BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WINNEBAGO COUNTY HIGHWAY
EMPLOYEES UNION, LOCAL 1903, AFSCME,
Mr. Richard C. Badger, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. John A. Bodnar, Corporation Counsel, appearing on behalf
of the County.
Winnebago County Highway Department Employees Union, Local 1903, AFSCME,
AFL-CIO, hereinafter referred to as the Union, and Winnebago County, hereinafter referred
to as the
County, are parties to a collective bargaining agreement which provides for the final and
arbitration of disputes arising thereunder. The parties mutually agreed to the undersigned to
the sole arbitrator to hear and decide a grievance over the meaning and application of the
the agreement. Hearing was held in Oshkosh, Wisconsin, on February 10, 1999. The
not transcribed and the parties filed briefs and reply briefs, the last of which were received
The basic facts underlying the grievance are not in dispute. For as long as anyone
remember, Highway Department employes were allowed to use the County shop after hours
on their own vehicles. Employes could perform minor repairs, wash their cars in the winter
even perform major work such as an engine overhaul. Employes had to sign in and the work
personal vehicles could not interfere with Department work (Ex. 11).
On October 8, 1996, the County Board passed a resolution which adopted a new
Policy Manual which provided in part, as follows:
USE OF EQUIPMENT AND FACILITIES.
Employees are not to use County equipment or
facilities for non-County purposes.
(Exs. 6 and 7)
On October 8, 1997, the Highway Commissioner, Ray Grigar, distributed new
Highway Department employes informing them that the after hours shop privileges were
A grievance was filed on October 20, 1997, which was denied on October 21,
1997, and was then
processed through the steps of the grievance procedure where it was denied and appealed to
The Union suggests the following:
Did the County violate the collective bargaining agreement by
discontinuing the past practice
of allowing Highway Department employes to use the County Shop to work on employee
and other personal projects when off duty?
If so, what is the remedy?
The County proposes the following:
1) Was the grievance filed in a timely
2) Did the Highway Commissioner have the
authority to implement a work rule, in order to
comply with the County's personnel policy, so as to prohibit the use of the highway garage
employes for non-County purposes? If not, what is the appropriate remedy?
The undersigned frames the issues as
1. Was the grievance timely filed?
2. If so, did the County violate the parties'
collective bargaining agreement by discontinuing the
past practice of permitting Highway Department employes to use the Highway Shop to work
personal vehicles outside work hours?
If so, what is the appropriate remedy?
. . .
3. The Union recognizes the exclusive right of the County to
establish work rules.
. . .
The parties agree that the prompt and just settlement of
grievances is of mutual interest and
concern. Only matters involving the interpretation, application or enforcement of the terms
agreement shall constitute a grievance under the provisions as set forth below.
All such grievances shall be processed as
Step 1. If an employee has a
grievance, he shall first present the grievance orally to his
immediate management supervisor. The said grievance shall be presented within the first
working days after the date of the event or occurrence which gave rise to the complaint.
grievance may be presented by the employee either alone or accompanied by one (1) Union
Step 2. If the grievance is not
settled at Step 1 within five (5) working days after having been
presented to the immediate management supervisor, it
shall be reduced to writing and presented to the department head.
Said grievance may be
presented by the employee either alone or accompanied by the Union, at the option of the
The department head shall confer with the
aggrieved employee and the Union before making
The decision of the department head must
be in writing and submitted to the aggrieved
employee and the Union within seven (7) working days from his receipt of the grievance in
This period of time may be extended by mutual agreement of the parties involved.
Step 3. If the grievance is not
settled at Step 2, the aggrieved employee, either alone or
accompanied by the Union, at the option of the Union, may appeal in writing to the
County Director of Personnel. Any such appeal must be made within ten (10) working days
receipt of the decision of the department head in Step 2.
The Director of Personnel may confer
the aggrieved employee and the Union before
making his determination.
The Director of Personnel shall notify the
aggrieved employee and the Union in writing of his
decision within ten (10) working days after receipt of the said appeal. This period of time
extended by mutual agreement of the parties involved.
Step 4. If the employee's
grievance is not settled at Step 3, the Union may submit said
grievance to arbitration by giving notice in writing to the Director of Personnel within fifteen
working days after receipt of the decision of the Director of Personnel at Step 3.
The Union believes the County is misinterpreting an employe benefit as a work rule.
that if the "shop use" were a work rule, the County could revise or eliminate it but "shop
use" is an
employe benefit and is a condition of employment, citing Manitowoc County, Case 276, No.
49581, MA-7995 (Mawhinney, 1994). The Union contends that "shop use" became a
practice over the years and the County allowed it long before there was a Union and this
was continued from contract to contract to contract and the parties repeatedly bargained
circumstance that personal use of County facilities was permitted. The Union argues that the
became a mutually agreed-upon working condition which the County could renounce at the
bargaining table but not by fiat.
The Union asserts that the County's claim that public policy considerations override
practice is not supported by any justifiable public policy arguments. It asserts that the
inconsistent in determining what is and is not a County purpose and has stated that individual
departments determine policies for personal use of County vehicles so the use of County
should not be treated any differently when covered by the same language in the Personnel
The Union claims that the County eliminated a long-standing past practice. It
the free use of a County facility is a significant benefit just as much as free parking and
break areas, benefits also not mentioned in the agreement. Citing Manitowoc County,
Union takes the position that this benefit became a binding past practice because it was long
clear, known and understood by both parties and did not conflict with any provision of the
The Union argues that there was no compelling reason to change a binding past practice. It
that the County's reason is to slavishly follow the County Personnel Manual which is grossly
because the County does not consistently follow its own guidelines. It insists that the County
personal use of County equipment and facilities all the time. It alleges that the policy
overly broad and inconsistent with actual County practice and should be given little or no
The Union observes that the County tries to demonstrate to its constituents that it does not
taxpayer dollars and that public servants do not have unreasonable benefits not available to
general public. It points out that the problem is that sometimes it is in the public good to
public employes with access to County equipment and facilities as, for example, sheriff
personal use of patrol cars and exercise space at the Public Safety Building and nursing
The County argues, according to the Union, that these do not violate the Policy
use of the shop does. The Union disagrees that a public purpose is necessary for it to prevail
states that having well-running vehicles serves a County purpose just as physically fit
Union submits the controlling issue is whether the County can eliminate a long-standing past
without negotiating the loss with the Union. The Union contends that a binding past practice
override a generic policy handbook.
In conclusion, the Union requests that the grievance be sustained and the old "shop
policy be reinstated and the County must negotiate a benefit loss such as this at the
The County contends that the grievance was not filed in a timely manner. It points
the grievance was filed by the Union as a class action and Article 9 requires that the
grievance be filed
within five (5) working days of the event giving rise to the grievance. It asserts that this
passage of the resolution on October 8, 1996. Additionally, it notes that a similar
grievance was filed
in the Parks Department on April 7, 1997, so the Union had actual notice of the
the policy as of that date. The County refers to Step 3
of the response to the grievance wherein it specifically stated that Local 1903
had grieved this rule
and accepted denial of the grievance. The County concludes that it is clear the grievance
well past the five (5) working days and it should be dismissed as having been untimely filed.
The County argues that it was within its authority to implement the policy
of the Highway Shop by Highway Department employes. The County recognizes that
Sec. 111.70, Stats., it is required to bargain with respect to wages, hours and
employment but is not required to bargain subjects reserved to management and direction of
government unit. It observes that some issues will touch simultaneously on wages, hours and
conditions of employment and upon managerial decision making and policy and recognizing
courts have applied a "primarily related" standard. It states that the "primarily related" task
the competing issues to determine whether an issue should be characterized as a mandatory
of bargaining or not. The County contends that management of the use of its Highway Shop
facilities is a legitimate function of management. It cites arbitral and hornbook authority for
proposition that the failure to exercise a management right does not preclude it from the right
The County refers to Article 1 of the agreement which provides the exclusive right of
County to establish work rules and the policy forbidding use of the Highway Shop is a work
According to the County, the contract has a provision on work rules so the parties have
to agreement on this matter and the parties are entitled to rely on the bargain they have
observes that a contract provision takes precedence over a contrary past practice if there is
In the instant case, the County asserts it was not required to bargain the
the new rule because it had the authority to implement such a rule under Article 1. It
states that the
present contract was not ratified until August, 1998, so the Union had a full year to bargain
and its impact. It alleges that it had clearly notified the Union of its intent to discontinue the
use of facilities and the fact that the full ramifications were not explained does not render the
ineffective to change a past practice which clearly falls within its terms.
Alternatively, it argues that the Union has the burden of proving that the policy
wages, hours and conditions of employment. It submits that use of the garage does not affect
or hours and the only question is whether it affects "conditions of employment." It claims
concerns with regard to liability to employes as well as non-employes, possible worker's
compensation claims, use of County equipment for personal purposes, fairness and equity
public benefit, on balance, favors the County. It differentiates the non-duty use of squad
deters crime. On the other hand, the County states that the Union, which has the burden of
provided no evidence of any substantial impact upon the quality or safety of the work
the work load of employes or their work assignments. In short, it maintains that
the policy has not had any substantial impact upon
the conditions of employment and in exercising the balancing test, the County's interest
management and direction of the County far outweigh any possible impact upon wages, hours
conditions of employment. It concludes that the grievance should be denied.
UNION'S REPLY BRIEF
The Union contends that the grievance was timely filed. It notes the County claims
grievance should have been filed when the County passed the new personnel policy
(October 8, 1996)
or in April, 1997, when the County eliminated use of the Park Department garage. The
this, according to the Union, is that the County allowed Highway Department employes to
highway garage until the following October, 1997. It asserts that a grievance does not arise
some member is harmed and this did not occur until the Highway Commissioner denied use
garage. The Union relies on a second reason; that being the policy manual does not
to the use of the highway garage, so reasonable people could differ on whether it applied to
privileges. It observes that there were only five full-time Park Department employes, two,
laid off, and a third being investigated for possible theft of County property. It notes that
of the highway employes were affected and the Park and Highway Departments are distinct
each could not use the other's shop. It concludes that notice to one is not notice to the other
grievance is timely.
The Union observes that the County addressed the "primarily related" test as a means
determining whether an issue is a mandatory subject of bargaining but the County provided
that addresses the elimination of shop privileges. It submits the key case is Manitowoc
cited in its main brief. It argues that the bottom line is the County unjustly eliminated a
employe benefit. The Union disagrees with the County's assertion that it should have
impact of the lost benefit in negotiations because the County never notified the Union that it
eliminating this benefit at the negotiating table. Instead, the Union points out that it grieved
matter when notified at a unit meeting and the matter was processed through the grievance
procedure. The Union maintains that it should not be forced to negotiate for a benefit that it
had and if anyone should have brought it up in negotiations, it was the County, but it did not
The Union rejects the policy concerns brought up by the County with respect to
asserting there was but one accident in thirty years which involved an inappropriately parked
one was hurt or disciplined and such is not sufficient to eliminate the benefit. According to
Union, the County's attempt to diminish the value of shop use privileges fails as the use of
saves time and money and ensures well-maintained vehicles so employes can respond to
emergencies quickly and reliably. The Union further claims that the 1996 policy is overly
vague plus other County employes enjoy numerous benefits not applicable to all County
The Union concludes that the grievance was timely filed and the use of the highway
a long-standing binding past practice which the County never sought to eliminate at the
table and it requests the grievance be sustained and the "shop use" practice be reinstated.
The County distinguishes Manitowoc County cited by the Union on the grounds that
language of the Manitowoc contract limited adoption of work rules by the County and
a maintenance of standards clause, whereas the parties' contract has no similar language.
also points out that the parties' contract expired subsequent to the date that the new personnel
and Department handbooks were distributed so the Union had full knowledge of the County's
to discontinue the "shop use" practice and the Union chose not to bargain the policy or its
It submits that the fact that the full ramifications were not explained to the Union does not
ineffective the change in past practice. The County also distinguishes Manitowoc County on
basis that Manitowoc did not have a strong managements rights clause as the County does, so
not required to bargain the implementation of the new rule as it already had bargained the
to implement such a rule.
The County respectfully requests that the grievance in this matter be denied in all
The first issue for determination is whether the grievance was timely filed. The
that the event giving rise to the grievance occurred on October 8, 1996, when the
County passed a
resolution prohibiting employes from using County equipment or facilities for personal use.
problem with the October 8, 1996 date is that after October 8, 1996, the
employes continued to use the highway garage in the same manner as they always have for at
a year, so there was either waiver on the County's part or the resolution did not apply to
Department employes. Certainly, the County has the right to pass resolutions dealing with
of its facilities but it also has a statutory obligation to bargain over the wages, hours and
of employment of employes in the bargaining unit. Here, the resolution abrogated a practice
type which cannot be changed during the term of the agreement without bargaining. Thus,
County's reliance on the October 8, 1996 date is erroneous because the practice
after that date and the Union was deprived of the right to bargain over the discontinuance of
The County's arguments relating to the discontinuance of parking at the Parks
is also not persuasive. As noted in City of Eau Claire, Case 190, No. 44089, MA-6164
(Crowley, 10/90), wherein the arbitrator stated "the City's practice elsewhere with
respect to not permitting indoor parking cannot be applied to the water treatment plant
where it has
consistently and regularly permitted indoor parking there for employes' personal vehicles."
reverse being that an employer allowing personal use of a facility does not have to allow it at
facilities where it has not allowed it in the past.
Therefore, the withdrawal of the grievance in the Parks Department does not
event giving rise to the grievance. The event giving rise to the grievance was the Highway
Commissioner's issuance of new handbooks prohibiting the practice. Thus, it is concluded
grievance is timely filed.
Turning to the merits of the case, the County makes an argument that the issue of use
highway facility is "primarily related" to the direction and management of the County and
wages, hours and conditions of employment. The County's argument is related to a statutory
standard as to whether a subject of bargaining is mandatory or permissive. Generally, past
which involve a benefit of peculiar personal value to employes such as free coffee, free
personal use of radios, assistance in starting cars in cold weather, free indoor parking, and as
in Manitowoc County, Case 276 (Mawhinney, 2/99), use of the Highway Shop by employes
working hours, are primarily related to wages, hours and conditions of employment. Thus,
change must be negotiated and not unilaterally implemented because, on balance, the use of
Highway Shop is primarily related to conditions of employment.
The County relies on the management rights clause which gives it the right to
rules and it asserts that it was not required to bargain over the implementation of the rule
use of County property and facilities which takes precedence over a contrary past practice.
Generally, the reasonableness of a work rule may be challenged through the arbitration
Additionally, while express language in a contract takes precedence over a contrary past
promulgation of a work rule cannot take precedent over a contractual obligation. For
example, if the
contract allows three people to take vacation at the same time, a work rule limiting vacation
to only two people at the same time would not be enforceable. Thus, the County's reliance
Management Rights is not absolute. As Arbitrator Mawhinney stated in Manitowoc, supra:
For many successive contracts, the parties have agreed that it
not oppressive to continue
the existing amenities and practices for the duration of the contract, while it is usually
spell out all the practices under which people work. If the Employer wants to change one of
practices or amenities in effect, it needs to do so at the bargaining table, and not unilaterally
the term of the contract.
In the instant case, it is undisputed that there was a
long-standing practice for over 30 years
to allow employes use of the County shop to work on personal vehicles after working
hours. This past practice became an implied term of the parties' collective bargaining
which could not be abrogated by a work rule during the term of the contract just as an
provision could not be abrogated by a work rule.
There is a well-recognized procedure to change or abrogate a past practice. The
must be timely. In negotiations for the succeeding contract, the Employer must give notice
practice will no longer be a binding condition of employment. This notice then gives the
opportunity to negotiate a provision in the contract to continue the practice.
The County contends that it notified the Union of its intent to discontinue the practice
personal use of the facilities in October, 1997, which resulted in the grievance. It asserts
Union had a full opportunity to bargain the practice for almost a year. This argument was
by Arbitrator Mawhinney in School District of Mellen, Case 43, No. 56406,
wherein she stated:
Next issue. The District argued that even if there were a
binding practice, the Union was put
on notice by the processing of this grievance that the District was terminating the practice,
Union failed to secure language to keep the practice. While it is generally recognized that
practices need not become enshrined and last forever, it is also recognized that the party
end the practice repudiate it before or during negotiations for a successor contract.
Arbitrator Richard Mittenthal has been
widely quoted on this subject, particularly the
"Consider first a practice which is, apart
from any basis in the agreement, an enforceable
condition of employment on the theory that the agreement subsumes the continuance of
conditions. Such a practice cannot be unilaterally changed during the life of the agreement.
For . .
. if a practice is not discussed during negotiations most of us are likely to infer that the
executed on the assumption that the practice would remain in effect.
"That inference is based largely on the
parties' acquiescence in the practice. If either side
should, during the negotiations of a later agreement, object to the continuance of this
could not be inferred from the signing of a new agreement that the parties intended the
remain in force. Without their acquiescence, the practice would no longer be a binding
employment. In face of a timely
repudiation of a practice by one party, the other must have the
practice written into the
agreement if it is to continue to be binding." Proceedings of the 20th
Annual Meeting of NAA, 1,
35-36 (BNA Books, 1967); Mittenthal, "Past Practice and the Administration of Collective
Bargaining Agreements," Proceedings of the 14 Annual Meeting of NAA, 30, 56-57 (BNA
The question is whether there was an
effective and/or timely repudiation of the past practice.
The quote above from Mittenthal appears to state that a timely repudiation of a past practice
occur during negotiations for the successor agreement. Other arbitrators have indicated that
repudiation of the past practice could take place before such negotiations, or at any time
agreement, although the practice would be continued for the life of the current agreement.
An effective and/or timely repudiation of a
past practice should, at a minimum, put one party
firmly on notice that the other party will no longer adhere to the practice in the successor
or that it will no longer give its acquiescence to the practice. Further, the repudiation should
in a manner that places the parties in a position whereby the party wishing to retain the
knows that it has to bargain to obtain language securing the practice.
That did not happen in this case. While
the Union was aware that Hamilton was objecting to
the use of unpaid leave by the processing of the grievance, the Union was not clearly on
the District was repudiating the past practice and that it should seek to obtain language
negotiations. The Union's grievance committee notified Hamilton on February 11,
1998, that it
wanted to initiate Level 2 of the grievance procedure. Hamilton gave a response at Level 2
February 24, 1998, and the grievance committee appealed it to the Board on March 3,
Board denied the grievance on March 25, 1998, and the Union notified Hamilton on
March 27, 1998,
that it was appealing for arbitration. Among other things, the steps of a grievance procedure
parties to reach an accommodation. So while the contract was being ratified in
February of 1998
and executed on March 24, 1998, the grievance was still being proceed
through the steps. The
Board had not even reached its decision until a day after the contract was executed.
More importantly, however, is the fact
the Board was in negotiations during this period
of time and knew how personal leave had been administered and knew that it had to bargain
change, even though the language was arguably in its favor. Thus, the District was well
the past practice
regarding personal leave weakened its position in enforcing
restrictions on personal leave. The
District was prepared to put money on the table to tighten the personal leave restrictions, but
Union rejected the money. While the District was negotiating hard for these restrictions, it
Hamilton and/or the Board was unhappy with the way unpaid leave was being used by some,
particularly Wiener. It's (sic) proposal to the Union even tried to restrict the use of personal
in conjunction with days off without pay to extend a vacation (see the last sentence of the
Thus, under the facts and circumstances of
this case, the District should have been the party
to repudiate the past practice during the negotiations for the successor contract. I find that
handling of Weiner's grievance was insufficient to put the Union on notice that it was
past practice. The District needed to put the Union squarely on notice and give it the
bargain to obtain language to secure the past practice. The District's failure to do so means
practice should remain in effect at least through the current collective bargaining agreement.
In the instant case, the issue was never addressed in negotiations but was left to the
and arbitration process. In other words, the parties apparently intended to resolve the issue
grievance arbitration rather than in negotiations. Under these circumstances, the Union could
conclude that the County was satisfied that the issue would be resolved in arbitration and it
have to put forward any proposals; otherwise there would be no need to proceed to
because if it was negotiated, the successor contract would have resolved the grievance.
County did not timely repudiate the practice so as to allow the Union the opportunity to
negotiate the practice into the language of the parties' collective bargaining agreement.
Based on the above and foregoing, the record as a whole and the arguments of
undersigned issues the following
The grievance is sustained. The County is ordered to restore the past practice of
Highway Department employes to use the Highway Shop to work on their personal vehicles
Dated at Madison, Wisconsin, this 20th day of May, 1999.
Lionel L. Crowley, Arbitrator