original Dare Instructor.
E. Duty hours outside the regular
school year will be Tuesday through Saturday, 8:00
a.m. to 4:00 p.m., unless mutually agreed.
. . .
ARTICLE 22 Out of Classification
22.01 Any officer assigned to the
Detective Bureau as acting detective for a period of at least
six (6) months who there performs the duties of a detective shall be compensated at the
starting salary level for a period of time assigned to perform those duties. Employees filling
assignments which last beyond a one year period will automatically progress through the
RELEVANT PROVISIONS OF THE
3.05 Dare/Crime Prevention.
A. Officers assigned to the Community
Policing Unit (C.P.U.), Crime Prevention Unit
(C.P.), the D.A.R.E. Program, and the School Resources Officer (S.R.O.) shall have those
hours as described in Article 3.03 of this Labor Agreement.
B. Officers assigned in instructional
roles will have duty hours consistent with the regular
C. Vacations and holidays shall be
scheduled in accordance with Article 6.05 and
6.06(B), with vacations scheduled according to Article 6.05 of this Labor Agreement.
1) The individual officer's hire date
the seniority selection order
for officers assigned to the C.P.U., C.P., D.A.R.E., and S.R.O.
2) No more than two (2)
officers assigned to the C.P.U., C.P., D.A.R.E., or
S./R.O. may be on vacation at the same time.
D. Officers assigned to the C.P.U., C.P., D.A.R.E., and
the S.R.O. Program, shall be
compensated, in accordance with the terms of this Labor Agreement, as a uniformed acting
specialist during the length of their assignment.
E. The duty hours and work week of those assigned to
instructional roles, outside of the
regular school year will be Tuesday through Saturday, 8:00 a.m. to 4:00 p.m.
F. When scheduling conflicts arise,
only certified D.A.R.E. or S.R.O. officers will be
utilized to fill temporary vacant positions until the return of the primarily assigned officer.
G. Assignments to the C.P.U., C.P.,
D.A.R.E., and the S.R.O. Program, shall be made
by the Chief of Police from interested and qualified officers regardless of specific shift
H. Assignments to the C.P.U., C.P.,
D.A.R.E., and the S.R.O. Program, shall be for the
following periods of time unless circumstances dictate otherwise, such as personal reasons
or lack of performance:
1) C.P.U. for two (2) years.
2) C.P. for two (2)
3) D.A.R.E. for two (2) years.
4) S.R.O. for three (3) years.
5) C.P.U., S.R.O.,
D.A.R.E., and C.P. are not available for minimum staffing or
special event overtime in the uniform division.
6) Following the
completion of any of these assignments, an officer may not
serve in any of these assignments for a period of one (1) year, unless another
qualified officer is not available to be assigned to the vacated position in
such case, the Chief may extend an officer's assignment for one (1) additional
I. The officers currently assigned, or officers to be assigned
to the C.P.U., C.P.,
D.A.R.E., and the S.R.O. Program, will remain in their current assignments and will be
compensated in accordance with 3.05, D upon the effective date of this Labor Agreement.
J. An assignment to the C.P.U., C.P., D.A.R.E., and the
S.R.O. Program, is a uniformed
patrol position requiring additional training and responsibilities but does not relieve the
officer, even though compensation is at a higher rate, of any job related responsibilities
specifically related to patrol officers in general.
. . .
ARTICLE 16 Rights of Employer
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:
. . .
B. To manage and otherwise supervise all employees in the
C. To hire, promote, transfer, assign
and retain employees and to suspend, demote,
dismiss or take other disciplinary action against employees for just cause.
1) During a department
the Administration shall assign a
Supervisor, who has not been a direct witness to the event, to conduct the
. . .
F. To determine the methods, means and personnel by
which such operations are to be
. . .
ARTICLE 22 Out of Classification
22.01 Any officer assigned to the
Detective Bureau as an acting detective for a period of at
least six (6) months who there performs the duties of a detective shall be compensated at the
detective's starting salary level for a period of time assigned to perform those duties.
filling acting assignments which last beyond a one year period will automatically progress
22.02 Out of Classification Assignment Pay. An employee
temporarily assigned to a higher
classification who works eight (8) consecutive hours shall receive the lowest rate of pay in
assigned higher classification.
Out of Classification Assignment Pay
would not include those times when an employee is
temporarily assisting an employee in that higher classification.
It is understood that temporary out of
classification assignments are at the discretion of the
Chief of Police or his designee.
POSITIONS OF THE PARTIES
The Association contends that the City violated the parties collective bargaining
when it reduced officer Beglinger's rate of pay after three years continuous service at the
of pay. The Association asserts that the right of the City to unilaterally adjust the wages to
for the type of work performed does not appear in the collective bargaining agreement. To
contrary, the contract specifies that wages are set in consideration of rank and in
consideration of the
work week. The Association believes that Officer Beglinger was removed from the Crime
position without consideration for the economic impact it would have on him and without
regard for the expertise, skills and traits of successful performance he had demonstrated
continuous 36 month period.
It is the view of the Association that the City's contention that Officer Beglinger's
was only temporary should not be the basis for determining his current rate of pay. The
argues that the continuous assignment of Officer Beglinger to Crime Prevention for a three
period constitutes the de facto creation of a
permanent wage rate for him. The Association takes this
position based upon the belief that by continuously reassigning Officer Beglinger over a three
period to the same job, the City moved him beyond temporary status and cannot reduce his
pay without cause.
The Association cites Black's Law Dictionary for a
definition of temporary as "that which is
to last for a limited time only, as distinguished from that which is perpetual, or indefinite, in
duration." The Association contends that a three year term of assignment is not a limited
the year 2000, the assignment to the Crime Bureau was initially posted as indefinite. That
prompted a grievance, which was subsequently resolved. The City made no attempt to
Beglinger's pay following the grievance settlement, nor to apply the settlement terms to
The Association argues that the City has waived its right to do so.
It is the view of the Association that over the passage of time Beglinger had come to
upon his pay status, and to have a reasonable expectation that it would continue, and not be
The City relied upon his skills throughout the period.
The Association contends that nothing in the grievance settlement addresses the
rate of pay for Beglinger. The grievance resolution addresses the right of the Chief to
indefinitely a voluntary assignment.
The City contends that there is no language in the contract or Departmental policy
supports the grievant's claim. To the contrary, the City contends that the language of the
and Department policy directly contradicts Beglinger's claim. The City has promulgated
which makes the duration of a temporary assignment a matter of discretion of the Chief.
leading to an assignment for Beglinger makes clear the fact that the assignment would be
The City also cites Dictionary definitions of "temporary", which
contrast the term with "permanent".
Beglinger's assignments were temporary in nature.
Article 22.02 is the provision which regulates both the assignment and the rate of pay
matter. The pay is provided to those filling an acting assignment. Since Beglinger no longer
the assignment he no longer qualifies for the accompanying pay. Sections 3.05 A and B
"officers assigned to the Crime Prevention Unit" Use of the term "officer" makes clear that
person assigned to these positions are Officers, and not Detectives or any other category of
Use of the term assigned is contrasted with the term "Promotion" found in Article 23. The
that promotion is specifically addressed by these parties in the contract. Beglinger was not
The Union grieved the appointment of Beglinger for an indefinite term. The parties
that grievance with an agreement that this assignment would be for one year, with a possible
extension. They then also settled a new collective bargaining agreement which reflected that
commitment. The City contends that the grievance settlement and the terms of the new
make it even clearer that Crime Prevention Unit assignments are temporary.
This grievance arises under the terms of the parties' 2001 2003 collective
agreement, which took effect January 1, 2001. The issue presented is addressed by three
the contract. Article 3.05 addresses the terms and conditions of employment of the Crime
program. Par. D. provides that compensation " be in accordance with the terms of this
Agreement, as a uniformed acting specialist during the length of their assignment." This
appears to be new to the 2001-2003 agreement. As argued by
the City it does set the compensation for the term of the assignment. Par. H. sets the
term of the
assignments. C.P. is for two (2) years, "..unless circumstances dictate otherwise" The
suggests a temporary assignment. It cannot reasonably be construed as a permanent
H.6) confirms the temporary nature of the assignments. The paragraph calls for a rotation of
Par. J. confirms that assignment to C.P. is a patrol position. This confirms the City
there has been no promotion to a Detective position.
Article 16 is relevant only in that it confirms the right of the City to assign and
employees in general. It is silent on the question of level of pay for work assignments.
Article 22 does address compensation for officers assigned to the Detective Bureau,
capacity of acting detective. Beglinger was paid under this provision prior to 2001. The
a pay standard, and provides for progression through the schedule for assignments beyond
The language of the current agreement, also found in the predecessor contract, specifies that
higher pay is provided " for a period of time assigned to perform those duties" Wage
is provided to those "Employees filling acting assignments which last beyond a one year
Article 22 also confirms that out of classification assignments are at the discretion of
Nothing in the Article suggests a permanent upgrade in pay for an officer rotated out of an
The Association argues that the City should not be allowed to unilaterally change
wage. This claim ignores the words of the contract that tie pay to the period in which an
performs the acting assignment. Thus, the City's action is not unilateral. The Association
to complain that the City acted without regard to the economic impact upon Beglinger, and
regard to the expertise, skills and successful performance demonstrated. However, this is
in the concept of a temporary assignment, which is paid at a differential. At some point the
assignment ends, as does the accompanying pay. These parties negotiated a provision into
20012003 Agreement (3.05 H. 6) which restricts officers in repeating C.P.
provision requires that the City rotate the assignments notwithstanding the performance of the
The Association contends that the three year duration of the assignment operated to
permanent wage rate as a de facto matter. This
contention is not supported by the language of the
collective bargaining agreement. As a practical matter, the Association challenged the
decision to make the Crime Prevention assignment indefinite. With Beglinger occupying the
the Association filed, and settled a grievance on the duration of assignment. That grievance
resolution, executed in August of 2000 does address the time frame for temporary
the Crime Prevention Bureau. It sets limits on those assignments, confirming their
It is silent on pay. The grievance settlement occurred in a contract hiatus period.
The parties subsequently renegotiated the Labor Agreement. The contract was
specify that "Officers assigned to the C.P. shall be compensated, in accordance with the
of this Labor Agreement, as a uniformed acting specialist during the length of their
provision ties assignments to C.P. to uniform acting specialist pay. Sec. 3.05 J is
assignment to C.P. is a uniformed patrol position. It is in the face of this contract language,
negotiated subsequent to the grievance resolution, that the Association contends that
entitled to retain Detective pay. The resolution of the grievance and evolution of the contract
inconsistent with the Association's claim.
The Association argues that by making no attempt to reduce Beglinger's pay at the
the grievance settlement the City has waived its right to adjust his pay status at the end of
However, Beglinger was compensated as an acting detective for his C.P. service in 2000.
the operative rate of pay for that assignment in 2000. The parties' successor collective
agreement changed that rate of pay, effective January 1, 2001. The City's adherence to the
provisions of the effective contract cannot operate as a waiver. Beglinger continued in his
following the grievance resolution. This appears consistent with the terms of that settlement.
City continued to pay Beglinger under the terms of the 2000 Agreement for its duration.
There is nothing in the collective bargaining agreement to support the Association's
this matter. These parties had abundant opportunity to change the words of the agreement to
Beglinger's situation. They did not do so.
The grievance is denied.
Dated at Madison, Wisconsin, this 7th day of August, 2002.