BEFORE THE ARBITRATION BOARD
In the Matter of the Arbitration of a Dispute Between
HARTFORD POLICE UNIT EMPLOYEES UNION,
affiliated with DISTRICT COUNCIL 40, AFSCME,
CITY OF HARTFORD (POLICE
Mr. Lee W. Gierke, StaffRepresentative
,Wisconsin Council 40, AFSCME, AFL-CIO, P.O. Box 2236, Fond du Lac,
Wisconsin 54936-2236, appearing on behalf of Hartford Police Unit Employees Union.
Davis & Kuelthau, S.C., by Attorney Roger E. Walsh, 111
East Kilbourn Avenue, Suite 1400, Milwaukee, WI 53202-6613, appearing on behalf
of the City of Hartford.
Pursuant to the provisions of the collective bargaining agreement between the parties,
Hartford Police Unit
Employees Union, Local 1432A, AFSCME, AFL-CIO (hereinafter referred to as the Union)
and the City of Hartford
(hereinafter referred to as the Employer or the City) requested that the Wisconsin
Employment Relations Commission
designate Daniel Nielsen of its staff to serve as Chair of an Arbitration Board to hear and
decide a dispute concerning
the City's denial of a vacation request by Marlene Yogerst. The undersigned was so
designated. A hearing was held
on March 31, 2003, in Hartford, Wisconsin, at which time the parties were afforded full
opportunity to present such
testimony, exhibits, other evidence and arguments as were relevant to the dispute. The
parties submitted post-hearing
briefs and reply briefs, the last of which were received on May 27, 2003, whereupon the
record was closed.
Now, having considered the testimony, exhibits, other evidence, contract language,
arguments of the parties
and the record as a whole, the Arbitration Board makes the following Award.
To maximize the ability of the parties we serve to utilize the Internet
and computer software to research
decisions and arbitration awards issued by the Commission and its staff, footnote text is
found in the body of this
The parties were unable to stipulate to the issues before the Arbitration Board and
the Board should frame the issues in its Award. The Union states the issues as:
1. Did the City violate the labor
agreement and its own written policy when it
unreasonably denied Marlene Yogerst a vacation day for July 5, 2002?
2. If so, what is the appropriate
The City believes the issues to be:
1. Did the City violate Section
8.02(A) and/or Section 9.02 of the collective bargaining
agreement when, on February 5, 2002, it denied Marlene Yogerst's January 31, 2002 request
vacation day/floating holiday off on July 5, 2002?
2. If so, what is the appropriate
The Arbitration Board believes the issues may be appropriately stated as follows:
1. Did the City violate Section
8.02(A) and/or Section 9.02 of the collective bargaining
agreement when it denied Marlene Yogerst's request for a day off for July 5, 2002?
2. Did the City violate the terms of
the work rules and regulations made pursuant to
Article III, specifically the 1988 vacation memo, when it denied Marlene Yogerst's request
for a day
off for July 5, 2002?
3. If the City violated Section 8.02(A), and/or Section 9.02,
and/or the work rules and
regulations, what is the appropriate remedy?
. . .
ARTICLE III MANAGEMENT
3.01 The Union recognizes the prerogatives of the Employer
operate and manage its affairs in all respects
in accordance with its responsibility, and the powers or authority which the Employer has not
delegated or modified by other provisions of this Agreement are retained exclusively by the
Employer. Such powers
and authority, in general, include, but are not limited to the following:
A. To determine its general business
practices and policies and to utilize personnel, methods and means
in the most appropriate and efficient manner possible;
B. To manage and direct the
employees of the Employer, to make assignments of jobs, to determine the
size and composition of the work force, to determine the work to be performed by the work
force and each employee,
and to determine the competence and qualifications of the employees;
. . .
G. To make reasonable rules and
regulations for the conduct of its business and of its employees.
. . .
ARTICLE VIII PAID HOLIDAYS
. . .
8.02 Floating Holidays: In addition to the
holidays listed in Section 8.01 above, employees shall receive five
(5) floating holidays, provided, however, that an employee hired on or after July 1 shall be
eligible for only two (2)
floating holidays in the calendar year in which he/she is hired. In the case of the Detective,
Assistant and Clerk-Typist, floating holiday time shall equal a total of 40 hours for the five
(5) days; in the case of
Patrol Officer and Communications Officers, floating holiday time shall equal a total of 42.5
hours for the five (5) days.
Part-Time Communications Officers floating holidays shall be one half (1/2) of that received
A. Scheduling: Floating
holidays may be taken in increments of four (4) hours or more at the beginning or
end of each shift. The floating holiday shall be taken off at a time mutually agreed between
the employee and the Chief
of Police or the Chief's designee. If a request for a floating holiday is denied,
the reason for said denial shall be given in writing. No Officer
will be granted a vacation day or a floating holiday
after another Officer has been denied the same day off as a floating holiday. Officers shall
continue to use the present
practice of signing off in the selection of floating holidays. No Communications Officer will
be granted a vacation day
or floating holiday after another Communications Officer has been denied the same day off
as a floating holiday.
. . .
ARTICLE IX - VACATIONS
. . .
9.02 Scheduling: Vacation schedules are to be
worked out and approved by the Chief of Police or Chief's
designee. An employee's length of service in the department will be respected in the
selection of time for vacations.
The seniority for the part-time Communications Officers will be determined on a full-time
equivalency. Vacation may
be taken in increments of four (4) hours or more at the beginning or end of each shift.
. . .
The Employer provides general governmental services to the people of Hartford,
Wisconsin. Among these
services is the operation of a Police Department. The Union is the exclusive bargaining
representative of the
Department's non-exempt employees, including full-time and part-time employees in the
classifications of Detective,
Patrol Office, Police Administrative Assistant, Communications Officer, Clerk-Typist, and
Parking Enforcement Aide.
The Grievant, Marlene Yogerst, has been with the Department since 1997. She started as a
Parking Enforcement Aide
and was promoted to Clerk-Typist in July of 1999. She replaced Patrice Moratz, who
promoted to Administrative
Assistant at roughly the same time. Moratz had been hired as the Clerk-Typist when the
position was originally
created in 1993.
The Clerk-Typist is responsible for transcribing the narrative tape recordings
by officers on their
cases, as well as general clerical work. Some cases are classified as "hot reports" which
demand immediate attention
and have priority over all other work. These include custodial cases, where someone has
been jailed and the District
Attorney requires a report by noon; mental commitments where the materials must be
provided as soon as possible to
the County Corporation Counsel; Juvenile Intakes; and Domestic Disputes. When either
Moratz and Yogerst is absent,
the other covers the necessary work.
At the beginning of January, 2002, Moratz requested July 5th off.
Her request was approved. Later that
month, the Grievant put in a request to take June 27th through July
5th off. Her request was approved, except for July
5th. That day was denied because Moratz had already asked for that day,
and had greater seniority. The instant
grievance was filed, asserting that she should have been given the day off, pursuant to a July
27, 1988 memo from the
then-Chief of Police regarding scheduling of time off:
TO: ALL POLICE
FROM: DAVID C. HENRY,
CHIEF OF POLICE
SUBJECT: VACATIONS, TIME
EFFECTIVE DATE: JULY 27, 1988,
THIS MEMO RESCINDS ALL OTHER MEMO'S RELATED TO THE
1. All requests for time off
must be received by me NO LESS THAN FOUR DAYS (4 days) before the day(s)
requested off. (With the exception of short notice day) It is the responsibility of the Officer
wanting the day
off to see that the shift is covered and to check with the senior Officer. If the shift cannot be
overtime the day will be denied. That officer still must submit the Request for Time Off
It is the sole responsibility of the
individual who wants off to see that the slip is signed and turn [sic] in to me.
2. When a vacation day or
floating holiday is requested and there are personnel on vacation as to cause a
shortage, that day will be denied. However, if a person is taking an extended vacation of
four (4) or more days
in a row the days will be granted and overtime will be called in.
3. If a senior Officer denies a request form he
MUST post his off day request at that time.
4. No less than four (4) hours of vacation will be
approved., either the first four (4) hours of the shift or the last
four (4) of the shift.
5. No member of the Hartford Police Department
will be allowed during working to leave to attend any meetings,
unless it is to present a program, Ref; Police Services.
In July, Yogerst worked on Monday, July 1 and Tuesday,
2nd, took 8 hours of floating holiday on
Wednesday, July 3rd and 8 hours of regular holiday time on July
4th. On the 3rd and 4th she and her
vacationing in Waupaca. She and her husband drove
back to Hartford at 4 a.m. on the 5th and she worked 4 hours in the
morning. She had a couple of hot
reports to complete, which took about 90 minutes, and then she worked on routine tasks for
balance of the morning. She requested and was approved for 4 hours of vacation in the
and returned to the family vacation.
At the arbitration hearing, Yogerst testified that the only duties of her job that
to be performed when she was absent were the hot reports, and that these could be prepared
the Parking Enforcement Aide or the officers. She stated her training for the job consisted
a half day with Moratz, though she conceded that she already had background typing reports
her work as a dispatcher in other departments. She also said that she had offered to
Parking Enforcement Aide to do the reports, but that Chief refused her request, explaining
was not sure such cross-training was desirable. Yogerst recalled one occasion when Moratz
day off and she called in sick, and the officers and supervisors prepared the hot reports
Lieutenant Thomas Horvath, the operations commander for the Department, testified
arbitration hearing that he denied Yogerst's request for July 5th off because
Moratz was already
scheduled off for the day and the Department's policy was not to allow both the
Assistant and the Clerk-Typist off on the same day, since they cover one another's duties.
stated that speed and accuracy were important in the production of reports, particularly hot
where the deadlines are imposed by outside agencies, such as the District Attorney. Yogerst
Moratz are the only two skilled typists in the Department. Horvath dismissed the notion of
cross-train the Parking Enforcement Aide to cover typing duties, since the problem of both
and Moratz wanting the same day off only comes up once a year or so, and it was unlikely
Aide would retain the skills from year to year.
Horvath stated that the 1988 memo was still in effect, but that it was issued at a time
there was only a single clerical employee, and thus there was no need to address conflicting
for time off among clerical employees. Likewise, there was only one Communications
shift at that time, and days off were always covered with overtime. The memo was intended
only to sworn personnel, and was written in that fashion. Horvath conceded that both the
Communications Officers and the Parking Enforcement Aide are required to do some typing
of their jobs.
Chief Thomas Jones testified at the arbitration hearing that there have been only two
occasions when both Yogerst and Moratz were off on the same day. In the Spring of 2002,
was off and Yogerst called in sick. He decided to have officers and supervisors do the hot
since that was the only option he had. He personally prepared one of the reports, and it took
hours. The second occasion when both were off was the afternoon of July 5, 2002,
when he let
Yogerst use four hours of floating holiday because the priority work was finished and he
accommodate her to the extent that he could. Jones noted that Yogerst had an essentially
grievance in 2000 over her request for July 3rd, that the City denied the
grievance and it was never
processed through to arbitration. In the subsequent round of bargaining, the Union did not
proposals regarding the scheduling of time off for the Clerk-Typist.
Yogerst testified in rebuttal that the 2000 grievance was not pursued because the
representative felt it would be better to address the issue in negotiations. She noted that the
had discussed the possibility at that time of looking into cross-training the Parking
When she tried to follow up on the cross-training idea in November or December, the Chief
had decided against it. She spoke to the Union officers about the matter but they said the
for bargaining had already been presented, and that they could not add proposals at that late
Additional facts, as necessary, are set forth below.
ARGUMENTS OF THE PARTIES
The Union's Initial Brief
The Union takes the position that the Grievant is clearly entitled to take four or more
consecutive days off,
without regard to whether Moratz is off at the same time. The plain language of the 1988
memo settles the matter in
the Grievant's favor: ". . . if a person is taking an extended vacation of four (4) or more
days in a row the days will
be granted and overtime will be called in." This memo was issued pursuant to the labor
agreement's clause granting
the City the right to make reasonable rules and regulations. As such, it is just as binding on
the City as if it were a
provision of the contract itself. This is not a case where the Union demands that the City go
without needed coverage
of Yogerst's work. The Union presented several options for the City, including
cross-training the Parking Enforcement
Aide and the Communications Officers, but the City arbitrarily dismissed these options. It is
clear from the record that
other employees, including officers and supervisors, are entirely capable of doing hot reports
when necessary. While
it may be inconvenient for the City to cover work with other employees, that will always
happen when people are off.
The memo recognizes that inconvenience and expense may be incurred, but provides for the
possibility of overtime to
cover the work. Inconvenience is not a reason for denying the Grievant her right to use
The Union points out that the bulk of Yogerst's work is routine and can be made up
it is not completed on
a particular day. The hot reports are the only urgent matters that she deals with, and these
constitute a very small
portion of the workload. Yogerst estimated, without contradiction, that the number varied,
but averaged one hot report
per day, with Monday being the only predictably busy day. Given that July
5th was Friday, immediately following a
holiday, it was foreseeable that there would be little likelihood of urgent reports being
required on that day. The
balance between the City's likely needs for typing and the Grievant's clear right to use
benefit time should have been
struck in her favor, and the City's refusal to do so constituted an arbitrary act, in violation of
The Union dismisses the City's citation of a 2000 grievance over this same issue.
The Union is not required
to arbitrate every dispute. It was clear to the City that the Union was in disagreement with
its position in 2000, and
after deciding not to arbitrate, the Union continued
to pursue the matter through informal discussions with the Chief over cross-training.
The fact that
the Chief subsequently backed away from the cross-training alternative cannot give rise to an
inference that the Union somehow intended to acquiesce in the City's position on this issue.
The City has not changed the policy on vacations issued in 1988, and that policy
clearly gives the Grievant
the right to a multi-day vacation, no matter who else is off work. There was no compelling
operational need to deny
Yogerst's request for July 5th, since it is clear that available personnel
could have covered an urgent reports. The
request was made six months in advance, giving the City plenty of time to prepare options
for covering all eventualities.
Mechanically applying a rule to deny a vacation request is inconsistent with the negotiated
rights of the employees.
For these reasons, the Union asks that the grievance be granted, and that the Grievant be
granted a meaningful remedy,
in the form of an additional vacation day.
The City's Initial Brief
The City takes the position that the grievance is without merit and should be denied.
bargaining agreement, in both Sections 8.02 and 9.02, clearly requires the approval of the
Chief for time off requests.
The denials here were based on the greater seniority of Patrice Moratz, the only other
employee who can perform the
necessary clerical functions for the Department. These reasons were presented in writing,
and were entirely reasonable.
Thus, there can be no violation of the collective bargaining agreement and no remedy for the
The City notes that the Management Rights clause gives it the authority to regulate
the granting of vacation
and floating holiday requests and that the Chief's policy in this matter is plainly a reasonable
regulation. The 1988
memo relied upon by the Union is inapposite. The memo is still in effect, but by its terms it
only covers sworn
personnel and does not apply to clerical employees. The memo was issued before there were
two clerical employees
and thus there had been no need to regulate the requests for time off among clerical
employees. When the second
clerical position Clerk-Typist was created in 1993, the Department adopted a
policy of only allowing one clerical
off at a time, based on seniority. That policy governs clerical employee time off requests
and it has been consistent and
clear since 1993. The policy for clericals is reasonable and, though unwritten, well known
to the clericals. It is
reasonable because Moratz and Yogerst are the only two employees with the typing and
clerical skills to cover one
another's positions. That the policy is well known is demonstrated by the fact that the
Grievant has had her time off
requests run through Moratz, so that Moratz can use her seniority to trump a given request if
she wishes. That alone
should have made it clear to the Grievant that her time off requests were contingent on the
preferences. In addition to that, however, the Grievant had a previous grievance on this
same issue, and the City's
policy would have been crystal clear to her at that time. Plainly, the Grievant knew that her
time off requests were not
governed by the 1998 memo.
The policy of not allowing both clerical employees off at the same time is reasonable
on its face. As noted,
they are the only skilled typists available. The incident in the Spring of 2001, when Yogerst
called off sick and Moratz
was on vacation, amply demonstrates the need for the policy. On that occasion, officers and
supervisors prepared hot
reports and the job occupied a great deal more of their time than would have been required
for Yogerst to do the job.
While the City can respond in such an emergency by having other occupational groups
perform the clerical work, it
is also entitled to rely on its clear and reasonable policy of not crossing occupational lines for
coverage in non-emergency situations.
The City repeats that the Grievant previously grieved this issue in 2000 and dropped
the grievance after it was
denied. The Union was clearly on notice of the City's position, but it failed to even raise the
issue in negotiations over
the 2001-2003 contract. Negotiations continued well after the Chief made it clear that he
would not pursue cross-training options, still without mention of this issue. The Grievant's
remedy is to seek a change in the contract
language. She was aware of that in 2000 and she failed to pursue that avenue. She cannot
now obtain in arbitration
what she has previously failed to obtain through grievances and negotiations. For all of these
reasons, the grievance
should be denied.
The Union's Reply Brief
The Union disputes the City's claim that it has acted reasonably and within the
bounds of the contract in
denying the Grievant's right to use time off. Again, the use of substitute personnel for the
Grievant when she is gone
is inconvenient and not as efficient for the City. However, that is inherent in the absence of
the usual worker. It is not
some unusual event, peculiar to the Grievant's job, and it is not a sufficient reason to deny
her time off requests. The
fact is that the City can get the work done if the Grievant and Moratz are both gone and it
has no good operational
reason for its stubborn refusal to allow both to be gone at the same time on an occasional
The City's claim that the 1988 memo only applies to sworn personnel is only that
a claim, unsupported by
any evidence. The memo, by its terms, applies to all police personnel and the Grievant and
Moratz are obviously police
personnel. Nothing in the substance of the memo suggests that its scope should be limited to
sworn officers and the
Arbitration Board should reject the City's attempt to simply rewrite its own policy when it
finds it inconvenient.
The City's reliance on the 2000 grievance is misplaced. The decision not to proceed
to arbitration was a
reasonable effort to work things out informally, something that should be applauded rather
than penalized. The fact
remains that the City was fully aware that the Union and the Grievant did not agree with the
City's view of the system
for scheduling time off and the decision to pursue the matter by other means cannot be held
against the Grievant now.
The City's Reply Brief
The City asserts that the Union's entire case relies on a mistake of fact that
the 1988 memo applies to
clerical employees. The memo repeatedly makes reference to "officers" requesting time off
and when it was issued it
could only have applied to officers. Again, there was only one clerical employee and then,
as now, the
Communications Officers would always have to be replaced using overtime. Moreover,
attempting to apply the memo
to clerical employees leads to absurd results. The provision that the Union relies upon calls
for the use of overtime to
cover multi-day time off requests. Among police officers and communications officers, this
plainly means that a fully
qualified police officer would cover for another police officer or a fully qualified
communications officer would cover
for a communications officer. In the clerical ranks, however, if both clerical employees are
scheduled off, the City
would be required to pay overtime to call in an unqualified employee from another
classification. That is a ridiculous
interpretation and the Arbitration Board should not mandate a ridiculous act by the City.
The Union's argument that the City should have cross-trained personnel to cover for
vacations suggests that City is required to do whatever is necessary to grant her time off.
That is not the case. There
is nothing in the contract that requires cross-training and it is nether practical nor efficient to
do so. Training a back-up for one day's work each year would not be a reasonable use of
City resources, as the skills would certainly erode
each year as the required typing skills went unused. The Union also assumes that the backup
would not have requested
time off on the same day as the Grievant and ignores the possibility that the Grievant and
Moratz might make
overlapping requests for multi-day vacations, leaving the City without a qualified clerical
employee for extended
periods of time.
The City has made and enforced a reasonable policy, based on operational concerns.
The policy recognizes
seniority as the basis for granting time off requests and the Grievant as the less senior
employee feels at a disadvantage.
That is not a sufficient basis under the contract to overturn the City's policy. Thus, the
grievance should be denied.
The issue before the Arbitration Board is whether the City was within its rights in
requiring that the Grievant
not take time off on the same days that Patrice Moratz, the other clerical employee in the
Police Department, has
scheduled time off. The contract itself speaks to the scheduling of floating holidays and
vacations. In the area of
floating holidays, the contract merely states that "The floating holiday shall be taken off at a
time mutually agreed
between the employee and the Chief of Police or the Chief's designee. If a request for a
floating holiday is denied, the
reason for said denial shall be given in writing." In the area of vacations, the contract also
provides for mutual
agreement: "Vacation schedules are to be worked out and approved by the Chief of Police or
Chief's designee. An
employee's length of service in the department will be respected in the selection of time for
Neither contract provision appears to bear on this grievance, in that each allows for a
denial by management,
so long as the reasons are stated in writing, in the case of floating holidays, and seniority is
respected, in the case of
vacations. The Union does not allege a violation of this express language the
reasons for the denial were given in
writing, and Moratz is the senior employee. Rather, the Union's argument follows two
prongs related to the exercise
of Management's Rights. The first is that Management has exercised its right to make a
policy for scheduling time
off and that the existing policy should have led to approval of the Grievant's request. The
second prong is that
Management has exercised its rights in an arbitrary fashion by adopting a policy of refusing
to let the Grievant take
time off at the same time as Moratz.
The 1988 Policy
The Chief of Police issued a policy in 1988 governing time off requests. One
provision of the policy says that
requests for time off will be denied, if the request would require overtime because of
previously approved leaves. That
provision has an exception, however: ". . . if a person is taking an extended vacation of four
(4) or more days in a row
the days will be granted and overtime will be called in." The Grievant's request was for six
work days in a row off
work, and the Union claims this policy entitled her to approval of the request, despite the
fact that Moratz was already
off. The City responds by arguing that this policy only applies to police officers and is
irrelevant to this grievance.
The Union is correct in observing that the 1988 policy is addressed to "All Police
Personnel" and that the
terms of the policy do not contain any express exclusion for clerical employees. That said,
the body of the policy is
plainly directed to police officers. It repeatedly makes reference to "officers" and sets forth
procedures, such as the
employee's obligation to see that the shift is covered, that have not been followed in the
clerical ranks. Its provisions
are likewise not easily applied to Communications Officers, even though if the Union were
correct, they too must be
covered by the policy. It is undisputed that the policy was issued before the second clerical
position was filled, so it
cannot be said that the City issued this policy with the clerical employees in mind.
Some provisions of the policy could be applied to the clerical employees and there is
no reason that the City
could not, if it so chose, make a policy for clerical employees that guaranteed them the right
to take extended vacations.
The fact that such a policy could be made does not mean that it has been made. The record
evidence persuades the
Arbitration Board that the 1988 policy was intended to apply to sworn personnel, that City
has never consciously
chosen to extend this policy to non-sworn personnel and that the policy has never been
applied to non-sworn personnel.
The Grievant's reliance on the policy to support her grievance is therefore misplaced.
The City has retained the right to regulate the workforce and its operations and to
reasonable rules for that purpose. The City asserts that it has a policy, made pursuant to that
of not allowing both clerical to be gone at the same time. The Union assails that policy as
and as unreasonably restricting the Grievant's negotiated time off benefits.
The right to make rules and manage the affairs of the City does not extend to taking
that are arbitrary or capricious, nor to the making of facially unreasonable rules. However,
is not arbitrary or unreasonable simply because a reasonable person could make a different
The test is whether a reasonable person could not have made the choice in question. Here,
has made a judgment that there must be clerical coverage for hot reports and that both
employees will not be allowed to use leave at the same time. They have given the senior
preference for days off. That is not an unusual decision, nor is it some sort of sub rosa
denying the Grievant the benefit of the time off provisions of the contract. Certainly, it
ability to use leave time whenever she chooses, at least until she becomes the senior clerical
but few time off provisions allow unfettered choice to the employee. Almost all factor in the
operational needs of the Employer as well.
The Union suggests, of course, that the Employer's citation of operational need for
either the Clerk-Typist or the Administrative Assistant on duty is overstated and points to the
availability of the Parking Enforcement Aide or a Communications Officer as a backup and
ability of officers and supervisors to type their own reports. Certainly, the Parking
or the Communications Officer could be cross-trained to transcribe hot reports, but the City
the reasonable point that cross-training for a once a year event is not likely to provide any
skills for the backup or lasting benefit to the City. The training would have to be repeated
at a minimum. The benefit to the City from this cross-training is not readily apparent. The
not need clerical level typing skills for her job, nor does the Communications Officer. The
reasonably conclude that the time and expense of cross-training were warranted in order to
have a clerical backup available, but it could just as reasonably conclude that the benefit was
worth the investment. 1/
1/ It also bears
mentioning that cross-training the Parking Enforcement Aide poses problems if both Moratz
and the Grievant want to take overlapping multi-day vacations. Presumably, the Aide has
duties that should be
performed, and pulling her in to do the Grievant's work means that her job duties are left
undone. The multi-day
vacation also raises questions if the Aide wishes to use vacation at the same time. She is not
in the clerical vacation
group, so she should have the right to take vacation without respect to the Grievant's
Using police officers and/or supervisors as clerical backup is also possible.
plainly not an efficient use of resources, other than as an emergency step. If it were, the
not created the Clerk-Typist position in the first place. All of the options suggested
by the Union require the City to take personnel from other occupational groups,
personnel who are
not required to have the core skills of the Clerk-Typist and plug them into her job so that she
take vacation at the same time as the senior clerical. The City could choose to do these
it is not required to take every step possible to accommodate the Grievant in order to avoid
The City's policy of not allowing both clerical employees off at the same time is
range of reasonable choices that can be made for managing leave time in the clerical ranks.
consistent with the collective bargaining agreement's leave time provisions. While the policy
some limitations on the Grievant's ability to schedule vacations, it does not cross the line to
or unreasonable action. The City was within its rights to make the decision it made, and the
Grievant's only recourse is to the bargaining table to seek a change in the contract language.
On the basis of the foregoing, and the record as a whole, the Arbitration Board has
made the following
1. The City of Hartford did not violate Section 8.02(A)
and/or Section 9.02 of the
collective bargaining agreement when it denied Marlene Yogerst's request for a day off for
2. The City of Hartford did not violate the terms of the work rules and
made pursuant to Article III, specifically the 1988 vacation memo, when it denied Marlene
request for a day off for July 5, 2002;
3. The grievance is denied.
Dated at Racine, Wisconsin, this 16th day of October, 2003.
Daniel Nielsen, Neutral Chair
Gary Koppelberger, City Representative to the Arbitration Board Date:
Thomas Wishman, Union Representative to the Arbitration Board
In the Matter of the Arbitration of a Dispute Between
CITY OF HARTFORD
HARTFORD POLICE UNIT EMPLOYEES UNION,
LOCAL 1432A, affiliated with
DISTRICT COUNCIL 40, AFSCME, AFL-CIO
(Marlene Yogerst Vacation Grievance)
By Panel Member Tom Wishman
Upon review of the majority opinion offered in this case I find that I must dissent,
the following analysis:
Although I do not disagree with the majority opinion with regard to the right or
ability of the
City to adopt a rule allowing only one employee off on vacation at a time, it is my belief that
rule exists in a form that employees can rely on. In fact, the only guidance that employees
department have is the policy set forth in the Chief's 1988 memo. While it is clear that the
therein are to sworn officers, the memo is addressed to all department personnel, and there is
in the memo to indicate that it would not otherwise be applied to non-sworn employees in the
department. Furthermore, the City makes a point of saying that at the time the memo was
there was only one employee in the clerical division, and therefore no need to address the
vacation scheduling. That is true, but it is also true that when the City hired another person
in the clerical unit, it did not adopt any work rule contrary to the 1988 rule that would apply
On the contrary, in an instance where a prior work rule had been in place whose application
to the City's benefit one would reasonably assume that the City would argue that to expect it
revisit all of its prior memos and work rules to specifically accommodate the addition of staff
department would be unreasonable. I would agree. Therefore, I believe that the 1988 memo
apply in this case.
For this reason, I believe the analysis of the majority opinion fails, and I must