BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
PIERCE COUNTY (HEALTH DEPARTMENT)
PIERCE COUNTY -- COMMUNITY HEALTH
affiliated with the LABOR ASSOCIATION OF
According to the terms of the 1996-1998 collective bargaining agreement, the parties
requested Sharon A. Gallagher, a member of the Wisconsin Employment Relations
staff, to hear and resolve a dispute between them regarding whether the County should be
to continue paying for certain mileage and travel time costs claimed by Home Health Care
working in the Public Health Department of the County. A stenographic transcript of the
was taken and received by the Arbitrator on August 3, 1998. The parties agreed to submit
their post-hearing briefs postmarked September 15, 1998 and the parties waived the right to
file reply briefs.
The record in this case was closed on September 21, 1998.
The parties stipulated that the following issues should be determined in this case:
Did the Employer violate Articles II, VI, XXI or XXXIV
of the collective bargaining
agreement when the Employer implemented a policy on reimbursement for mileage and
If so, what is the appropriate remedy?
The parties also stipulated that should the Arbitrator rule in
favor of the Union in this case,
she should retain jurisdiction regarding the scope of the remedy.
ARTICLE II -- SCOPE OF AGREEMENT
Section 2.01. The execution of this
Agreement on the part of the Employer shall cover all
operations of the Employer which are covered by this Agreement and shall have no
application to the
work performed set forth in this Agreement.
Section 2.02. The
Employer agrees not to enter into any agreement or contract with the
employees in the unit, individually or collectively, which in any way conflicts with the terms
provisions of this Agreement. Any such agreement shall be null and void.
Section 2.03. This
Agreement, reached as a result of collective bargaining, represents the
full and complete agreement between the parties and supersedes all previous agreements
parties. Any supplemental amendments to this Agreement or past practices shall not be
either party unless executed in writing by the parties hereto. Waiver of any breach of this
by either party shall not constitute a waiver of any future breach of this Agreement.
. . .
ARTICLE VI -- MANAGEMENT
Section 6.01. The County Board possesses
the sole right to operate the County and all
management rights repose in it. These rights include, but are not limited to, the following:
A. To direct all operations of
B. To hire, promote, transfer,
schedule and assign employees in positions within the
C. To suspend, demote, discharge and take other
disciplinary action against employees
for just cause;
D. To relieve employees from
their duties for lack of work, lack of funds or other
E. To maintain efficiency of
F. To take whatever action is
necessary to comply with state or federal law;
G. To introduce new or
improved methods or facilities;
H. To change existing methods
I. To determine the methods,
means and personnel by which County operations are to
be conducted; and
J. To take whatever action is
necessary to carry out the functions of the County in
situations of emergency.
. . .
ARTICLE XXI -- WORK RELATED
Section 21.01. Nurses and Home
Health Aides who, with prior approval of
the supervisor, attend department meetings, staff development or inservice, shall be paid at
Nurse's or Home Health Aide's regular rate of pay for all hours so spent. The Nurse or
Health Aide will be reimbursed for travel time and mileage for work related activities outside
. . .
ARTICLE XXXIV -- ENTIRE MEMORANDUM OF
This Agreement has been reached as a result of collective
bargaining, represents the full and
complete agreement between the parties and supersedes all previous agreements between the
Any supplemental amendments to this Agreement or past practices shall not be binding upon
party unless executed in writing by the parties hereto. Waiver of any breach of this
Agreement by either party shall not constitute a waiver
of any future breach of this
Agreement. [Employees with benefit packages inconsistent with the contract would continue
receive their current benefits.]
. . .
CHANGED COLLECTIVE BARGAINING
The 1991-1993 collective bargaining agreement between the parties contained the
ARTICLE XXVIII -- REIMBURSEMENT
Existing departmental policies relative to
reimbursement of employees for mileage
expense, out of pocket expense and meal allowances shall be continued in effect during the
this Agreement. Mileage shall be reimbursed at the rate of twenty-one and one-half cents
per mile, or state reimbursement on the date miles were driven, whichever is greater, for the
first six-hundred (600) miles driven. If an employee drives over six-hundred (600) miles in
one month, the
reimbursement shall be at the rate of twenty-one and one-half cents (21-1/2 cents per mile
twenty-five dollars ($25.00) per month car allowance.
In the 1994-1995 contract, the parties agreed to change the above-quoted language to
read as follows:
ARTICLE XXVIII -- REIMBURSEMENT
Section 28.01. The
then-existing County policies relative to reimbursement of employees for
out-of-pocket expenses and lodging will be utilized. Mileage shall be reimbursed for an
calendar year at the state reimbursement rate in effect the prior July 1. Employees hired on
July 1, 1994, shall continue to receive a $25.00 per month mileage stipend should they drive
than 600 miles in that month.
This language, as amended, appears in the effective labor agreement.
The County's Home Health Care Agency is part of the Public Health Department in
County. The Department of Public Health in the County runs a number of programs
Health Care. The other programs are Public Health Nursing, WIC Program, Maternal Child
Reproductive Health, Teaching Homemaker Program, Dietary Services and Birth to
Program. The Labor Association of Wisconsin, Inc., (Union), represents Public Health
employes, including HHC employes.
The facts of this case clearly demonstrate that for many years, Home Health Care
HHC) employes have been paid both for their travel time at their regular hourly rate as well
mileage from their home to their first patient and from their last patient either to the office or
home at the end of the day. It is also clear, however, on this record, that other employes of
Health Department of the County have been paid in an inconsistent fashion, without regard to
past practice regarding their mileage and travel time. The County never memorialized in
policy regarding travel time and mileage as it was applicable to HHC or any other employes.
HHC Supervisor Caralynn Hodgson stated that when she was hired by the County in
December, 1993, Raymond Cink had been the Director of Public Health there for at least
and that she had a conversation with him regarding what she believed was the very unusual
time and mileage policies applicable to HHC employes. Hodgson stated that Cink told her
policy was a long-standing one in the County and that he was not willing to change it.
stated that the travel time and mileage policy applicable to HHC employes, in effect prior to
12, 1998, had probably been in place for at least 20 years in the County. 1/
1/ It should be noted that Raymond
left County employment on January 12, 1996;
that Jane Dietzman then took over as Director of Public Health and worked for the County
approximately one year and two months prior to the July, 1997 hire of current Director Jane
As a general matter, Home Health Care employes (HHC) of the County's Department
Public Health visit patients who are eligible for home care and provide them with skilled
coordinate services between the patients' doctors, the Department of Human Services and
nursing services; they arrange transportation, write physician's orders, and complete
necessary to process the patients' home health care. HHC employes do not work an
and are not required to work regularly at the County's offices.
Rather, HHC employes are only assigned to work when there are patients who need
home health care
in the HHC employes' geographic area (near their residences). The County employs six
LPN's and five Nurses Aides in the Home Health Care program.
Since July, 1997, Jane Brueggeman has been the Director of the Public Health
for the County. Prior to Brueggeman, the Public Health Department was headed by Jane
Prior to Dietzman, Raymond Cink and, before Cink, Jerri Wagner were Directors of the
In April, 1996, the independent auditor for the County went to a Board of Health
with a summary of cost findings regarding the County's travel time and mileage costs for the
employes. This summary showed that two other agencies (similar to HHC) in contiguous
had travel time and mileage costs approximately two to three times less than that of Pierce
At this meeting, the County Auditor recommended that the County cut HHC travel time and
costs in order to avoid running a higher deficit than it had previously. 2/
2/ From 1993 through 1996, the County
Auditor found that the Public Health
Department had run its operations at a deficit (between $57,000 to $64,000) each year.
In May, 1996, the Director of the Public Health Department conducted a staff
nurses in which the Director produced documents indicating that the travel time and mileage
for the County were $7.26 per visit and for other agencies of a similar type, these costs were
less. At this May, 1996 meeting, then-Director Dietzman indicated that the County would be
developing a new travel policy shortly and that employes should make suggestions regarding
change the travel time and mileage policy of the County in order to bring about cost
In response to Dietzman's comments, at least two HHC nurses indicated that the question of
time and mileage was one which affected wages and that this type of issue should be
the Union. Dietzman made no comment in response to the nurses' assertions. It is
the County never sought to negotiate with the Union regarding travel time and mileage for
In 1996, the County did nothing in regard to changing its travel time and mileage
these policies remained the same as they had been for at least the past 20 years: employes of
Home Health Care program were paid both travel time and mileage from their
home to their first patient as well as from their last patient either to their home or to
the office. In
April, 1997, the County Auditor again compared Pierce County's travel time and mileage
those of two contiguous counties and found that these two other rural counties had travel
mileage costs for Home Health Care approximately three times less than those in Pierce
In September, 1997, Director of Public Health, Jane Brueggeman, had a meeting for
County Public Health staff. One of the items discussed at this meeting was the County's
change the travel time and mileage policy. (Prior to this meeting, Brueggeman and
Hodgson had put together a new travel time/mileage policy which had been approved by the
of Health.) Brueggeman placed a copy of this new travel policy in each employe's mailbox
to the September, 1997 staff meeting. At that meeting, Brueggeman went through the policy
with employes. Brueggeman told employes that the new travel policy would be more
the prior policy in order to cut high travel costs in the County. At this meeting, Supervisor
also told employes that she did not know if the new travel time/mileage policy would be a
Department-only policy or a County-wide policy; that she was aware that there had been
about the policy in the past and that the County was concerned that the travel budget was too
expensive for 1997. Again, the County did nothing to change the old policy for several
the County did not approach the Union to negotiate regarding the travel time and mileage for
The County implemented the new travel time and mileage policy on January 12,
1996-98 collective bargaining agreement was in full force and effect on January 12, 1998.
February 17, 1998, the Union wrote a letter to the County offering to open contract
order to talk about the newly-instituted County travel time and mileage policy. The County
responded to this letter and the Association filed the instant grievance thereafter.
POSITIONS OF THE
The Union argued that prior to January, 1998, there existed a clear past practice
County paid HHC employes their hourly rate of pay plus mileage from each employe's
their first patient, as well as from their last patient or the office back to their residence. The
pointed out that long-term employes stated that this was the past practice for approximately
20 years. The Union noted that employe Stapleton testified that when she was hired in 1983,
told by the Director of the Department she would be paid according to the above-stated
The Union noted that the Employer's witnesses also confirmed the past practice and that the
had been consistently applied to HHC
employes for at least a 20-year period. In these circumstances, the Union contended
that the mileage
and travel time past practice of the County was clear, unequivocal, mutually accepted and
by the parties for 20 years and as such, it should be given full effect by the Arbitrator.
The Union urged that the past practice regarding travel time and mileage for HHC
should be binding on the County. Even if certain language in the collective bargaining
(Article XXVIII) had been changed in the 1990's. In the Union's view, these changes did
the past practice and, in any event, the practice continued to be fully used by the parties.
Furthermore, the Union asserted that because the travel time and mileage past practice
alluded to in
Article XXI is a term which has been written down between the parties, it should be
Article II, Section 2.03 of the Agreement which specifically states that past practices, in
order to be
effective, must be written between the parties.
In addition, the Union noted that the Employer never proposed to change the past
during the recent contract negotiations for the effective labor agreement. Rather, the
negotiated the 1996-98 collective bargaining agreement and after the contract had been
unilaterally changed the travel time and mileage practice without affording the Union any
to bargain regarding this change. As the travel time and mileage practice directly affects
HHC employes, the Union urged that the Arbitrator should not allow the Employer to
change a past practice and that the Arbitrator should order the County to bargain with the
regarding any changes it wishes to make in such past practices. The Union noted that it had
requested such bargaining, and that the County failed and refused to do so after it had made
unilateral change in the practice.
Therefore, the Union urged that the grievance should be upheld, that the Arbitrator
the past practice (as stated by the Union) existed prior to January, 1998; that the Arbitrator
County to reinstate the past practice and to make employes whole for any losses they
to the County's unilateral change of the practice; that the Arbitrator order the County to
desist from violating the contract and that she issue as part of her Award, a statement that the
has a duty to bargain regarding any future change in the travel time and mileage practice.
noted that approximately $8,973.69 has been lost by unit members due to the County's
the disputed past practice in this case.
The County argued that because there is no language in the contract, no written
no written sidebar agreement regarding travel time and mileage for HHC employes, the
County is not
required to pay HHC employes for travel time and mileage to their first patient
and then home from their last patient or from the office. The County noted that all
of the Public Health Agency as well as other County employes and private and public sector
in the County pay for their own mileage to and from work and that they are not paid for
time to and from work. In addition, the County contended that the fact that the contract
strong "zipper clause" language would preclude any practice from becoming binding unless
practice is put into writing.
In the County's view, both Article VI, Management Rights, and Article
Reimbursement, allow the County to alter its reimbursement policies to make
such policies consistent
across the board for all Public Health Agency employes. The County also argued that it had
violated Article XXI, as that clause speaks of travel time and mileage for "work related
outside the office" to be reimbursed to HHC employes. Also, in the County's view, Article
does not require a conclusion that travel time and mileage must be paid to and from HHC
homes. In this regard, the County noted that all Public Health Agency employes drive to
work and that this should not be considered "work related" as these employes are not
any job duties by such travel. The County also pointed out that as a general matter under
is not a part of an employe's workday to travel to and from his/her workplace. Therefore, in
County's view, the Union's reliance on Article XXI is misplaced.
The County urged that there is no language in Article VI, Management
Rights, which requires
the County to bargain regarding a change in its reimbursement policy. In this regard, the
asserted that Article VI actually gives the County the right to change its policies in order to
efficiency or to determine the methods and means of operation.
The County argued that the change in the language of Article XXVIII regarding
reimbursement supports the County's position in this case. In this regard, the County noted
of the term "then-existing" referring to County policies shows that whenever the County
change a policy, that the new policy will be utilized without concern for any change in the
Therefore, any policy that is in effect when reimbursement is requested will be used under
language. The County further pointed out that the language quoted above in Article XXVIII
old language which included the phrase, "existing departmental policies" in the contract prior
1994-95 Agreement. Thus, in the County's view, the January 12, 1998 policy change in
and mileage for HHC employes was necessary in order to create a uniform and efficient
reimbursement for all Public Health Agency employes and this change in policy did not
collective bargaining agreement. Therefore, the County urged that the grievance be denied
dismissed in its entirety.
It is axiomatic in labor relations that a past practice, to be binding, must be clearly
and acted upon, unequivocal and readily ascertainable as a fixed, well-established practice
been accepted by both parties. Thus, past practice has come into play in cases where
language is ambiguous -- that is, subject to more than one reasonable interpretation.
evidence of past practice is also relevant and admissible in cases where the contract
although it generally covers a particular subject, fails to cover all aspects of that subject, so
practice is necessary to fill in the gaps in the labor agreement. In contrast, custom and
cannot be used to amend or vary clear and unambiguous contract language. Furthermore,
generally hold that where a practice has continued intact and unabated across several contract
despite changes in the contract language over the years, general "zipper" clause language
eradicate such a practice.
The record in this case clearly demonstrates that a past practice has existed regarding
time and mileage payments for HHC employes which has been consistently maintained and
upon by the parties over the past 20 years, despite agreed-upon changes, from time to time,
language of Article XXVIII, Reimbursement. In addition, it is significant that
the Employer never
proposed to delete or change the language of either Article XXI, Work Related
Activities, or Article
XXVIII, in negotiations for the effective labor agreement.
Therefore, the initial question in this case is whether the provisions of Article II,
and Article XXXIV, which essentially constitute identical "zipper" clauses, require a
the past practice regarding travel time and mileage payments for HHC employes is not
binding on the
parties. In this regard, I note that Section 2.03 states that "any past practices cannot be
either party unless executed in writing by the parties hereto." In my view, the contents of
XXI make clear that the parties have a general written agreement regarding the payment of
time and mileage to HHC employes. Therefore, Article II and the essentially identical
are not applicable to this case.
In analyzing Article XXI, I note that that provision clearly requires the County to pay
Health aides and nurses "for travel time and mileage for work related activities out of the
This language is extremely broad and contains no express limitation on the term "work
activities". Traveling between patient homes could clearly be considered work-related
activities, as these are activities necessary for the performance of HHC duties.
The question then arises whether travel time and mileage from the employes'
their first patient and at the end of the day from their last patient to the office or their homes
considered "work related activities out of the office" in the context of this case. In this
regard, it is significant that HHC employes work out of their homes (as they are
to patients nearest their residences) and visit patients' homes to perform the great majority of
HHC duties. HHC employes are only paid by the County to visit and work
with patients in the
patients' homes. Thus, HHC employes are not like other County employes who are
by the County and who must report to a County office to perform their work. These factual
distinctions between HHC employes and other County workers make all the difference in this
In my opinion, HHC employes' travel time and mileage are work-related out-of-office
Therefore, the broadness of the language of Article XXI and the manner in which HHC
work, require a conclusion that the parties essentially intended to read the terms of Article
conjunction with the past practice under which they had hired and employed HHC employes
The Employer has argued that Article VI and Article XXVIII allow it to essentially
its policies regarding travel time and mileage without notice or the opportunity to bargain
granted to the Union. The Employer has also urged that after such a change in policy, it can
apply the new policy to all employes with impunity. I disagree. Article VI lists management
reserved to the County as a general matter. Specifically, the County has reserved the right
". . .to direct all operations of the Department; . . .to
maintain the efficiency of County
operations; . . .to introduce new or improved methods or facilities; to change existing
facilities; to determine the methods, means and personnel by which County operations are to
In my view, none of these provisions is specific enough to supersede the specific
language of Article
XXI. Indeed, I note that Article VI does not contain any language providing that the County
change work rules or policies as it sees fit. Thus, the relatively general language of Article
insufficient to provide the County with authority to change the more specific language of
In regard to Article XXVIII, the County has argued that the use of the term
County policies" in this Article, allows it to essentially change the HHC travel time and
policy and to then apply the new policy to HHC employes under the rubric of reimbursement
employes for "out-of-pocket expenses and lodging". In my view, the term "then-existing
policies" refers specifically to the reimbursement of out-of-pocket expenses and lodging, not
time and mileage, as the latter are not included in the first sentence of Section 28.01.
In addition, the County's arguments in this area are not supported by the bargaining
evidence it proffered. If we look at the language of Article XXVIII in the 1991-93
compared to the language which appears in the 1994-95 Agreement (and the effective
appears clear that the parties decided to remove references in the first sentence of this Article
1991-93 Agreement to mileage expense and meal allowances. The parties, however, left
reference to out-of-pocket expense, but then added the reference to lodging which clearly
that the County wished to tie these two terms together. This would lead to a reasonable
that Article XXVIII was intended to address expenses incurred when County employes were
overnight on County business and away from home. The fact that the parties removed the
in the first sentence to mileage expense is therefore quite significant.
I also note that the second sentence of the paragraph addresses the rate of payment
driven, not when mileage may become payable. In my view, the parties'
agreement to remove a
reference to "departmental policies" from Article XXVIII in the 1994-95 contract and replace
a reference to County policy relates only to the reimbursable items specifically referred to in
XXVIII. Finally, we know from this record that the travel time and mileage practice
HHC employes continued in full force and effect after the execution of the 1994-1995
these circumstances, I believe that Article XXVIII is not applicable to this case, as it refers
specifically to out-of-pocket expenses and lodging and only generally to the mileage rate
in the County. 3/ Rather, it is Article XXI which is effective herein.
3/ The final sentence of Article XXVIII
was changed in 1994 so that only employes hired
on or before July 1, 1994 would receive a $25.00 per month mileage stipend if they drive
than 600 miles in a month. This change speaks for itself and it does not assist us in
Under the above analysis of the collective bargaining agreement, it is clear that the
addresses the dispute between the parties in this case; and that a clear past practice exists
fleshes out the language of Article XXI regarding travel time and mileage to be paid to HHC
employes. In addition, no section of the collective bargaining agreement effectively
language of Article XXI as it is fleshed out by the past practice. Finally, despite some
changes in the
labor agreement over the years, the HHC travel time and mileage practice found herein has
in full force and effect and employes were hired and employed under its terms until the
changed the practice by its Januay 12, 1998 implementation (mid-term of the 1996-98
a new reimbursement policy applicable to HHC employes.
Based upon the evidence and the arguments in this case, the Arbitrator issues the
4/ The Union has requested that the
undersigned order the County to make employes
whole and to reinstate the past practice regarding travel time and mileage for HHC
This shall be ordered in this case. However, the Union has also requested that the Arbitrator
issue a statement that the County has a duty to bargain any change in the travel time and
policy for HHC employes. This is beyond the jurisdiction of the Arbitrator in this case, and
shall not be ordered.
The Employer violated Article XXI of the collective bargaining agreement when it
implemented a policy on reimbursement for mileage and travel time for HHC employes.
Employer shall immediately reinstate the travel time and mileage practice which was in place
to January 12, 1998, and it shall make all affected employes whole. 5/
5/ The Arbitrator shall retain
in this case only regarding the remedy for a
period of ninety (90) days after issuance of this Award should the parties have difficulty in
determining the appropriate amount due to affected employes.
Dated at Oshkosh, Wisconsin this 13th day of October, 1998.
Sharon A. Gallagher, Arbitrator