Arbitrator: Village violated public safety union CBA
By Kevin Boneske
ASHWAUBENON – The Wisconsin Employment Relations Commission (WERC) has ruled in favor of the Ashwaubenon Public Safety Officers’ Association (APSOA) on two grievances the union filed against the village.
The grievances involve the paid time off (PTO) payout to Shawn Wright, who retired as a public safety officer (PSO), and the annual sick leave payout to union members in January 2020.
The APSOA filed a grievance to dispute the amount Wright should have received for accrued but unused PTO benefits upon his retirement Aug. 2, 2019.
That grievance alleged the village miscalculated the hourly rates based on which it made the payout.
According to records related to the grievance, the payout to Wright was based upon his actual hourly rate of pay, which included his annual salary divided by the number of hours required for his respective shift (i.e. 2,920 annual hours for a 24-hour shift) and not an overtime rate.
The grievance was denied by the village board, which found it didn’t specify how the village allegedly miscalculated the hourly rates for the payout and how this violated the CBA.
The grievance related to the payout of unused sick leave accrued during 2019 alleged the village “improperly and incorrectly calculated the amounts owed to the PSOs for said sick time payouts.”
The APSOA sought to have the village recalculate the amounts owed to the PSOs and issue further checks for the balance of the sick time owed to each officer, but the board also denied the grievance.
To resolve both grievances, an arbitration hearing before the WERC was held remotely last October as the final step in the union’s CBA with the village.
In a 15-page decision issued Friday, Feb. 26, WERC arbitrator Raleigh Jones found the village violated the parties’ 2014-19 CBA when it changed the hourly rate used to pay out accrued benefits to Wright and the affected PSOs.
To calculate the retirement benefits, Jones said the village should have divided Wright’s annual salary by 2,080 hours, not 2,920 hours.
“To remedy that contract violation, the village shall pay out PSO Wright’s above-identified benefits at the rate of $37.53 (per) hour and make him whole,” the arbitrator’s ruling stated.
Jones said he wasn’t persuaded by the village’s claim it made a mistake in calculating retirement payouts after 2011, when contract language was negotiated for the 2012-13 CBA, and didn’t discover that until 2019.
He said “it’s hard to accept that having (allegedly) specifically bargained in 2011 for a reduction in the hourly rate paid for PTO benefits accrued as a line employee, the village then failed to implement it for eight years due to human error, inattention or ill-equipped software.”
The ruling by Jones further directed the village to pay all PSOs who elected to receive a payout of accrued sick leave hours from 2019, which were converted to vacation hours under the CBA, at an hourly rate derived by dividing their annual salaries by 2,080 hours.
Jones said the practice of paying out accrued retirement benefits and accrued sick leave hours will continue “until it is changed at the bargaining table.”
“If the village wants to end this practice because it believes that using 2,080 hours to make PTO retirement payouts results in payouts that defy common sense, are excessive and constitute a golden parachute, then it can change it at the bargaining table,” he said. “However, until that happens, the past practice continues.”
Village Attorney Tony Wachewicz made the golden parachute argument at the arbitration hearing when he said the union sought benefits “at an inflated hourly rate of pay, because it’s the way that things have always been done, which really, at the end of the day, satisfies the typical public sector stereotype.”
Three days before Jones issued the arbitration ruling, the Ashwaubenon village board voted Feb. 23 to also deny the union’s grievance related to payouts of unused sick leave for 2020.
The union’s attorney, Aaron Halstead of the Hawks Quindel law firm, said he believes the effect of the arbitration ruling will result in the village also being responsible for paying out two years of accrued sick leave converted to vacation hours at an hourly rate derived by dividing the PSOs annual salaries by 2,080 hours.
Instead of seeking another arbitration hearing before the WERC on the same issue from a year earlier, he said he waited on how Jones was going to rule.
Halstead said officers were underpaid by around 29 percent when the village changed the accrued benefits payout.
Village Manager Joel Gregozeski said the village is in the process of reviewing the arbitration award issued by Jones and “evaluating our legal options for an appropriate course of action.”
Gregozeski declined further comment on the ruling.
The APSOA’s contract with the village expired at the end of 2019, though the union continues to work under the terms of that agreement until a new CBA is reached.
Halstead and Gregozeski said contract negotiations for a new agreement are ongoing.
Halstead asked Jones to rule on whether the village violated the parties’ CBA and past practice when it changed the hourly rate used to pay out retirement benefits to Wright and also changed the payout rate of sick time hours for PSOs.
The maximum amount of sick hours a PSO can accrue, Halstead said, depends on whether he or she is a line or day officer, with the former allowed to accrue 2,160 hours and the latter allowed up to 1,530 or 1,542.8 hours, depending on the specific day position.
He said the rate was determined by dividing the retiring officer’s annual salary by 2,080 hours, regardless whether he or she was serving as a day or line officer at the time of retirement.
Halstead said the CBA also included a potential payout each year for accrued sick time.
Up to January 2019, he said the village used the same hourly pay rate it had always used for the payout of sick leave and other benefits at retirement, by dividing the PSO’s annual salary by 2,080 hours, also regardless of whether he or she served as a line or day officer.
Halstead said the two grievances related to impermissible changes the village made unilaterally to the hourly rate used for payout of both accrued retirement benefits and the annual sick time payout.
He said the change was made in 2019 by former Village Manager Allison Swanson, who was hired in 2011 and resigned last July, five months after the union announced a vote of no confidence in her.
The APSOA claimed Swanson’s changing of the retirement payout cost “the average officer $15,000 to $50,000 each upon retirement.”
Halstead said the village made the change when a dispute arose in 2019 after Swanson directed the finance department to change the hourly rates for a retiring public safety department supervisor, Lt. Luke Pasterski, who became a battalion chief in De Pere and has a civil lawsuit pending against the village in Brown County Circuit Court.
The Hawks Quindel law firm is also representing Pasterski and former acting chief Tom Rolling, another plaintiff in that pay dispute case.
Swanson last May filed a defamation lawsuit, which is still pending in circuit court, against the APSOA and two of its members, President Eric Paulowski and Secretary Melanie Lovato.
When Swanson was asked during the arbitration hearing about the village board discussing past payout practices while meeting in closed session March 26, 2019, she said the board “had come to realize that what was happening was incorrect.”
After Swanson acknowledged there previously was no distinction between a line and day officer in calculating the hourly rate of his or her benefits by dividing the annual salary by 2,080 hours, she said she didn’t contact the union about the change.
When Wright retired in 2019, Halstead said it marked the first time the village made a change to the payout calculation for a union member.
He said the change was done without any bargaining or discussions with the association, and now the village will “have to make it right” with retirement and annual sick leave payouts.