BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
VILLAGE OF MENOMONEE FALLS
LABOR ASSOCIATION OF WISCONSIN, INC., on behalf
POLICE SUPPORT SPECIALISTS
ASSOCIATION, LOCAL 813
(grievance 2002-33 - Shift Change)
Mr. Sean Scullen, Quarles & Brady, LLP, 411 East
Wisconsin Avenue, Milwaukee, Wisconsin,
appearing on behalf of the Village.
Mr. Kevin Naylor, Labor Consultant, Labor Association of
Wisconsin, N116W16033 Main Street,
Germantown, Wisconsin, appearing on behalf of the Association.
At the joint request of the parties, the Wisconsin Employment Relations Commission
designated the undersigned, Marshall L. Gratz, as arbitrator to hear and decide a dispute
the above-noted grievance in accordance with the grievance and arbitration procedures
the parties' 2001-03 agreement (Agreement).
The Arbitrator heard the dispute on April 3, 2003, at the Village Hall in Menomonee
Following preparation and distribution of a transcript, the parties exchanged post-hearing
or before May 22, 2003, and advised the Arbitrator by letter dated June 2, 2003, that neither
intended to file a reply brief. The close of the hearing was confirmed by the Arbitrator in an
to the parties on June 4, 2003.
The parties authorized the Arbitrator to frame the issues for determination. The
frames the dispute as follows:
What shall be the disposition of the grievance dated October
PORTIONS OF THE
ARTICLE IV GRIEVANCE PROCEDURE
. . .
Section 4.06 The arbitrator shall neither add to, detract
from nor modify the language of this
agreement in arriving at a determination of any issue presented for final and binding
decision of the arbitrator shall be final and binding on the parties.
. . .
ARTICLE VII SENIORITY
. . .
Section 7.03 Shift Selection: Effective September, 1996
and each year thereafter during the
month of September of each calendar year but not later than the 15th of the
month, the Employer shall
post the shift(s) for the forthcoming calendar year. The employees shall bid for the shifts
more employees bid for a shift than there are openings, the most senior employee(s) bidding
shift shall be awarded their shift selection provided they are qualified. Employees whose
selection is not approved shall be given another opportunity to select based on seniority until
are filled. The lead Police Support Specialist will be assigned to the second shift. Job Share
employees shift hours shall be determined by the Chief of Police. The days of the week that
share employee works will be divided between the two job share employees, the most senior
employee will have the option of selecting a work schedule of Monday, Tuesday and
Wednesday or Thursday, Friday and alternating Wednesday. The Employer shall post the
assignments no later than November 1st of each year.
Section 7.04 Temporary Shift
Changes: Employees who are assigned to regular shifts may
have those shifts temporarily changed and shall receive additional compensation as follows:
If the total number of hours worked does not exceed eight (8)
hours, the employee shall
receive half (1/2) pay in addition to regular compensation for those hours worked outside the
employee's regular shift.
Temporary changes shall not exceed sixty
(60) calendar days' duration unless mutually agreed
. . .
ARTICLE VIII - MANAGEMENT'S RIGHTS
Section 8.01 - The traditional functions of management and the
direction of the work force
including, but not limited to, the hiring of employees, determining staffing levels,
discharging, or otherwise disciplining employees for just cause; establishing reasonable rules
regulations, scheduling hours of work, determining the methods and means of operation and
control and regulation of all equipment and the right to subcontract work (provided however,
no employees shall be laid off or reduced in hours below their normal work week as a result
subcontracting) are the exclusive functions of the Village; provided, however that in the
such functions, the Village shall observe the provisions of this Agreement and applicable
rules or regulations issued by the Village are valid so long as they are reasonable and do not
with the express terms of this Agreement. The Association, by agreeing to the above
management rights, does not in any way waive their rights under the Municipal Employment
The grievance dated October 29, 2002, asserts that the Village violated Article VII -
by assigning bargaining unit members Mary Maddalena and Brian Witt to shifts outside of
regular shift from October 28 through December 31 of 2002. By way of remedy, the
requests that the Village cease and desist from violating the Agreement, pay the two
additional one-half hour of pay for every hour worked outside of their normally assigned
that time period, and provide any additional relief the Arbitrator considers appropriate.
The facts are not disputed. The customary annual shift selection process described in
Agreement Sec. 7.03 was conducted in the fall of 2001 as regards shift assignments for
Department management posted the available slots on the three available shifts, obtained each
employee's shift preferences, and assigned the available shifts based on the employees'
seniority. Grievant Maddalena alone was assigned to the late shift, Grievant Witt and
assigned to the early shift and employee Mary Pollock and others were assigned to the day
In October of 2002, Pollock resigned. The Village Board had previously directed
Management not to fill Police Support Specialist vacancies as they occurred in anticipation of
cuts in State aid to municipalities then under consideration by the Governor and State
When Pollock resigned, Department Management decided to eliminate the late shift and to
consolidate the remaining staff on the remaining two shifts. Management offered Maddalena
more senior of the Grievants) the choice of changing from late shift to either the day or the
She chose the early shift. Management then offered Witt the available position on the day
he accepted that shift assignment. On October 23, 2002, Police Chief Jack Pitrof issued a
Directive transferring the Grievants to those shifts, effective October 28, 2002. Both
thereafter submitted requests for premium pay on the grounds that they were experiencing a
"temporary shift change." Those requests were denied by their immediate supervisor, Office
Operations Supervisor Carol Knope, on the grounds that the changes in the Grievants' shifts
The subject grievance was filed on October 29, 2002, denied at the pre-arbitral steps,
submitted to arbitration as noted above. At the hearing, the Association presented testimony
and Association Labor Consultant Kevin Naylor. The Village presented testimony by Knope.
Additional background information is set forth in the summaries of the parties
in the discussion, below.
POSITIONS OF THE PARTIES
Section 7.03 clearly requires the Village to "[p]ost the shift(s) for the forthcoming
year." Section 7.04 provides that "[e]mployees who are assigned to regular shifts may have
shifts temporarily changed and shall receive additional compensation" and that "[t]emporary
shall not exceed sixty (60) calendar days' duration unless mutually agreed otherwise."
authorizes the Village to schedule hours of work but requires "that in the exercise of such
the Village shall observe the provisions of this Agreement . . . ."
Reading those provisions together and the Agreement as a whole, the regular shifts
by the Village pursuant to Sec. 7.03 are applicable throughout the forthcoming calendar year
subject to unilateral change by the Village without payment of premium pay only annually
Village posts the available regular shift opportunities for the following calendar year. The
unilaterally assign employees to other than their regular shift only for up to 60 days and for
periods only by mutual agreement. All hours worked outside the employee's regular shift
paid at a one-half time premium.
The above-noted Agreement language was clearly intended to provide employees with
certainty as to what their regular shift assignment will be for the entire calendar year. The
understanding to that effect is reflected by its statement on Shift Selection posting that
be no changes made to shift assignments after they are posted."
The Village's contention that it has the right to make permanent shift changes in
the temporary shift changes authorized by Sec. 7.04 is without support in the Agreement.
Agreement contains no language to that effect, and the Arbitrator is foreclosed by Sec. 4.06
adding to the Agreement provisions that it does not contain.
The Village's proposed interpretation must also be rejected because it would permit
Village to circumvent (and thereby render meaningless) the premium pay and other
limitations of Sec. 7.04 simply by characterizing any and all shift changes as permanent.
The Grievants have not objected to working the hours assigned to them on and after
28, 2002, but they have requested and are being improperly denied the premium pay to
7.04 entitles them until January 1, 2003, when the shifts as posted for 2003 under Sec. 7.03
The Arbitrator should therefore order the Village to pay the Grievants the additional
compensation as requested in the grievance.
Section 8.01 reserves to the Village the function of "scheduling hours of work."
language, read together with Secs. 7.03 and 7.04, requires the Village to assign shifts in
with employee preferences based on seniority, to limit temporary shift changes to 60 days
mutually agreed otherwise, and to pay additional compensation for hours worked outside the
employee's regular shift that result from such temporary shift changes. Section 7.04
was intended to
protect employees from being bounced from one shift to another and back without
The Village's actions in this case have complied with all of the contractual
Agreement does not limit the District's right to make a permanent change in shift
it does not require the Village to pay a premium to employees affected by a permanent
change in shift.
After it exercised its scheduling of hours right to eliminate the late shift in October of 2002,
Village offered the remaining available work opportunities on the day and early shift first to
senior Maddalena, and then offered the remaining opportunity to Witt. The Agreement
more of the Village in the circumstances.
To adopt the Association's proposed interpretation would inappropriately render
the word "temporary" in Sec. 7.04, and would potentially result in harsh and clearly
of the Village paying a temporary shift change premium to employees for a full year if the
found it necessary to eliminate the employee's regular shift effective at the beginning of
a calendar year.
The record clearly establishes that the actions taken by the Village were not
changes. The changes were of indefinite rather than definite duration; they were in excess of
days referred to in Sec. 7.04; and they were in no way an unreasonable exercise of the
to schedule employees under Sec. 8.01.
Accordingly, the grievance is without merit and should be denied in all respects.
Faced with the possible loss of State aids, the Village decreased its budget and
not filling positions that became vacant as a result of resignation or retirement.
"Many arbitrators have recognized that except as restricted by the agreement the right
schedule work remains in management." Elkouri and Elkouri, How Arbitration
Works, 5th Edition,
p.725 (1997). The traditional functions of management expressly reserved in
Sec. 8.01 are ordinarily
understood as including the right to determine what services will be provided on what days
week and at what times of the day, except to the extent that right is otherwise limited
Section 7.03 provides a mechanism for assigning Police Support Specialists to
in accordance with their wishes and seniority. It unquestionably was written in anticipation
would be available throughout the year for which the selections are made. However,
contains an express requirement that the Lead Police Support Specialist will be assigned to
shift, Sec. 7.03 contains no language that expressly or implicitly requires the Village to
staff a late shift throughout the calendar year once it has posted and assigned an opportunity
It is true that the Village's memo requesting the police support personnel to make
assignment selections includes a statement that "[t]here will be no changes made to shift
after they are posted." However, Knope testified that that language was included in the
to prevent employees from changing their stated shift preferences once the annual assignment
had been completed. In any event, the quoted language of that memo is not a part of the
so it cannot modify the rights of the Village otherwise reserved in the Agreement.
Section 7.04 provides a mechanism for the temporary assignment of Police Support
Specialists to different shifts, and it prescribes the premium pay to which personnel become
in the event they work a different shift on a temporary basis. Although the examples of
issued temporary assignments provided in the record were for from one (1) to five (5) days,
language indicates that a temporary assignment may be up to sixty (60) days, or longer upon
agreement of the Village and Association. Temporary assignments have historically been
administered by use of a "Temporary Shift Hours Change" posting. The Village did not use
posting in October, 2002, however, because it considered the change being made at that time
permanent, rather than "temporary" as that term is defined in Sec. 7.04.
By its terms, Sec. 7.04 applies only to shift changes that are "temporary" in nature.
Accordingly, it does not apply to those that are non-temporary, or permanent in nature. To
otherwise would improperly render meaningless the words "temporary" and "temporarily."
7.04 provides a monetary premium to employees experiencing the inconvenience of
changes from, and back to, their regular shift. Unlike a temporary change, in the case of
shift changes, the employee is not changed back to his or her bid shift, and the Village is not
to the provisions of 7.04.
In sum, the Arbitrator concludes that, read together, Sections 7.03 and 7.04 were not
to guarantee that employees' shift preferences would be honored even if the employer
legitimate business reasons, to permanently eliminate the late shift during a calendar year.
Neither the hiring freeze nor the decision to concentrate the remaining employees on
and second shifts on and after October 28, 2002, has been shown to be an arbitrary or
unreasonable exercise of Village rights. The Arbitrator is also satisfied that this is not a case
the Village is attempting to improperly circumvent the premium pay requirements of 7.04 by
labeling a temporary shift change as permanent.
For those reasons, the Arbitrator concludes that the Village has acted in this case
rights reserved to it in Sec. 8.01. Accordingly, the grievance is denied in all respects.
DECISION AND AWARD
For the foregoing reasons, and based on the record as a whole, it is the Arbitrator's
and award regarding the ISSUE noted above that
The disposition of the grievance dated October 29, 2002, shall
be that the grievance is denied
in all respects.
Dated at Shorewood, Wisconsin, this 11th day of August, 2003.
Marshall L. Gratz, Arbitrator