BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
APPLETON PROFESSIONAL POLICE
CITY OF APPLETON (POLICE
(Michael Parker Grievance)
Mr. Fred Perillo, Previant, Goldberg, Uelmen, Gratz, Miller &
Brueggeman, S.C., Attorneys at Law, appearing on behalf of the Association.
Ms. Ellen Totzke, Deputy City Attorney, appearing on behalf of
The above-captioned parties, hereinafter referred to as the Association and the City,
respectively, were parties to a collective bargaining agreement which provided for final and
arbitration of grievances. Pursuant to a request for arbitration, the Wisconsin Employment
Commission appointed the undersigned to decide a grievance. A hearing, which was
held on April 10, 2002 in Appleton, Wisconsin. On May 30, 2002, the parties filed
the record was closed. Based on the entire record, the undersigned issues the following
The parties were unable to stipulate to the issue to be decided in this case. The
frames the issue as follows:
Did the City violate the collective bargaining agreement when it
refused to allow a shift change
to permit an officer to pay back a traded day because the officer would work 16 consecutive
The City frames the issue as follows:
Does Article 3, Section D of the Labor Agreement stating that
each officer shall be allowed to
work up to 16½ hours scheduled in a 24-hour period supersede the language of Article
B of the Labor Agreement regarding work schedule, specifically the language that states
may mutually exchange work schedules with prior approval of the supervisor."
Having reviewed the record and arguments in this case, the undersigned finds that the
wording of the issue is appropriate for purposes of deciding this grievance. Accordingly, the
undersigned adopts the Association's wording of the issue.
The parties' 2000-2001 collective bargaining agreement contained the following
ARTICLE 3 HOURS
. . .
B. Work Schedule: . . .Officers
may mutually exchange work schedules with prior
approval of the supervisor.
. . .
D. Each Officer shall be allowed to work up
to 16½ scheduled hours in a 24 hour period.
. . .
ARTICLE 28 FUNCTION OF
Except as otherwise provided, the
management of the Department and the direction of the
working forces, including the right to hire, promote, demote, lay-off, suspend without pay,
for proper cause, transfer, determine the
number of employees to be assigned to any
job classification or to determine the job classification
needed to operate the Employer's jurisdiction is vested exclusively with the Employer.
It is further agreed, except as herein
otherwise provided, that the responsibilities of management
include, but are not limited to those outlined in this Agreement. In addition to any functions
herein, the employer shall be responsible for fulfilling all normal managerial obligations,
planning, changing, or developing new methods of work performance, establishing necessary
organizations and procedures, assigning work and establishing work schedules, and of
appropriate means of administration and control. Provided however, that the exercise of the
foregoing rights by the City will not be used for the purpose of discrimination against any
of the Association or be contrary to any other specific provision of this Agreement, and
nothing herein shall be construed to abrogate the provisions of the grievance procedure.
The City operates a police department in Appleton, Wisconsin. The Association is
exclusive collective bargaining representative for the Department's employees with the power
arrest. The grievant in this case, Michael Parker, is a member of that bargaining unit.
This case involves a shift trade that was denied.
Employees in the department routinely trade shifts with their co-workers. The
involved in the trade at issue here has participated in hundreds of them over the years.
When a trade
occurs, the employees work out the specifics among themselves (namely, who is substituting
whom on what date and for how many hours) and then they submit the appropriate
management for approval. The trade is usually approved unless management determines that
problem exists with the proposed trade. When a trade occurs, the employee who is
work receives his or her regular pay even though they did not work and the employee who
works the shift receives no pay. Trades do not have to be mirror images of each other;
trades have been approved so long as the hours were equal. A mutual trade between
contemplates that the employee benefiting will pay back the other employee by working for
her on a different occasion. This latter trade, which is known as a payback, makes the two
even. Management does not inject itself into ensuring that paybacks occur. The employees
testified thought that paybacks had to occur within the same calendar year as the initial half
trade occurred. Management witnesses who testified thought that pay backs did not have to
within the same calendar year as the initial half of the trade occurred.
. . .
The following bargaining history is noted because the parties addressed it at the
in their briefs. Until 1999, there was no provision in the labor agreement that specified how
consecutive hours an employee could work in a day. This changed in 1999 as a result of an
interest-arbitration decision. That year, both sides made bargaining proposals concerning
same (i.e. the
number of consecutive hours that an employee could be scheduled to work). Both the City
Union proposed that this new contract language be added to Article 3, which is entitled
The City's bargaining proposal was as follows:
Employees shall not normally be scheduled or permitted to work
more than 12 consecutive hours.
A rest break of at least 6 consecutive hours or a total of 8 hours is required in the 12 hours
the start of their next scheduled shift. These provisions may be waived at the discretion of
or his designee.
The Association's bargaining proposal, which was entitled
"Maximum Hours of Work", was as
Each officer shall be allowed to work up to 16½ scheduled
hours in a 24 hour period.
The parties did not voluntarily settle their contract, so they proceeded to
to Wisconsin's interest-arbitration law. In their brief to the interest-arbitrator, the City
its proposal was necessary to ensure public safety, citing contract provisions in other
permitting officers to work in excess of 12 consecutive hours only in emergencies. On page
2 of their
brief to the interest-arbitrator, the Association summarized their proposal thus:
Importantly, the Association's proposal does not interfere with the
City's inherent authority to
schedule the members hours of work. This proposal merely addresses a members ability to
or sign up for overtime should the officer elect to do so. This proposal does not impact the
ability to call in or hold over members as needed on an emergency or as needed basis.
When the interest-arbitrator issued his award, he did not pick one side's final offer in
Instead, contrary to Wisconsin's interest-arbitration law, he ruled on an issue-by-issue basis.
portion of his award pertinent here is the part dealing with Article 3 (Hours). He put his
of same in Section IX under the heading "Hours Maximum Scheduled Overtime."
was apparently an error, because in his actual discussion of the proposals, he did not mention
overtime at all, and consistently referred to the proposals as an "hours-worked on duty
In that section, he addressed various arguments, including
the City's comparability argument and safety argument. With regard to the City's
argument, he found that the other communities' contract provisions were not comparable
they did not contain a rest period requirement in addition to a consecutive hours limitation.
regard to the City's safety argument, he rejected the City's evidence concerning safety on the
that it was not empirically valid. After considering all the foregoing points, the
found that the City's offer on this particular issue:
. . . cannot be adopted on statutory grounds, and furthermore, is
of such magnitude in its scope
for changing the terms and conditions of bargaining unit members that it requires mutual
rather than imposition by an arbitrator.
He therefore found for the Association on this particular issue.
Following the issuance of the interest-arbitrator's award, the parties decided to not
the award in court, but rather to incorporate his findings into their successor collective
agreement. They did this as follows: if the arbitrator found for the City on say, disputed
item #1, then
the City's proposal on item #1 was incorporated into the labor agreement. Consistent with
approach, the parties incorporated the Association's proposal on Article 3 into the labor
It became Article 3, D.
In the current contract negotiations between the parties, the City again proposed to
officer hours. Specifically, it proposed new language for Article 3, D. The City's proposal
The Department will not schedule an Officer for more than 12
consecutive hours. Anytime an
Officer works 12 or more consecutive hours, the Officer must have a minimum 6 consecutive
as a rest period unless directed by a supervisor or subpoenaed.
The City interpreted the phrase "directed by a supervisor" in its proposal to mean
situations. This language was substantially identical to the change the City proposed in 1999
purpose of restricting officers to 12 hours per day. The only significant difference between
1999 proposal and this one is that in the current proposal exceptions are limited to
. . .
The record indicates that following the insertion of Article 3, D into the labor
some department employees have worked over 12 consecutive hours in a single day. For
Association Exhibits 2, 4 and 5 show that the officers identified therein worked, respectively,
hours, 13¾ hours, and 15¼ hours in a single day. Additionally,
officers have been held-over for minimum staffing to work 16¼ hours in a single
day, and in other
instances, 14¼ hours and 13¼ hours in a day. Additionally, when the City
denied Officer Gross
overtime on the grounds that he would have worked 16½ hours in a day, it settled the
admitted it had violated the contract. The record also indicates that the City approved a
trade between Officers Olson and Pynenberg which resulted in a 14¼ hour day for one
On January 27, 2001, Officers Burbach and Parker traded shifts. Parker, who was
to be off work, worked a four (4) hour shift for Burbach. The same thing occurred on
2001. On that date, Parker, who was scheduled to be off work, once again worked a four
shift for Burbach. Both these trades were approved by management. As a result of these
Burbach was obliged to work eight (8) hours for Parker to pay back these two trades.
In early November, Parker and Burbach mutually agreed that as a payback for the
(4) hour shifts that Parker worked for Burbach on January 27 and October 27, Burbach
Parker's eight (8) hour shift on December 29, 2001. When they made these arrangements,
that Burbach was already scheduled to work the eight (8) hour shift immediately prior to
scheduled eight (8) hour shift. Since Burbach was already scheduled to work an 8¼
hour shift that
day, the proposed trade would result in her working 16¼ consecutive hours that day.
Parker then submitted the appropriate paperwork seeking management approval of
In that paperwork, he indicated that he wanted to have Burbach work his eight (8) hour shift
December 29, 2001 as payback for the two (2), four (4) hour shifts that he had worked for
on January 27 and October 27.
On November 7, 2001, Lieutenant Nickels denied the requested trade. When he
he gave no reason for doing so except that Deputy Chief Peterson had directed him to deny
The Association grieved this action. When the grievance was appealed to Deputy Chief
his response stated in pertinent part: "I don't believe that Article 3, paragraph D of the
Agreement was ever intended to usurp the scheduling authority of the City, and I am not
to abdicate that authority." When the grievance was appealed to Chief Myers, his response
in pertinent part: "the City here is simply exercising its right in denying the request to work
distinct shift trade events in a single 'payback' event."
After the City denied the shift trade referenced above, Burbach orchestrated a
complex five-person trade as payback to Parker so that he would be off work on December
29. This five-person
trade was approved by management. That trade is not at issue here.
POSITIONS OF THE PARTIES
The Association contends that the City violated the collective bargaining agreement
refused to permit Officer Burbach to trade a shift with Officer Parker on December 29,
Union acknowledges that if the trade had been approved, Officer Burbach would have
consecutive hours on that date. Be that as it may, the contract specifically says that officers
be allowed to work 16½ hours in a 24-hour period. The Association avers that since
specifically allows officers to work 16½ hours in a 24-hour period, the trade should not
denied. It elaborates on this contention as follows.
First, the Association argues that when the City refused to approve the requested
violated two contract provisions: Article 3, B and 3, D. It notes that the former section
shift trades be "mutually exchanged", and the latter section specifies that officers "shall" be
to work 16½ hour days. Reading the two provisions together, the Association avers
management cannot deny a trade except when there is an operational reason for doing so.
Association points out that when the City denied this particular trade, it did not provide any
for doing so. Instead, it simply denied it without an explanation. According to the
ever anything was arbitrary, this was it. The Association cites several arbitration awards for
proposition that an employer cannot deny a shift trade arbitrarily.
While the City later supplied two reasons for its denial of the trade, the Association
that neither holds water. The first reason was that the trade was defective on the grounds
was trying to recoup two, four hour shifts in a single eight-hour shift. The Association
City abandoned that argument during the hearing, and, in any event, it has no merit. The
asserts that there was nothing defective or improper about the proposed trade. The second
which the City later supplied was "safety". According to the Association, the City never
that claim; instead, all it did was make the bald assertion that a scheduled 16¼ hour
shift would be
unsafe. The Association characterizes the City's safety concern as "sheer hypocrisy", since
frequently schedules employees for 14 to 16 hour days for its own convenience. The
argues that when the City raised its alleged concern over safety, it did so simply as an excuse
the trade not because of genuine concern that long hours are justified only in extreme
Aside from that, the Association maintains that the City offered no evidence that 16½
cause fatigue or a decline in officer performance.
The Association avers that the real reason management denied the requested trade is
it simply does not like to approve trades which result in a 16¼ hour shift. According
Association, the problem with the City's view is that it conflicts with Article 3, D. As
previously noted, that provision says that employees can work 16½ hour days.
Thus, officers are
contractually entitled to work 16½ hour days if they want. The Association argues that
notwithstanding "vague notions of safety", the City cannot abrogate this plain and
language because, as they put it in their brief, "the limit which the City seeks to impose by
management fiat directly violates an explicit contractual command."
Next, the Association responds to the City's argument that officers should try to use
methods or trades to avoid working a 16¼ hour day. It notes at the outset that this
assumes that contract rights are something to be avoided, rather than used. The Association
disagrees with that premise. In its view, contract rights are entitlements, not last resorts. As
Association sees it, the right to work 16½ hour days is an important contract right. To
premise, it notes that both parties risked an averse award by including it in their 1999 final
The Association argues that if management can unilaterally decide that the Article 3, D right
16½ hour days is never to be used if it can be avoided, then in effect that contract
clause is being
rewritten to provide thus: officers no longer "shall" be allowed to work 16½ hour days,
but are only
allowed to do so if there are no other conceivable alternatives. The Association asks that
such a last
resort limitation not be grafted onto Article 3, D at this late date.
Next, the Association responds to the City's argument that Article 3, D concerns only
overtime, and thus does not apply herein (because overtime was not involved). Simply put,
disputes that assertion. In its view, neither the contract language itself nor the parties' past
support the view that 16½ hour days are permitted for overtime purposes only. As for
reliance on the party's bargaining history, the Association responds thus. First, the
acknowledges that when the interest-arbitrator wrote his discussion on the language that was
ultimately incorporated into the contract as Article 3, D, he referenced it as "maximum
overtime." The Association characterizes this as an apparent typographical error because in
other place in the award, he referred to it as "maximum scheduled hours." Second, the
notes that when both sides wrote their respective proposals, they both put them in the article
with hours (Article 3) not the article dealing with overtime (Article 4). Third, it
points out that
when the interest-arbitrator wrote his discussion, he made no mention of overtime
Fourth, the Association argues that there is no need for the arbitrator to resort to using parol
to interpret Article 3, D because that provision is plain and unambiguous. As the
it in their brief, "the only way to create the ambiguity is to resort to extrinsic or parol
as the brief itself." It asserts that arbitrators traditionally do not permit parol evidence to be
way. Finally, the Association calls the arbitrator's attention to the fact that the City lost the
interest-arbitration award on this subject. In its view, what the City is attempting to do here
is re-fight that lost battle in an effort to get a different result. The Association asks that the
change the contract language which it won in interest-arbitration. The Association also notes
the City has tried to achieve the same change in contract negotiations since then, but has not
successful in doing so.
In sum, the Association believes that Parker's original shift trade with Burbach
been approved even though it would have resulted in Burbach working a 16¼ hour day.
thereof, the Association relies on Article 3, D which it believes gives officers the right to do
(i.e. work a 16½ hour day). It therefore asks that the grievance be sustained. With
regard to a
remedy, the Association notes that it is not requesting a monetary award. Rather, it seeks a
declaration from the arbitrator that the City violated the collective bargaining agreement
denied the trade involved herein. Additionally, it seeks an order that henceforth, "the City is
approve trades up to 16½ hours in duration absent an operational reason (excluding
safety or fatigue)
for doing so."
The City contends it did not violate the collective bargaining agreement when it
Parker's first trade request. According to the City, it had the management right to do that
the trade). It makes the following arguments to support that contention.
The City believes that three contract provisions are applicable to this contract dispute:
are Article 28, Article 3, B and Article 3, D. It addresses them in the order just
First, the City relies on the Management Rights clause. The City reads that clause to
the right to regulate the department's workforce in general, and specifically the number of
scheduled to work. The City contends that the rights just referenced specifically allow it to
the scheduling of personnel. The City avers that scheduling the department's 24-hour a day
is already a difficult task, but will be made even more difficult if the grievance is sustained.
Next, the City calls attention to the shift trade language contained in Article 3, B.
addresses that language though, it notes for background purposes that it approves most shift
In its view, department management goes out of its way to assist officers in getting time off,
accommodating them on shift schedule changes and shift trades. That said, the focus turns to
trade language itself. It calls attention to the fact that trades have to be approved by a
The City cites a dictionary definition of "approve" as giving formal sanction to, or
notes that here, though, management did neither (i.e. sanction or confirm the proposed
the City sees it, that was management's call to make (i.e. to approve or deny). The City
the reason the shift trade in question was denied was because of concerns for the officer's
notes in this regard that if the trade had been approved, the officer would have worked a
day. The City acknowledges that there are certainly occasions that arise in the department
require employees to work long hours. In its view, though, the situations where an
scheduled for more than 12 consecutive hours should be emergency situations only, and
be something that is scheduled in advance (which would have been the situation here if the
approved). In this instance, management simply did not want to schedule the employee
to work for
16¼ consecutive hours in a day. The City essentially asserts that this management
deference and should not be overturned by the arbitrator.
The City argues that if the arbitrator finds in the Association's favor in this case, the
will be that henceforth when an officer notifies management that they want to trade a shift,
management will have to approve the request unless it supplies a reason that is acceptable to
officer. According to the City, that is not what "approval" means. In the City's view,
Article 3, B
does not require supervisors to abdicate their management authority to approve trades.
Finally, the City addresses the language found in Article 3, D. It maintains at the
the arbitrator's interpretive task herein is not to give that clause, as they put it in their brief,
meaning that can possibly be read into the language." Instead, the City asserts that the
interpretive task is to discern what the parties intended it to mean. According to the City,
traditionally look to the parties' bargaining history and past practice to help them interpret
language and ascertain the parties' intent. Consequently, it makes those traditional
It contends that after the arbitrator reviews that evidence (i.e. the bargaining history and the
practice), he will conclude that Article 3, D does not have the meaning ascribed to it by the
Association. In other words, he should find that the clause does not apply to shift trades;
only applies to overtime situations. According to the City, that clause does not require the
as the City puts it in their brief, "allow an officer to work 16½ hours whenever he or
she wants to."
With regard to the parties' bargaining history, the City notes the following. First, it
attention to the fact that the 16½ hour language which was ultimately incorporated into
Article 3, D
was the Association's proposal; not the City's. Second, it notes that when the Association
their brief to the interest-arbitrator, it specifically stated what the Association intended the
to mean. The City specifically relies on the following line from that brief: the proposal
addresses a members ability to request or sign up for overtime should the officer elect to do
City cites Elkouri for the proposition that the Association should be held to the interpretation
noted (i.e. that the Association intended the proposal to cover only overtime situations).
City notes that when the interest-arbitrator issued his decision, he captioned the discussion of
as "Hours-Maximum Scheduled Overtime." As the City sees it, the reference to "overtime"
caption was no accident. The City avers that when all this bargaining history is considered,
establishes that the parties intended the Article 3, D 16½ hour day provision to only
apply to overtime
situations, and not to apply to shift trades.
With regard to the parties' past practice, the City acknowledges that employees have
more than 12 hours a day since Article 3, D was placed into the labor agreement. However,
avers that in those situations, no shift trade was involved. Instead, in those situations,
requested the opportunity to work overtime for special events, or were held over to
minimum staffing levels or process a late arrest. According to the City, the situation with
Gross supports its position here that Article 3, D only applies to overtime situations.
In support of
that premise, it notes that in that case, Gross was denied the opportunity to work 8 hours of
If he had worked that overtime, he would have worked a 16¼ hour shift. It further
notes that after
he grieved the denial of the overtime, the City admitted that it was in error, and that he
been allowed to work the overtime in question. In the Employer's view, this proves that
D applies to just overtime situations.
Based on the above, the City requests that the grievance be denied.
This case involves a shift trade which management denied. The question to be
whether this denial violated the collective bargaining agreement. The Association contends
did while the City disputes that contention. I answer that question in the affirmative,
the City violated the collective bargaining agreement when it denied the requested trade. My
I begin with an overview of how this discussion is structured. Attention will be
initially on the contract language cited by the parties. They relied on three contract
Article 28; 3, B; and 3, D. Those provisions will be addressed in the order just listed.
contract language has been reviewed, attention will be given to certain evidence external to
agreement. The evidence I am referring to involves the parties' bargaining history and an
The first contract provision relied on by the City is the Management Rights clause
found in Article 28. That clause provides, in pertinent part, that the City has the right
to direct the
work force and establish the work schedule. Neither of those points is really at issue,
noted above, what is at issue here is a disputed shift trade. The Management Rights clause
no explicit reference to shift trades, while another contract provision, which has yet to be
does. Inasmuch as this is a shift trade dispute, it stands to reason that the contract language
would be most applicable to such a dispute is not the Management Rights clause, but rather
trade language. That being so, the focus turns to an examination of that language (i.e., the
The shift trade provision is found in Article 3, B. The last sentence in that provision
follows: "Officers may mutually exchange work schedules with prior approval of the
This clause allows officers to trade shifts with their co-workers. The reference to "mutually
exchange" means that the employees work out the specifics among themselves (i.e. who is
substituting for whom on what date and for how many hours) and then they submit the
paperwork to management. After the paperwork is submitted to management, the ball is in
court, so to speak. What happens next is that management decides whether to approve the
trade. Under this clause, management approval is not automatic or guaranteed. Had the
intended that all trades would automatically be approved, they would have said so. They did
In point of fact, the clause does not say that management will simply be notified of a trade
affected officers. Instead, the language specifies that "prior approval of the supervisor" is
When management has the right to approve something, it obviously has the right to withhold
approval (i.e. to deny). This particular clause does not say though how that determination is
by management (i.e. how approval is granted or denied). Thus, it is silent concerning same.
The final point made in the preceding paragraph (i.e. how management approval is
or denied) deserves further comment. It is a well-established contractual principle that when
contract gives management the right to approve something (in the context of this case, the
approve a requested trade), the employer's determination cannot be arbitrary or
other words, a reasonableness standard is inferred. Arbitrators routinely find that if the
arbitrarily in making its decision, its actions constitute a contract violation. Conversely,
routinely find that if the employer did not act arbitrarily in making its decision, its actions do
constitute a contract violation.
The focus now shifts to an analysis of the City's reasons for denying the shift trade to
determine if they (i.e. the reasons) pass muster. When the trade was denied, no reason was
the time. Later, though, three reasons were supplied which, in the City's view, justify the
the shift trade. Two of the reasons were given during the processing of the grievance and
was given at the arbitration hearing. All three reasons will be addressed in the discussion
The first reason which the City cited to justify the denial of the shift trade was its
management right to schedule. This contention has already been addressed in my previous
concerning the applicability of the Management Rights clause to this dispute. Given that
nothing more need be said here.
The second reason which the City cited to justify the denial of the shift trade was that
trade was defective or improper because the officer was trying to recoup two, four-hour
shifts in a
single eight-hour shift. It appears that the City abandoned this argument because it was not
referenced in their brief. However, if it did not, I find there is no merit to same. The
reason is this: the record indicates that the City has previously approved trades where
exchanges were traded back for a single, larger time period. In other words, the City has
permitted multi-part trades so long as the hours were equal. That being so, there is no
reason identified in the record why in this instance two, four-hour shifts could not be traded
an eight-hour shift.
The third reason which the City cited to justify the denial of the shift trade was
the officer's safety in working a 16¼ hour day. It would be one thing if the City had
evidence which substantiated that assertion. If it had presented such evidence showing that
requested trade compromised the safety of the officer, the undersigned would have hung his
proverbial hat on it and used it as a basis for reaching a decision herein. However, there is
evidence which substantiates the City's claim that 16¼ hour days are unsafe.
Specifically, there is
no record evidence that working a 16¼ hour day causes fatigue, results in a hazardous
causes a threat to public safety. Aside from that, the record indicates that the City
schedules employees for 14 to 16 hour days for the City's convenience (such as a holdover
minimum staffing). Obviously, this fact undercuts the City's safety argument.
Having found none of the aforementioned reasons sufficient to justify the denial of
trade, the focus now shifts back to the contract language. The final contract provision
this dispute is Article 3, D.
My first interpretive task involving this provision is to determine whether its meaning
and unambiguous, or whether it is ambiguous. Language is considered clear and
it is susceptible to but one plausible interpretation/meaning. Conversely, language is
ambiguous when it is capable of being understood in two or more different senses, or where
arguments can be made for competing interpretations. If the language is found to be clear
unambiguous, my job is to apply its plain meaning to the facts. If the language is found to
ambiguous though, my job is to then interpret it to discern what the parties intended it to
then to apply that meaning to the facts. Attention is now turned to making that call.
I begin my discussion of this language by noting what it explicitly says. On its face,
this: "Each Officer shall be allowed to work up to 16½ scheduled hours in a 24 hour
sentence says in very plain terms that officers can work 16½ hour days. There is
nothing unclear or
ambiguous about it. This language gives employees the right to work 16½ hour days if
There are no ifs, ands or buts about it.
Having just found that employees have a contract right to work 16½ hour days
if they want,
the focus turns to the City's tacit contention that officers should try to use other methods or
to avoid working a 16½ hour day. The premise to this contention assumes that some
contract rights (in this particular case, the employees' right to work a 16½ hour
day) should not be
used, but rather should be avoided. That premise cannot be sustained. Contract rights are
last resorts, meaning that they are only to be used if there are no other alternatives. Instead,
entitlements. What this means is that bargaining unit employees are entitled to use their
rights whether or not they are the least restrictive means possible. Said another way,
employees can use their contract rights over the objection of management. If management
power to decide that this particular right (i.e. the right to work 16½ hours in a day)
should not be
used if it can be avoided, then in effect, this is re-writing the contract to provide that officers
longer shall be allowed to work 16½ hour days if there are other conceivable
The contract does not say that; in fact, it contemplates just the opposite, namely that officers
be allowed to work 16½ hours in a row.
Having so found, attention is now turned to the City's argument that Article 3, D
to overtime situations and does not apply to shift trades. I find that the City's contention
contractual basis. Nothing in the language of Article 3, D says that 16½ hour days are
for overtime situations.
Recognizing this, the City does not rely on what the language explicitly says.
Instead, it relies
on evidence external to the collective bargaining agreement. Specifically, it relies on the
bargaining history and an alleged past practice. Bargaining history and past practice are
evidence which are commonly used and applied in contract interpretation cases. The
underlying their use is that they can yield reliable evidence of what a particular provision
Thus, arbitrators traditionally look at bargaining history and past practice when the contract
is ambiguous to help them interpret it. The key word in the previous sentence is
reason that word is key is because that is not the case here. After reviewing Article 3, D,
undersigned found its meaning to be plain, clear and unambiguous. That being so, there is
in this instance to resort to using bargaining history and past practice to interpret the meaning
language. What the City is essentially trying to do here is use statements from the
to the interest-arbitrator and his award to create an ambiguity in Article 3, D. However, as
noted, there is no ambiguity whatsoever in Article 3, D. None. The only way to create an
in it is to resort to parsing certain statements which are contained in those documents. I
do that. The language of Article 3, D speaks for itself and presumably incorporates the
mutual intent concerning its meaning. Given this finding, the undersigned will not review
bargaining history or the alleged past practice further, or use either as a basis to ascertain the
intent concerning the meaning of Article 3, D.
Finally, it is apparent from the record that what the City is attempting to achieve
arbitration is a change in the meaning of Article 3, D that it has thus far failed to achieve
negotiations. If the City wants the 16½ hour days referenced in Article 3, D to be
limited to just
overtime situations, it will have to get that limitation through negotiations or from an
It is therefore concluded that the City violated Article 3, B and 3, D of the collective
bargaining agreement when it denied the shift trade involved herein. While this trade would
resulted in the affected officer working for 16¼ consecutive hours that day, Article 3,
allows officers to do that. Since officers have a contract right to work 16½ hours in a
requested trade should have been approved.
Having found a contract violation, the focus turns to the remedy. The remedy which
appropriate is this: henceforth, when an officer seeks to have a shift trade which is up to
in duration approved, management is to approve the trade unless it offers a valid operational
why it cannot, in that instance, be approved.
In light of the above, it is my
That the City violated the collective bargaining agreement when it refused to allow a
change to permit an officer to pay back a traded day because the officer would work
hours. The remedy for this contract violation is as follows: henceforth, when an officer
seeks to have
a shift trade which is up to 16½ hours in duration approved, management is to approve
unless it offers a valid operational reason why it cannot, in that instance, be approved.
Dated at Madison, Wisconsin, this 7th day of August, 2002.