BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LINCOLN COUNTY HIGHWAY
LOCAL 332, AFSCME, AFL-CIO
Lincoln County Highway Employees, Local 332, AFSCME, AFL-CIO, hereinafter
requested that the Wisconsin Employment Relations Commission appoint a staff arbitrator to
and decide the instant dispute between the Union and Lincoln County, hereinafter the
accordance with the grievance and arbitration procedures contained in the parties' labor
The County subsequently concurred in the request and the undersigned, David E. Shaw, of
Commission's staff, was designated to arbitrate in the dispute. A hearing was held before
undersigned on February 18, 1998, in Merrill, Wisconsin. There was no stenographic
of the hearing and the parties' post-hearing briefing schedule was completed by April 12,
Based upon the evidence and the arguments of the parties, the undersigned makes and issues
The parties stipulated that there was no procedural issue and to the following
the substantive issue:
Did the Employer violate the collective bargaining agreement
and/or a binding past practice by
changing its policy with regard to withdrawing discipline from an employe's personnel file?
what is the appropriate remedy?
The parties' Agreement contains the following provision, in relevant part:
The Union recognizes that the management of the Highway
Department and the direction of
its working forces is vested exclusively in the County subject to the terms of this Agreement.
A. The right to hire, suspend,
demote, discipline or discharge for just cause;
. . .
F. To determine the methods, procedures and means
of providing such services;
G. To establish work rules;
H. To determine what
constitutes good and efficient County service.
It is understood that management rights
not limited to those specifically mentioned above.
It is also understood that the Employer's management prerogatives shall not be used for
discrimination against employees. Any unreasonable exercise or application of the
Right's by the County as set out in this Article shall be appealable by the Union or any
through the grievance procedure.
. . .
. . .
. . .
6. Decision of the Arbitrator: The decision of
the arbitrator shall be limited to the
subject matter of the grievance and shall be restricted solely to the interpretation of the
contract in the area where the alleged breach occurred. The arbitrator shall not modify, add
to, or delete from the express terms of the Agreement.
. . .
As part of its governmental responsibilities, the County maintains and
Lincoln County Highway Department. Since 1992, Peter Kaphel has been the Highway
Commissioner. The Union is the recognized exclusive bargaining representative for all
employes of the Highway Department excluding the confidential, clerical, and supervisory
For over 30 years, the County has had work rules regarding the
imposition of discipline.
The rules were rewritten in 1992, and at least since then the relevant rule stated:
SECTION 1 TYPES OF DISCIPLINARY
. . .
B. Written Reprimand:
. . .
2. A copy of each written reprimand given
shall be placed in the employee's personnel
file for 1 year. Removal upon request by employee after 1 year, only with
. . .
Union witnesses testified that for as long as they have been employed in the
an employe went to the Highway Commissioner after one year and requested that the
removed from their personnel file, that request has been granted. The Highway
testified that he has not reviewed the personnel files after one year and removed reprimands
own, but has removed reprimands at the request of an employe approximately six times. He
that, in his view, he was exercising his management discretion in deciding whether or not to
employe's request on each occasion.
In 1997, the County's Personnel Committee revised the work rules to provide that a
all discipline, including reprimands, given an employe shall be permanently placed in the
personnel file. The Union subsequently grieved that change in the work rules.
The parties attempted to resolve their dispute through the grievance procedure, but
unable to do so, and proceeded to arbitration of the grievance before the undersigned.
POSITIONS OF THE PARTIES
The Union first notes as background facts that the contract has long permitted the
make work rules, but that under the Agreement, the Union had the right to grieve
exercises of that authority, and that management was also prohibited from using its
. . for the purposes of discrimination against employes." The Union asserts that the evidence
that for the past 37 years, written disciplinary reprimands were removed from an employe's
file after one year, the only requirement being that the employe had to request that the
Commissioner remove it. Since 1992, the written work rules have confirmed that practice
provided only that there be no reoccurrence of the misconduct during that year, and that it
subject to the "approval" of the Highway Commissioner. While this seems to make removal
discretionary on the part of the Commissioner, the actual practice has been that reprimands
always been removed upon the employe's request after one year had passed. The practice
been that removal is automatic upon request, and not subject to the discretion of the
The Union takes the position that the new work rule that provides that future reprimands will
permanently remain in an employe's personnel file is both contrary to past practice and
The Agreement permits the Union to challenge unreasonable work rules through the
procedure. The Union notes that Robert's Dictionary of Industrial
Relations, (3rd Edition, 1986,
BNA Books), does not contain a definition of the term "reasonable", and assserts that
concluded that the term is a relative one.
There can be little question then that the term "unreasonable" is ambiguous. The tool
used by arbitrators to define ambiguities in a labor agreement is the parties' past practice.
because the parties' themselves have frequently shared a mutually-acceptable definition of
ambiguities in the workplace. This is true in the instant case. Union officers testified
challenge that for many years, disciplinary warnings have been routinely and automatically
from employes' personnel files upon request and that the Commissioner's approval was
to be no more than a formality, i.e., his actions were custodial rather than discretionary in
Longtime employe and local union representative, Oscar Wangen, testified that during his 37
in the Department, a period covering five different Highway Commissioners, he personally
at least 40 to 50 instances where the practice occurred. He also testified that he had no
knowledge of any individual employe who had his request that discipline be removed after
refused. This was confirmed by similar testimony of Gross and Janssen, both of whom
they did not know of a single instance where an employe's request to have discipline
their personnel file after a year had been denied.
Past practice aside, it can also be argued that permanently maintaining references to
discipline in an employe's work record would strike a "reasonable person" as unjust. Under
work rules, by implication, past minor infractions could be indefinitely brought up and used
progressive discipline scenarios which ultimately could result in an employe's discharge, e.g.
employe might be tardy four or five times in a 10-year period, but under the newly-enacted
this could result in the County ultimately using this to justify termination. This would be an
result, and one inconsistent with any notion of the contractual requirement of
is a well-recognized arbitral principle that interpretations of ambiguous language should not
in overly harsh or absurd results. The Union cites a number of arbitration awards for the
that where one interpretation of ambiguous language would lead to a harsh or absurd result,
another interpretation, equally consistent, would lead to a just and reasonable result, the
interpretation shall be used.
For all of these reasons, the Union contends there can be little question that the
a new work rule violates the Agreement, and that the grievance should be sustained.
With regard to the argument that there is a binding practice that disciplinary items are
removed from an employe's personnel file after one year, the County asserts that contention
the fact that the work rule specifically stated that removal is at the request of the employe
discretion of the Highway Commissioner. The Highway Commissioner
testified that the County has had a very specific work rule stating that "a copy of each
reprimand given shall be placed in the employe's personnel file for one year. Removal upon
by employe after one year, only with Commissioner's approval." The Commissioner
testified that rule
had been in effect at least since 1992 and that the Department had operated under it ever
the Commissioner has removed items from employes' personnel files in the past, it was done
Commissioner's discretion. The use of discretion in a certain way should not be elevated to
The County cites Elkouri and Elkouri, How Arbitration
Works (Fifth Edition) in its discussion
of Arbitrator Shulman's reasoning that a practice does not become binding if it is the result
discretionary exercise of management rights:
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 they
choices by Management in the exercise of managerial discretion as to the convenient methods
time. In such cases there is no thought of obligation or commitment to the future. Such
are merely present ways, not prescribed ways, of doing things. The relevant item of
not the nature of the particular method but the managerial freedom with respect to it. Being
product of managerial determination in its permitted discretion such practices are, in the
contractual provisions to the contrary, subject to change in the same discretion.
(5th Edition p. 636,
internal citations omitted.)
Arbitrators frequently recognize wide authority in management to control methods of
direct the work force, including the right to make changes if these do not violate some right
employes under the written contract.
The County asserts that if the Union were to prevail in this case, then the remedy
must be that
the County would have to return to the old policy, meaning that the Commissioner would
discretion to remove the items. There is no evidence suggesting that the removal of the
was automatic, or that the County waived its right to exercise such discretion. To interpret
as broadly as the Union, would change the practice of the Commissioner's discretion to a
automatically removing items after one year, and would modify the Agreement in a manner
contrary to the limitation on the Arbitrator's authority. As to the Union exhibit regarding a
of a grievance in 1990, the exhibit should be given no weight, as such a settlement is a
where neither party is agreeing that it will be raised to the status of contract language which
be binding in the future.
With regard to the new rule, the County asserts that it has the express right under
Section G, of the Agreement, to create work rules. Further, it is well-established that
has the fundamental right to unilaterally establish reasonable plant rules, not inconsistent with
the labor agreement. The County asserts that the new rule is reasonable for the following
First, while the Union expresses concern about the possible favoritism on the part of the
Commissioner, the new method of retaining disciplinary actions actually provides greater
and eliminates possible favoritism. The Commissioner would not be allowed to favor certain
employes, since all disciplinary items would remain in the personnel file. Second, it is
keep an accurate record of an employe's work history. Under the Union's view, there would
record of prior discipline. Under the new rule, a good employe could point to the rule and
say he has
never been disciplined, while under the old rule, an employe could only say that he has not
disciplined in the last year, even if he had a spotless record for 30 years. Third, progressive
and just cause requires that the employer review the entire record of the employe, and not
it to the most recent year. It would be unfair to impose the same level of discipline on an
who had never been warned about performance problems, as that imposed upon an employe
been warned three times over three years. Under the Union's view, the County would have
them the same. Fourth, while the Union claims it is losing something if such items are
permanently in a personnel file, employes are still protected by the just cause standard which
into consideration prior incidents. Arbitrators also have the opportunity to measure the
past disciplinary actions. Finally, while the Union suggests it will be forced to grieve every
disciplinary action because it will not have some kind of assurance that it will be removed in
employes already have the right to grieve disciplinary actions and could implement that
The County posits that by keeping disciplinary items permanently in the file, perhaps the
be more concerned about the possible consequences of inappropriate behavior, and
be more conscientious about providing discipline which will stand the test of a grievance.
County requests that the grievance be denied.
It is first noted that under Article III, G, of the Agreement, the County has expressly
the right "to establish work rules." Article III also provides that the Union or any employe
right to appeal the unreasonable exercise or application of the management rights set forth in
Article through the grievance procedure. The question then, is whether the new work rule
that all discipline is to permanently remain in an employe's personnel file is an unreasonable
of the County's right to establish work rules.
The Union asserts that the term "reasonable" is ambiguous and that the parties'
practice must be considered in defining the parties' intent. The Union is correct insofar as
practice is generally utilized, where one exists, to establish the parties' intent where the
language is ambiguous. However, that rule of contract interpretation has no application in
While such terms as "reasonable" and "unreasonable" can be ambiguous, the term, as used
parties, applies to the exercise of the right to establish work rules. In that regard, the term
standard, i.e., whether a work rule so established is unreasonable. While a practice may aid
interpreting an ambiguous contract term, it does not aid in applying the standard of
to the exercise of management discretion. As the County asserts, where the Agreement
discretion to management, the manner in which it chooses to exercise that discretion does not
establish a binding practice, and the fact that it has exercised its discretion in the same
a lengthy period of time does not bind it to continue to do so in the same fashion. Again,
is only whether the new work rule is unreasonable, not whether it is consistent with the prior
favors employes more or less than its predecessor.
As to the reasonableness of the new rule, both parties offer examples of possible
results under the other's position. Both examples ignore the contractually required
application of the
just cause standard under Article III, A, of the parties' Agreement, and the role an employe's
record necessarily plays in applying that standard. While the new rule is not as favorable to
it is not necessarily unreasonable to have an employe's personnel file contain his/her entire
record. An employe has the right to challenge any discipline imposed through the grievance
procedure, including to arbitration. Such a work rule does not preclude an arbitrator from
past discipline to be stale or otherwise lacking in relevance in considering the appropriateness
discipline under challenge. Such a work rule also would not preclude an arbitrator from
removal of discipline from an employe's personnel file where the arbitrator has found it was
For these reasons, it is concluded that the new work rule is not unreasonable.
County did not violate the parties' Agreement or a binding past practice by changing its work
with regard to removing discipline from an employe's personnel file.
Based upon the foregoing, the evidence, and the arguments of the parties, the
makes and issues the following
The grievance is denied.
Dated at Madison, Wisconsin this 21st day of August, 1998.
David E. Shaw, Arbitrator