BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TAYLOR COUNTY COURTHOUSE &
HUMAN SERVICES DEPARTMENT
LOCAL 3679, AFSCME, AFL-CIO
(Ed Lukaszewicz Grievance)
Mr. Phil Salamone, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, 7111 Wall
Street, Schofield, Wisconsin 54476, for Taylor County Courthouse & Human Services
Employees, Local 3679, AFSCME, AFL-CIO, referred to below as the Union.
Mr. John J. Prentice, Prentice & Phillips,
Attorneys at Law, 611 North Broadway, Suite 220,
Milwaukee, Wisconsin 53202-5004, and Mr. James M. Arkens,
Human Resources Manager, Taylor
County, 224 South Second Street, Medford, Wisconsin 54451-1899, for Taylor County,
below as the Employer, or as the County.
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 Ed
who is referred to below as the Grievant. The Commission appointed Richard B.
member of its staff. Hearing on the matter was held on March 31, 1999, in Medford,
hearing was not transcribed. The parties filed briefs and a waiver of reply briefs by
July 6, 1999. In
a fax filed with the Commission on July 7, 1999, the County requested that "the Arbitrator
certain portions of the Union's reply brief. The
Union responded in a letter filed with the Commission on July 12, 1999. The County
withdrew its request, and I confirmed that the record was closed in a letter sent to the parties
The parties stipulated the following issues for decision:
Was the grievance timely filed?
Did the Employer violate the collective bargaining agreement
and the mutually agreed upon
departure from the collective bargaining agreement?
If so, what is the remedy?
Article 6 Grievance Procedure and
Section 1 Grievance: A grievance is defined to be a
controversy between the Union and the
Employer or between any employee or employees and the Employer as to a matter involving
interpretation or application of this Agreement.
Section 2 Grievance:
Step 1: The employee shall take up the
grievance in writing with the employee's immediate
supervisor within ten (10) days of the grievance. The supervisor shall attempt to make a
satisfactory adjustment and, in any event, shall be required to give written answer within ten
of when written notice was received by the supervisor, a copy of which will be sent to the
the county Personnel Committee.
. . .
Section 4 Time:
The time limits set forth in the foregoing steps may be
by mutual agreement, in
writing. All reference to days in this article shall mean "working days".
Article 7 Seniority
Seniority is defined as the length of time an employee has
hired as a regular full time or
regular part-time employee, computed from his/her most recent hiring date. . . .
Loss of Seniority: Seniority and the employment
relationship shall be broken and terminated if
B. Is discharged
C. Is on leave of
absence for personal or health reasons and accepts other regular
employment without permission.
D. Is retired
E. Fails to notify the
County within one (1) week of receipt of notice of recall, sent
certified mail, return-receipt-requested, and does not report for work within two (2)
weeks of receipt of such notice, unless an extension is requested in writing and
approved by the personnel coordinator.
. . .
Article 29 Amendments
This Agreement may be amended any time during its life
the mutual consent of the
parties. Any amendment supplemental to this Agreement shall not be binding upon either
executed in writing by the authorized representatives of the Union and Employer.
The Grievant signed the grievance and filed it on December 4, 1998. The grievance
states the "Circumstances of Facts" thus:
Employee worked for nearly ten years for County. Resigned on
9/25/98. After 10 days he called
sheriff to ask to return to work. Sheriff, Personnel Director, Union Official (Vice President)
to him returning to work as if his service was uninterrupted. After resignation (Retirement)
Personnel Director, County withdrew from agreement and placed Grievant at 6-month
The form states the "Article or Section of contract which was violated if any" thus:
Contract was violated because grievant took prompt and timely
steps to rescind his resignation
from employment. He relied on representations that had been made by legally appropriate
representatives of both the County and Union that his seniority would be intact. He made
based on those representations. Now they have refused to honor their agreement.
The form states the desired remedy thus: "Make grievant whole for all losses incurred
as a result of
The bulk of the factual background is not in dispute. The Grievant worked for the
as a Jailer/Dispatcher from April of 1989 until his resignation in September of 1998
dates are to 1998 unless otherwise noted). In a form signed by the Grievant on September
noted that "I plan on terminating my employment with Taylor County, effective 9-25 1998."
form notes September 24 was to be "(m)y last day of work." The form also includes the
Health Insurance Delete/continue Effective date
Delete/continue Effective date ________
Delete/continue Effective date ________
You are eligible to continue your Health
& Dental Insurance for _____________.
Life Insurance terminates 30 days after
The "Income Insurance" line was handwritten on the form submitted by the Grievant.
entry was circled for Health, Dental and Income Insurance on the form submitted by the
There was no selection for "Delete/continue" for the Life Insurance line. In the space
"Effective date" entry for Health and Dental Insurance, appears a "10-01-98" entry. In the
blank for Life insurance, a handwritten notation of "10-01-98" has been deleted and replaced
handwritten notation "11-01-98." Immediately below that notation, apparently on the line for
Insurance, appears the notation "10-01-98." The then-incumbent Sheriff, William K.
signed a payroll form, dated September 22, 1998, which states the Grievant's termination as
"Resignation" effective September 25, 1998.
The County Board's Personnel Committee met on September 22, and among other
approved additional Jailer/Dispatcher positions. The minutes of that meeting state:
Bruce Daniels submitted information to support a Sheriff's
Department request for an additional
4.5 Jailer/Dispatchers. Included was information showing the growth in jail confinements
ratio of Jailers to inmates. Daniels
emphasized that with jail staff spread so
thin, and with the overcrowding in the jail, the County
is in a precarious liability position, as well as not meeting state jail requirements for
safety, both for inmates and jail staff. . . . It was noted that the Law Enforcement
approved the request. The motion was unanimously approved. The request will be
considered by the
Also at this meeting, James Arkens was introduced to the Personnel Committee as the
Personnel Director. His predecessor, Charles Rude, also appeared at the meeting. Rude had
resigned, but remained with the County on a day-to-day basis from January through
the County recruited, then oriented, his successor.
The Grievant resigned to move to Arizona. He moved, but found that the move
problems within his family. He decided the move might prove harmful to his family, and
Breneman on the morning of October 5 to determine if he could rescind his resignation.
informed the Grievant that the County was having difficulty filling Jailer/Dispatcher
he would be willing to take him back but would have to check further to determine if and
would be possible to do so.
Breneman testified that he considered the Grievant a good employe, and that he was
to fill Jailer/Dispatcher vacancies through the use of overtime. Thus, he believed taking the
back would be of benefit to the County and to the Grievant. After receiving the Grievant's
went with his Chief Deputy, Bruce Daniels, to discuss the matter with Rude. Arkens was at
conference that day. Breneman testified that Rude agreed that he had no objection to the
taking the Grievant back as if he had not resigned, but that Breneman should discuss the
the Union. Breneman was not able to locate the Union's President, but did contact the
President, Carol Roush, who stated no objection to rehiring the Grievant as if he had not
the afternoon of October 5, Breneman phoned the Grievant in Arizona to advise him that he
return to County employment as if he had never resigned. The Grievant responded he would
as soon as possible.
The Grievant made arrangements to leave Arizona and return to Wisconsin. He
tickets for his family, contracted with movers and lost a number of deposits he had to make
a residence and utilities in Arizona. The Grievant testified that his next-door neighbor in
previously informed the Grievant that he knew the police chief, and that the Grievant could
for a position on October 7. After hearing from Breneman on the afternoon of October 5,
Grievant decided to decline the interview. He testified he lost roughly $5,500 in reliance on
Breneman's representation that the Union and the County had agreed to return him to work
as if he
had never resigned.
On October 6, the Union's President, Julie Scott, learned of Breneman's desire to
Grievant as if he had not resigned. Breneman testified that Scott seemed more reserved on
than Roush had. Scott noted her concerns in a memo to Arkens, dated October 8, which
Sheriff Bill Breneman informed me on Tuesday, October 6, 1998
that he was rehiring (the
Grievant), who had quit on September 25, 1998. I asked him if the Jail Sergeant or any of
jailer-dispatchers had any problems with this and he stated that they did not.
This morning I was contacted by union
members who are concerned that (the Grievant) will be
rehired without any break in seniority.
This is a clear cut violation in our union
contract, Article 7 - Seniority. Loss of seniority and the
employment relationship shall be broken and terminated if an employee quits.
While the complaint is only concerned with
seniority, I cannot see how wage rates and all other
benefits can be unaffected.
If (the Grievant) is rehired without any
break in seniority and/or benefits this will certainly start
a precedence for other employees who decide to quit and want to return.
Please contact me for further discussion on this issue.
Scott and Arkens met to discuss the point. Scott summarized the results of the meeting
in a memo
dated October 8, which states:
The following is my perception of the agreement made between
the county and
union this morning regarding the rehiring of
1) (The Grievant) will be
rehired by Taylor County as a jailer-dispatcher.
2) (The Grievant's) seniority
ranking will begin on his actual rehire date.
3) (The Grievant's) vacation,
sick leave, and other benefits will begin with his new rehire date.
4) (The Grievant) will be given
the benefit of rehire without a six month probationary period.
His starting wage will be $10.96 (6 month rate of pay).
5) (The Grievant) will be given the benefit of
maintaining his health insurance, dental insurance,
life insurance, and income continuation insurance without a lapse in coverage, however he
will be responsible for the cost of the health insurance and income continuation insurance for
the approximate 15 days off from employment.
6) (The Grievant) will be
reinstated into Local 3679 as of his start date without any probationary
Arkens responded in a memo to Scott, dated
October 8, which states:
As per our conversation this morning, the county will abide by
the union contract in the area of
seniority when rehiring (the Grievant). It is our intention of having him begin without a
period and at the 6 month pay rate with his health insurance minus approximately 15 days he
gone. If this is acceptable to the bargaining unit we will proceed as we discussed. Please
as soon as possible so as to avoid any further problems with this issue.
At roughly 1:30 p.m. on October 8, Daniels and
the Grievant had a phone conversation concerning
the events surrounding his re-employment. That conversation took place on a recorded line
Sheriff's Department. The conversation between Daniels (BD) and the Grievant (EL)
BL: Well, we're running into some snags up here and
I just wanted to call you and fill you in on
BL: I called over to Personnel .
. . the Personnel Director's office this morning. But apparently
somebody from within the Union is, is, they wrote a letter to the Personnel Director telling
him that they are disagreeing with you being reinstated with full seniority and that basically
that they'll grieve it if it happens.
EL: Well, don't you think we
can do it by saying that hey, he was on a leave of absence?
BL: Well, that was what the
sheriff said. Um, of course we had to do the you know the
paperwork ah . . . saying you know that you had resigned and there's a specific clause in the
contract "loss of seniority and the employment relationship shall be broken and terminated
when an employee quits".
EL: Mm hmm
BL: What the Personnel Director was proposing and
I'm just telling you this is what they're saying
at this point, it's not a problem to get you the job back. What they're saying though is that
you'd ah, basically that you would start at the six monthrate, like if
you'd never been here at
EL: Oh man
BL: So noprobation or anything like that, um . . . but then along with that goes no
you'd be at that wage. Then the other issue that they said was the health insurance, since it
was terminated, that you were out of it for 15 days so in order to reinstate it that you'd
actually have to pay for 50% of it.
EL: For the first . . .
BL: For that first month
EL: Ok, well that's no problem.
BL: That's $261 and the income
continuation would be like fourbucks. Now, I called the Sheriff
and told him about this and his response was "we need to fight for (your) rights"
EL: Aw, thank you
BL: Ah, so that, you know, I
don't know exactly what that means. We're going to meet, what
we're going to do is, we've got a law enforcement committee meeting tomorrow,
Bill will be
in for that.
BL: Then we're supposed to
meet with personnel right after that.
After this exchange, their conversation addressed whether there was precedent for
resigned employe as if the resignation had not occurred, the Grievant's pay rate, and whether
Union could bring a meaningful grievance on the issue. Daniels and the Grievant then
EL: I think that, that ah, well hopefully you guys will
be able to present this properly . . . um,
yeah, that is a major kick in the butt . . . I mean . . . well, yeah of course there was the
resignation, there's no doubt about that. But then there's the extension of vacation.
BL: That you're not paid for yet.
EL: Right, that I haven't been
paid for. In a sense that kind of keeps the threat going if you will
BL: Well that's what I'm kind of
thinking you know. When she told you . . . you know if you get
a leave . . . didn't she tell you if you get a leave of absence that . . .
EL: I couldn't get my check
BL: That you couldn't get you . . . paid off your
EL: Right, otherwise I would
BL: . . . let me grab your file . .
. you said you were resigning your position and that your last day
of work would be so you're still on vacation for all practical purposes, right?
EL: Yeah, yeah. And I would
have gone for the leave of absence, I'm not that stupid. But she
said no we won't pay you your vacation. And I thought well I'm going to need that money
to get started down here. . . . You know, so otherwise if I'd have been able to get the leave
of absence I would have taken that. . . . So that kind of pushed me you know.
After this exchange, Daniels recommended that the Grievant document his
conversations with the
personnel department prior to his resignation, and noted his view that the problem was
a small number of employes. The Grievant then stated:
Yeah, well, again, I think that's a legitimate argument. The
thread was never actually finally
terminated, that I was still collecting vacation, I was still, for in some intents a member of
department and therefore . . . plus the fact that I didn't really have the option of the leave of
you know, cuz I needed the money. And I don't think that's really fair to hold that against
The Grievant returned to Taylor County to work as
a Jailer Dispatcher. He reported for work in
uniform, but was informed by Breneman that Arkens had informed Breneman that he could
until appropriate Board action was taken to authorize his employment.
On October 15, a joint meeting of the Board's Personnel and Law Enforcement
met to consider the Grievant's situation. County Board ordinances require applicants for law
enforcement positions to achieve a passing score on a written examination, then complete "an
examination by a panel consisting of the Law Enforcement Committee, the Sheriff (or his
and the County Personnel Director." Applicant scores on these examinations are then used
an eligibility list. By ordinance, the Sheriff "may hire an individual who ranks either
Number 2, or Number 3 on the appropriate eligibility list." The relationship of these
Breneman's actions, among other points, was discussed at the October 15 meeting.
advocated for County approval of returning the Grievant to work as if he had never resigned.
Personnel and Law Enforcement Committee, however, voted only to move the Grievant to
of the eligibility list. Breneman felt the Committee's action "broke my word."
The matter continued to prove a divisive issue within the Union. On November 3,
membership voted to reject the tentative agreement negotiated by Scott and Arkens, and to
grievant return to employment "as a newly hired employe." The County, however, provided
Grievant's health insurance benefit as if the agreement had been ratified. The dispute
prove divisive. In late November, the Union held another membership meeting. This one
the Union's Business Representative, Phil Salamone. At that meeting, for the first time,
advised Salamone that she had indicated to Breneman that she did not see any Union
returning the Grievant to work as if he had never resigned. The Union determined the issue
to be researched further. Among other things, Salamone sought legal advice from the
attorney and clarification from Rude concerning his role in the process.
Rude responded in a letter dated November 25, which states:
. . .
On Monday, October 5, 1998, at the beginning of my last week
in Taylor County, at sometime
during the morning, I was visited in the office by Sheriff Bill Breneman and Chief Deputy
Daniels. . . . The Sheriff advised that he had been contacted by (the Grievant), who asked if
return to Taylor County employment . . . The Sheriff noted that (the Grievant) had
satisfactorily as a jailer/dispatcher for a number of years, had been off the jailer/dispatcher
schedule for only a short time, and particularly noted that significant amounts of overtime
required, and worked, in order to maintain at least minimum staff, and asked if the
be returned to the County's employ, as though he had not left. I told the Sheriff and Chief
that, taking these factors into consideration, and particularly in view of the shortage of staff
additional overtime expenses being encountered, that I had no objection to bringing him back
any change in his status, provided that the union had no objection, since this was outside the
contract provisions. The Sheriff called me later to indicate that he had planned to talk to the
3679 President, but found she was off work that day, and, as a result talked to the Vice
who registered no objection to (the Grievant) returning with uninterrupted service to County
employment. The Sheriff, in good faith following his conversation with myself and the
Vice-President, advised (the Grievant) of the decision, and welcomed him to return.
Having been involved with Taylor County Labor Relations for
nearly sixteen years, and having
had to make many decisions on various personnel matters during that time without the
to meet with the Personnel Committee, there was no question in my mind that I was
make such a decision.
. . .
In a letter dated December 1, the Union's attorney advised the Union that "it is my
opinion that (the
Grievant) has a legal right to continue his employment as a Jailer/Dispatcher . . . as though
he had not
ever left that employment."
The Union then determined not to vote again on the agreement reached between Scott
Arkens, and to support a grievance. Salamone testified that the County did not object to the
timeliness of the grievance until roughly one month after its filing.
Testimony at hearing covered the points noted above as well as past practice.
testified that the County had treated three other employes, Rhonda Grauman, Daniels and
as he proposed to treat the Grievant. Kathleen Pernsteiner is the County's Payroll Benefits
Coordinator. She testified that Grauman submitted paperwork indicating her desire to resign.
the effective date of her resignation, however, she reconsidered her decision and the County
her to rescind the resignation. Daniels testified that he resigned from County employment to
a Cadet with the Wisconsin State Patrol. After the effective date of his resignation, he
wanted to return to the County. The County permitted his return, under the conditions set
a letter from Rude to the then-incumbent Sheriff, dated August 15, 1989, which states:
In view of the short time which Bruce Daniels was away from
Taylor County employment, I do
not feel that it is necessary to require him to serve another one year probationary period,
since he remained in law enforcement when he left here. However, since this is a situation
not previously encountered, and what we do may well be a guideline if a similar
in the future, I feel that we should establish some probationary period, and suggest that
would be appropriate.
Insofar as the sick leave matter is concerned, I do not feel that he
should retain any, but rather
should begin a new accumulation.
. . .
The basis for reinstatement, then, would be as follows:
1. His seniority date will be new, and will be the
date he is rehired by Taylor County. He would
be on probation for a period of ninety days.
2. His rate of pay will be the
rate he was receiving at the time of termination.
3. To determine vacation
eligibility, his first date of hire will control.
4. All other benefit eligibility
will be on the basis of his new date of hire.
. . .
Daniels testified that his return to work was submitted to the law enforcement
bargaining unit for a
vote. Daniels also testified that before he became Chief Deputy, Amy Bolz got upset on the
turned in her resignation. He talked her out of the decision, and the County permitted her to
the resignation. He estimated the entire process took from one to three days.
Jim Metz is the Chairman of the Law Enforcement Committee, and testified that
nor Breneman consulted the Committee before Breneman informed the Grievant he could
County service. He stated that neither is authorized to hire for the County. Tim Peterson is
Chairman of the Personnel Committee, and agreed with Metz' testimony. Peterson added
though Arkens was, in his view, the County's Personnel Director in October, Arkens had no
authority to hire than did Rude or Breneman.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Union's Initial Brief
After a review of the evidence, the Union contends that the grievance must be
timely. Article 6, Sections 1 and 3 demand that a grievance allege a violation of the labor
and the Union contends that in this case "investigation" and "legal research" were necessary
determine the existence of a contract violation. The Union contends that it filed the
one day of the time "it discovered that there was joint agreement to restore the grievant to
uninterrupted service, and that this was legally appropriate." Even if Union officials may
of the County's agreement to rehire the Grievant prior to the filing of the grievance, the
nature of the grievance precludes holding this against the Union. Beyond this, the Union
"it should be recognized that the refusal of the County to apply the greivant's seniority
a continuing violation of the labor agreement." The County's assertion of the timeliness
issue, in any
event, "reeks of bad faith," and "should be rejected by the Arbitrator."
The Union then contends that a "reasonable interpretation of Article 29 would allow
parties to mutually agree to waive or amend portions of the collective bargaining agreement."
is consistent with the terms of Article 29 and with the fact that "(u)ntil this dispute, the
historically . . . (handled) matters of common interest . . . which arise during the term of the
on a relatively informal basis."
Beyond this, the Union argues that the language of Article 29 is ambiguous, but "has
defined again and again by a consistent and unrefuted past practice of the parties." That the
"have regularly entered into informal waivers of specific contract language when it was in
interest" is, according to the Union, undisputed and traceable to "the previously referenced
working relationship." That no agreement was put into writing is not significant, since the
sentence of Article 29 demands only that amendments "supplemental to this Agreement" be
Even if Article 29 is inapplicable, the Union argues that strong past practice "could
stand alone to govern the outcome of this dispute." Since arbitral authority establishes that
can be established by practice, the Union concludes that the agreement governing the
return should be enforced.
The doctrine of promissory estoppel establishes another basis to enforce the
concerning the Grievant's returning to work as if he had not retired. More specifically, the
argues that the evidence establishes Breneman made a promise to the Grievant upon which
Grievant reasonably relied, to his detriment. Arbitral authority supports enforcing
promise, particularly since failing to do so would work an evident injustice.
That the County did not enforce a three month waiting period regarding the
insurance establishes that the County understood it had entered into an enforceable
agreement. It is,
the Union contends, impossible to distinguish the agreement to return the Grievant to work
benefits generally from the acknowledged agreement to specifically waive the three month
That the labor agreement increases wages and benefits in response to
length of service
establishes that the parties intended "that service time be recognized and rewarded." The
the Grievant is apparent, but the benefit to the County is no less apparent: "the employer
benefits from the training and experience of the grievant." To ignore the clear intent of
agreement produces an "unjust" and "inappropriate" result.
The Union concludes thus:
(T)he instant grievance should be sustained and the grievant be
made whole for all losses
incurred. In addition, considering the bad faith exhibited by the employer in this matter, the
asks that he retain jurisdiction in the event a remedy is applied.
The Employer's Initial Brief
After a review of the evidentiary background, the County argues that "(t)he grievance
timely." Step 1 of Article 4 demands that the grievance be filed within ten days of the event
grieved, and the contract does not permit modification of grievance timelines absent "mutual
agreement . . . in writing." In spite of this, the Union waited fifty days to file the
the facts nor relevant arbitral precedent warrants such an extension. That Union
attended the October 15 meeting of the Law Enforcement at which the County rehired the
should preclude finding the grievance timely filed in December. Beyond this, the County
"there is no merit to the Greivant's contention that each day he was denied seniority status
an 'ongoing' (continuing) violation." To reach this conclusion demands reading any
limit out of existence.
The County then contends that the grievance fails to cite any agreement provision
by its actions. This is, according to the County, because "(t)here was no violation of the
bargaining agreement." The "only collective bargaining provision that could possibly relate .
. . is
Article 7" which governs loss of seniority. Since the Grievant voluntarily quit; since he
unilaterally rescind a resignation that is freely given"; since the County is "free to determine
of the grievant's return to work within the contours of the collective bargaining relationship";
since neither Breneman nor Rude had the authority "to bind the County in this matter", no
of Article 7 exists. An examination of relevant provisions of Chapter 59 only confirms these
contentions. In fact, the evidence demonstrates that the Union and the County never in fact
an enforceable agreement and that what evidence of practice there is indicates rehired
The County then contends that the grievance puts it "in an impossible situation." No
what action it took regarding the Grievant's reemployment, "the County's action would have
grieved." The Union "originally raised objections to rehiring the Grievant" and now
County "in litigation because it did not reemploy the Grievant with full seniority and full
This indicates the County faced litigation no matter what it did, and arbitral precedent
rewarding a Union "for creating this quagmire."
The County concludes that the grievance says more about "internal union politics"
the labor agreement, and should be dismissed.
The Union's Reply Brief
The Union contends initially that it did not delay fifty days to file the grievance.
Rather, it was
actively investigating the claim and negotiating with the County to determine if the matter
resolved informally. To fault the Union for not filing prior to December 4 encourages the
abandon negotiations and turn to litigation to resolve disputes. The Union adds that "it now
that these negotiations may have been merely a ploy by the employer to delay the Union's
a grievance beyond the contractual time limits." The Union concludes such ploys should not
Among the challenges raised by the County to the enforceability of the agreement
the Grievant and Breneman is the "lame duck" status of its former Personnel Director. The
contends that however Rude's status is characterized, he had the authority to act on the
behalf. Beyond this, the Union contends that the County's attempt to impeach his written
has no evidentiary support and flies in the face of his established reputation.
The Union then asserts that the County has no basis to support its assertion that "the
objected to the return of the Grievant to uninterrupted service." That Scott and Arkens
unsuccessfully attempted to create an alternative to the agreement reached by Breneman and
Grievant has no bearing on the grievance, since that attempt was "rejected by the Union."
conclusion mistakenly makes the informal views of individual unit members Union policy.
Nor can the County's assertion that the grievance lacks support in the contract be
The stipulated issue is broader than the County acknowledges, and the record leaves no doubt
"there was a mutually agreed upon departure from the
terms and conditions of the collective
bargaining agreement to facilitate the re-hire of the grievant."
That an employe cannot unilaterally rescind a resignation that is freely given has no
on this case, since there was an agreement to rehire the Grievant. In fact, the only "mutual
between the parties which was not effectively rejected or withdrawn later, was the initial
To assert that Rude and Breneman cannot bind the County "approaches the realm of
Each acted as the County's agent. Arbitral precedent and evidence establishes that they were
authorized to bind the County. The attempt to assert Rude lacked this authority ignores the
of evidence to support this. Nor can the County's assertion that the grievance put it in a
situation be accepted. Informal comments made by individual unit members cannot be made
Union policy, and all the grievance asks the County to do is "honor its original agreement
Union." Nor can the assertion obscure that the County did not act in accord with the results
Union vote, since the Grievant was credited with six months of service and was not required
three months for health insurance.
The County's assertion that it could have avoided this litigation by not rehiring the
states the obvious, but nothing that has any bearing on resolving the grievance. What the
wrong "is that essentially they double-crossed the grievant."
The Employer's Reply Brief
After prefatory remarks, the County argues that the grievance cannot be considered
An examination of the evidence demonstrates actual knowledge of the events prompting the
well before its filing in December. Nor can it plausibly be asserted that investigating a
seeking outside legal assistance "somehow tolls the time limits for filing a grievance." In
the Union could have simply requested to extend the grievance procedure's time limits.
to do so cannot obscure that the contractual time limit "is a provision the Arbitrator cannot
Nor can it be seriously contended that the grievance poses a continuing violation. To do so
render contractual time limits meaningless.
The County then contends that "there is no credible evidence in the record that the
regularly entered into unwritten waivers." Rude's statement cannot be construed as broadly
Union contends, and lacks the detail necessary to overcome the clear language of Article 29.
and judicial precedent underscore that "custom and past practice are only used to establish
of contract provisions which are so ambiguous or so general as to be capable of different
interpretations." Because Article 29 "is clear and unambiguous," evidence of practice is
That language demands that waivers of contract provisions must be executed in writing.
Even if practice could be considered to interpret the provisions of Article 29, no
practice has been proven in this case. More specifically, the County argues that the scope of
practice and its parameters "are anything but readily ascertainable . . . (w)e simply have no
to the nature or kinds of provisions waived or the circumstances involved in the alleged
Nor is there evidence demonstrating County awareness or acceptance of the alleged practice.
this, the Union improperly seeks to assert a practice which contradicts clear contract
Even though arbitrators "have applied the fundamental underlying theories of estoppel
appropriate cases," the Union has failed to show the grievance poses such a case. The union
promissory estoppel in this case. That doctrine is inapplicable, since the Grievant did not
rely on any
County promise in deciding to move from Arizona back to Taylor County. Even if it could
concluded the County made the Grievant any promise, his reliance on it was unreasonable
Grievant knew the ramifications of his resignation before he even left for Arizona." Beyond
County argues that County waiver of the health insurance waiting period shows no more than
the Union never challenged the County's action and that the decision "was made by the
authority the Taylor County Law Enforcement Committee." That the Grievant lost
the benefit of his years of service, or that the County gained the benefit of those years
of service, is
traceable not to County action but to "the Grievant's decision to quit his employment and
family to Arizona." The County puts the point thus: "Experience may help get an applicant
but it does not necessarily bestow better benefits."
Viewing the record as a whole, the County concludes that the grievance must be
The issues are stipulated, and pose a threshold issue of timeliness. That issue,
inextricably intertwined with the issue on the merits. That link precludes finding the
untimely. This point requires, however, some discussion, because the evidence supporting
the grievance untimely is forceful.
As preface to this discussion, it must be noted that the parties did not execute a
extension of the timelines under Section 4 of Article 6. Thus, the issue is whether the
be considered timely filed under the terms of Article 6, Section 2, Step 1, and Article 6,
which require that the "employee shall take up the grievance in writing with the employee's
immediate supervisor" within ten working days "of the grievance."
"The grievance" is the County's refusal to treat the Grievant's return to employment
as if he
never resigned. Both the contract and the evidence make the "ownership" of the grievance
clear. Article 6, Sections 1 and 2 permit an individual employe as well as the Union to
grievance. Section 1 provides that a "grievance" can be "a controversy between the Union
Employer" or "between any employee . . . and the Employer." Section 2 underscores this
authorizing a meeting between the "employee" and the "employee's immediate supervisor"
requiring the written response resulting from that meeting to be submitted "to the Union."
grievance can be considered the Grievant's, the Union's, or both regarding the application of
This ambiguity makes it difficult to accept the County's view of the timeliness issue.
of the evidence supporting that view should not be understated. The "grievance" challenges
County's refusal to reinstate the Grievant as if he had never resigned. The evidence
the Grievant was aware of this refusal well before December 4. The Grievant testified that
aware of the refusal as of the October 15 joint committee meeting and with the receipt of his
paycheck. He noted he did not file a grievance because he thought the terms of his
"were still negotiable." He added that he thought the County needed to go through further
meetings before coming to the result he hoped it would reach. The evidence is silent on the
of any committee meetings scheduled or held after October 15.
Both in testimony and in the grievance form, the Grievant acknowledged he was
aware of the
County's action as of October 15. The form notes the "Date of the alleged infraction" thus:
10/15/98 > Present > Ongoing." This acknowledges the Grievant's awareness of the
but asserts that the grievance states an ongoing violation. To establish an ongoing violation,
however, it is vital that some basis be shown to distinguish the "continuing" violation from a
time only" violation. Put another way, it is vital to show how the continuing violation can
without reading the timelines of the grievance procedure out of existence. In this case, the
refusal to ignore the contractual effect of the resignation was openly announced to the Union
the Grievant. It is difficult to understand how this violation can be treated as anything but a
The Union's knowledge of the grievance poses the more difficult factual issue. The
asserts that the matter was actively being investigated and negotiated until its filing in
That it was investigating the grievance provides no basis to ignore the requirements of
Article 6. The
processing of the grievance is itself a form of investigating its merit, and it is unlikely the
tolerate County delay of the procedure to seek outside counsel.
While the evidence on how actively the grievance was being negotiated is debatable,
sufficient to preclude finding a Union waiver of a determination of the merits of the
Initially, it must be noted that Salamone testified, without rebuttal, that the County did not
the timeliness of the grievance until well after its filing. This makes strict enforcement of
timelines at the arbitration level debatable. More significantly, Salamone's testimony
the Union was considering, in late November, taking another vote on the tentative agreement
by Arkens and Scott. His testimony further establishes that Rude's letter, dated November
a significant role in the Union's decision not to take the second vote. There was no point to
second vote if the issue regarding the Grievant's situation was not an open issue. This means
the issue was still actively being considered sometime after November 25, which is within
working day time limit of Article 6, Sections 1 and 4.
This conclusion, however, ties directly into the Union's assertion of promissory
That point remains to be addressed. More to the point here, the conclusion establishes the
address the grievance on its merit.
The Union's arguments lack contractual force outside the assertion of promissory
Article 7 unambiguously establishes that "(s)eniority and the employment relationship shall be
and terminated if an employee . . . (q)uits." Beyond this, Article 7 clearly establishes that
is "computed from his . . . most recent hiring date." There is no doubt the Grievant quit as
September 25. He affirmed this in his October 8 conversation with Daniels. Nor is there
that his "most recent hiring date" would have come in October of 1998. Under Article 7,
Grievant has no claim to unbroken seniority.
Nor can the "leave of absence" Daniels and the Grievant considered during their
conversation be considered a significant issue under Article 7. Section C of Article 7 would
appear to extend a leave of absence to an employe search for other employment. This is
what led the
Grievant to Arizona. The assertion of promissory estoppel presumes that the Grievant's
a job interview in Arizona is a basis to enforce Breneman's offer on benefits. This assertion,
however, forecloses the use of Article 7 as a contractual basis to ignore the impact of the
resignation on his wage and benefit package as a returning employe.
Even if the provisions of Article 7 could be considered ambiguous, there is no
evidence of past practice to support ignoring the Grievant's initial resignation. None of the
examples mentioned by Breneman are applicable to the Grievant. Grauman and Bolz
resignation prior to its effective date. Nor can Daniels' situation be considered comparable
Grievant's. Rude's letter of August 15, 1989 establishes that no practice existed as of that
further sets forth in writing that Daniels did not return to employment as if he had never
Rather, he lost seniority, had to undergo a probationary period and had all contractual
vacation, set "on the basis of his new date of hire." The evidence establishes that the County
employe attempts to return to work after a resignation on a case by case basis. Beyond this,
evidence undercuts the assertion that the County verbally waives clear contract language.
This poses the Union's assertion of promissory estoppel and its basis in Article 29.
Union asserts, the strength of its argument is that the first sentence of Article 29 permits the
amendment of the agreement "upon the mutual consent of the parties." The second sentence
demands that benefits beyond those stated in the contract be stated in writing, not based on
or informal agreements. Since there was no writing executed in this case, the sole support
Union's position lies in the first sentence of Article 29 and promissory estoppel. The
argument is essentially two-fold. The first is that the parties mutually agreed to return the
to work as if he had never resigned. The second is that the County must be estopped from
that Breneman was unauthorized to commit the County.
Of these arguments, the assertion of promissory estoppel has the most force. The
that the parties mutually agreed to Breneman's response to the Grievant's October 5 phone
ignores that both parties dispute the "agreement." Scott and Roush did not share a common
of the agreement any more than Rude and Arkens did. The Union's rank and file did not
the matter until the vote of November 3, and then apparently split with Roush and Scott.
Enforcement and Personnel Committees were not even consulted. Even ignoring any
issue on who holds the statutory authority to commit the County, it is not clear what the
The significance of this point should not be obscured. The asserted agreement
clear contract language. Such a result should not be based on weak evidence. If, for
seniority rights argued about turned on the return to unit status of a supervisor who left the
become a supervisor, would clear contract language precluding such a result be waivable
through the conversation of one supervisor with one union official? Even if this conclusion
reached, how could it stand against evidence that another union official and the rank and file
Thus, the strength of the Union's case turns on the doctrine of promissory estoppel.
this view, the harm done the Grievant by the County's actions precludes its assertion that
was unauthorized to offer the Grievant anything.
Promissory estoppel is a doctrine imported from the law of contracts into labor
Applied to this grievance, the doctrine demands that the Union meet the following elements
(1) The Employer made a promise to the Grievant which it could reasonably expect to induce
or forbearance on the Grievant's part; (2) the Grievant, in reasonable reliance on the
or refrained from acting to his detriment; and (3) the injustice suffered by the Grievant can
only by enforcing the promise.
This is the most troublesome aspect of the case, but the evidence will not support
this doctrine to the Grievant. Initially, it must be noted that the "promise" asserted is
offer to the Grievant of a return to County employment as if he had never resigned. Only
difficulty can this offer be taken as a promise. Initially, it must be noted that the Grievant
the "promise" by calling Breneman to find out if he could return to work as if he had never
was an offer not from the County, but from the Grievant. In effect, he asked Breneman to
act on his
behalf in bargaining his return to County employment. Breneman willingly and forcefully
did so. It
strains the evidence, however, to see Breneman's conduct as something other than
Grievant's conduct confirms this. The October 8 conversation establishes that the Grievant
Daniels' phone call not as the withdrawal of a promise, but as the basis for further
he and Daniels did not discuss promises, but whether the hoped for result could be achieved
different bargaining tactic, such as characterizing his absence as a vacation or as a leave of
Even if Breneman's offer could be characterized as a promise, the evidence fails to
the County could have expected the Grievant to act based on the promise. As noted above,
Grievant had decided to return to Wisconsin, and called Breneman to secure the most
route back. Breneman's offer did not cause the Grievant to leave Arizona or to decline a job
interview there. At no point in his conversation with Breneman or with Daniels did the
intimate he would remain in Arizona unless he received the wages and benefits he earned
prior to his
resignation. Rather, he attempted from the October 5 conversation through the processing of
the grievance to bargain higher wages and benefits. This is not "action or
forebearance" based on a
promise. He was, understandably, attempting to return to work on the most favorable terms
However, this action did not follow, but preceded, Breneman's offer.
Nor can the final element of promissory estoppel be considered proven. If it is
an employe, having voluntarily resigned, to return to work with less than his former wages
benefits, then the provisions of Article 7 stand as an injustice. The first sentence of that
seniority from the "most recent hiring date." It is not apparent how enforcing that negotiated
provision can be characterized as an injustice. Nor is it immediately apparent how it
to suspend the operation of a negotiated provision. To exemplify the point, it is not apparent
enforcing a similar provision against Daniels, but suspending its operation against the
be characterized as justice.
In sum, the terms of the labor agreement do not support the Grievant's claim. Since
cannot be considered to warrant the application of promissory estoppel, the grievance must
This conclusion can be stated simply, but the record upon which it is based is not
this reason, it is necessary to tie the conclusion more closely to the parties' arguments. The
citation of barron county, ma-9867 (greco, 7/97) is forceful, but does not govern this
That decision supplements a bench award, so the facts of the underlying grievance are not
Nevertheless, the facts cited in the written award establish that it is distinguishable from this
In barron county, the employer acted to prevent an employe from pursuing employment with
another county. Initially, the Barron County's Salary and Personnel Committee voted to
increase the greivant's hours and wages. Barron County did so by proposing a side letter to
effect to the union representing the grievant. The union accepted the offer, and the grievant,
on the offer, cancelled a previously scheduled job interview.
barron county and this case share little in common beyond the superficial similarity
in each case an employe declined a job interview with another employer. Unlike this case,
County initiated the offer deliberately to prevent the employe from leaving county
this case, the County accepted the Grievant's voluntary resignation, then responded to his
return. In barron county, the employer made its offer through a County Board committee to
Union, which accepted the offer. In marked contrast to this case, the Barron County's
Personnel Committee knew . . . that the Union had accepted the offer" (ma-9867 at 2). In
County Board Chairman was chair of that committee. Thus, in barron county, the named
to the labor agreement agreed in writing to a departure from it. There was, then, no doubt
concerning what was agreed to or the authority of the bargaining parties to enter into at least
tentative agreement. Beyond this, relevant County Board committees and the County Board
were fully aware of the tentative agreement. In this grievance, governing County
were kept out of the process. The October 8 conversation between the Grievant and Daniels
the Union and Board Committees less as parties to an agreement than as nuisances to be
the fullest extent possible. Thus, barron county posed issues of "fair dealing" [MA-9867 at
posed here. There is no doubt that parties authorized to negotiate struck a deal in barron
while this grievance poses a significant dispute on the authority of the negotiating parties.
significantly, Barron County acted to change the grievant's behavior. In this case, the
to permit the Grievant to return to work. The sole dispute was his wage and benefit
County did not seek to secure the Grievant's return through Breneman, nor did the Grievant
adherence to Breneman's offer as the price of his return.
Breneman testified that the County broke his word, and his concern on this point is
understandable. The evidence falls short of establishing, however, that the Grievant sought a
of full benefits to return to Wisconsin. Rather, his role in the October 8 conversation
he sought to enlist Breneman's efforts to secure the best wage and benefit package he could.
Breneman was true to his word, and lobbied hard to secure County assent to the wages and
the Grievant would have earned if he had not resigned. From Breneman's and the Grievant's
perspective, the County betrayed an offer. From the County Board's perspective, however,
Breneman exceeded his authority by orchestrating a commitment without Board involvement.
The Union forcefully questions the County's unwillingness to honor the understanding
orchestrated by Breneman through Rude and Roush. The Union's contention that the
relationship has deteriorated cannot be ignored, but offers limited assistance in interpreting
agreement. The evidence indicates that Breneman conferred with employes he expected to be
favorable to his point of view. He does not appear to have asked either Rude or Roush what
contract permitted. Rather, he sought their agreement to an offer he had already responded
to. He did not pursue Scott's concerns when she reacted less than favorably the following
the County's part, Scott and Arkens appear to have behaved in a similar fashion when they
a conflicting agreement. It affords no contractual clarity to attempt to sort through who was
authorized to act for the Union or for the County. Relevant agreement provisions are clear.
of those provisions cannot rest on the uncertain basis posed here.
Most significantly, the doctrine of promissory estoppel cannot persuasively be applied
grievance. If the Grievant had changed his position in reliance on Breneman's offer, the
would be strengthened. The Grievant's testimony establishes, however, that his decision to
to Wisconsin had been made before Breneman's offer. His reaction to Daniels' October 8
confirms this. Thus, the Union's assertion that the Grievant had been "double-crossed"
states the emotional depth of the case, but fails to accurately portray the evidence.
The parties have not stipulated that I should address statutory issues. Thus, whether
Breneman was authorized under Chapter 59 to make the offer to the Grievant plays no role
conclusions stated above. In the absence of the parties' stipulation, arbitral interpretation of
is as likely to raise as to resolve issues.
The stipulated issue poses both contractual issues and the "agreed upon departure"
labor agreement. This does not favor either party's view of the merits of the grievance. The
views the departure from the agreement to be Breneman's October 5 offer to the Grievant,
County views the departure to be the agreement negotiated between Scott and Arkens. The
has implemented that agreement, at least in part. That the County implemented part of the
even after the Union voted to reject it does not establish a promise, as asserted by the Union.
noted above, the Grievant sought to negotiate from the County the most favorable possible
reemployment. The County's implementation of the rejected tentative agreement manifests
than its treatment of Daniels in 1989. In each case, it treated the matter as one requiring a
case evaluation. Here, the Arkens/Scott agreement was one proposal among others. It
the enforceability of Breneman's offer as a promise than how confused this situation became.
Union's attempt to isolate the Breneman offer as the only enforceable part of this convoluted
of negotiations would make it hard to distinguish an enforceable promise from individual
The Grievant waited until the filing of the grievance to seek direct Union involvement. This
be dismissed as an insignificant point, since the grievance asserts rights acquired through
bargaining. His conduct reflects the bargaining reality he perceived. He did not involve the
until it was clear Breneman's efforts on his behalf were going to fall short.
The Grievant seeks to enforce the Breneman offer and uses the County's
part of the offer as a basis to do so. The Award entered below denies the grievance. This
read as a basis to take away any benefit already afforded the grievant. The parties agree that
Grievant is entitled to what he has received. The grievance questions whether he is entitled
The Award addresses only that narrow dispute.
Finally, the venom underlying the parties' arguments is difficult to ignore. The
pitch to the dispute is troublesome. I offer the conclusions stated above to resolve the
issue, not to further fuel the parties' difficulties. To exemplify this difficulty, I note that I
pleasure to work with Charles Rude while he served this, and other, municipal employers. I
high opinion of his reputation and his ability. That opinion cannot, however, bear on this
more than the personal feelings of other participants in this proceeding acquire, standing
contractual significance. Whether I personally approve the course this dispute has taken
to or subtract from what the contract and the evidence permit.
The grievance was timely filed on the Union's part.
The Employer did not violate the collective bargaining agreement and the mutually
upon departure from the collective bargaining agreement.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 21st day of September, 1999.
Richard B. McLaughlin, Arbitrator