BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS,
AFL-CIO, KAUKAUNA LOCAL 1594
CITY OF KAUKAUNA
City of Kaukauna and International Association of Fire Fighters, AFL-CIO, Local
parties to a collective bargaining agreement that was in affect at all times relevant to this
The agreement provides for binding arbitration of disputes. The Union initiated grievance
and requested the Commission to appoint either a Commissioner or a member of its staff to
arbitrator. Debra Wojtowski was appointed as arbitrator to hear the grievance. Hearing in
was held on March 12, 1998 in the City of Kaukauna, Wisconsin. A transcript was made of
hearing. The parties filed briefs with the arbitrator for mutual exchange. The parties were
opportunity to file reply briefs but declined to do so and the record was closed on April 17,
The Commission advised the parties that Arbitrator Wojtowski was no longer employed by
agency and that the Commission would assign someone else from the agency to write the
The Commission on November 9, 1998 transferred the case to Paul A. Hahn for a decision.
The parties agreed on the record that the arbitrator ". . . should select one of those
as the framing of this issue." (Tr. 5-6) The Arbitrator selects the issue as presented by the
Did the City of Kaukauna violate Articles II and V of Local
1594's labor agreement by denying
mileage reimbursement at the rate of 31.5 cents per mile effective January 1, 1998? And, if
is the remedy?
The City recognizes the Union as the sole and exclusive
bargaining agent for the members of
the Kaukauna Fire Department excluding the positions of Assistant Chief and Chief.
. . .
. . .
Employees who possess a current
paramedic license and are assigned to fill in for an employee
of higher rank shall be paid out-of-class pay at the level that includes paramedic pay on the
schedule. In addition to the attached wage schedule; it is understood that Fire Fighters who
through their department head or are required to train during nonregular duty hours
training as an E.M.T. II) will be paid at the straight time 40 hour rate of pay
for all classroom hours
and also reimbursed for mileage to and from the training site, required text, tuition and
. . .
. . .
Grievances related to this Agreement,
wages, hours and conditions of employment, may be
processed in accordance with the grievance procedure.
. . .
Step 3. Arbitration. The arbitrator, in
arriving at his determination, shall rule only on matters
of application and interpretation of this Agreement. the findings of the arbitrator shall be
binding on both parties. Arbitration may be initiated by either party serving upon the other
notification in writing of intent to proceed to arbitration.
. . .
RIGHTS OF THE EMPLOYER
Subject to other provisions of this contract, it is agreed
that the rights, function and
authority to manage all operations and functions are vested in the employer and include, but
are not limited to the following:
To prescribe and administer rules and
regulations essential to the accomplishment of the
services desired by the City Council.
To manage and otherwise supervise all
employees in the bargaining unit.
To hire, promote, transfer, assign and retain employees and
suspend, demote, dismiss or take
other disciplinary action against employees as circumstances warrant.
To relieve employees of duties because
of lack of work or for other legitimate reasons.
To maintain the efficiency and economy
of the City operations entrusted to the administration.
To determine the methods, means and
personnel by which such operations are to be
To take whatever action may be necessary to carry out the
objectives of the City Council in
To exercise discretion in the operation of the City, the
budget, organization, assignment of
personnel and the technology of work performance.
This grievance involves the City of Kaukauna and International Association of Fire
AFL-CIO, Kaukauna Local 1594 representing employes of the City set forth in Article II
Recognition. (Jt. Ex. 1) The Union alleges a contractual violation by the City for failing to
fire fighters represented by the Local a mileage reimbursement rate in effect as of January 1,
(31.5 cents per mile) pursuant to Article V of the collective bargaining agreement. (Jt. Ex.
City takes the position that it is only obligated to pay the mileage reimbursement rate as set
a settlement agreement to grievance #8 dated November 13, 1992 of 27.5 cents per mile. (Jt.
The parties were unable to resolve the dispute; this led to the Union filing a grievance on
1997. (Jt. Ex. 2) The Employer responded denying the grievance on October 31, 1997 and
November 20, 1997. (Jt. Ex. 2)
Article V - Salaries, paragraph B relates to reimbursement to the fire fighter
training that is performed by them on non-regular duty hours. Specifically, as to this
provision requires ". . . also reimbursed for mileage to and from the training site, required
and miscellaneous expenses." (Jt. Ex. 1) This language of the collective bargaining
not been altered since the 1983 labor agreement. Since 1983, at various times, the City
set the mileage reimbursement rate, specifically in 1985 at 21 cents per mile and in 1991 at
per mile according to IRS guidelines. (Jt. Ex. 5 and 4) The Union has never been involved
decision as to the amount or timing of the mileage reimbursement under Article V.
In 1991, when the City increased the mileage reimbursement rate for all City
employes to 27.5
cents per mile it incorporated a provision, which it applied to the fire fighters, in its
to provide that only employes who carried a certain amount of liability insurance on their
car being used for City business would receive the 27.5 cents per mile rate. Those employes
not carry the required liability insurance would receive a
lower rate of 20 cents per mile. (City Ex. 1) The Union grieved (by Grievance #8)
for receiving the mileage reimbursement rate. The Union position was that establishing an
requirement for receipt of the 27.5 cent per mile rate was an unlawful unilateral change in a
practice for receipt of mileage reimbursement. (Jt. Ex. 3) The Union also argued in
dated November 13, 1992 that the City was violating a past practice that fire fighters would
whatever mileage rate increase the City Council passed without being required to show proof
insurance. (Jt. Ex. 3) The parties settled grievance #8 on December 17, 1992 with the
The City of Kaukauna agrees to Local 1594's demand that all
affected employees be
reimbursed at a rate of 0.275 cents per mile.
The City of Kaukauna agrees to Local
1594's request that the City bargain in negotiations any
change of working conditions.
The City of Kaukauna agrees that
employes shall not be required to show proof of specific
insurance coverage unless both parties mutually agree upon it.
The settlement agreement was signed by Paul Hirte, Local 1594
President, on December 17, 1992
and by Mayor Neil Steinberg on December 28, 1992. (Jt. Ex. 3)
The Union also, by grievance #7 dated September 9, 1992, grieved that certain
subjects in the
City's Personnel Policies and Regulations Manual were mandatory subjects of bargaining.
parties, as part of a settlement of this grievance, agreed that Section 9-7(A) of the manual,
Reimbursement, was a mandatory subject of bargaining. (City Ex. 3)
On July 1, 1997 Mayor John Lambie informed Local 1594 that the City's Finance
Personnel Committee had voted in favor of raising the mileage reimbursement rate from 27.5
per mile to 31.5 cents per mile. (City Ex. 2) This increase of the mileage rate was to be
January 1, 1998. (Jt. Ex. 2) The City offered to negotiate a change in the mileage
the Union could receive the higher mileage rate to be effective January 1, 1998 by showing
insurance pursuant to the Personnel Manual. (City Ex. 2) It was this position by the City
Union grieved on October 16, 1997. (Jt. Ex. 2)
The Union filed a grievance over the City position that to receive the 31.5 cents per
mileage reimbursement a fire fighter would have to show proof of insurance. The parties
the grievance through the contractual grievance procedure and were unable to resolve the
The hearing in this matter was held by Arbitrator Wojtowski on March 12, 1998 at
Kaukauna City Hall in the City of Kaukauna, Wisconsin. The hearing closed at 12:18 p.m.
The hearing was transcribed. The parties were given the opportunity to file briefs and
did so; briefs
were filed with the Arbitrator on or about April 17, 1998. The parties were given the
to file reply briefs but declined to do so and the record was closed on April 17, 1998.
POSITION OF THE PARTIES
The Union initially argues that the City has always tied its mileage reimbursement
rate for its
City employes, including Fire Fighters, to the IRS guidelines. This is demonstrated by the
passed by the City Council in the past that have tied mileage increases to the
IRS rate. The Union further argues that the reimbursement must approximate as
closely as possible
the actual mileage cost to the fire fighters and that this necessarily must be the highest rate
by the City Council, in this case 31.5 cents per mile. The Union argues that any lesser rate
constitute partial not full reimbursement. The Union points out that the City agrees that the
fighters receive full, not partial, reimbursement for the actual cost of required texts, tuition
The Union further takes the position that the parties' consistent interpretation of
Subsection B, regarding mileage reimbursement, is that once the City Council has adopted
mileage rate that this has been applied to the members of Fire Fighters Local 1594, which
the interpretation of the clear and unambiguous language of Article V. The Union takes the
that contrary to the settlement of Grievance #8, which set the rate at 27.5 cents per mile, the
now taking the position that the fire fighters should not receive 31.5 cents per mile without
negotiation, violates the clear unambiguous language of Article V that the fire fighters
receive the full reimbursement which at the time of the grievance was 31.5 cents per mile.
argues that the change in working conditions language set forth in the settlement of
requiring negotiations does not apply to the actual mileage rate but to any working conditions
attempt to reduce the fire fighters' mileage reimbursement rate by tying it to the amount of
insurance carried by the fire fighter.
The Union further argues that the Council's adoption in 1997 of a rate based on the
IRS guideline of 31.5 cents per mile affects the monetary amount the fire fighters would
reimbursement; it does not affect the working conditions of the fire fighter. The Union
that those working conditions require the reimbursement for mileage to be the IRS rate once
Council has adopted that rate; therefore, there was no change in the working conditions
the Council's adoption of the 1997 rate.
Lastly, the Union argues that the settlement of Grievance #8 is not only consistent
furnishes support for Local 1594's position. The Union argues for sustaining the grievance
the City be directed as a remedy to reimburse its fire fighters for mileage to and from the
at the Internal Revenue Service rate of 31.5 cents per mile beginning January 1, 1998.
The City argues that the contract language in Article V, Subsection B related to
reimbursement for mileage is "vague." The City takes the position that in the settlement of
#8 and grievance #7 neither actual mileage cost nor IRS rates were used in settling those
grievances. The City takes the position that the City has never specifically passed a
adopted a resolution that ties the City's mileage reimbursement rate to that rate established
Internal Revenue Service. The essential thrust of the City's argument is that in settling
the parties agreed on a mileage reimbursement rate of
27.5 cents and that the parties also agreed that this rate could not be changed
unilaterally by the City
or the Union since it is a mandatory subject of bargaining. Lastly the City argues that any
of the existing mileage reimbursement rate for Local 1594 must be achieved by mutual
because it is a contract language modification. The City takes the position that the grievance
be denied in all respects.
This dispute involves the interpretation of the parties' labor agreement and primarily
V, Section B. As arbitrator, I draw my arbitral authority from the contract language. Where
is not clear and is ambiguous, bargaining history and past practice may be used to interpret
language in question. 1/
1/ Arbitral authority is rooted in the parties'
agreement. First and foremost, this agreement is the
written contract executed by them. To the extent the contract is unclear, the most persuasive
guides to the
resolution of ambiguity are past practice and bargaining history. Each derives its persuasive
the agreement manifested by the conduct of the parties whose intent is the source and the
goal of the
contract interpretation. Green Bay Board of Education, Case 185 No. 53595 MA-9395
The language of Section B provides for reimbursement of
employes who attend job related training on non-duty time. The employes are
reimbursed for books, tuition and other related expenses. Pertinent to this case is
that employes are also reimbursed for mileage. There is nothing in Section B or in the
labor agreement that sets forth the rate of that reimbursement, nor is there any
formula for determining the rate of mileage reimbursement. The language of
Section B has not changed from the 1983 contract to the current labor agreement.
The parties agree that the language cannot mean actual cost to each employe as each
employe's mileage cost would be different. The Union argues that because the City
pays the full cost of the other training expenses the full cost of mileage should be
reimbursed or at least the maximum mileage that the City authorizes should be
received by the fire fighters. However, contrary to the Union's argument that the
language of section B is clear and unambiguous, I find the language to be ambiguous;
there simply is not any way by reading the labor agreement that one can determine
with any degree of certainty what is the appropriate mileage reimbursement rate.
I cannot turn to any bargaining history for assistance as none
at the hearing. I then may turn to past practice for guidance. The standards that
have been accepted to allow past practice to interpret language of a labor agreement
are not insignificant. 2/ I find in this case that the Union has not met those standards
and as the moving party in this contract interpretation case it bears the burden of
proof. Only two instances were introduced into the record where, since 1983, the City
increased the mileage based on an IRS guideline. (Jt. Ex. 4 and 5) The Union attempted
to find other instances but could not. I take judicial notice that the
Internal Revenue Service raised its mileage reimbursement rate
between 1983 and
1997 more than twice. In 1997 the City raised the rate to $.315, which led to the
present dispute. It is also clear that the practice was not accepted unequivocally by
the parties as evidenced by the situation in 1992 that led to grievances #7and #8. Those
grievances, arose out of the fact that the City offered two mileage reimbursement
rates to its employes, including the fire fighters, based on the amount of liability
insurance the employes carried on their individually owed cars used on City business.
That position by the City, right or wrong, does not support a finding that there was a
practice in effect accepted unequivocally by both parties. Even the Union in its
argument at hearing and in its post hearing brief allowed that it was the City that
controlled when the City increased the mileage rate.
2/ "In the absence of a written agreement, 'past practice,' to be
binding on both parties,
must be (1) unequivocal; (2) clearly enunciated and acted upon; (3) readily ascertainable
over a reasonable period of time as a fixed, and established practice accepted by both
parties." Celanese Corp. of America, 24 LA 168, 172 (1954) Justin.
This dispute and grievance mirrors the dispute and grievances
parties that occurred in 1992 when the City introduced personnel policies that
provided for a mileage reimbursement rate of $.275 or $.20 depending on the amount
of liability insurance carried by employes. 3/ In appropriate circumstances, prior
grievance settlements between parties may be used to aid in the interpretation of
contract language. 4/ I find this case appropriate because the grievance before me
has virtually the exact same set of facts and with the same contract language as
grievances #7 and #8, introduced into this record as City 3 and Joint 3. The parties
settled those grievances; unfortunately, the parties introduced no testimony as to
the meaning and intent of those settlements. I therefore consider them on the
written settlement documents and the facts at the time.
3/ City exhibit 3 [Settlement of Personnel
Policies and Regulations Manual Grievance]
and Joint exhibit 3 [Settlement of Mileage Reimbursement Rate
4/ "How Arbitration
Works" Elkouri and Elkouri Fifth edition pages 508-509 (1997).
Grievances #7and #8 got their start in
1991 when the City raised the mileage
reimbursement rate to $.275. (Jt.4) That rate was not given to the fire fighters. In
1992, the City created personnel policies that provided that only City employes with
required liability insurance on their personal vehicles would receive the
aforementioned rate. (City Ex. 1) This specific policy, and the policies themselves, led
to the filing of a grievance. Grievance #7 dealt primarily with the policies
themselves; the Union took the position that the City could not require it and its
members to follow policies that were mandatory subjects of bargaining and/or were
covered by the labor agreement. In settling this grievance, the Union and the City
agreed that the labor
agreement would prevail over the personnel policies. The parties
agreed that past
practices would continue as they related to terms in the labor agreement; the Union
added a general statement about past practices remaining in effect. The parties did
not spell out specifically any practices they thought were in effect. More
importantly for my analysis, the parties agreed that policy #9-7(A), which covered
mileage reimbursement, was a mandatory subject of bargaining. (City Ex.
Grievance #8, which was filed on November 13, 1992, two
months after #7,
specifically relates to the factors that are present in this case. The Union grieved
the City's position that employes, including the fire fighters, would receive the $.275
mileage rate only if they carried the liability insurance amounts set forth in the
newly adopted personnel policies. The Union argued, as it does now, that the City had
unilaterally changed a past practice wherein the employes received the IRS rate
adopted by the City without any restrictions. After several attempts at settlement
language, detailed in Joint exhibit #3, the parties on December 17,1992 resolved the
grievance. The City agreed to reimburse the employes at $.275 per mile, not to change
working conditions without bargaining and to not require the
employes to show proof
of specific insurance coverage unless both parties mutually agreed to such a
requirement. (Jt. Ex. 3)
The City now argues that it cannot unilaterally change the rate
without negotiation, which it is willing to engage in, because the parties agreed that
negotiations would be the procedure in settling grievance #8. The City also states
that, if the Union does not want to bargain, the employes could receive the rate of
$.315 by carrying the appropriate liability insurance limits that are called for in the
personnel manual. The Union argues that in bad faith the City is using the Union's
victory in 1992, in grievance #8, against the employes by not continuing the practice
of the employes receiving the higher mileage rate when adopted by the City which for
the Union was confirmed by the grievance #8 settlement.
Arbitrators are required to often make decisions in the absence
of good and
necessary facts, and this is one of those occasions. Pay for mileage reimbursement is
one of those subjects best left for the bargaining table and negotiation between the
parties. In this case, I believe that is the way this arbitration must be decided. The
December 17,1992 settlement between the parties recognized the mandatory
bargaining nature of pay for mileage reimbursement as well as the requirement to
bargain conditions that affected receipt of mileage pay by the employes. There is
nothing in that settlement that states what would happen the next time the rate was
increased by the City. To interpret the settlement of grievance #8 as proposed by the
Union, would mean it would receive the more favorable interpretation: the Union
members would continue to receive increases in the mileage rate placed into effect
by the City automatically, while the City would have to bargain to try and attach
insurance restrictions to the receipt of the higher rate, in this case $.315. This would
make that settlement agreement one-sided unless one accepts the Union's past
practice argument which I have found is not supported by the evidence.
Unless I were specifically guided by some evidence to uphold a
agreement, I cannot accept that the Union position is what the parties intended with
their grievance #8 settlement. 5/ I therefore find that the conditions set forth in
that settlement, the mileage rate at
$.275 and no requirement on the employes to show proof of
required insurance, remain
in effect until such time as the parties negotiate conditions and a rate different
from what is set forth in the grievance #8 settlement document dated December 17,
1992. That being my ruling, the City did not violate the parties' collective bargaining
agreement when it refused to grant the employes the mileage reimbursement rate of
$.315 per mile and has not violated the agreement by continuing to pay at the rate of
$.275 per mile. Therefore I cannot sustain the grievance.
5/ Arbitrators strive where possible, however,
to give ambiguous language a construction
that is reasonable and equitable to both parties rather than one that would give one party
an unfair and unreasonable advantage. Elkouri and Elkouri at pages 513 and
The grievance is denied.
Dated at Madison, Wisconsin this 11th day
of December, 1998.
Paul A. Hahn, Arbitrator