BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WAUSHARA COUNTY HIGHWAY DEPARTMENT
represented by COUNCIL 40, AFSCME,
Mr. James E. Miller, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 639 West
Scott Street #205, Fond du Lac, Wisconsin 54937, for Waushara County Highway
Employees, represented by Council 40, AFSCME, AFL-CIO, referred to below as the
Ms. Debra S. Behringer, Administrative
Coordinator, Waushara County, P.O. Box 300, Wautoma,
Wisconsin 54982, for Waushara County, referred to below as the Employer, or as the
The Union and the Employer are parties to a collective bargaining agreement which
effect at all times relevant to this proceeding and which provides for the final and binding
of certain disputes. The Union requested, and the Employer agreed, that the Wisconsin
Relations Commission appoint an Arbitrator to resolve a dispute filed on behalf of "all
department employees." The Commission appointed Richard B. McLaughlin, a member of
Hearing on the matter was held on April 21, 1999, in Wautoma, Wisconsin. The hearing
transcribed and a transcript of the hearing was filed with the Commission on May 10, 1999.
parties filed briefs and a waiver of reply briefs by June 18, 1999.
The parties stipulated the following issues for decision:
Did Waushara County violate the contract when it eliminated
past practice of allowing
employees of the highway department to adjourn to the shop at approximately 3:15 p.m. at
of their work assignments each day to wash up and fill out paperwork related to their work
assignments that day?
If so, what is the remedy?
ARTICLE 2 MANAGEMENT RIGHTS
2.01 Except as otherwise herein provided, the operation
and control of the Waushara County
Highway Department is vested exclusively in the Employer and all management rights repose
These rights include, but are not limited to, the following:
(a) To direct all operations of the Waushara
County Highway Department;
(b) To establish
reasonable work rules and schedules of work;
. . .
(f) To maintain efficiency of operations;
. . .
(i) To change existing methods or facilities;
. . .
ARTICLE 12 HOURS AND
12.01 As in the past, the normal work week shall
generally consist of eight (8) hours per day,
Monday through Friday, generally from 7:00 a.m. to 3:30 p.m. with one-half (1/2) hours
period. This is not to be interpreted as any guarantee as to hours of work.
12.02 Daily work schedules shall include a fifteen (15)
minute paid break taken approximately
from 9:00 a.m. to 9:15 a.m. . . .
12.04 Overtime shall be paid for all hours worked in
excess of forty (40) hours per week.
Overtime shall also be paid at the rate of time and one-half (1 ½) for all hours worked
(8) hours per day. For the purpose of determining overtime, all paid time shall be
The Union filed the grievance, on behalf of "all highway
dept. employees," on September 29,
1998. The grievance form states the relevant circumstances thus:
Bob Bohn, Waushara County Highway Commissioner, eliminated
the long standing practice of
allowing employees to come into the shop prior to the end of the work day to wash up and
daily reports. This occurred after Mr. Bohn received a letter from the Council 40 Staff
Representative asking for information on a possible contract violation involving the working
The form seeks the following remedy:
1. Immediately reinstate the past practice concerning wash-up
time and filling out reports during
work time. 2. Pay all employees who work, or have worked, over 8 hours in a day to
do reports time-and-one-half for all hours worked over 8 hours in one day. 3. Cease any
harassment or retaliation against union members which is occurring because the union is
business to enforce the contract.
The bulk of the facts underlying the grievance are undisputed.
It is undisputed that the parties, on a job by job basis, permit some flexibility in
taking of the morning break set forth in Section 12.02. Particularly in jobs involving paving
or seal-coating, this flexibility can involve working through the break for a considerable time
to permit the
paving process to continue without interruption for as long as possible. Practice on giving
varies from foreman to foreman. Douglas Steuck is the Union's President, but also serves,
as a temporary foreman. He noted that when he works a crew through breaks, he tries to
advance notice so that they know they will work through a break, but should take one as
permits. Tom Dahlke is the County's Shop Foreman, and is not a member of the bargaining
He noted that he implicitly expects his crew to understand that if a job necessitates working
break, they should do so. He assumes his crew will take a break when they can, without
to do so.
Sometime in August of 1998, the Union held a membership meeting. At that
members voiced concern that they were not being permitted to take a morning break. Steuck
believed the complaining members wanted some advance notice when a job could be
require working through break or lunch hour. He hoped the matter could be addressed
between Union leadership and management, but the membership decided that the matter
addressed more formally.
In response, the Union's representative, James Miller, sent the following letter, dated
21, to Bohn:
It has come to my attention that for a number of years the
Waushara County Highway
Department has, depending on the daily schedule of the department, required members of
Local 1824 to work through their 15 minute morning break. I further understand that when
occurs, the individuals are not given another opportunity to take their break nor are they
overtime pay for this time or being allowed to leave fifteen minutes early without any loss of
Each time this occurs is a violation of Section 12.02 of our contract.
Although it appears that breaks have been
worked through for some time, that doesn't make it
a past practice. The contract is very clear as to what the employees are entitled to: a fifteen
paid break starting approximately at 9:00. When employees are required to work through
they not only lose their opportunity for rest time, they are also working an additional fifteen
which they should be paid for.
Please contact me so that we can discuss
ways of rectifying this problem as soon as possible. If
we cannot do so, the Union will file a grievance over this matter. Because of the nature of
contract violation, we will request back pay for all overtime not paid due to breaks not taken
to January 1, 1998.
The employees of the Department have
always cooperated with the County when there is a need
to work through this break, either during the summer season or during snow removal
Now that this is being brought to your attention, I would hope that you would show the same
cooperation in resolving it. In addition, we would like to request that when the County
that breaks need to be worked through, there be notification to the affected employees at the
beginning of the work day.
I look forward to your response to these
Bohn received the letter, and called his management team together to discuss whether
employes had been denied a morning break. He determined that this had not happened. At
point after this, Bohn determined that unit employes would not be permitted into the shop
3:30 p.m, thus terminating a practice known as "wash-up" time.
Debra Behringer is the County's Administrative Coordinator, and formally responded
Miller's letter in a letter dated August 27, which states:
Bob Bohn and I were quite surprised when reading your letter in
regards to the nine o'clock
break. We were not aware that the employees were not being allowed to take their morning
Please have your union membership provide
us with as much data as possible relating to this issue
so we can proceed accordingly.
We would like the following questions
On what dates were employees forced to go
without a break?
Which employees were affected by this?
What were the employees doing that they
could not take the break?
Who was the supervisor at the time breaks
were not allowed?
After receiving this information, we will
thoroughly investigate this complaint and take
appropriate measures to correct any problems.
Miller responded in a letter, dated September 9, 1998, to Behringer and Bohn, which
Both myself, the officers of the Highway local and the
membership of the Union have had a
chance to review Deb Behringer's response to my August 27, 1998 letter to Bob Bohn. It is
reading of that letter that the County would agree with the Union that employees are entitled
fifteen minute break somewhere around 9:00 a.m. and that the County will see that
this break time from this point on.
The Union, therefore, does not see any reason to grieve this
matter at this time. Given Deb's
letter, the Union is not interested to arguing about the past. As long as the employees are
their contractual breaks, there would be nothing to grieve. We trust that this letter will put
matter to rest.
As noted above, this did not "put this matter to rest," and the Union filed a written
The grievance linked the termination of "wash-up time" with the Union's filing of the
of August 21. At some point, the Union and the County met in Princeton to discuss these
The County informed the Union that it would recognize a ten-minute wash-up period
end of the workday at 3:30 p.m. The Union took the position that the practice was to
minutes. The County ultimately restored a ten-minute wash-up period for non-Mechanic unit
members and a fifteen minute wash-up period for Mechanics. Bohn's termination of the
lasted roughly three weeks.
The parties do not dispute that the practice concerning wash-up time was to permit
to fill out time records and clean up from the day's work. Unit employes may have to fill
out up to
four forms to account for their time: a "state employee time card;" a "county employee time
a "machinery time card;" and a payroll form. Each form requires employes to account for
hours. The state and county forms require employes use specified accounting categories to
the project involved and the regular or overtime hours devoted to it. The machinery time
requires similar accounting, but without specified accounting categories. Not all of these
filled out by each employe on a daily basis. Some of the forms need not be filled out daily,
work need not be accounted for on each card. It is undisputed that state work, including
snowplowing on state roads, can require more paperwork than other jobs. Similarly,
working on a
variety of jobs which take a portion of the day is more difficult to account for than jobs that
entire workdays. Foremen may account for the time of their crew on certain jobs. It is
that a wash-up practice has existed for many years. Under Bohn's predecessor as Highway
Commissioner, and for a time under Bohn, employes were expected to account for their time
perform certain truck maintenance outside of the Highway Department yard area. As traffic
increased, however, employes were permitted to fill out time cards "inside the gate."
The balance of the evidentiary background is best set forth as an overview of witness
The County has employed Bohn for thirty years, including the past nineteen as its
Commissioner. He noted that he advised his foremen, after discussing Miller's August 21
if the Union lacked flexibility on break times, the County lacked flexibility on work hours.
the point thus:
I told them that the workday was from 7:00 until 3:30. They'd
have to stick to the contract, but
I had asked that we stick to the contract on the break time, and to not cause any problem. I
we should stick to the contract also. Transcript (Tr.) at 19-20.
He noted the meeting at which he informed his foremen to enforce the terms of the
the end of the workday occurred before Miller's letter of September 9:
This letter was September 9. So when we received this letter,
that had already been done, that
we had the meeting, I told the foremen to stick to the contract because we had gotten this
you. Tr. at 20.
Ultimately, he met with Miller and Behringer concerning the
Union's grievance. At that meeting, the
County offered to permit unit employes, other than Mechanics, ten minutes at the end of the
from 3:20 until 3:30 p.m., for wash-up. The County offered Mechanics fifteen minutes,
that they required more time to clean up and to put away tools, the bulk of which are the
personal property. The Union did not accept this offer, but Behringer told Bohn to reinstate
practice on the assumption it accurately reflected the practice.
Bohn noted that for roughly ten years, he has enforced a work rule prohibiting unit
from coming into the truck repair shop, in which the mechanics work, unless they have a
reason to do so. From his perspective, wash-up time does not include time spent gassing the
maintaining it, or preparing equipment for the next day's work. Such work is an assigned
cannot be considered part of wash-up time. Thus defined, he believed ten minutes at the end
day is more than sufficient, on average, to permit employes to fill out time records and clean
Steuck has served as Union President for the past six years. He noted that he
sending a letter to the County concerning break time. Rather, he hoped to work the matter
informally. He was, however, outvoted on the point. He noted that after he became aware
had received the August 21 letter, he discussed the matter with Dahlke, then asked Bohn "to
things as it is until I got a meeting together." (Tr. at 46). That meeting never came about,
because the next day Bohn terminated the practice regarding wash-up time.
From Steuck's perspective, the wash-up practice permitted employes to come into the
at roughly 3:15 p.m. to service their trucks, make out time cards and clean up. He noted the
was difficult to define, however, because of necessity trucks left the job site at different
required varying degrees of maintenance on different days. He estimated that filling out time
took, on average, from five to seven minutes a day. He estimated that it took roughly five
for employes to change clothes at the end of the day. He acknowledged that not all
clothes at the end of the day.
Cotanch has worked for the County for roughly thirty-six years. He stated that since
1975, the County has permitted fifteen minutes of wash-up time. During that time, an
maintain their truck, make out time cards and clean up. Those tasks required, in his view,
fifteen minutes. He would not, however, estimate how long any part of these tasks took.
addressed the point thus:
Q But at least since the inception of that building,
do you recall what time you would come back
to the shop at the end of the workday?
Q And what would you do when you got
A Make time out, clean up.
Q Did you do anything with the truck?
A Clean them, windshields, yeah.
. . .
Q How much time would that take?
A I would say all of fifteen minutes.
Q To clean the truck?
A And time.
Q Subtracting the time that it took to working on the truck, how
much time did it take
you to clean up, do your time, paperwork, and get ready to leave?
A I would say the whole fifteen. (Tr. at 60).
He declined, through repeated questions, to state the time attributable to truck
maintenance, time recording
and cleaning up.
Cummings stated that for the past twenty-five years, the County has permitted
of fifteen minutes at the close of the workday. He included in that period time spent
filling out time cards and maintaining equipment. He noted that the fifteen minutes was
on average, to permit each task to be done. He declined to state what portion of that time
on average, in each activity.
Mitchell noted that for the entire twenty-four years of his employment with the
County, it has
permitted employes, on average, fifteen minutes at the close of the day for wash-up time.
acknowledged that in response to a County questionnaire, he noted that wash-up time
limited to ten minutes at the end of the day. At hearing, he stated that it was impossible to
necessary maintenance duties, time accounting and cleaning in ten minutes. He noted that at
three foremen had advised him that fifteen minutes at the end of the workday were permitted
Dahlke has worked for the County for roughly twelve years. He is currently the
Foreman, which is not part of the bargaining unit. None of his work for the County has
been in a
bargaining unit position. He denied that the County has ever had a consistent policy
trucks are permitted to return to the Shop. Rather, trucks were dismissed as necessary from
site. Employes were expected to perform maintainance or other work until 3:20 p.m.,
could attend to time records and cleaning up. He supervises Mechanics, and noted that the
tries to keep unit employes out of the area in which Mechanics work on equipment.
County has to act to keep unit employes from congregating around the Mechanics near the
the workday, or near the start of break times. He attributed this problem to a small minority
employes. He estimated that five minutes, on average, is more than ample for employes to
their time records.
Mankowski noted that in the past, the County permitted greater break time in winter
summer, but that within the past year, winter breaks have been more strictly enforced. He
past practice was to come into the Shop area around 3:15 p.m., to maintain the trucks,
records and clean up. The time needed for each task varies with the job and by employe.
for time spent plowing State roads could take ten to fifteen minutes, for example.
Bray once served the County in a unit position, but now serves in the position of
Safety Coordinator. He noted that ten minutes at the close of the day was sufficient to
employes to fill out time records and to clean up. He has noted employes congregating by
clock, around 3:30 p.m., waiting to punch out.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Union's Position
The Union notes that the grievance "involves a number of distinct disputes that arose
August and September of 1998." More specifically, the Union notes the grievance focuses
on "wash-up time," which "was only the last in" this "series of disputes." Miller's letter of
August 21 prompted
Bohn to question Union representatives regarding morning breaks and to eliminate established
practice regarding wash-up time. The Union contends that the grievance thus questions
regarding the elimination of the practice, and precisely what the practice was.
The Union contends that this dispute, as opposed to many past practice disputes,
dispute on the extent, rather than the existence, of the practice. More specifically, "the
believed that this 'wash-up time' was for a period of ten minutes per day, while the Union
it believed that this practice was for a period of fifteen minutes." The County's survey is
according to the Union, helpful in resolving this dispute. The testimony demonstrates the
of establishing this point, since wash-up time arguably includes completing paperwork,
equipment and washing up. Beyond this the practice "is very likely to have been an
length of time varying by individual on any given date."
The grievance is, according to the Union, composed of two elements. The first is
the contract was violated when Waushara County eliminated for a period of weeks the past
. . . after they received a letter requesting information from the Union." The second "is
what is the
nature of that practice and how much time it consisted of." Since the evidence establishes
do not dispute the existence of the practice, the Union concludes that its termination
contract violation. The answer to the second element "is not that clear" because the evidence
indicates the County, unlike the Union, does not consider the completion of truck
of the wash-up period.
The Union concludes by requesting "that the Arbitrator find that Waushara County
the contract and rule in favor on the Union's grievance dated September 29, 1998."
The Employer's Position
After a review of the background to the grievance, the County notes that it
practice of allowing employees to take time at the end of the day to complete paperwork and
up." The County disputes, however, that the practice is to release employes at 3:15 p.m. to
employes "to stop work and to do paperwork and change clothes."
The County notes that Miller's letter concerning employe breaks prompted Bohn to
investigate the matter. Subsequent meetings and correspondence clarified that issue, but
forward the issue concerning wash-up time. The Union questioned not just the amount of
available for wash-up, but also whether employes could use the break room during wash-up
The County indicated it would permit ten minutes at the close of the day for wash-up, and
permit employes to use the break room. The Union responded by filing the grievance posed
The County concludes that its response to the series of Union complaints regarding break
wash-up time constitute nothing more than its legitimate use of its authority under Article 2.
The evidence manifests nothing more than "a definite communication problem" within
Union. Testimony that the practice involves fifteen minutes for wash-up presumes that time
attending to vehicle maintenance and job preparation is included in wash-up time. The
contends that it regards such work as assigned duties, which is part of a typical day's work.
such work does not count toward wash-up time, and this more than accounts for the
difference between the Union and the County on the extent of wash-up time. Beyond this,
County notes that testimony manifests employe misunderstanding of "what the 'shop' is."
testimony establishes that he wants employes out of the "shop" area during wash-up time.
means that employes can come into the yard or into the warm vehicle storage area, but
cannot go into
the repair area unless their work requires them to do so. The Union's misunderstanding of
Bohn meant by excluding employes from the shop accounts for a significant part of the
underlying the grievance.
The County contends that the "Union has not shown that the County acted
and concludes by requesting that "the arbitrator deny the grievance of the union."
The stipulated issue reflects that this dispute is unusual. The parties do not dispute
wash-up practice exists, and was eliminated. Examination of the issue in light of the
underscores the unique nature of the dispute. That examination must ultimately account for
that the practice is acknowledged and has been, at least in part, reinstated. That the
sets the wash-up period at "approximately" 3:15 p.m. establishes that the scope of the
be determined to fully resolve it.
It is undisputed that the labor agreement is silent on the existence or scope of
This means the acknowledged practice states a condition of employment established not
express terms in the labor agreement, but through mutually recognized practice. The most
account I have found regarding the repudiation of a past practice is that of Richard
a paper entitled "Past Practice and the Administration of Collective Bargaining
The Proceedings of the 14th Annual Meeting of National Academy of
Arbitrators, (BNA Books,
1961) at 56:
Once the parties become bound by a practice, they may wonder
how long it will be binding and
how it can be terminated.
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 existing
Such a practice cannot be unilaterally changed during the life of the agreement. For . . . if a
is not discussed during negotiations most of us are likely to infer that the agreement was
on the assumption that the practice would remain in effect.
inference is based largely on the parties' acquiescence in the practice. If either side should,
during the negotiation of a later agreement, object to the continuance of this practice, it could
inferred from the signing of a new agreement that the parties intended the practice to remain
Without their acquiescence, the practice would no longer be a binding condition of
face of a timely repudiation of a practice by one party, the other must have the practice
the agreement if it is to continue to be binding.
In this case, the parties were not in collective bargaining for a labor agreement.
terminated the practice during the effective term of the labor agreement, apparently angered
Union's stated interest in pursuing the break time issue. As noted above, such in-term
of a practice flies in the face of the agreement manifested by the practice. Against this
the repudiation of the practice must be seen as a violation of the labor agreement.
This conclusion addresses, however, only part of the stipulated issue. As noted
on Behringer's direction, reinstated the practice. At their Princeton meeting, the County
willingness to reinstate a ten-minute wash-up period for non-Mechanic unit employes and a
fifteen-minute wash-up period for the Mechanics. The County implemented this. Thus, the
in the stipulated issue can be considered "eliminated" only to the extent the County's view of
practice is inaccurate.
The dispute, thus narrowed, is whether wash-up time for non-Mechanic unit
at 3:15 or 3:20 p.m. The evidence establishes the validity of the County's implementation of
p.m. wash-up time. Initially, it must be noted that the binding force of a practice is rooted
agreement manifested by the bargaining parties' conduct. It is apparent the parties agree that
wash-up time for non-Mechanic unit employes is at least ten minutes long. The issue thus
the evidence supports extending it an additional five minutes.
The evidence will not support such an extension. More specifically, the evidence
difficult to discern any factual dispute between the parties' views. The County acknowledges
time spent in maintaining trucks and preparing for the next day's work is not considered part
wash-up time. Unit employe witnesses insisted on including this work in their view
that the practice
calls for fifteen minutes. Against this background, it is difficult to find a substantive
between the parties' apparently conflicting views.
To the extent the Union contends there is a substantive difference, the evidence will
support it. The binding force of practice is agreement. The refusal of unit witnesses to
spent in completing time records and cleaning up from time spent maintaining trucks
agreement on this point. What evidence there is indicates, on average, ten minutes is
completing time cards and cleaning up. Different jobs may require more bookkeeping or
cleaning up, but it is impossible to go into that level of detail in determining the practice. It
undisputed among all testifying witnesses that the practice reflects flexibility on these points.
to the point here, accepting the Union's assertion in the absence of detailed testimony
how much time is spent on each function forces the County to accept the view of testifying
on what constitutes an assigned duty and what constitutes wash-up duties. As already noted,
is no persuasive testimony to support this, and the terms of Article 2 place such distinctions
hands of the County.
In sum, the evidence establishes Bohn terminated the wash-up practice in violation of
labor agreement. The County's subsequent reinstatement of the practice, however, addressed
point by permitting non-Mechanic unit employes to start wash-up duties at 3:20 p.m. and
to start wash-up duties at 3:15 p.m. Wash-up time includes completing time records and
from the day's work. This does not preclude performing other tasks during this period,
it or contracting it as necessary to reflect unique situations. Rather, it reflects the parties'
"on-average" expectation under established practice.
Remedy, in this case, is difficult to determine. There is no evidence rebutting
testimony that no unit employes worked overtime during the period the practice was
Against this background, there can be no make-whole component to the remedy. The
alleges retaliation and seeks a "cease and desist" order. The evidence establishes, however,
investigation, Behringer directed the reinstatement of the practice as noted above. While the
may support an assertion Bohn acted in anger over Miller's letter, it falls short of
"retaliation," particularly in light of the subsequent reinstatement of the practice. Thus, no
desist order is appropriate. The record shows a basic disagreement on the scope of the
decision and the Award entered below state the existence of a contract violation in the
of the practice and state what the evidence will support concerning the scope of the practice.
declaration of the parties' rights must stand as the only remedy appropriate to this record.
Waushara County did violate the contract when it eliminated past practice of
employees of the highway department to adjourn to the shop at approximately 3:15 p.m. at
of their work assignments each day to wash up and fill out paperwork related to their work
assignments that day.
This declaration is the remedy appropriate to this violation because the County's
determination that the practice consists of permitting wash-up time for non-Mechanic unit
to start, on average, at 3:20 p.m. and for Mechanics to start, on average, at 3:15 p.m. does
the contract. This determination reflects that wash-up time includes filling out time records,
up and duties beyond this only as time permits. The County's determination that truck
is not a function of wash-up time does not violate the contract. The practice concerning
time does not extend to permitting unit employes into the vehicle maintenance area during
time, unless they are required to be there for work related reasons.
Dated at Madison, Wisconsin, this 8th day of September, 1999.
Richard B. McLaughlin, Arbitrator