BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
INTERNATIONAL ASSOCIATION OF FIRE
LOCAL 1021, AFL-CIO
CITY OF MARSHFIELD
(Vacation scheduling grievance)
Mr. Joe Conway, Jr., 5th District Vice President, International
Association of Fire Fighters, 821 Williamson Street, Madison, WI 53703, appearing on
behalf of the Union.
Von Briesen & Roper, S.C., by Attorney James R. Korom, 411
East Wisconsin Avenue, Suite 700, Milwaukee, WI 53201-3262, appearing on behalf of the
The International Association of Fire Fighters, Local 1021, AFL-CIO, hereinafter the
with the concurrence of the City of Marshfield, hereinafter the City, requested the Wisconsin
Employment Relations Commission to appoint a member of its staff to serve as Arbitrator to
decide the instant dispute involving vacation scheduling and in accordance with the grievance
arbitration procedure contained within the parties' collective bargaining agreement dated
1998, through December 31, 2000, hereinafter the Agreement. The undersigned, Stephen G.
was so designated. On July 10, 2002, a hearing was held in Marshfield, Wisconsin. The
not transcribed. On September 16, 2002, the parties submitted their initial briefs. On
2002, and following the parties' election to waive their reply briefs, the record was closed.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties stipulated to the following issues:
1. Did the City violate Article VIII, Section 4, of the
Agreement when it denied the vacation
requests of Lieutenant Zeidler on March 27, 2001, Firefighter Bauer on March 5, 2001, and
Firefighter Jozwiak on February 25, 2001?
2. If so, what is the remedy?
Section 1: The Fire Chief
shall administer the vacation schedule according to the terms of this
agreement. He shall reserve the right to determine the number of personnel to be on
vacation at any
. . .
Section 4: All employees who
are eligible for vacation shall submit their choices of dates to their
department head by April 1. When two or more employees request the same dates, the
employee shall have first choice and the selection of the 2 senior employees shall be
Vacation periods of all employees, except those not entitled to one week, shall be
1. Single vacation day picks
prior to the first
round picks shall be limited to January 1
through April 30.
2. First round vacation day picks shall be
taken in minimum three day units within the
3. Following first round picks, single
vacation days may be taken from May 1 through
However, the choice and length of vacation may be changed by
mutual agreement between the
employee and the department head.
. . .
ARTICLE XXVI AMENDMENT AND
Section 1: This agreement is subject to amendment, alteration or
addition only by a subsequent
written agreement between and executed by the City and the Union, where mutually
waiver of any breach, term or condition of this agreement by either party shall not constitute
precedent in the future enforcement of all of its terms and conditions.
. . .
The City is a municipal employer and operates a Fire and Rescue Department,
Department. The Union represents all regular full-time employees within the Department,
the Chief and the Deputy Chiefs of the Department.
The parties offered Joint Exhibit 9 as evidence, among other things, of the parties'
history regarding vacation. 1/ That exhibit indicates that prior to 1981, the parties'
bargaining agreement contained the following pertinent language:
. . .
All vacations shall be based on the calendar year . . . .
. . .
All employees who are eligible for vacation shall submit their
choices of dates to their
department head by May 1. Where two or more employees request the same dates, the
employee shall have the first choice. Vacation periods of all employees except those not
one week shall be taken in units of not less than one week. However, the choice and length
vacation may be changed by mutual agreement between the employee and the department
. . .
Vacation credits must be used each year and shall not
1/ Jt. Ex. 9 is the City of Marshfield, WERC,
MA-6705 (Schiavoni, 12/19/91), hereinafter the Schiavoni
In 1981, the current language in Article VIII, Sections 1 and 4, of the
by the parties, with the exception of the last sentence in Section 4, which was subsequently
Cf., Jt. Ex. 9, p.5. It is not known from Joint Exhibit 9, or from other evidence offered at
in thiscase, when or why the last sentence in Section 4 was added.
In 1983, and pursuant to an interest arbitration award, the City implemented a
system. At this time, the firefighters were organized into 3 sixteen-person platoons.
Previous to this,
there was a 2-platoon system. Jt. Ex. 9, p.5.
The firefighters are now organized into three ten-person
shifts. 2/ If a shift drops below eight
firefighters, then management will usually call additional firefighters into work so that that
shift is at
full staff. Calling one or more firefighters back into work under these circumstances is
called a "work
back." Firefighters that perform a work back receive an overtime rate of pay for those hours
2/ Although the use of the word "shift" was
recalled by the undersigned during the hearing, it is presumed
that that word is synonymous with the word "platoon."
Firefighters request vacationbetween January 1 and March 31
of each year. The time period
during which vacation requests are made has changed over the years. Sometime after the
Schiavoni decision, but before the beginning of the Agreement, the deadline for submitting
requests was moved from May 1 to April 1. There was no evidence at the hearing regarding
reason for this change.
As far as whichvacation dates are selected, the firefighters
designate datesfrom April 1 of
the year in which their request is made through March 31 of the succeeding year. The time
for schedulinghas also changed over the years. From sometime prior
to 1981 until February 15,
1999, all vacations were selected duringthe calendar year. Jt. Ex. 9,
p.3. On February 16, 1999, the
parties agreed thatthe firefighters would designate their requests for
vacation from April 1 through
March 31 of the succeeding year. See,Jt. Ex. 8, and as stated below.
The order in which firefighters select their vacationbegins
the most senior firefighter
writing his or her "first round pick" upon the Department calendar and then passing on the
to the next most senior firefighter to do the same, and so on. First round picks must be
increments of three days. After all of the firefighters have completed their first round picks,
calendar goes through the firefighter ranks again, which is called "the second round pick."
round picks may be taken either in increments of three-day blocks or single days. The first
second round pick process was created sometime after the 1991 Schiavoni
decision, butbefore the
Agreement. The vacation dates selected during either the first round pick process or the
round pick process are collectively referred to as the "pre-4/1 pick" cycle.
Sometimes, the firefighters will "hold" or will reserve some of their credited vacation
make a request for their remaining vacation dates after the pre-4/1 pick cycle. In these
the firefighters will request single vacation dates sometime during the period of April 1
March 31 of the following year. These type of reserved vacation requests are referred to as
picks." It was not made clear at the hearing when post-4/1 picks began or how it evolved.
On February 16, 1999, the parties agreed to the following as part of a settlement of
This letter will confirm the understandings reached by the
representatives of the City of
Marshfield and Local 1021 at the grievance arbitration proceeding involving certain
by local 1021 over the blocking of days on the firefighter work schedule for training
The parties agreed after lengthy
discussions to the following understandings:
vacation selection process, firefighters will be allowed to pick vacation
days for the period of April 1 of one year through April 1 of the succeeding year.
This time frame for the vacation pick process will be implemented in calendar year
1999 in accordance with the normal vacation pick procedures used by the membership
of Local 1021. The City continues to have the right to block off day [sic] through
April 1, 1999 for training purposes.
After the vacation
pick has been completed each year (being the period between
January 1 and March 31), the Fire Chief or designee has the right to block out specific
days to be used for training purposes other than routine departmental training. A
firefighter will not be allowed to take vacation on the days blocked off the schedule
unless the firefighter has designated the day as a vacation day prior to the time the day
has been blocked off for training purposes.
If a firefighter has
not designated a day of vacation during the vacation selection
process (January 1 through March 31) and the firefighter obtains approval pursuant
to the contractual procedures to take vacation on a particular day before the day is
blocked off to be used for training purposes, the firefighter's approved vacation day
shall be honored by the Department.
. . .
On March 14, 2001, the Union filed the three instant grievances alleging that the City
violated Article VIII, Section 4, of the Agreement when it denied, Lieutenant Zeidler's,
Rod Bauer's, and Firefighter Jozwiak's separate requests for single vacation days. As such,
Grievants were denied vacation days that they had saved from the pre-4/1 pick cycle the
At the hearing, the parties stipulated that if the City had granted the grievances and
approved the vacation requests, then those affected shifts would have been less than fully
staffed andmanagement would have had to call in firefighters to work a "work back" as
Consequently, the City would have been obligated to pay overtime to other firefighters called
work to cover for the grievants. The parties further stipulated at the hearing that the
timely filed and were properly processed through all of the steps of the Agreement's
procedure. The grievances were then advanced to arbitration.
Additional background information is set forth in the Positions of the Parties and in
POSITIONS OF THE PARTIES
The Union makes several arguments. First, Article VIII, Section 4, of the
unambiguously states that for purposes of vacation scheduling, "the selection of the 2 senior
employees shall be honored." Neither the Agreement, the parties' policies or the parties'
practice (with the exception of days blocked out by management for non-routine training)
number of firefighters that can be off on vacation if those days are selected after April 1st of
year. The limitation of employees who are allowed off on vacation after the April 1st
deadline is not memorialized anywhere. Nothing uses April 1st as the cutoff for the number
firefighters allowed on vacation at any given time. Therefore, up to two firefighters shall
right to schedule vacation days off, regardless of the time of year that the selection is made.
Moreover, the City's attempt to lump time off for vacation with time off for reasons
than vacation such as sickness, injury or because of an unfilled position, ignores the
for two firefighters to be off on vacation on a given day for any reason. The right to have
firefighters off at any given time is separate from and cannot be categorized with other
firefighters being off work. If the City wants to limit the firefighters' right to select vacation
of mitigating factors such as employee sickness and the City's inability to fill a position, then
negotiate those changes through bargaining. The City may not seek such changes through
Second, the City's assertion that a sustained grievance will incur a significant
overtime costs should not carry weight. Fire Chief Cleveland testified that no employee has
vacation request denied until the circumstances underlying this grievance. Such testimony
to say that every vacation request up until the instant grievance has been honored and the
have suffered increased overtime costs because of this abuse of the system. However, there
evidence that any abuse has occurred. Further, the City's evidence regarding the expenditure
money for overtime costs deals with potential costs, not actual costs. Given the amount of
has elapsed since the Schiavoni decision, it is reasonable to expect that the City would have
evidence of actual overtime costs. The lack of evidence of actual costs indicates that the
financial hardship must either be negligible or nonexistent.
Third, and as an alternative argument to the Union's first argument, the parties have
past practice since 1991 of allowing up to two employees off on vacation at any time and
of employees being off for reasons other than vacation. In addition, the City's assertion that
revoked any past practice does not have merit. By letter dated December 28, 2000, the City
the Union that any past practice will be terminated effective at "the end of the current labor
agreement." However, the Agreement states that it "shall remain in full force and effect
subsequent agreement has been reached . . ." Therefore, if there has not yet been a
agreement, and if the Agreement has not "ended," then the City's letter of revocation is
and the parties' past practice continues in full force and effect, citing Elkouri and Elkouri,
Arbitration Works, 4th Edition, pp. 447-448 (1985).
Fourth, the City's position that Article VIII, Section 1, provides it with the exclusive
determine how many employees are off on vacation following the April 1 vacation selection
deadline, ignores the Schiavoni decision. That decision harmonized and interpreted Article
the Agreement and limited the effect of Section 1 on Section 4 of Article VIII. The result
the City was ordered to honor the vacation selections of the two most senior bargaining unit
employees with no limitations or time restrictions by the Chief. There is no evidence that
ever contested this decision.
Fifth, the historical development of Article VIII, Section 4, should be considered to
understand its full meaning. The language which was added since the Schiavoni decision
the date for the submission of vacation requests from May 1 to April 1. The language also
three bullet points within the body of the original Section 4:
1. Single vacation day picks prior to the first round picks shall be
limited to January 1 through
2. First round vacation day picks shall be
taken in minimum three day units within the work
3. Following first round picks, single
vacation days may be taken from May 1 through December
The above language changes merely provide a procedure for the selection of vacation
days. It does
not modify how many firefighters are allowed to be off at any given time. Contrary to any
by Chief Cleveland, there is nothing in the Agreement, or any other document, that uses
April 1st as
the cutoff for the number of firefighters allowed to be on vacation at any given time.
Sixth, and with regard to the side letter agreement dated February 16, 1999, it has
significant aspects: 1) it increased the period for employees to select vacation from the time
1 through December 31 (Article VIII, Section 4, paragraph 3) to the time of April 1 through
1 of the succeeding year; 2) it placed a limit on days selected after April 1 with regard to
purposes other than routine departmental training;" and 3) it determined that vacation
the initial vacation selection period "shall be honored by the Department" as long as those
are done "before the day is blocked off to be used for training purposes." This document
codifies the parties' past practice of requesting vacation after April 1.
In addition, and when the parties executed the February 16, 1999 agreement, that
became a part of the Agreement. This process of modification does not run contrary to and
agreement with Article XXVI, Section 1, of the Agreement. Moreover, the fact that this
has become a part of the Agreement negates the City's unilateral attempt to evaporate it by
dated December 28, 2000.
The February 16, 1999, document puts one limitation on vacation dates selected after
1: an individual cannot select a day of vacation when non-routine training is blocked out for
There are no other limitations, express or implied. At the time of this agreement, the City
opportunity to bargain any other limitation, but it failed to do so.
The City makes various arguments in support of its position. First, Article VIII,
sentence one, of the Agreement must be read in context with sentence two of that same
Sentence one states: "Employees who are eligible for vacation shall submit their choices of
their department head by April 1." This means that employees may not submit a vacation
any time during the year. However, this sentence cannot be an independent provision in its
Rather, it must be read in the context of the sentence two: "When two or more employees
the same dates, the senior employee shall have first choice and the selection of the 2 senior
shall be honored." The term "when" in the sentence two should be construed as a
an expansion of thought on the mandatory term "shall" in sentence one. Sentence two
guidance if the circumstances in sentence one arise, citing City of Beloit, WERC, MA-8965
(Buffet, 10/03/96). Therefore, and contrary to the Union's assertion, there is no "plain and
unambiguous language that any two of the most senior employees may take vacation on any
throughout the year, citing Elkouri and Elkouri, How Arbitration Works,
5th Edition, p. 470 (1997).
Second, Article VIII, Section 4, cannot be read in a vacuum, citing City of
Parks Dept., WERC, MA-9895 (Hempe, 06/05/98). Article VIII, Section 1, states: "[The
Chief] shall reserve the right to determine the number of personnel to be on vacation at any
Therefore, Article VIII, Section 4, must be read in that context and not in isolation from
Section 1. Otherwise, Article VIII, Section 1, would have no meaning and effect, and that
would become a nullity. A better construction would be to provide meaning and harmony to
entire agreement, giving effect to all provisions, citing Elkouri and Elkouri, supra, pp.
cases cited therein. Moreover, a construction which gives reasonable meaning to every
the contract is preferable to one leaving part of the language useless or meaningless, citing
v. Brown County, 90 Wis.2d 823, 848-49 (1979).
Similarly, Article XXV, Section 1, states: "The City provides a reservations of
and the authority exercised or had by it prior to the time the Union became the collective
representative of the employees here represented, except as specifically limited by express
of this Agreement." This section retains the City's staffing rights. The Union's
Article VIII, Section 4, runs contrary not only to Article VIII, Section 1, but it also
runs contrary to
Article XXV, Section 1, a general reservation of rights clause. The Agreement must be read
Third, the parties' settlement dated February 16, 1999, provides guidance to the
of Article VIII, Sections 1 and 4. Specifically, it states that vacation days must be selected
April 1st of each year, that the Chief retained the right to block out dates for training
that unless the firefighter successfully sought approval from management the firefighter could
schedule a particular vacation day after March 31 where management had previously
day for training purposes. That settlement document does not support the Union's
Any reliance by the Union upon this document is misplaced.
Fourth, the parties' past practice has been that supervisors uniformly deny single day
requests made after the deadline for requesting vacation if on the date requested there are
less persons scheduled for that shift, for any reason. Chief Cleveland testified that he has
vacation requests many times in his more than nine years of tenure. Further, Cleveland
most firefighters will not make a vacation request if there are two firefighters already
a particular shift. According to Cleveland, there were a number of instances where a
be off for an extended period which caused a shortage in staff. In those instances, either the
or his command staff would write "no vacations" directly on the schedule so as to notify
that certain dates would not be approved. The fact that there were no grievances filed over
actions in that regard further supports the City's position.
Moreover, Chief Cleveland testified that his staff went through every calendar month
past eight years and did not find a single instance following the April 1 deadline for
the City granted a single day vacation request and where there were already
two or more firefighters unavailable on that date. In addition, the Union has not
evidence of a past practice which would support its interpretation, despite the Union having
to City documents prior to the hearing, and despite the Union failing to respond to the City's
pre-hearing request for any evidence supporting such a position. The Union has not met its
proof that a past practice existed upon which it relies, citing Elkouri and Elkouri, supra, at
and Brodhead School District, WERC, MA-5343 (Engmann, 07/21/89).
Fifth, any past practice relied upon the Union was revoked by the City's letter to the
dated December 28, 2000. Therefore, the effect of this revocation nullifies any claim of a
practice by the Union.
Sixth, the facts and arguments advanced in this case are similar to those found in City
Marshfield, WERC, MA-11298 (Burns, 11/20/01). In the latter case, Arbitrator Burns
determined that the City had retained its discretion to approve or not approve employee
the use of floating holidays and concluded that the union had failed to prove the existence of
practice. In this case, the Union has similarly failed to prove the existence of a past
addition, the City has retained the right to "approve" a single day vacation request following
deadline for submission.
Lastly, an interpretation favoring the City's position would avoid a harsh, absurd or
nonsensical result. Conversely, an interpretation favoring the Union would work a forfeiture
the City not only in terms of an unanticipated financial impact, but also in terms of an
liability regarding employee and public safety.
This case is one of contract interpretation. It is widely accepted that arbitrators seek
interpret collective bargaining agreements to reflect the intent of the parties and that such
determined from various sources, including the express language of the agreement,
at precontract negotiations, bargaining history, and past practice. Elkouri and Elkouri,
Arbitration Works, 5th Edition, p. 479 (1997).
Article VIII, Section 4, of the Agreement states: "All employees who are eligible for
shall submit their choices of dates to their department head by April 1. When two or more
request the same dates, the senior employee shall have first choice and the selection of the 2
employees shall be honored . . . ."
The parties take irreconcilable positions regarding the interpretation of the above
language. The Union asserts that when two or more employees request the same vacation
the latter half of second sentence unambiguously mandates the City to honor the vacation
of the two senior firefighters, regardless of the time of year when
the requests are made. The City asserts that this second sentence must be interpreted
context of the first sentence such that the mandate applies only to those requests made by
April 1 and
during the pre-4/1 pick cycle. Further, the City asserts that since none of the grievances in
pertain to vacation requests made during the pre-4/1 pick cycle, then the above language is
ambiguous and Article VIII, Section 1, applies, reserving the Chief's right to determine how
firefighters are allowed on vacation for these types of requests.
I agree with the Union that the second sentence of Article VIII, Section 4, is clear.
unambiguously states that the vacation selection of the two senior firefighters "shall be
The term "shall" is mandatory language and the intent of that word is self-evident.
However, the first
sentence of Article VIII, Section 4, is equally clear. It lays down a specific date deadline for
requesting vacation, i.e., "by April 1." In addition, the City is correct in its assertion that
vacation requests cannot be submitted on any date. This interpretation is implicit. If this
the case, the parties would not have identified and selected April 1 as a date for the deadline
submitting vacation requests.
It is generally accepted that an interpretation which tends to render meaningless
contract should be avoided because of the presumption that parties do not create words
have no effect. See, Elkouri and Elkouri, supra, at 493. I agree with this general rule of
interpretation and I apply it here. I interpret the first and second sentences of Article VIII,
4, together so as to give meaning to both. In doing so, I reject any suggested assertion that
sentence has no bearing or application to the second sentence. I agree with the City that the
sentence must be viewed in the context of the first and that the first sentence cannot be
in isolation. Thus, I harmonize the express language of the first and second sentences of
I interpret them together to mean that when two or more firefighters request the same
and that date is requested by April 1, the selections of the two senior firefighters shall be
In its opening remarks at the hearing, the City asserted that Article VIII, Section 4,
Agreement is silent with regard to the vacation selection process for those dates requested
1 and outside of the pre-4/1 vacation pick cycle. I agree. Section 4 does not refer to the
firefighters holding their vacation days and making requests for vacation after the contractual
deadline for submission. In addition, there is no language in any other part of Article VIII,
there language elsewhere in the Agreement, that expresslyreferences
There is, however, express language regarding management's general right to
number of firefighters to be on vacation. Article VIII, Section 1, states: "The Fire Chief
administer the vacation schedule according to the terms of this agreement. He shall reserve
to determine the number of personnel to be on vacation at any one time." This is broad
language. It reserves the right in management to decide how many firefighters are allowed
vacation at a time. The question then becomes how to interpret Section 1 against Section 4
In City of Marshfield, WERC, MA-6705 (Schiavoni, 12/19/91), i.e., the Schiavoni
decision, arbitrator Schiavoni addressed the interpretive interplay between Section 1 and
of Article VIII:
. . . Section 4 is much more specific than Section 1 which grants
broad general authority to the
Fire Chief to determine the number of personnel to be on vacation at any one time. Section
although quite broad, does contain an express limitation, i.e., that the Fire Chief shall
vacation schedule according to the terms of the agreement. This caveat or limitation comes
the grant of authority and because of its placement in the paragraph, it is reasonable to
the second sentence is circumscribed by the first sentence. Thus, the Fire Chief's ability to
the number of bargaining unit employes on vacation at any one time is limited by other
provisions of Article VIII. If this were not the case, there would be no need or reason for
4 to exist since the Fire Chief would have unfettered authority to determine how many
employes could be off at any give time. Id., at 11.
Arbitrator Schiavoni concluded and found that Section 1 must be read in conjunction
4 and that Section 1 is limited by the express language of Section 4. Id.
I agree with Arbitrator Schiavoni's reasoning and conclusion as stated above.
I agree with the City, that case is factually distinguishable. Nowhere in that case is there a
to requests for vacationafter the deadline for the submission of
vacation requests. More importantly,
and in this case, there are no terms in the Agreement which deal with requests for
deadline for the submission of vacation requests. As I have already found, the Agreement is
in this regard. Thus, and applying Arbitrator Schiavoni's above reasoning to these facts,
is not limited by more specific language found in Article VIII because there is none.
and because of the absence of specific contractual language, Section 1 is applicable to the
issue at bar.
Before turning to other evidence which would evince the intent of the parties, the
of the February 16, 1999, document must be addressed. While the Union is correct that
XXVI provides for the amendment of the Agreement through a subsequently signed
is insufficient evidence that the parties intended to make the February 16, 1999, document a
their Agreement. First, that document is referred to by the parties in its opening lines as a
confirming the parties' understandings of a grievance arbitration proceeding. Second, and
immediately above the signature by Local Union President Breuer's signature, it states: "I
the understandings outlined above and Marshfield Firefighters Local 1021 withdraws the
grievances filed with the City . . ." It seemsto me from this language
that the scope of this document
was intended to apply onlyto the settlement of thosegrievances. If there were a broader scope
intended, it was incumbent on the parties to so state it. It is alsonotable that there was no testimony
or evidence of bargaining
history or other evidence at the hearing that the parties intended for Article XXVI to
apply to any and
all agreements signed by the parties. Therefore, I am unable to concludethat this document was
intended to become a part of the parties' Agreement.
Although the February 16, 1999 settlement of grievances document is not a part of
parties' Agreement, it is stillrelevant for purposes of this case. The
third bullet of that text sets up
the scenario of a firefighter that has "not designated a day of vacation during the vacation
process (January 1 through March 31)." In that situation, if a firefighter "obtains approval"
vacation day that is later blocked off by management for training purposes, then that day
honored by the Department. The significance of this bulleted text is twofold: 1)
it deals with the same
post 4/1 picks of vacation requestsat issue in this case, and
2) it references an approval process.
Regarding the approval process, if management can approve a request for a post-4/1 vacation
it goes without saying that management can also deny such a request. This inferred denial
the Union's position that it has been the parties' past practice to allow up to two employees
vacation at any time and regardless of when vacation request is made.
The evidence regarding theCity's written policy on vacations
wasnot particularly helpful in
ascertaining the parties' intent of what rights the firefighters have or do not have when
post-4/1 vacation requests. At the top of that documentit states that
the policy's purpose is "to allow
management to provide for a uniform and consistent method for approving vacation . . ." in
Department. Immediately below the purpose language, the document divides "Vacation
subcategories labeled "First Round Picks," "Second Round Picks," and "Vacation Pick
As indicated above, these are terms which are undisputedly understood by the parties to
vacation requests. Clearly missing is any subcategory referencing, or reasonably implying a
to post-4/1 vacation requests. Thus, there is little interpretive value to this evidence.
With regard to evidence of a past practice, there were very different accounts offered
testimony at the hearing. Local UnionPresident and Firefighter Brad
Breuer testified that when he
evaluated the instant grievances, he found that firefighters had been allowed single vacation
without a problem. This is consistent with Breuer's letter to Chief Cleveland dated February
wherein Breuer writes: "Since the adoption of Article VIII, even after the close of the
selection period, up to two employees have been allowed off on vacation at the same time."
asked on cross-examination what investigation had been done to make this statement, Breuer
his conclusion was based upon conversations with other firefighters. In addition, Breuer
sometime in 1994 or 1995, he personally requested and received a single vacation day during
post-4/1 pick period which caused "a work back" for the Department.
Chief Cleveland testified that if there have been two or more out of ten firefighters
off, for whatever reason, then it has been the practice to deny vacation
requests forthat shift.
According to Cleveland, when a shift has been fully staffed with eight or more, then
single vacation days requested beyond the deadline for submitting requestshave been approved.
Moreover, Cleveland testified that this practice has been consistently applied since he joined
Department as Chief on July 17, 1991. To support this claim, Cleveland testified that prior
hearing management went through the last seven to eight years of Department calendars and
not find a single example where two or more firefighters were already off and a request for a
vacation day was granted and which resulted in a work back. With regard to Breuer's
Breuer being granted a vacation request in 1994 or 1995 which caused a work back,
testified that he did not recall this situation and thathe did not have
the prior years' calendars at the
hearing to determine the accuracy of Breuer's testimony.
In my opinion, both parties' testimonial evidence of a past practice
not persuasive. The
Union's testimony was based either on hearsay conversations with individuals who did not
it was based upon a single instance several years ago. Such evidence, without more, is
of a past practice. Similarly, the City's testimony regarding Cleveland's proffer that there
instances of vacation granted over the past eight years which caused a work back did not
examination of the calendar documents.
Nevertheless, the City did offer additional documentary evidence which runs counter
Union's evidence ofa past practice. Employer Exhibit 1 includes a
summary of all dates in calendar
year 2001 where additional single vacation days, if granted, would have caused a work back.
were such 194 instances. The City asserts that if there was a past practice supporting the
assertion, then there should have been several instances of post-4/1 picksingle vacation requests thatwere granted, but there were none. I agree with the City's point. This evidence
cuts against the
Union's position of a past practice, at least with respect to the calendar year 2001.
With regard to statements made at precontract negotiations and bargaining history,
little evidence to guide me in an interpretive analysis of the pertinent provisions of the
Therefore, I do not address these items.
In conclusion, and looking at all of the evidence, I interpret the express language of
two sentences of Section 4 together such that when two or more firefighters request the same
vacation date, and that date is requested by April 1, the selections of the two senior
be honored. I also interpret Section 4 as being silent with regard to the types of vacation
submitted after the contractual deadline and during the post-4/1 pick cycle. Because of this
Article VIII, Section 4, does not apply to the facts in this case. Rather, Article VIII,
applies and management has the reasonable exercise of authority to approve or deny these
vacation requests. Therefore, and since Article VIII, Section 4, of the Agreement
does not apply
here, it cannot be concluded that the City violated that provision.
Furthermore, there is insufficient evidence of a past practice that two employees have
allowed off on vacation at any time. On the contrary, the evidence submitted would indicate
some form of an approval is first required from management for this type of a
vacation request. In addition, there were an insufficient number of recent examples in
as evidence which supports a finding of a past practice. Therefore, it alsocan not be concluded that
the City was acting contrary to an asserted past practice relative to Article VIII, Section 4, of
I do not address the Union's argument that the City failed to terminate a past practice
letter to the Union dated December 28, 2000, as that point is moot. I have already found
is insufficient evidence of a past practice as alleged by the Union.
Based on the foregoing, and the record as a whole, I make the following
The City did not violate Article VIII, Section 4, of the Agreement when it denied the
requests of Lieutenant Zeidler on March 27, 2001, Firefighter Bauer on March 5, 2001, and
Firefighter Jozwiak on February 25, 2001. Therefore, the grievances are denied.
Dated at Eau Claire, Wisconsin, this 23rd day of January, 2003.
Stephen G. Bohrer, Arbitrator