BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF RICHLAND CENTER
RICHLAND CENTER POLICE DEPARTMENT,
LOCAL 2085-A AFSCME, AFL-CIO
Boardman, Suhr, Curry, & Field, Attorneys at Law, by Mr. Steven C.
Zach, Fourth Floor, One
South Pinckney Street, P.O. Box 927, Madison, Wisconsin 53701-09827, appearing on
behalf of the
Mr. David White, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, 8033 Excelsior
Drive, Suite B, Madison, Wisconsin 53717-1903, appearing on behalf of the Union.
The City of Richland Center, hereinafter referred to as the City, and the Richland
Police Department, Local 2085-A, AFSCME, AFL-CIO, hereinafter referred to as the
parties to a collective bargaining agreement which provides for final and binding arbitration
grievances. Pursuant to a Request for Arbitration the Wisconsin Employment Relations
appointed Edmond J. Bielarczyk, Jr., to arbitrate a dispute over the transportation of
Hearing on the matter was held in Richland Center, Wisconsin on June 11, 1999. Written
were received by the undersigned by June 30, 1999. Full consideration has been given to the
evidence, testimony and arguments presented in rendering this Award.
During the course of the hearing the parties where unable to agree upon the framing
issue and agreed to leave framing of the issue to the undersigned. The undersigned frames
"Did the City violate the collective bargaining agreement when it
terminated the practice of
transporting employes between their residence and the Police Department?"
"If so, what is the appropriate
The City and the Union have been parties to a number of collective bargaining
over twenty (20) years the City has, for employes that requested it and who resided within
Limits, provided transportation to and from work. Usually, the police officer going off duty
pick up the police officer going on duty approximately fifteen minutes prior to the start of the
so the police officer would be at their work position five (5) minutes prior to the start of
The police officers would use the time driving to and from the work place to brief each other
over any special orders for the shift. In November of 1998 the Department moved into a
Prior to the move the Department was located in downtown Richland Center and there was
parking available. The new facility is located outside the downtown area and has ample
December 14, 1999 Chief of Police Craig Chicker posted the following notice:
"All officers will provide their own way to and from work,
parking is provided, i.e., officers will
not be picked up or transported home."
Thereafter a grievance was filed and processed to arbitration in accord with the parties'
procedure. The record also demonstrates that approximately one year prior to the change the
informed the City that employes would no longer be "giving time" by being picked up fifteen
minutes prior to the start of their shift. Thereafter the City began picking up police officers
to ten (10) minutes prior to the start of the shift.
The Union contends the transportation practice constitutes a binding past practice.
The Union points out it
was unequivocal, clearly enunciated and acted upon, and readily ascertainable over a
period of time. The Union asserts that there is no claim by the City that the practice was in
way equivocal being used by Chief Chicker himself when he was a bargaining unit employe.
The Union also argues that the underlying basis for the practice has not changed.
Union argues there is
no basis the practice was based upon limited parking at the old facility or that there are no
briefing sessions in the vehicles. The Union also points out that the practice was in existence
to Chief Chicker's hiring in 1972 and that there is no evidence there ever was a parking
at the old facility. The Union also asserts that although a representative objected to not
pay when reporting fifteen (15) minutes prior to the shift, that from that day on employes
longer required to report fifteen (15) minutes early, the practice of transporting employes still
continued. The Union further points out that Police Officer Daniel Pepich and Captain
Kropp testified the briefing of police officers still continued after the change was made to
transport closer to shift start times.
The Union concludes that the practice is long standing and well understood, and, that
the City failed to
demonstrate that the basis for the practice had changed. The Union would have the
direct the City to reinstate the practice.
The City does not dispute the existence of a practice of transporting police officers to
and from work. Nor
does the City dispute that the practice was unequivocal, enunciated and acted upon over a
of time. The City does contend that the circumstances which gave rise to the practice have
changed and therefore the City can unilaterally discontinue the practice. The City points out
retired Captain Jack Bauer and Chief Chicker testified one of the reasons for the
officers was to facilitate briefing and that another reason was that there was limited and
parking. The City asserts both of these underlying factors no longer exist.
The City stresses that per the Union's demand, employes are no "giving time" to the
being picked up and briefed fifteen (15) minutes prior to the start of the shift. The City
has resulted in briefing being done "on-shift" rather than in the squad car. The City also
that new facility has ample parking and a lot that restricts public access.
The City concludes that when the Chief discontinued the practice of transporting
police officers to and from
duty he did so because the underlying factors for the practice no longer existed. The City
the factual record and arbitral law concerning past practice require a denial of the grievance.
There is no dispute that there existed a practice concerning the transportation of
officers to and from work. The fundamental question therefore is did the underlying factors
gave rise to the practice change. Retired Captain John T. Bauer testified that when he
working for the City as a meter person on January 1, 1964, he was aware of the practice of
transporting police officers to and from work and he knew it was a benefit. When he
a sworn officer two (2) months after he was hired as meter person, he took advantage
of the practice
and continued to use the practice until he retired in April of 1995. Although Bauer testified
thought the practice was primarily used for briefing purposes, the practice was already in
when he commenced working for the City. The record does not contain any evidence which
demonstrate Bauer knew how the practice started or why it was started.
The record also demonstrates then when Chief Chicker was initially hired by the City
on April 1, 1972, the
practice had already been in existence for at least eight (8) years. The record does not
evidence which would demonstrate the Chief knew how the practice started or why it started.
Therefore, the undersigned finds, the City's contentions that the underlying factors
establishing the practice
were briefing time and lack of parking, while reasonable presumptions, to be mere
The undersigned concludes that the City has failed to demonstrate what the underlying factors
were for the establishment of the practice. While conditions have changed over time, there
conclusive evidence which would demonstrate that the factors the practice was based upon
changed. The undersigned therefore finds, based upon the above and foregoing, that the
unilateral termination of the practice violated the parties' collective bargaining agreement.
City is thus directed to reinstate the practice. If the City desires to terminate the practice it
so by providing the Union with written notice that the practice would terminate when the
collective bargaining agreement does.
The undersigned would note here that nothing herein should be construed that would
mandate that the City
not reinstate the practice in its entirety as it existed prior to the change sought by the Union
("giving time") a year and a half ago. The practice is not a mandate but at the employes'
the employe resided in the City. Thus the City can reinstate the practice as it existed prior
change. If the employe does not want to "give time" the employe does not have to
the practice. If the Union does not want employes to "give time" it can also seek to change
practice by giving written notice when the collective bargaining agreement terminates.
The City violated the collective bargaining agreement when it terminated the practice
transporting employes between their residence and the Police Department. The City is
reinstate the practice.
Dated at Madison, Wisconsin this 25th day of October, 1999.
Edmond J. Bielarczyk, Jr., Arbitrator