BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LACROSSE CITY EMPLOYEES UNION
LOCAL 180, SEIU, AFL-CIO, CLC
CITY OF LACROSSE
(Grievance of Steven Reget)
Davis, Birnbaum, Marcou, Seymour and Colgan, LLP, Attorneys at Law, by
Mr. James G. Birnbaum, on behalf of LaCrosse City
Employees Union Local 180, SEIU, AFL-CIO, CLC.
Mr. Peter B. Kisken, Deputy City Attorney, on behalf of the
City of LaCrosse.
LaCrosse City Employees Union Local 180, SEIU, AFL-CIO, CLC, hereinafter the
requested that the Wisconsin Employment Relations Commission appoint a staff arbitrator to
and decide the instant dispute between the Union and the City of LaCrosse, hereinafter the
accordance with the grievance and arbitration procedures contained in the parties' labor
The City subsequently concurred in the request and the undersigned, David E. Shaw, of the
Commission's staff, was designated to arbitrate in the dispute. A hearing was held before
undersigned on September 11, 1998 and February 11, 1999, in LaCrosse, Wisconsin. There
stenographic transcript made of the hearing and the parties submitted post-hearing briefs in
by April 16, 1999. Based upon the evidence and the arguments of the parties, the
and issues the following Award.
The parties stipulated there are no procedural issues, but could not agree on a
the substantive issues and agreed the Arbitrator would frame the issues to be decided.
The Union would state the issues as follows:
Did the City violate the Collective Bargaining Agreement and past
practice when it failed to pay
the Grievant, a Highway Department employe, for the time between his home and the shop
was recalled for emergency work? If so, what is the appropriate remedy?
The City proposed the following issues:
Did the City of LaCrosse violate the specific terms of the
1998-1999 Collective Bargaining
Agreement by failing to compensate the Grievant when he was called into work from the
Grievant received the telephone call at home to the time he arrived at work on March 9,
1998? If so,
what is the remedy?
The issues to be decided may be stated as follows:
Did the City violate the parties' Collective Bargaining Agreement
when it failed to pay the
Grievant from the time he received the call to come in to work to the time he arrived at
March 9, 1998? If so, what is the appropriate remedy?
The following provisions of the parties' Agreement have been cited:
Matters involving the interpretation, application or enforcement of
this contract shall constitute
a grievance under the provisions set forth below:
. . .
The arbitrator shall not add to, or subtract from the terms of this
. . .
WAGES AND SALARY SCHEDULE
A. Wages and Salary Schedule
The salaries of employees for calendar year
1998 shall be set out on Schedule "A" attached
hereto and made a part of this agreement. Schedule "A" represents a general wage
adjustment in the
hourly rate of 3.0%. Salaries for 1999 shall be set out on Schedule "B" attached hereto and
a part of this Agreement. Schedule "B" represents a general wage adjustment in the hourly
3.0% over Schedule "A". For purposes of implementation the salaries will be effective the
complete pay period in January as applicable.
. . .
RESERVATION OF RIGHTS
Except as otherwise specifically provided herein, the management
of the City of LaCrosse and
the direction of the work force, including but not limited to the right to hire, to discipline or
for proper cause, to decide initial job qualifications, to lay off for lack of work or funds, or
reduction in the level of services, to abolish positions, to make reasonable rules and
governing conduct and safety, to determine the schedule of work, to subcontract work,
the right to determine the methods, processes and manner of performing work, are vested
New rules or changes in rules shall be
posted in each department five (5) calendar days prior to
their effective date unless an emergency requires a more rapid implementation of such rules.
. . .
This agreement is subject to amendment, alteration or addition
only by a subsequent written
agreement between and executed by the City and the Union
wherein mutually agreeable. The waiver of
any breach, term or condition of this agreement by
either party shall not constitute a precedent in the future enforcement of all its terms and
. . .
The following constitutes an Entire Agreement between the parties
and no verbal statement shall
supersede any of its provisions.
The Union represents employes of the City's various departments, including the
Department. For the past two years, Randy Hinze has been the Streets Superintendent and
Grosskoph has been the Assistant Streets Superintendent. Hinze was Assistant
one year before becoming Superintendent and for twelve years before that was in the
in the Streets Department. Grosskoph was in the bargaining unit before becoming Assistant
Superintendent and for twenty-two years was responsible for keeping the time records in
Prior to Hinze becoming Streets Superintendent, the position was held by Dick Smith
approximately six years. Before Smith, the Streets Superintendent position was held by
Gehrig from 1977 to 1990. Before that, Gehrig had been in Streets for fourteen years
as Time Clerk, Assistant Superintendent for three years, and back in the bargaining unit until
in 1970. Before Gehrig, Ambrose Marco had been Streets Superintendent.
The Grievant, Steven Reget, has been employed by the City for over twenty-three
years in the
Streets Department and currently holds the position of Equipment Operator IV. The
regular shift is 7:30 a.m. to 3:30 p.m. and at times he is called in to work outside of his
On March 9, 1998, the Grievant was called in to work early and on his time sheet for that
counted as time worked from the time he received the call to come in early, rather than from
he arrived at work an approximately 25-30 minutes difference. The Grievant filled
out his time
sheet for that day showing 1 ¾ hours of compensatory time worked (9 ¾ total
hours) while his punch
card showed 9 ¼ hours total. The Grievant was only paid for the 9 ¼ hours.
When employes report to work they ordinarily punch in on a time clock and punch
they leave. Employes also fill out a time sheet at the end of each day that states the time
different tasks and equipment and the total hours worked that day. When employes are
called in to
work outside their regular hours they at times do not punch in because they go directly to the
worksite or are in a hurry to get their equipment ready and start working. Again, the
will still be indicated on his/her time sheet. The Assistant Superintendent collects the time
day and reviews them for such things as "out of rate" pay, the hours, and the equipment
and then leaves them for the Account Clerk (the timekeeper) to review and place the data in
computer. The current Account Clerk is Michael LaFleur (who replaced Grosskoph) and he
responsible for billing the time, timekeeping, payroll, etc. LaFleur testified that he normally
review the employes' punch cards or compare them with the time sheets, and has no way of
if the hours stated on the time sheet were actually worked or included time, as in the
from when he first received the call to report to work early.
There is a considerable dispute as to what, if any, practice there has been as far as
point in time an employe is paid when he is called in to work outside of his regular hours.
Grievant and other employes testified that they have always counted their time from when
received the call to come in to work. Others testified that the time starts when the employe
to work/punches in. The Grievant testified that he has always used the time he receives the
his "start" time and that he was told to do so by his supervisor, who was either Smith or
the time, and has never been told it was wrong until now. The Grievant also testified that
is twenty to thirty minutes maximum. While he is aware of what some of the other
employes do in
this regard, he cannot say specifically who does or does not claim the time or what
percentage of the
employes claim the time.
Gehrig testified for the City that he was not aware of anyone claiming time from the
were called and that employes were paid from the time they reported to work. Gehrig
never told the Grievant, or any other employes, to claim that time. Gehrig testified he
employes' time sheets every morning, but rarely reviewed their punch cards, and that he
down with employes after plowing to straighten out any discrepancies.
Both Hinze and Grosskoph testified that when they were called in for emergencies,
claimed the time from when they punched in. Grosskoph testified he has never heard of a
paying from when one receives the call to report to work in all his years in the Department
no employe ever asked him about it during the 22 years he was timekeeper. Hinze testified
policy is that an employe is paid from when he punches in and that there is no practice of
when the call is received. A number of others testified that they had only claimed time from
they reported to work or punched in and never from when they received the call to come in
The Grievant also testified that in early 1997, he was called in to plow and on his
he claimed time from the time he was called. A few days later, he checked his punch card
that the time on his punch card was a half hour less than what he had submitted on his time
He testified that he asked LaFleur who had changed it and was told that Hinze had. When
Grievant asked Hinze why he had changed the time, Hinze told him there was a difference
the his punch card and his time slip. The Grievant testified he then told Hinze he had always
paid for that time and was told by Hinze he would look into it, and that later he was paid for
LaFleur testified that in late 1996 or early 1997, Hinze questioned the Grievant's time sheet
his hours were somewhat higher than everyone else had for the day. LaFleur then checked
Grievant's punch card and noted that there was a half hour difference from the latter's time
LaFleur testified Hinze told him not to pay the Grievant for the time as he wanted to check
Later, when the payroll needed to be submitted, LaFleur asked Hinze what he should do
Grievant's time and, according to LaFleur, Hinze told him to just pay it. Hinze testified that
it is possible such a discussion with the Grievant did occur, he does not recall such a
does not believe it occurred.
The Grievant grieved the City's refusal to pay him from the time he received the call
in early on March 9, 1998. The parties were unable to resolve their dispute and proceeded
arbitration before the undersigned.
POSITIONS OF THE PARTIES
The Union takes the position that this case involves a past practice regarding the
practices in the City's Streets Department for Street employes who are called in to perform
unscheduled emergency work. In that regard, it asserts that past practices are as much a part
collective bargaining process as the express language of the contract. Steelworkers v.
and Gulf Navigation Co., 80 S.Ct. 1347, 1351-1352 (1960). To establish a past practice, it
be demonstrated that it is bilateral, unequivocal, clearly enunciated and acted upon, and
ascertainable over a long period of time. Elkouri and Elkouri, Fifth Edition, at p. 632-633.
case, the record establishes that the practice at issue was bilateral (originated by Supervisor
and acted upon by unit members), unequivocal (no ambiguity as to the practice), clearly
and acted upon (by at least six separate employes), and readily ascertainable over a long
The Union asserts that both the Agreement and past practice requires the City to
the Grievant for the claimed time in this case. The Agreement specifically requires the City
employes the established hourly rates for the time they are performing duties for the City.
Section A. The issue in this case is when the clock starts with
regard to calculating the amount of time for which the employe is to be paid. As the
contract is silent
on the issue of when the clock starts, it is appropriate to consider and review the practices of
regarding its Street employes. In this case, the Grievant and numerous members of the
unit testified that Superintendent Marco and Assistant Superintendent Smith, persons who
the position of either Assistant Superintendent or Superintendent for approximately 15 years,
specifically informed employes that they should claim the time from the time they are called
until they otherwise complete their assigned duties. (Testimony of Reget, Iverson, Thrower,
Tauscher and Theisen.) The City offered no countervailing testimony to the direct statements
by these supervisors. Statements by supervisors who were never called as witnesses constitute
admissions against interest and here are uncontroverted. The only former Superintendent or
Superintendent called as a witness was Gehrig. While he denied the existence of any such
the City's own documents and uncontroverted testimony of the Union witnesses make his
The Union also asserts that the City's own records establish the practice. The
practice for the
City was for employes to submit both handwritten time slips as well as punch cards. The
uncontroverted testimony is that these time cards were regularly reviewed by supervisors for
discrepancies. Despite this careful review, not until the Grievant in this case was any City
who ever claimed that time ever denied pay for it when they were called in.
The City also had specific knowledge of the practice, which is also established by the
of the current Superintendent, Randy Hinze. It is uncontroverted that on March 13, 1997,
Grievant claimed time from when he was called at home to when he otherwise completed his
and submitted a time slip and time card. Those records and the records of a
employe, Amundson, were specifically reviewed by Hinze, who questioned whether or not
Grievant should be paid for that time and he was specifically informed of the practice.
thereafter specifically authorized and approved payment to the Grievant. Further, after the
of hearing, the parties submitted affidavits concerning City payroll records and practices.
submitted an affidavit of Randy Hinze challenging some of the statements and information
in the Union's affidavit of Mike LaFleur, requiring a second day of hearing. While the
produced every witness who testified and was subject to cross-examination concerning the
information contained in Union Exhibit 4 (the affidavit of Mike LaFleur and attached time
the City failed to call Hinze to support his affidavit. Accordingly, his affidavit is hearsay
admissible. Thus, the record is uncontroverted that despite his specific knowledge of the
specific conversation with the Grievant, and a specific conversation with LaFleur, Hinze
specifically authorized payment for the time. It is incredible for Hinze to now testify he was
of the practice.
The argument that the practice was never published in the Agreement or posted on a
board is irrelevant, as it is not required that policies or practices be written. The fact that a
was not memorialized in writing, does not in any way refute the existence of the practice.
The argument that there were some bargaining unit members who were not aware of
practice is also not relevant or persuasive. To establish the existence of a past practice, it is
necessary for the Union to prove that every member of the unit was familiar with the
Knowledge is only required that is attributable to the employer. Further, numerous employes
Streets testified as to their specific knowledge of the practice. Thus, it was not a practice
individual to the Grievant, but covered a significant number of employes in the Department
Finally, while there is nothing inappropriate in the City's desire to alter or modify a
the mechanism for doing so is to address those issues in bargaining. Here, the City is
get a "freebie". The Arbitrator would do a great disservice to the parties and the collective
process by rewarding the City's efforts to avoid its collective bargaining obligations.
In its reply brief, the Union first asserts that it does not recall that at any point during
hearing was the affidavit or Hinze either marked or introduced as an exhibit. To the extent
brief constitutes a post-record attempt to introduce that document, the Union objects on the
that it is hearsay. Despite every opportunity to do so, the City chose not to recall Hinze to
about the content of the affidavit and therefore it is clearly hearsay and inadmissible or
given no weight whatsoever. The Union agrees that there is no specific contract language
specifically states that employes should be paid from the time they are called at home until
otherwise complete their duties. Likewise, there is no specific language in the Agreement
defines the time at which the clock starts to run. Thus, this is precisely the situation where,
ambiguity in the language, it is necessary to rely upon the past practices to determine how
have been paid in the past.
While the City attempts to gloss over the uncontroverted testimony regarding
its own agents as to the existence of the policy, no less than five employes testified as to
informed specifically of the practice by various supervisors. While the City argued that
unaware of the practice, his uncontroverted testimony is that in 1997 when the Grievant
practice to the attention of Hinze, after specifically reviewing and questioning the Grievant's
Hinze told LaFleur that in fact the Grievant should be paid for that time. This is not a case
isolated employe engaging in maverick behavior; rather, it is a clearly articulated standard
from at least four of the City's own superintendents.
The record also establishes that employes relied upon, and acted upon the directions
supervisors in claiming the time. The Grievant, Theisen, Tauscher, Sieber, Iverson and
testified without contradiction that they had routinely and regularly claimed such time over
Similarly, it is undisputed that at all times, other than the circumstances here, no employe
denied payment for the time from the time of the phone call at home until they completed
Employes were aware of and availed themselves of this practice for many years. It was a
practice for those who were aware of it, and who were instructed to claim the time as such.
City's own records establish the existence of the practice. It is undisputed that the
have regularly, routinely and carefully reviewed the time records of employes. The fact that
uncontested that each of the Union's witnesses who testified has received payment for the
time following the submission of time records to the City, charges the City with knowledge
existence of the practice.
The City argues that for the Union to prove its case, it would have to call each
establish that each was aware of the practice in order to prevail. However, the City offers
authority for such a "grandiose burden of proof". Simply because two retired employes were
aware of the practice, in no way takes away from the fact that seven employes were aware of
practice and availed themselves of it. The Union agrees that the practice ought to have been
to all employes and asserts that why the supervisors only informed certain employes of the
is unexplained and it is unfair. However, the unfairness and negligence of supervisors to
disclose the existence of the practice should in no way deny the Grievant his entitlement to
under the practice of which he was informed, and under which he had previously been paid.
It is not
the Union's duty or obligation to monitor the individual payroll requests of each individual
The only way the Union becomes aware of the existence of a concern or dispute is when an
brings it to the Union's attention. In contrast, the City's supervisors, as part of their
responsibilities, regularly and scrupulously review and question time card submissions. The
should not be rewarded for its own negligence.
Finally, the City's argument that review of the time records by LaFleur only
examples in the past of where the practice was engaged in is irrelevant. It is uncontroverted
Grievant and other employes did not make a claim for the time from when they were called
each time they were called in. Rather, the practice at issue here is those occasions when the
does make the claim. Second, it is not frequent that employes are called out on emergency
Hence, the number of instances in which the practice was engaged in would not be a
number. Moreover, the review of the time records by LaFleur only went back six years,
witnesses indicated that the practice has been ongoing for over the past 20 years. The
issue, is that in the Streets Department, when employes make claims for the time from when
called until the time
they are otherwise finished with their duties, they are paid, and the City has failed to
example where an employe who made such a claim was denied payment. Thus, the Union
presented a "virtually unchallenged" record of the existence of a past practice which is clear
consistent with regard to those who have claimed the time and were paid for it. The City
aware of the existence of the practice and specifically affirmed it with the Grievant
year before the instant grievance arose. Thus, the grievance should be granted.
The City asserts that the grievance should be denied because the facts indicate that
Agreement does not provide for "travel time pay" and the testimony presented does not
past practice of paying Street employes such pay.
The clear language of the Agreement does not support the Union's argument that the
should be paid from the time he is called at home for after-shift work, rather than the time
at the shop. The City cites as relevant provisions of the Agreement the provision that the
should not add to, or subtract from, the terms of this Agreement in Article II
Article XIX Reservation of Rights; Article XXV Amendment Provision; and
Entire Agreement. Nothing in the Agreement indicates that Street employes are to be paid
time they receive a phone call at home to report for emergency work. While past practice is
frequently used to establish the intent of ambiguous contract provisions, it is not ordinarily
give meaning to a provision that is clear and unambiguous. Phelps-Dodge Copper Products
Corporation, 16 LA 229, 233 (1951). Here, the language is clear and explicit and the
should be denied.
The testimony does not support the Union's contention that there is a past practice of
Street employes in the manner asserted. The City cites arbitral authority as to the
establishing a past practice and asserts that a party relying on past practice to prove its case
establish the existence of the claimed practice by "strong proof". Thus, to prevail in this
Union must demonstrate strong proof of a clear, consistent, long-standing and mutual
paying Street employes in the manner asserted. The Union has failed to do so. The
most of the Union witnesses, was unable to document which, if any, Street Department
Superintendent told him to claim this extra time. He simply recalls that "no supervisor ever
was wrong". He is similarly vague as to whether other employes in the Department claim
time, but is aware that there is no written policy providing for such. The next Union
LaFleur, is the current Account Clerk in the Street Department, and is in charge of payroll.
testified that in the eight years he has worked as a driver in the Department, he never
time" and is not aware of the
practice of paying for such time. Further, no Street superintendent ever indicated to
him that there
is such a policy or practice and he testified that if he thought he was entitled to the pay, he
have claimed it.
LaFleur's testimony is significant. He was directed by the Union to review all of the
records of its witnesses from 1993 to present in order to find all of the instances in which an
claimed, and was paid for such travel time. Out of the thousands of time cards he reviewed,
found only four instances in which an employe was compensated in the manner asserted. Of
Theisen admitted on cross-examination that the Union was in error regarding his claimed
and the other three instances were convincingly dismissed by Hinze's rebuttal affidavit.
Union witness Thrower testified that former Superintendent Gehrig told him to claim
from the time he was called at home, however, Gehrig unequivocally testified that employes
paid from the time they arrived at the shop and not when they were called at home. He
testified there was no policy or practice of paying employes from the time they were called
he was never aware it was done and had never heard of it being done. If anyone would have
about this issue, it would be Gehrig, as he was employed by the Street Department in a
positions from 1956 through 1970, and as Superintendent from 1977 through 1990.
Union witness Tauscher testified that he claimed the time from the time he was
called, but that
no one had instructed him to do this. Rather, he thought that "everyone" did it, but testified
talked to any other drivers or supervisors regarding the matter. Union witness Iverson also
he thought all the other drivers were claiming this pay, and that he did not know of anyone
not claiming such pay, even though he conceded that no Street superintendent had ever told
do so. His testimony is not supported by the study done by LaFleur, or by the relatively
number of Union witnesses called to testify in this case. If every driver in the Department
claiming this pay, why did not every driver testify in that regard? The claimed past practice
reality, a "bog of contradictions, fragments, doubts and one-sided views."
A practice provides no guide where evidence regarding its nature and duration is
contradictory. The bulk of the Union's testimony consists of mere general statements
reference to specific names or dates. Where names have been mentioned, those individuals,
though available, were not called by the Union. It is well established that a past practice
may not be
established by mere general statements without references to names or dates. In contrast,
witnesses presented testimony that was clear, credible and concise. Gehrig, a former
testified that all employes were paid from the time they reported at the shop, rather than
were called at home. Retired Streets employe Athnos testified that he worked in the
28 years and was often called in after his
shift to plow or sand, but that his time started when he arrived at the shop, not when
he was called
at home. No Streets superintendent had ever indicated to him that he was to claim the time
when he was called at home during his lengthy employment with the Department. Retired
employe Bartz testified that he had worked in Streets for over 11 years and was called in
shift to plow or sand, and that it was his clear understanding that his time started when he
the shop, not when he was called at home, and that there was no practice of commencing
the time of the call. Bartz testified he was not aware of other employes who claimed this
and that if others did claim such time, he would have known of it based on his conversations
employes. The testimony of Gehrig, Athnos and Bartz is particularly credible in that these
employes who do not have any special allegiance to the City.
Another City witness, Grosskoph, has been in the Streets Department for 27 years
which period he drove, kept time records for 22 years, and has been the Assistant Street
Superintendent for two years. He worked under four Street Superintendents, including
Gehrig, Smith and Hinze, and testified that there was never a practice to pay Street employes
the time they received a call at home for emergency work, and that he had never heard of
practice. Hinze testified that he has worked for the Department for 15 years and is the
Superintendent, and was employed as the Assistant Superintendent under Dick Smith. He
that employes get paid from the time they arrive at the shop, and that he has never heard of
employes from the time they receive a call at home. Hinze also submitted an affidavit which
introduced into evidence and serves to rebut the testimony of the Union witnesses. Pat
Director of Public Works, has been employed by the City in a variety of managerial
approximately 23 years. As Director of Public Works, Caffrey oversees the Streets
he testified that if there had been a practice of paying employes from the time they were
home for after-shift work, he would be aware of it, but that there is no such practice and he
heard of it being done. The City's final witness, James Geissner, Director of Personnel,
he is familiar with the various past practices in the Streets Department and researches those
before negotiating each contract. He testified that there is no such practice regarding travel
that this is the first he has heard of such an alleged practice.
Based on the testimony, it is clear that the Union has not met its burden of presenting
proof" of the existence of the past practice asserted by the Grievant. Testimony revealed that
employe was paid from the time he left his home, it was done so inadvertently, and certainly
meet the tests of consistency and longevity required to establish a practice. Further, when
was made aware of this issue, management was surprised and was not aware of any such
Thus, the alleged practice was not mutually acknowledged by the parties, but was rather, if
all, unilaterally enacted without management's knowledge by a few employes in a sporadic
Finally, the result argued
for by the Union would produce a profoundly inequitable and nonsensical result, i.e,
only a few
drivers would receive the pay from the time they are called at home for emergency work,
other drivers would not receive such pay because they are unaware of the practice. If a
exists for one driver, it should exist for every driver, particularly when a monetary benefit is
The Union's argument in this case that each driver is on his own with respect to pay,
In its reply brief, the City disputes that the Grievant could recall which, if any,
Superintendent told him to claim the time; rather, he simply recalled that "no supervisor ever
was wrong". The City also disputes the Union's factual claims regarding several other
witnesses. Iverson testified that no Streets Superintendent ever told him to claim travel time,
employe Tauscher testified that he never talked to any supervisors regarding travel time. On
cross-examination, employe Theisen testified that the Union was in error as to the alleged
example of his
having claimed travel time, and that it was not in fact travel time. Employe Thrower
former Superintendent Gehrig told him to claim travel time, however, Gehrig testified that
not the case. Finally, employe Sieber testified that former Superintendent Smith told him to
travel time, however, the Union failed to call Smith as a witness to support that testimony,
though Smith was available at the time and living in the area. Thus, the hearsay evidence
rejected. While the Grievant testified he has for the last 17 or 18 years claimed the time
he was called at home, that simply is not credible. LaFleur reviewed the payroll records of
Union witnesses from 1993 to present to find all of the instances in which an employe
was compensated for travel time and found only four in which an employe was compensated
manner asserted. One of those instances regarding the Grievant, March 13, 1997, has been
The City completely disagrees with the Union's version of the facts regarding
1997. Hinze testified he never heard of travel time before the current grievance, and that he
talked to LaFleur regarding the March 13, 1997 incident. Hinze also stated in his rebuttal
that the Grievant told him that he had worked 14 hours on March 13, and therefore he was
14 hours. Had the Grievant indicated to Hinze that a portion of the 14 hours was for travel
Hinze would not have paid him for that time. While the Union argues that the Hinze
constitutes hearsay and should not be admitted, that affidavit is part of the record in this
case. At the
close of the first day of hearing, the Union requested additional time to review Street
time records, and the parties agreed to submit additional exhibits in that regard, and, if
present rebuttal testimony. The Union submitted the affidavit of LaFleur with attached
the City submitted an affidavit of Hinze to rebut the LaFleur affidavit, and at that time those
became a part of the record in this case. For some unknown reason, the Union chose to
testimony which simply was what was already contained in the LaFleur affidavit, and
chose not to call
Hinze to test the validity of his affidavit. To suggest that Hinze's affidavit is hearsay simply
the City chose not to call him as a witness at the rebuttal hearing is invalid.
The City also disputes the Union's claim that Marco and Smith informed Union
they should claim the time from the time they are called at home and that the City offered no
countervailing testimony to those statements. Former Superintendent Marco is deceased, and
the City witnesses, some of whom were drivers under Marco and Smith, testified that they
heard of travel time pay. Grosskoph specifically testified that he worked under both Marco
and had never heard of a policy that drivers receive travel time pay. Hinze stated that he
under Smith at one time and that he spoke with Smith in preparation for this hearing, and
latter stated that he had never heard of travel time pay.
The City also disputes the assertion that its records establish a past practice of paying
time. LaFleur reviewed all of the payroll records of all of the Union witnesses and was only
find three time cards in which an employe claimed travel time and those time cards were
by the affidavit of Hinze, and none were actually for travel time pay. The City also disputes
assertion that the testimony of former employes who stated that they were unaware of such
is irrelevant. Past practice is defined as a pattern of prior conduct consistently undertaken in
recurring situations so as to evolve into an understanding of the parties that the conduct is the
appropriate course of action. If certain Street employes testified that they have never heard
a practice, it is certainly not well established, nor is it a clear or a consistent pattern of
City concludes that the Union has not met its burden of presenting strong proof of the
any past practice of paying travel time, and asks that the grievance be denied.
The Union relies on past practice to support the Grievant's claim that he is entitled to
from the time he receives a call to report in to work outside of his regular work hours.
the moment that Article 25, Amendment Provision, and Article 28, Entire Agreement, do not
preclude the binding effect of such a practice, the first matter to be addressed is whether the
has established the existence of the practice it claims. As both parties note, to establish a
practice it must be shown that the practice is unequivocal; clearly enunciated and acted upon;
readily ascertainable over a reasonable period of time as a fixed, and established practice
accepted by the parties mutual acceptance may be tacit. Elkouri and Elkouri,
Works, Fifth Edition, pp. 632-33.
In this case, the Union has presented the testimony of the Grievant (Steven Reget),
employes Thrower, Sieber, Tauscher, Iverson and Theisen that a practice has existed for
in the Streets Department of paying employes from the time they receive the call to report to
outside of their regular hours. The Grievant's testimony in this regard has previously been
summarized. A summary of the other employes' testimony follows.
Thrower has been in the Streets Department seven years and testified that he has
claimed the time from when he was called when he has been called in from home, that he
by Gehrig to do so and that he has always claimed it, and been paid for it. Thrower also
does not know who does or does not claim the time, but knows a few employes that do it.
lives ten to fifteen minutes from the Shop.
Sieber, an employe with 25 years in the Streets Department, testified that the first
time he was
called in to work outside of his shift he asked his supervisor what he should put down for a
time and was told by his supervisor at the time, Smith, to put down the time he was called.
testified he has always done so since then and has never been told it was wrong. Sieber also
he does not know what other employes do, but in his view, everyone does it differently.
Tauscher, now in the Parks Department, but having been in the Streets Department
to 1994, testified that he always claimed the time from when he was called when called in
emergencies. He could not recall who had told him to do it that way, except that it had not
supervisor, and it was his understanding that everyone did it that way.
Iverson has been in the Streets Department over 24 years and testified he has always
time from when he is called when called in, and that as far as he knew until this case,
always claimed from the time they are called and been paid for it. Iverson testified he did it
the first time because that is the way other employes were doing it.
Theisen testified he has worked in the Streets Department from 1966 to 1976 and
to the present and that he has claimed the time from when he is called each time he has been
in to plow hundreds of times over the years. He testified he was told to do so by
then-Superintendent Marco and that is the only supervisor who told him to claim the time
from when he
is called. Theisen testified he began working nights in the early 1980's and did so until
he would not have been "called out" during that time except on weekends or holidays.
In addition to those employes, LaFleur, the Account Clerk who followed Grosskoph
position, testified he has been in the Streets Department for eight years and has been called
in to drive
at times. LaFleur testified that he does not claim the time from when he receives
the call and that he was not aware of any practice of paying employes from that time,
other than one
instance where the Grievant was paid that time in 1996 or 1997. LaFleur also testified that
generally only reviews the time sheets filled out by employes, and not their time cards that
in and out, so that he would not be aware if employes were claiming time from when they
as opposed to when they reported to work. LaFleur further testified that based on his
with other employes, everyone does it differently.
In addition to Gehrig, Hinze and Grosskoph, the City also called two former
employes of the
Streets Department, Athnos and Bartz. Athnos, now retired, but who was employed in
28 years, testified that his understanding had been his time started when he punched in when
called in to plow or sand, and that he had never been told by a supervisor that the time
he was called. He also testified that he does not know what other employes did in that
testified he worked in the Streets Department 11 or 12 years and that he was not aware of a
of paying from the time one is called when called in. He testified that it was his
one is paid from the time they punch in.
LaFleur testified he reviewed the time records from 1993 to February, 1999 for the
who testified for the Union that they claimed the time from when they received the call to
work. That review resulted in four instances where LaFleur concluded employes were paid
time they were called: the Grievant, on March 13, 1997, and January 13, 1993, Tauscher
21, 1993 and Theisen on November 26, 1993 (a holiday).
Contrary to the Union's assertion, all of the Union witnesses who testified that they
the time from when they were called when called in for plowing, sanding or salting, testified
so every time they have been called in for that work (except the one time Sieber stopped to
neighbor that was stuck). LaFleur's review of their time records, resulting in at most, four
instances, contradicts their claim in that regard. It is a reasonable assumption that those
who testified for the Union were called in for work outside their regular hours an aggregate
more than four times in the six year period LaFleur reviewed.
Crediting the testimony by the Union's witnesses, that testimony at most, established
some employes have at times claimed, and have been paid for, the time from when they are
when called in outside their regular work hours, and that other employes have not claimed or
they were entitled to such time. Contrary to the Union's assertion, a "practice" that is only
and engaged in some of the time by some of the employes who are covered by the same
circumstances, is neither unequivocal, nor clearly enunciated, nor "fixed". Therefore, the
fails to establish that what has occurred at times in the past
rises to the level of a binding past practice. That being the case, it is unnecessary to
Articles 25 and 28 would preclude the establishment of a binding practice. It is also
address several evidentiary issues raised in the proceeding.
The parties' Agreement being silent as to the payment claimed by the Grievant, and
having failed to establish the existence of a consistent practice of paying employes from the
are called when they are called in to work outside of their regular work hours, it is
concluded that the
City did not violate the parties' Agreement when it did not pay the Grievant for the time
he received the call to come in to work until he arrived at work on March 9, 1998.
Based upon the foregoing, the evidence, and the arguments of the parties, the
makes and issues the following
The grievance is denied.
Dated at Madison, Wisconsin this 24th day of September, 1999.
David E. Shaw, Arbitrator