BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
BARGAINING UNIT OF THE GREEN BAY POLICE
CITY OF GREEN BAY
Mr. Thomas J. Parins, Jr., Parins
Law Firm, S.C., Attorneys at Law, 422 Doty Street, P.O. Box
817, Green Bay, Wisconsin 54305, appearing on behalf of the Bargaining Unit of the Green
Police Department, referred to below as the Union.
Mr. Lanny M. Schimmel, Assistant City Attorney, City of
Green Bay, Room 200, City Hall, 100
North Jefferson Street, Green Bay, Wisconsin 54301, appearing on behalf of City of Green
referred to below as the City.
The Union and the City are parties to a collective bargaining agreement which was in
at all times relevant to this proceeding and which provides for the final and binding
certain disputes. The Union requested and the City agreed that the Wisconsin Employment
Commission appoint an Arbitrator to resolve a grievance filed on behalf of Scott Schuetze,
referred to below as the Grievant. The Commission appointed Richard B.
McLaughlin, a member
of its staff. Hearing on the matter was held on January 23, 2003, in Green Bay, Wisconsin.
Union and the City agreed to consolidate the grievances. Carla Burns filed a transcript of
with the Commission on February 18, 2003. The parties filed briefs and reply briefs by May
The parties were unable to stipulate the issues for decision. I have determined the
poses the following issues:
Did the City violate Section 6.04(2) of the collective
agreement when it refused
to pay the Grievant continuous pay for May 7, 2002, when the Grievant had been summoned
testify, under two subpoenas, one demanding his appearance at 8:30 a.m. and the other at
If so, what is the appropriate remedy?
ARTICLE 6. OVERTIME
. . .
6.04. MINIMUM CALL-IN TIME. Employees will be
compensated for a minimum of
three (3) hours for any call-in time worked on a scheduled work day, a day on which an
a full 8 1/2 hour work day pursuant to posted shift overtime, or for a call-in while an officer
attending either a voluntary school or in-service training (an officer receiving call-in pay on a
attending school shall still be entitled to compensatory time as if no call-in occurred if the
successfully completes the school in question, and if the school is not successfully completed,
receive compensatory time for those hours in attendance). The department may engage
officers in police business on site during in-service training without paying call-in, provided
not jeopardize the officer receiving full credit for the class interrupted. Employees will be
compensated for a minimum of six (6) hours for any call-in time on a day off or scheduled
This call-in time shall be compensated at the base rate of pay.
. . .
(2) Continuous Duty: In the event an officer is
called in for more than one (1) call in any
given day, that officer shall not receive two call ins, but shall be paid continuous pay at the
rate of time and one-half from the beginning of the first call in to the end of the second call
excepting that if the call ins in question are for specialized units established and existing for
purpose of being called in for special problems or occurrences, such as SWAT,
K-9, the contemplated Bomb Squad, or the
like, the continuous duty rule shall not apply to more
than one call in of such nature, but rather each call in shall be a separate call in.
. . .
6.05 COURT CANCELLATION PROCEDURE. The
afternoon shift commander will be
notified of any court cancellations. It then becomes the responsibility of the officer to call
commander after 5:00 p.m. on the day prior to the scheduled court date as to whether or not
court appearance has been canceled.
(1) The shift commander will record all
such calls by date and time in a log book; that is,
if an officer appears at court and the case has been canceled, he/she will receive the
pay only if he/she had called in after 5:00 p.m. the prior day and was not notified of the
If the officer had not called in the prior day, he/she will not receive the pay.
(2) On those occasions when court
appearances are canceled after 5:00 p.m., the shift
commander will attempt to contact the officer with the cancellation, if the officer had already
in. If the officer is contacted twelve (12) hours before the scheduled court appearance, the
will not receive call-in pay.
The City did not put on any witnesses after the Union
rested its case on this grievance. Thus,
the background to the grievance is best set forth as an overview of witness testimony.
The Grievant has served the City as a police officer for thirteen years. At the time
grievance, he worked in the traffic unit, from 7:00 p.m. to 3:30 a.m. His shift hours mean
appearances occur in his off time.
He received a subpoena to testify for the prosecution at a jury trial in a criminal
at Brown County Circuit Court. The subpoena demanded his appearance on May 7, 2002 at
a.m. Subsequently, he received a subpoena from the defense attorney in the same matter,
demanded his appearance on May 7, 2002 at 3:00 p.m., and at 8:30 a.m. on May 8.
received the defense subpoena on the evening of May 6. The receipt of a subpoena that
close to the
start of a trial typically indicates the trial will go forward. The
Grievant called in after 5:00 p.m. on May 6 to check the court book, and determined
that the matter
had not been cancelled. He then made child care arrangements to testify the following day.
He reported for work on May 6, got into his uniform and reported to the Circuit
8:30 a.m. On his way to the courtroom, he met a police lieutenant who informed him "that
was canceled" (Tr. at 182). The Grievant took this to mean that he was not needed by the
prosecution, and returned to the department. He prepared and submitted an overtime card to
shift Captain, who approved it. The Grievant then spoke to Ann Anderson, who is in charge
processing of subpoenas. He asked her to check if he was still needed by the defense, and to
at home if he did not need to report for work prior to his shift that evening. He then went
went back to sleep.
Sometime after falling asleep, Anderson phoned to inform him that the entire
been cancelled and that he need not report to testify. He reported for work at the scheduled
his shift on May 7. He discussed the overtime with Captain Sterr. They looked at the labor
agreement, and the Grievant understood her direction to be that he should submit another
card seeking continuous pay for the subpoenaed appearances. He then prepared another
card, and Sterr inserted a notation "2 notices, same day, continuous pay." The Grievant
following notation: "Assignment: Jury trial . . . Both canceled 8:31 am 05-07-02."
On May 8, the Grievant received a handwritten memo from Sterr that states:
I spoke with Comm. Timmerman. Please resubmit two separate
cards. One for the 8:30 notice,
and the 2nd for the 3:00 notice. You'll receive 2 -- 3 hr pays.
If you would have had to show at 3:00 then
it would have been continuous, but since it was all
the same case, it will be treated as two notices, since it was all cancelled at the 8:30 time.
Leave the cards for me to sign . . . On the
3:00p card write "cancelled at 8:30 am in the
assignment space . . .
The Grievant responded by filling out two overtime cards on
May 8, one that stated "Actual Time:
From 8:30 am . . . To 8:35 am" and one that stated "Actual Time: From 3:00 pm . . . To
The City approved these cards.
The Grievant testified that he filled out the overtime cards as he always had, by
appearance time set by the subpoena. He added that he has been paid call-in for subpoenaed
testimony on several occasions in which he did not have to testify. In each case, the
turned not on whether he appeared at the department, but on whether or not the
Section 6.05 had been satisfied. He also noted that in his experience, it was unusual to
pay for two different appearances to testify. Typically, such appearances or cancellations are
so close together that the payment of a single call-in covers them.
Selissen is a member of the Union's Board of Directors and has served as a City
for over twenty years. In researching the grievance, he discovered two instances in which
who testified at two different times on the same day received continuous pay. Each occurred
19, 2002. In each case, the subpoenaed officer did testify. Selissen added that in his own
he has received call-in pay for subpoenaed testimony even when he did not appear, if the
of Section 6.05 were satisfied. In such cases, he filled out the overtime card by listing the
time of the
subpoena and a minute later as the "From" and "To" responses to the "Actual Time" entry.
made two court appearances on the same day, but has not received continuous pay because
appearances were so close together that a single call-in covered them. Like the Grievant,
did not assume that the cancellation of a subpoena from a prosecutor necessarily means a
subpoena in the same matter is also cancelled.
Resch is a Canine Officer and a member of the SWAT Team. He has served as a
officer for twenty-two years. He noted that an officer need not appear in court to receive
for subpoenaed testimony if the procedures of Section 6.05 are satisfied. The payment
inconvenience to an officer who must rearrange their schedule on off time to make a court
Resch understood the City's position in the grievance procedure to be that an officer
to testify at multiple times on the same day should seek a separate call-in for each
reflects the contract language for Canine Officers and members of the SWAT Team, and the
contract once handled call-ins for all officers. The Union altered the contract in response to
contention that multiple call-ins produced excessive costs. From his perspective, changing
contract worked in the City's favor, since multiple court appearances are usually grouped
so that a single call-in payment can cover them. The grievance reflects exceptional facts in
officer benefits from the change.
Further facts will be set forth in the
DISCUSSION section below.
THE PARTIES' POSITIONS
The Union's Initial Brief
The Union states the issue for decision thus:
Did Management violate Section 6.04(2) of the labor contract
when it refused to pay Officer
Schuetze continuous duty pay when the officer was subpoenaed to appear in court two times
The Union contends that the language of "Section 6.04(2) of the
contract is very clear and
unambiguous in regards to this case." More specifically, the Union argues that the section
the Grievant to "continuous duty pay if he receives more than one call-in on any given day."
of the contractual exceptions apply to the grievance.
The Grievant was under subpoena to testify at 8:30 a.m. and at 3:00 p.m., appeared
first subpoena and was told his testimony for the later time was unnecessary. He submitted
overtime cards, which were approved and paid as two call-ins.
The Union, unlike the City, demonstrated that the City has paid officers called to
multiple times on the same day "continuous pay rather than a call-in for each appearance."
could not counter this evidence because no countering evidence exists. Beyond this,
evidence establishes that an officer need not appear in court to receive "the call-in pay."
than one call-in occurred on the same day, Section 6.04(2) demands continuous pay. This
is underscored by Section 6.05(1), which demands a minimum call-in even if court is
Typically, court is scheduled so that continuous pay favors the City, which is obligated to
minimum call-in. That the provision favors the Union in this case cannot be held against the
unless the City is to be permitted "to have its cake and eat it too."
Arbitral precedent underscores that clear language is not subject to arbitral
The City's failure to offer contrary evidence establishes that the grievance has merit, and
that "the City is only attempting to make the bargaining unit spend time and money on an
which they have no legitimate defense".
The Union concludes that the Grievant should "be paid continuous duty pay from
to 3:00 pm."
The City's Initial Brief
The City states the issue for decision thus:
What is the 'end of the second call in' for the purposes of
determining continuous duty time
under Section 6.04(2) of the collective bargaining agreement?
The City contends that Section 6.04(2) governs the grievance and
clearly and unambiguously
demands that it be denied. That the City originally paid him two call-ins was an error on the
part. The City does not contest that the Grievant is entitled to a three hour call-in.
The determinative issue is "when the second 'call in' ended." The plain language of
6.04(2) demands payment "only until such time as the officer is released from the obligation
as subpoenaed." This demands determining when the Grievant knew or should have known
had been released from the second subpoena." An examination of the evidence establishes
Grievant took no action to determine if the cancellation of his first subpoena affected the
spite of the fact that both attorneys, the judge and judicial staff were available to answer any
That he chose not to inquire, but to return to the department and ask a clerk to determine the
for him should not warrant continuous pay. His testimony on confusion on the point is
by his overtime card that states that "both" subpoenas were cancelled at "8:31 a.m." Thus,
evidence establishes that his "continuous duty would have ended at 8:31 A.M." Any other
improperly rewards an officer for failing to discharge "a minimal duty to reasonably inquire
need to appear and/or remain available." That the City had no control over the subpoenas
that the Union's attempt to impose a liability on it is misplaced.
Section 6.04(2) provides that "the officer will receive pay only until that time they
completed with their duty, as is indicated in the title of that section." Once an officer
should know, that the subpoena is cancelled, the disruption to the officer's off day ends, and
officer can return to his personal activities. That disruption is the purpose of call-in pay, or
case, continuous pay traceable to multiple call-ins. Since the Grievant was under no
8:31 a.m., there is no basis for the application of continuous pay beyond that time. Any
conclusion rewards the Grievant for failing to take the minimal steps necessary to determine
for his testimony, and places the burden on the City, which is in a less advantageous position
determine the point.
The evidence will not support the Union's attempt to establish a binding past practice.
Section 6.04(2) is clear and unambiguous makes practice irrelevant. The section grants
pay "only until such time as the second appearance ends" and the two subpoenas at issue
cancelled at the same time. Even if practice was relevant, the Union's evidence cannot meet
standards set in Celanese Corp. of America, 24 LA 168, 172 (Justin, 1954), which demands
of a practice that is "(1) unequivocal; (2) clearly enunciated and acted upon; (3) readily
over a reasonable period of time as a fixed and established practice accepted by both
the Union's examples involve cases in which an officer actually appeared at separate times.
Viewing the record as a whole, the City concludes that "the grievance must be
The Union's Reply Brief
The Union contends that the "City is attempting to change its whole argument and
denial . . . after the hearing." Throughout the processing of the grievance, including the
hearing, the City took the position that continuous pay did not apply, even though it had paid
Grievant for two call-ins. As with the two other grievances heard with this, the City is
to "change its position" using "(m)istake and error" as its excuse.
The City's assertion that "the call-in ends when the officer knew or should have
the second call-in ended" flies in the face of departmental practice. Testimony establishes
time for the overtime as submitted on overtime cards is the time stated on the subpoena."
conclusion rests on twenty years of practice. The City's arguments against practice ignore
unrebutted testimony. Even if the Grievant should have made the inquiries the City attempts
impose on him, "the result would have been the same based upon how the section has been
administered in the past." Beyond this, Section 6.01 will not permit the City to change the
of overtime submitted on the overtime card.
Nor will the contract support the duty the City seeks to impose on the Grievant.
places no duty on him other than "to call in after 5:00 pm the evening before, which he did."
if it assumed he had a duty to inquire on the day of the hearing, there is no evidence anyone
available to answer him. In fact, the evidence establishes that the Grievant made the
to speak with the clerk who handles subpoenas for the department. Nor should the City's
regarding the Grievant's inconvenience be accepted. The existence of the call-in accounts for
inconvenience, since the "officer is still inconvenienced by having to cancel any plans that
have had for the day". The presence of two call-ins means the inconvenience is greater, for
cannot make any plans for the day.
The evidence establishes "a clear past practice" that "the officer is paid from the
of the first call-in, and when the second call-in is cancelled, to the time the second call-in
scheduled." The City offered no rebuttal. Beyond this, testimony establishes that for over
years "officers would put the time the court appearance was scheduled as the time of the
card, rather than the time they were notified of the cancellation." That the City approved the
Grievant's overtime card underscores the strength of the practice.
The Union concludes that Section 6.04(2) demands that the Grievant "must be paid
continuous pay from 8:30 am to 3:00 pm for the call-ins on May 7, 2002."
The City's Reply Brief
The City notes that it "finds itself in rare agreement" with the Union "with respect to
issues arising in this grievance." They agree Section 6.04(2) unambiguously governs the
and does not demand recourse to past practice. The Union, however, glosses over the terms
the measure of continuous duty pay, and obscures the application of the section by asserting
can be on duty beyond the time a subpoena is cancelled.
The Union's view belies the plain language of Section 6.04(2). The Union, in
that the City must pay "the equivalent of more than three call ins." Even if the terms
beginning and the end of continuous duty is unclear, then the City's interpretation should be
for it does not produce a windfall. Beyond this, the Union seeks to imply into the language
section a requirement that "an officer is paid until 'the end of the second call in or
time of the second call in, whichever is later." If the parties intended this
construction, they would
have used the bolded terms.
The title of the section also undercuts the Union's position, by focusing on
which "can only be interpreted to mean that the officer is to be paid for that amount of time
he or she
is on duty continuously." The reference underscores that the pay is to compensate an officer
inconvenience actually experienced due to subpoenaed testimony. Examples of practice
cancellations occurring less than twelve hours before scheduled appearance time have no
The City concludes that the Grievant "was not entitled to the payment of 6.5 hours at
overtime rate for May 7, 2002."
My statement of the issue on the merits adds the factual context prompting the
is lacking from each party's. The separate statement of the remedial issue addresses the
statement of the issue, which is focused on the merits but has remedial implications since it
the measure of continuous pay. The parties agree that Section 6.04(2) governs the grievance.
issue highlights that the events of May 7, 2002, are at issue, since the Grievant complied
provisions of Section 6.05(1), and since the City did not give him notice within the meaning
Section 6.05(2) of the cancellation of the subpoenas regarding the testimony set for May 7.
cancellation of the testimony for May 8 was effective under Section 6.05(2) no matter what
taken of the precise time the Grievant learned of the cancellation of the defense subpoena.
Each party contends that the language of Section 6.04(2) is clear and unambiguous,
evidence will not support the contention. Neither Subsection (1) nor (2) of Section 6.04
define a call-in. Rather, each presumes its existence and specifies the appropriate pay.
Section 6.04(1) refers to
"call-in time worked" but each party agrees that call-in pay can apply to compulsion to
a subpoena even if the testimony does not take place and even if an officer does not report to
There is no evidence of bargaining history to address this ambiguity. Evidence of
practice affords limited guidance. The City persuasively contends that past practice evidence
support the Union's view, since the specific instances of continuous pay cited involve officers
actually gave testimony at two different times on the same day. There is, however, no
the City pays call-in pay to an officer who has been subpoenaed to testify even if the matter
cancelled, provided the officer has complied with Section 6.05(1) and the City has not been
afford notice satisfying 6.05(2). This fact does have a direct bearing on the interpretation of
Under Section 6.04(2), continuous pay is available to "an officer is called in for more
(1) call in any given day". Thus, the factual dispute is whether the Grievant can be
considered to have
received two call-ins on May 7, since the matter had been cancelled, under the City's view,
a.m. The record is clear on this point. It is undisputed that the Grievant's appearance for
prosecution's subpoena on May 7 constituted a call-in, even though he did not have to
is no basis to question that his appearance for the defense constituted a separate call-in, since
if it had
been the sole subpoenaed appearance, it would have constituted a separate call-in because the
Grievant complied with Section 6.05(1) and the City did not notify him, under any view of
in a fashion that complies with Section 6.05(2). Against this background, there is no evident
to conclude that the Grievant received anything other than "more than one (1) call" on May
if the Lieutenant had advised the Grievant at 8:30 a.m. that the entire matter had been
would not have occurred within "twelve (12) hours before the scheduled court appearance" as
specified by Section 6.05(2). Thus, the Grievant was subject to "more than one call in"
terms of Section 6.04(2) and thus the Grievant was entitled to continuous pay.
The City's direction that the Grievant fill out two overtime cards confirms this
fact. Its payment of two call-ins instead of continuous pay thus has no contractual basis.
6.04(2) mandates that an officer who receives more than one call on any given day "shall not
two call ins, but shall be paid continuous pay."
The City's contention that the measure of continuous pay dictates the payment of a
call-in poses a remedial issue that is addressed below. As preface, it is appropriate to tie the
conclusion stated above more closely to the parties' arguments. The City's assertion that the
in effect seeks to alter the contract to demand the payment of the greater of a call-in or
continuous duty measured by the time set in the subpoena for the second appearance
force. That force is, however, undercut by its own actions. Timmerman's direction to Sterr
the Grievant submit two overtime cards sought to have the City pay the lesser of two call-ins
continuous pay. These arguments underscore that the parties agree that some action must be
to reconcile call-in under Section 6.04 with continuous pay under Section 6.04(2).
The issue is what
type of action, and that issue highlights the remedial issue.
The City's contention that the title of Section 6.04(2) belies the grievance affords no
to interpreting the contract. The City asserts the Grievant could not have been on
since the proceeding underlying the subpoenas cancelled at 8:30 a.m. This ignores that the
do not dispute that an officer who complies with Section 6.05 can receive pay under Section
"call-in time worked" even if the officer does not report to court. It ignores that the
understood purpose of the provision is to compensate an officer for the inconvenience to the
private life of a court appearance during off duty hours. It also ignores the unique nature of
enforcement work. An officer is, for certain purposes, never "off duty." An officer who
over for erratic driving in his own car is ill-advised to display his badge and seek to have a
officer look the other way because he is not "on duty."
The City asserts that the Grievant was under a duty to determine whether he had to
back for the defense subpoena. This argument cannot be credited without reading Section
out of existence. Whether or not he should have made inquiries, the City could not have
with the twelve hour notice requirement. Nor is it evident the Grievant did anything
affects the operation of the contract. There is no testimony to rebut the Grievant's and
testimony that the cancellation of the prosecution's subpoena did not necessarily cancel the
If the Grievant was attempting to mislead the City, he did a lousy job. He put the facts of
situation in front of a Captain before claiming continuous pay.
This turns the matter to the issue of remedy. The City contends that the cancellation
entire criminal proceeding at roughly 8:30 a.m. demands the conclusion that the "beginning
of the first
call in to the end of the second call in" is effectively 8:30 a.m. This means that the
continuous pay is pointless, and that the call-in provisions of Section 6.04 must be applied.
practical force this argument has comes at too great a cost to the governing language. The
of more than one call-in dictates the need to apply Section 6.04(2). To read "the beginning
first call in to the end of the second call in" reference as the City does eliminates the notice
of Section 6.05(2) and upsets the undisputed practice of treating compulsion to appear under
subpoena as a call-in even if testimony is unnecessary. Beyond this, accepting the City's
the Grievant's situation as if he was a "specialized units" member, which is the sole express
to the operation of the application of continuous pay to more than one call-in on the same
Grievant cannot fall within the exception without being a "specialized units" member. This
to the contractual language precludes
acceptance of the City's position, which turns the remedial issue into a denial of the
grievance on its
On balance, the Union's requested remedy best fits this record, and is adopted below.
Whatever the appropriate scope of the City's practices regarding overtime cards, it is evident
use of the time of a subpoenaed appearance as set forth on the subpoena is routine in the
of call-in pay. Its application here is not meant to establish anything more than a means of
the violation of the labor agreement on the facts of this grievance. The use of 3:00 p.m. as
of the second call in" makes it possible to apply the agreement without reading Section
of existence and without disrupting the undisputed practice of treating compulsion to appear
a subpoena as a call-in even if testimony is unnecessary.
The City did violate Section 6.04(2) of the collective bargaining agreement when it
to pay the Grievant continuous pay for May 7, 2002, when the Grievant had been summoned
testify, under two subpoenas, one demanding his appearance at 8:30 a.m. and the other at
As the appropriate remedy, the City shall pay the Grievant the difference between the
already paid him for his response to two subpoenas on May 7, 2002, and the amount it
paid had he been paid continuous pay from 8:30 a.m. until 3:00 p.m. on May 7, 2002.
Dated at Madison, Wisconsin, this 4th day of August, 2003.
Richard B. McLaughlin, Arbitrator