BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF FOND DU LAC EMPLOYEES LOCAL
CITY OF FOND DU LAC
City of Fond du Lac and City of Fond du Lac Employees Local 1366, AFSCME,
are parties to a collective bargaining agreement that was in effect at all times relevant to this
proceeding and which provides for final and binding arbitration of certain disputes. The
request to initiate grievance arbitration, received by the Commission on September 17, 1998,
requested that the Commission appoint either a Commissioner or a member of its staff to
Arbitrator. The Commission originally appointed Coleen Burns to act as Arbitrator. After
attempts failed, and due to Ms. Burns' schedule, the Commission appointed Paul A. Hahn as
Arbitrator. Hearing in this matter was held on November 20, 1998 in Fond du Lac,
hearing was not transcribed ; the parties filed post-hearing briefs which were received by the
Arbitrator on January 7, 1999. The parties agreed not to file reply briefs and the record was
on January 7, 1999.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
Did the City of Fond du Lac violate the collective bargaining
agreement, its written policies
on educational reimbursement and/or its verbal and written guarantees to employes receiving
reimbursement that they would continue to receive it until they completed their course work
it denied Sue Kaiser payment of $442.35 for the final two courses of a supervisory
degree program from the Moraine Park Technical College? If so, what is the remedy?
Did the City of Fond du Lac violate the collective bargaining
agreement when it denied the
educational reimbursement to Sue Kaiser?
The parties agreed that I could frame the issue after considering their positions.
Did the City violate the collective bargaining agreement when
denied the Grievant payment
of $442.35 for courses in a Supervisory Management degree program the Grievant took from
Moraine Park Technical College? If so, what is the remedy?
Section 1 The City recognizes Local 1355,
AFSCME, AFL-CIO, as the exclusive bargaining
representative in the bargaining unit consisting of all permanent full-time, permanent
part-time, in the
Public Works Department (Waste Collection, Sewage Treatment, Electrical, Construction
Maintenance, Parks and Water Utility (field and plant) Divisions), the Department of
Development (Transit, Inspection Services and Parking Meter Utility Divisions), Fire
(Fire Records Clerk), Departments of Administration, Engineering, and Water Utility
in City Hall, Police Department, and seasonal employees of six (6) months or more duration
Parks Division of the City of Fond du Lac, excluding elected and
appointed officials, department heads,
professional employees, confidential employees, and
supervisors as defined in the Act, on all matters concerning wages, hours and other
employment in keeping with Section 111.70, Wisconsin Statutes, pursuant to an election
on October 4, 1967, by the Wisconsin Employment Relations Commission and as certified on
20, 1967, pursuant to a declaratory ruling regarding Transit Employees issued by the
dated May 8, 1973, and pursuant to an election conducted on October 23, 1981, by the
Employment Relations Commission regarding employees of the Police Department and as
on November 10, 1981 (Case XLI, No. 28674, ME-2055, Decision No. 19037).
Section 1 The City and the Union agree
they will cooperate in every way possible to
promote harmony and efficiency among all employees. The City agrees to maintain certain
of work (e.g. coffee breaks, etc.) not specifically referred to in this Agreement.
. . .
A. Grievances to be processed within the grievance
procedure shall involve only matters of
interpretation, application or enforcement of the terms of this Agreement and, as such, only
those items may be processed under the grievance procedure.
. . .
D. Grievances which may arise shall be processed in the
. . .
Step 4 - . . . The arbitrator in
at his determination shall rule on only matters of
application and interpretation of this Agreement. . . .
. . .
Except as otherwise specifically provided herein, the
Management of the City of Fond du Lac
and the direction of the work force, including but not
limited to the right to hire, to discipline or discharge for proper
cause, to decide initial job
qualifications, to lay off for lack of work or funds, to abolish positions, to make
and regulations governing conduct and safety, to determine schedules of work, to
work, (no employee shall be laid off due to subcontract provisions) together with the right to
determine the methods, processes and manner of performing work, are vested exclusively in
STATEMENT OF THE
This grievance arbitration involves the City of Fond du Lac and Fond du Lac City
Union Local 1366, AFSCME, AFL-CIO representing the employes set forth in Article I,
(Jt. 1) The Union alleges a contractual violation by the City for refusing to reimburse
Kaiser, for tuition expense incurred by her for three courses taken in 1998. (Jt. 2)
The City has a written policy providing for tuition reimbursement for employes who
voluntarily take courses related to their job with the City. The most recent policy was in
January 1, 1995 through December 31, 1997. That policy required that the class and course
had to be approved by the Department Head, Human Resources Director and the City
10) Tuition reimbursement for these courses is not covered in the collective bargaining
Article XXIII covers reimbursement for the cost of training and education that the City
requires an employe to take. (Jt. 1) There is no argument by the parties that the issue
Arbitrator is covered by Article XXIII.
The Grievant is one of several employes who have been pursuing a course of study
City's Educational Incentive Policy. The Grievant has taken several classes within that
study toward a degree in Supervisory Management. The Grievant started her coursework in
Spring of 1994 when the Supervisory Management course was approved by the City Clerk
the Grievant works as a recording and agenda secretary.
In 1995 Human Resources Director Ben Mercer met with local Union officers and
on a grievance unrelated to this grievance. At the end of the meeting, Mercer advised the
Committee that because of tightening of funds only those employes, including the Grievant,
currently in a program of study would be allowed to continue to receive tuition
parties disagree as to the exact statement by Mercer: the Union claims that Mercer promised
Grievant and other similarly situated employes would be allowed to complete their programs
Mercer claims that he told the Union that those employes, including Grievant, would be
complete their courses of study provided that funding continued and new employes would not
placed under the tuition reimbursement program. Funding for these tuition reimbursement
was received through the Human Resources Department, which previously had $5,000 to
for tuition reimbursement under the Educational Incentive Policy. (U. 10). The Grievant and
other employes received tuition reimbursement for 1995, 1996 and 1997. (U. 11)
On December 4, 1997 Stephen T. Nenonen, City Manager for the City of Fond du
a memorandum stating there would be no funds allocated in the 1998 Human Resources
fund tuition reimbursement. (U. 9) Recognizing that some employes, like the Grievant, were
in a program the City Manager would allow City Departments to fund tuition reimbursement
their own department education and training accounts for 1998. (U. 9) On December 2,
Human Resources Director Mercer issued a memorandum to Grievant and other employes
in the tuition reimbursement program that the tuition reimbursement account in the Personnel
Department was unfunded and there would be no funds budgeted for 1998. Mercer's
stated that the Personnel Department would not be able to reimburse Grievant or any other
for classes taken in 1998 and advised them to make other arrangement for their classes.
concluded the memorandum by stating that he expected this funding situation to only last for
and that the policy would be reviewed in 1998 by the City Council. (Er 7)
In Spring of 1998, the Grievant took a course entitled Legal Issues which had a
of $174.35. One hundred dollars of this was reimbursed out of the City Clerk's Education
Training account for 1998 for which the Clerk had budgeted $300. The $74 remaining is
part of the
$442.35 for which the grievance has been filed. (U. 4) The Grievant on June 30, 1998, in a
memorandum to Personnel Director Mercer, requested tuition reimbursement approval in
for two classes, Ethics in America and Problem Solving/Team Building. The tuition for each
was $184 for a total cost of $368. These were the final two courses required for completion
Grievant's degree in Supervisory Management. (U. 5) Mercer responded to the
July 1, 1998 by writing on a copy of the memorandum returned to the Grievant that the
denied as no funds were budgeted for 1998. (U. 5) The Grievant earlier had requested tuition
reimbursement forms from the Personnel Department but received an e-mail from Mercer
March 6, 1998 stating that based on his December 2, 1997 memorandum no funds were
1996 and that the Grievant should not complete any reimbursement forms because they would
be approved. (U. 6) Grievant took and completed the two courses in 1998.
The Union, on July 23, 1998, filed a grievance on behalf of the Grievant for the
to reimburse her for the tuition cost for the three courses she took in 1998. (Jt. 2) The
was denied by Mercer on August 20, 1998 and moved to the arbitration step of the grievance
procedure. (Jt. 3) During 1998 the City Council adopted a new Educational Incentive policy
effective June of 1999 for the 1999 budget year. (Er. 12)
The parties processed the grievance through the contractual grievance procedure and
unable to resolve the grievance. The Union, at the arbitration hearing and in its brief,
the arbitration related only to the grievance of the Grievant, Sue Kaieser. No issue was
raised at the
hearing as to the arbitrability of the grievance. Hearing on this matter was held by the
November 20, 1998. The hearing closed at 3:26 p.m. The hearing was not transcribed.
were given the opportunity and filed briefs. The briefs were submitted to the Arbitrator on
7, 1999. The parties agreed not to submit reply briefs. The record was closed by the
January 7, 1999.
POSITION OF THE PARTIES
The Union primarily argues that promissory estoppel will sustain the grievance in this
The Union also argues past practice. The Union points out that the initial Educational
policy provided tuition reimbursement and the "ground rules" as to how that reimbursement
be received by employes. The Union pleads that several employes, including Grievant,
courses of studies which had been approved by their Department management as being
related to their work for the City. Upon completing each successful class under that program
employes have been reimbursed if they applied for the cost of tuition. The Union outlines
factors to support its promissory estoppel position:
1. The Union was promised in 1995 that those employes
(Grievant) who were enrolled in programs of
study at the time would continue to receive tuition reimbursement even though the City was
considering limiting or eliminating tuition reimbursement in the future.
2. Those employes relied on that
promise by continuing to take courses.
3. When Grievant was not reimbursed
for her class work in 1998 she suffered a monetary loss that can
be directly attributed to the actions of the City in unilaterally eliminating the tuition
reimbursement policy for the 1998 calendar year.
The Union offers that the failure to continue paying tuition
reimbursement in 1998 violated
a longstanding past practice in making these payments; this practice was well-established at
of the 1995 meeting between Mercer and a Union grievance committee where Mercer on
the City made its promise to continue reimbursing those individuals already enrolled in a
reimbursement course of study as long as they continued to be enrolled.
The Union submits that it is reasonable to discuss promissory esstopel in terms of
negotiations. While admitting that the situation is not exactly the same as the instant
arbitrators, the Union argues, have held employers to a promissory estoppel standard where
employer has made a promise which was the type of promise which would foreseeably
promisee to rely or take some action based on the promise, two, that the promissee
upon the promise, three, that as a result of the reliance on the promise the promisee suffered
detriment and four, that injustice can only be avoided by enforcing the promise. 1/
Watauga Industries, Inc., 95 LA 613, 616 Kilroy 1990.
The Union argues that this is exactly what happened in this case; the promise to
Human Resources Director Mercer was made on behalf of the City, the Grievant relied on
promise and suffered monetary loss and, as a result of the reliance on that promise, the
only be corrected by making Grievant whole for the tuition she paid in the amount of
Lastly, the Union contends that the ony way to avoid an unjust result is to uphold the
grievance and make her whole. The Union requests the Arbitrator to find in favor of the
sustain the grievance.
The City initially makes a substantive arbitrability argument stating that because the
reimbursement policy is not found in the collective bargaining agreement that the Arbitrator
have any jurisdiction to address the grievance in this matter. The City states that neither
Recognition, nor Article II, Cooperation, have been violated as neither Article has anything
to do with
the City's Educational Incentive policy. The City states that the grievance procedure,
defines grievance as only involving matters of interpretation, application or enforcement of
of the Agreement and that only those "items" may be processed under the grievance
City goes on to state, quoting Section D, Step 4, of the grievence procedure, that the
arriving at his determination shall only rule on matters of application and interpretation of the
Agreement. (Jt. 1, Article XXV) The City concludes this argument by stating that the
should dismiss the grievance as not meeting the definition of a grievance.
The City's second argument is that even if the Arbitrator finds that a grievance does
since the tuition reimbursement policy is solely within the discretion of the City, the City
violate the policy and/or the collective bargaining agreement. The City makes a case that the
is not contained in the master agreement and therefore the City is free to change the policy,
as it has
in the past, without contest from the Union. The City points out that even under the policy
requests for tuition reimbursement must be approved by the Human Resources Director. (Er.
U. 10) The City advances that because the educational incentive policy is separate and
the master labor agreement that the City possesses unfettered management discretion in
this particular policy. It cites case law to that effect. 2/
2/ New Britain Machine Company 45 LA
993 McCoy (1965).
It also argues that even if the Arbitrator has the authority to determine whether the
City's denial of the Grievant's tuition violated the agreement, the Union has the burden
to prove that the City acted in bad faith or that the City's decision was arbitrary,
capricious or discriminatory.
The City takes the position that the Grievant admitted to receiving the December
2, 1997 memorandum from Human Resources Director Mercer stating that there would
be no tuition reimbursement for 1998. (Er. 7) This memorandum placed the Grievant on
notice that she would not receive tuition reimbursement through the City. Despite this
warning the Grievant went ahead and took three courses in pursuit of her Supervisory
Management degree. None of these courses were approved by the City. Because the
courses were not approved because of lack of funds, the Grievant is not entitled to
reimbursement. Such action by the City is neither arbitrary nor capricious.
The City puts forth another argument that approval of coursework is by
individual class and there was no guarantee that the Grievant or any other employe
would have a course of study, in this case Supervisory Management for the Grievant,
approved on a whole course basis rather than on class by class. The City argues that
it alone has the discretion to approve classes on an individual basis despite the fact that
the classes might be part of a course of study. The fact that the courses the Grievant
was taking were needed for the Supervisory Management degree does not mean that the
individual classes must be automatically approved each time for tuition reimbursement.
The City advances that nowhere in the policy or in the tuition reimbursement request
form does it state that if an employe is in a degree program all courses or credits taken
toward the degree will be approved; each single course must be evaluated and judged
on its own merits. (U. 10, 4)
Lastly, the City discusses the meeting that Mercer held with the Union grievance
committee sometime in 1995 wherein the Union testified regarding Mercer's alleged
promise to the Grievant. The City points out that Mercer testified that the City would
maintain tuition reimbursement for the three bargaining unit employes, including
Grievant, only as long as funds were available. The City argues that Mercer was only
guaranteeing that funds would be approved for tuition reimbursement in 1996, not
forever, and certainly not for 1998. Tuition reimbursement is always subject to funds
being available and the City always has had the option to disapprove classes. Further
the City argues that the Arbitrator should not grant a remedy which the Union never
bargained. The Union and City agreed at the arbitration hearing that the Union has
never demanded to bargain tuition reimbursement. The City states that it acted
properly when it denied Grievant's request for tuition reimbursement because no funds
were available. Therefore the City requests that the Arbitrator deny the grievance.
The first issue that I must address in this decision is the City's argument that the
Arbitrator does not have jurisdiction to issue a decision in this matter. The City
postulates that under the grievance procedure of the parties' labor agreement I am
only allowed to consider matters that deal with a specific term of the labor agreement.
3/ It is the City position that the Educational Incentive policy is totally separate from
and not a term of the Agreement. I have carefully reviewed the hearing record and find
that this position was not manifested by the City either before the hearing or at the
hearing; it was raised for the first time in the City's post hearing brief. A position that
a grievance is substantively not arbitrable cannot be raised for
the first time in the City's post hearing brief. For me to consider such an argument
denies the Union in this case any effective means to respond. 4/ There is substantial
arbitrable precedent that an arbitrability argument must be raised during the
grievance procedure or at least at the arbitration hearing. 5/ I also find that there was
nothing presented on the record which would have affected the ability of the City to
make this argument on a timely basis. Therefore I will not consider the merits of this
City argument that the grievance is not arbitrable.
3/ Joint Exhibit XXV,
Section D, Step
Conoco Inc. 104 LA
1057, 1059 Neigh 1985 "By raising the issue for the first time in its
post hearing memorandum, the Company has effectively precluded the Union from
responding to this issue, an unacceptable denial of due process."
City of Wyandotte 74
LA 2, 4, McDonald 1980.
Western Reserve Care
System 109 LA 984, 986 Duff 1977
". . ., a new issue cannot
properly be raised at the Arbitration Hearing that has not been
advanced during the lower steps of the grievance procedure. Arbitration is to settle disputes,
not to develop new ones that have not been previously considered."
The City postulates that even if arbitrable the grievance should
because the policy is not a term of the agreement, and the City had total flexibility
to approve or not approve the Grievant's request for tuition reimbursement at any
point during the pursuit of her degree including in 1998, when the City denied
Grievant's request for reimbursement for three courses taken in 1998.
Based on the record and the applicable case law, I find that the
policy is not a
term of the agreement. 6/ As the case law makes clear, the City had the right to make
unilateral changes in the policy because the policy is separate from the labor
agreement between the City and the Union. I find that the City in this case has the
right to make unilateral changes in the policy based on this record and has, at this
point and in the case of the Grievant, the right to approve classes or courses on an
individual class basis. This is true unless the City made some guarantee to the
Grievant that she would be reimbursed for all courses leading to her degree; this is
the Union's promissory estoppel argument. But first I address the Union's argument
that the City is bound to approve the Grievant's courses leading to her degree based
on past practice.
6/ Gavin School District
No. 37 98 LA 417,
418-421 (Stallworth, 1991).
In a case involving
reimbursement for expenses related to additional education
for a District teacher, the District challenged the grievance on substantive grounds.
The District argued that the grievance was not covered by the terms of the
collective bargaining agreement. In that case, although the grievance procedure did
not specifically exclude a grievance about tuition reimbursement, the policy was not
incorporated into the agreement and the grievance procedure only covered violations of
the agreement. The agreement covered expenses for attending training at conferences and
conventions, but the arbitrator found that if reimbursement for tuition for additional
college work had been intended the parties would have stated so directly. The arbitrator
held that the association had not established that the grievance was an issue "legitimately
arising under the collective bargaining agreement." The arbitrator dismissed the grievance
Ohio Valley Federal
Credit Union 82 LA 805, 808 Duda 1984.
In this case, the contract
was silent as to the employer's right to subcontract and the
issue had never been a subject of collective bargaining negotiations. Subcontracting was
covered in a manual as to which employes could sign up new credit union members. The
argued that the manual and the subcontracting language became part of the parties'
collective bargaining agreement. The arbitrator found that such was not the case. The
arbitrator held that management had changed the manual in the past and it was subject to
further change in the future. Further the policy was developed without input from the
union and there was no evidence that management intended to surrender its unilateral right
to manage the policy as it wished. He further found that there was nothing to prove or show
the intent of the policy would be read into the collective bargaining agreement. The
arbitrator dismissed the grievance as inarbitrable.
In the Spring of 1994, the Grievant
submitted her first request for tuition
reimbursement for a course(s) leading to the aforementioned degree. Such request
was approved. As discussed above, during a grievance meeting sometime in 1995,
Mercer told Union representatives that no new funds would be available for tuition
reimbursement for employes that were not already pursuing a course of study. There
is a dispute as to what Mercer said next but suffice it to say that some statement was
made that the Grievant and other employes already on a course of study would be
allowed to complete that program and have their tuition reimbursed. The City
position is that Mercer then added the qualifier for Grievant and similarly situated
employes "if funds continued to be available even for them." The Union disputes that
this qualifier was made. For purposes of the Union's past practice argument it does
not matter; it matters for the Union's estoppel argument.
The Union did not argue past practice strongly but stated in its
brief that past practice is shown because the Grievant received tuition reimbursement
in 1996 and 1997. " affirming a past practice that had been in existence for many
years." (Union brief pg. 9). While I may be willing to accept that the tuition
reimbursement policy was in effect before 1995, there is scant evidence of this in the
record. Past practice is normally used by the parties to interpret a provision of a
labor agreement or to confirm a custom or practice of the parties that is not in
writing; the practice to be honored to bind the parties must meet several well
accepted standards. 7/
Foundry 109 LA 393,
397 Neigh (1997)
". . . for a past practice
to be binding on both parties, it must be unequivocal, clearly
enunciated and acted upon, and readily ascertainable for a reasonable period of time as a
fixed and established practice accepted by both parties."
City of North Royalton
110 LA 747, 751-752 Fullmer (1988)
Shulman in Ford Motor Company 19 LA 237, 241-242, 1952
"A practice that is 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
rather to the agreement in which it is based."
Based on those standards the past practice argument in this case
must fail. If
an employer, as the City in this case, has complete discretion on approval of courses
and if the employer, like the City, can change a policy at its unilateral discretion,
that policy cannot and does not meet the past practice standards of a fixed and
established practice accepted by both parties. A past practice cannot be changed by
just one party and significant arbitration litigation concerns just that, whether a
practice is a binding past practice which to be so can only be modified or acted upon
by mutual agreement of the parties. I do not find the policy to be a past practice
requiring the City to continue to grant the Grievant tuition reimbursement for
classes within her course of study.
I now turn to the Union's promissory estoppel argument. Four
testified that (at a meeting in either summer or fall of 1995) Mercer, Director of
Personnel for the City, promised that Grievant and any similarly situated employes
would be allowed to complete their course or program of study; no new employes
would be admitted to the program. Mercer, on direct examination in response to the
first question as to what he said testified that Grievant and other employes who
were receiving tuition reimbursement would
continue to receive it. In response to an immediate follow-up
question, Mercer then
testified that this was true only if funds remained available even for employes like
the Grievant; the Union witnesses disputed that Mercer at the meeting, ever told
them of the qualifier regarding available funds. Union witnesses, acting on behalf
of the Grievant, and Mercer, acting on behalf of the City, have an interest in having
their version of this brief exchange credited. Whose recollection was most accurate
would be critical except for intervening events that followed two years later.
Grievant received tuition reimbursement under the policy in
1996 and 1997
along with two other employes. (U. 11) In December of 1997, Grievant received a
memorandum from Mercer stating that the City Council had approved the 1998 budget
and that as part of that budget the Tuition Reimbursement account in the Personnel
Department did not have any funds for tuition reimbursement in 1998. The
memorandum went on to advise Grievant that she should make other arrangements
for any classes that she intended to take in 1998 and that funds would probably be
restored in 1999. (Er. 7) Two days after Mercer's memorandum to Grievant, on
December 4, 1997, the City Manager sent a memorandum to department heads advising
them of the change for 1998 and that if they wanted to fund programs for employes
like the Grievant it had to be from their own department budget under Education and
Training. While there is nothing in the record that would indicate the Grievant or
the Union saw this memorandum from the City Manager, it confirms the accuracy of
the memorandum sent by Mercer to the Grievant. (U. 9 ) Despite this memorandum or
in spite of it, the Grievant submitted a Reimbursement Request Approval form for a
course for which she eventually received partial reimbursement from $300 in funds
the City Clerk, made available for education in 1998. (U. 4 ) (Other departments
budgeted more funds and at least one other employe in a different department
completed her course of study). The Grievant also, in early 1998, requested additional
Approval forms and, in response, received an e-mail from Mercer stating that
Grievant did not need the forms as no funds were available so the approval forms
would not be approved, referencing his December 1997 memorandum. (U. 6) The
Grievant took the last two courses needed to complete her degree in 1998 and, in a
memorandum to Mercer, requested tuition reimbursement for them which was denied
by Mercer leading to the instant grievance. ( U. 5 )
The Union argues strongly that Mercer made a promise on
behalf of the City
in 1995 to provide tuition reimbursement to Grievant until she completed her degree
and that the concept of promissory estoppel requires that Grievant be reimbursed.
The Union correctly points out the necessary legal requirements for promissory
estoppel to be upheld.
A promise by one
party--in this case Mercer
Reliance by the other
party--in this case the Grievant
Injury as a result on the
reliance--Grievant paid the tuition and was not
8/ Keebler Company 86 LA 963, 966
City of Great Falls 88 LA 396, 398 McCurdy
"Each party to a contractual labor
relationship has the duty to object within a
reasonable time if other parties to the contract act in such a manner as to assume,
abbreviate, redefine or terminate their rights. They duty to protect one's rights exists if
the offended party whose rights are being compromised knows the facts or has a clear
obligation to know the facts. If the offended party attempts to reclaim its rights, or to
void actions taken by other parties at the expense of those rights, then neither the rights
being reclaimed nor the benefits that might have arisen from them can be reinstated
retroactively to the prejudice of any other party. Similarly, if the offended party
knowingly misled other parties to believe their actionswere acceptable and failed to
correct its position within a reasonable time, then the offended party is barred from later
reasserting its rights to the disadvantage of the misled party."
Arbitrators also add to the legal standard a fourth: that injustice
avoided only by enforcing the promise. 9/
9/ Armco, Inc. 86 LA 928, 929 (Seidman,
Assuming that Mercer in 1995 made an unqualified promise and
Grievant relied on it 1996 and 1997, was it reasonable for the Grievant to rely on it
for tuition reimbursement for courses taken in 1998? I do not believe it was
reasonable for the Grievant to rely on that promise for 1998 given the several
warnings given to her personally that there were no funds available for tuition
reimbursement in 1998. While Mercer had the authority to commit the City in 1995, he
clearly did not have that authority in 1998; his memorandum to Grievant made clear
that his "boss" the City Council was not going to fund tuition reimbursement in 1998.
Neither the Union nor the Grievant grieved the decision of the City Council or
requested to bargain over the decision. I find that the Grievant had to have known
at the time that she took the courses in 1998 that they would not be reimbursed. Union
and Grievant may have been upset at what they considered a broken promise by the City
but they did not grieve that; they grieved the failure to reimburse. A party cannot
rely on a promise to its detriment when that earlier promise has been modified or
withdrawn as it was in this case. Therefore, I do not have to decide whether Mercer
told the Union committee in 1995 that his
guarantee depended on funds being available and whether "funds
meant the money was available or there might be modifications to the program.
It was reasonable for Grievant to want to complete her course of
study in 1998.
It is also apparent that some departments budgeted enough funds in their training
accounts to allow other employes to continue to receive reimbursement.
Unfortunately for Grievant the Clerk's office did not budget adequate funds. Again,
even if the City did in 1995 make a guarantee to Grievant, she could not, given the
notice she received in 1997 and 1998, bind the City by taking the courses and use
promissory estoppel; such a finding would be untenable and tantamount to telling
employes to go ahead and disobey the direction of their supervisor and then argue the
legitimacy of the order. In this case, Grievant and Union could have first litigated
the change in policy or the "breaking of the promise" before the Grievant took the
courses. This is particularly so based on what I believe is evident that the City owns
the policy and can change it as it wishes and that the policy at least at this point is not
a term of the Agreement.
Therefore, based on the record, the briefs of the parties and
law, I must deny the grievance of the Grievant.
The grievance is denied.
Dated at Madison, Wisconsin this 1st day of February, 1999.
Paul A. Hahn, Arbitrator