BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LINCOLN COUNTY HIGHWAY
LOCAL 332, AFSCME, AFL-CIO
Mr. Philip Salamone, Staff Representative, on behalf of the
Mr. John Mulder, Administrative Coordinator, on behalf of the
The-above captioned parties, herein "Union" and "County", are parties to a collective
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
held in Merrill, Wisconsin, on September 29, 1997. The hearing was not transcribed and the
parties thereafter filed briefs which were received by November 11, 1997.
Based upon the entire record and the arguments of the parties, I issue the following
1. Is the grievance arbitrable?
2. If so, whether the County violated the contract when it
failed to place grievant George
Janssen on light-duty status and, if so, what is the appropriate remedy?
Grievant Janssen, an Operator 3, suffered an off-the-job injury (arthritis), which
him to have surgery on his left shoulder on December 12, 1996. Janssen used 9.5 days of
leave for his absence before returning to work on January 6, 1997. 1 Janssen at that time had
a sick leave bank of about 500 hours.
Janssen asked Highway Commissioner Peter A. Kachel whether the County had a
duty policy. Kachel replied that the County did not. Janssen then never asked Kachel
he could be assigned to light duty after his surgery and Kachel never volunteered that, in
accordance with what he has done in the past, he would have assigned Janssen to sharpen
after his surgery if Janssen had expressly asked for that assignment.
Janssen in March, 1997, submitted a doctor's note dated March 6 to the County
stated that he could have been placed on light duty right after his December, 1996, surgery.
marked the first time that Janssen had ever provided medical documentation to that effect.
The County has a formal light duty policy for those employes who are hurt on the job
who receive workers' compensation. The County in late September, 1997, thus informed its
employes in a memorandum entitled "Policy For Modified Or Transitional Work - Lincoln
Highway Department" that said policy provided, inter alia:
. . .
If an employee is injured or has become
unrelated to work, the County has no obligation
under the Worker's Compensation law to return the employee to work on a modified basis.
employee will be required to use qualified leave until a physician's statement indicates he/she
able to resume regular duties. Under certain circumstances, however, state of federal law
employers to make reasonable accommodations which would enable a qualified individual
a disability to return to work.
. . .
In this connection, the County maintains that it has been told by its insurance carrier
it should not place employes on light duty status if they have an off-the-job injury because
employes may reinjure themselves on the job, thereby exposing the County to liability for
The County in the past assigned light duty to highway employes Gerald Schmidt and
Slewetski on an informal basis. Superintendent Kachel said at the hearing that even though
County does not have a formal light duty policy for employes who suffer off-the-job injuries,
will go on considering on an individual basis whether a given employe should be assigned
tasks until he/she is fully recovered from an off-duty injury.
Throughout this time, there were ongoing discussions between the Union and the
over Janssen's situation. A grievance was filed on his behalf on April 4, which the County
subsequently denied in part on the ground that it had been untimely filed.
POSITIONS OF THE
The Union asserts that its April 4 grievance is timely because grievant Janssen
management in repeated attempts to settle the matter informally in a mutually satisfactory
and because he filed his grievance only "after an exhaustive investigation, and a series of
seemingly endless settlement discussions proved fruitless." The Union argues that the
discriminated against Janssen in violation of Article III of the contract because: "It is unfair
unequal to apply a light duty policy which allows certain employes [who are injured on the
this right, while denying it to others" [who are injured off the job]. It further argues that
County is discriminating against disabled employes by not temporarily accommodating their
special needs" and that, furthermore, a past practice supports its position here. As a remedy,
Union asks that Janssen be made whole for all lost wages and benefits.
The County, in turn, contends that the grievance is untimely because it was not filed
three full months after Janssen returned to work on January 6; that it is not obligated under
contract to provide light duty for non-job related injuries; and that sick leave is provided for
purpose because it in effect serves as a "short term income continuation plan."
Turning first to the timeliness issue, I find that the grievance was timely filed under
IX of the contract, entitled "Grievance Procedure", because Janssen met with County
representatives and informally tried to resolve this issue before he filed his written grievance.
therefore acted in good faith throughout this matter and his grievance certainly did not cause
surprise to County officials.
As for the merits of the grievance, the County correctly points out that there is no
contractual language requiring it to provide light duty to employes who suffer off-the-job
Indeed, there is no contractual language which mandates light duty for employes who hurt
themselves on the job.
The Union therefore argues that there is a binding past practice which required the
to place Janssen on light duty when he returned to work on January 6. As to that, the record
clearly shows - as correctly argued by the Union - that the County in the past assigned light
to employes Schmidt and Slewetski when they suffered their off-the-job injuries.
The fact that the County did so on those occasions, however, does not automatically
that there is a binding past practice to that effect. For, as stated by arbitrator Harry Shulman
Ford Motor Co. v. United Automobile Workers, 19 LA 237, (1952):
A practice thus based on mutual agreement may be subject to
change only by mutual
agreement. Its binding quality is due, however, not to the fact that it is past practice but
to the agreement in which it is based.
But there are other practices which are not the result of joint
determination at all. They may
be mere happenstance, that is, methods that developed without design or deliberation. Or
may be choices by Management in the exercise of managerial discretion as to convenient
at the time. In such cases, there is no thought of obligation or commitment for the future.
practices are merely present ways, not prescribed ways, of doing things. The relevant item
significance is not the nature of the particular method but the managerial freedom with
it. Being the product of managerial determination in its permitted discretion, such practices
in the absence of contractual provisions to the contrary, subject to change in the same
. . But there is no requirement of mutual agreement as a condition precedent to a change of a
practice of this character. A contrary holding would place past practice on a par with written
agreement and create the anomaly that, while the parties expend great energy and time in
negotiating the details of the Agreement, they unknowingly and unintentionally commit
to unstated and perhaps more important matters which in the future may be found to have
Here, the County over the years informally assigned light duty to employes who were
the job not through "mutual agreement", as is required under a valid past practice, but
through "mere happenstance" and without "design or deliberation" because it was
to do so at the time. Hence, said isolated assignments did not constitute a past practice,
is why the County here was not required to assign Janssen to light duty. 2
The Union also argues that the County discriminated against Janssen in violation of
Article III of the contract which states: "the Employer's management prerogatives shall
used for purposes of discrimination against employes." In order to find discrimination,
employes must be similarly situated and/or belong to the same class or group of employes.
Employes who are injured off the job, though, are situated differently from
employes who are
injured on the job.
That is why, for instance, the former group of employes is entitled to worker's
compensation while the latter group is not. Indeed, Article XIV, Section F, of the contract
provides for this very subject by stating:
"Worker's Compensation: The County shall not pay
for sick leave for on-the-job activities
covered under Worker's Compensation. However, if an employe suffers an on-the-job injury
is not eligible for Worker's Compensation, reimbursement on any work day, the employe
be allowed to use accumulated sick leave in lieu of receiving no payment of wages for such
That is also why Article XIV, Section B, entitled "Eligibility", provides:
"Each employee, to be eligible to receive sick leave pay, must be
off work due to sickness or
off the job injury. Sick leave may be used in one-half day increments."
By specifying that sick leave must be used for "off the job injury", the parties thereby
this was the only benefit to which employes like Janssen were entitled.
To be sure, there is no evidence in this record that the parties in past contract
ever expressly discussed whether employes who suffer off-the-job injuries are entitled to be
on light duty status. That, though, only means that the County has never agreed to grant the
benefit sought here. Absent any such commitment on its part and any contractual language
requiring it to do so, I therefore find that the County is not required under the contract to
light duty to employes who are injured off the job.
In light of the above, it is my
1. That the grievance is arbitrable;
2. That the County did not violate the contract when it failed to place grievant
Janssen on light duty status; the grievance is therefore denied.
Dated at Madison, Wisconsin, this 1st day of December, 1997.
Amedeo Greco /s/
Amedeo Greco, Arbitrator
1. Unless otherwise stated, all dates hereinafter refer to
2. The Union's reliance on Lincoln County, Dec. No.
42702 (1989), is misplaced because that
case centered on a well-established policy of honoring payroll deductions, a practice which
arbitrator Richard B. McLaughlin found ran from "at least 1972 until February 1, 1989. . ."
that the County's administration "did not refuse any employe request for a payroll deduction
during. . ." that time period. Here, by contrast, there is no such 17-year practice.