BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
JACKSON COUNTY PROFESSIONAL
(Mach Squad Car Grievance)
Mr. Richard Thal, General Counsel, Wisconsin Professional
Police Association/LEER Division, 340 Coyier Lane, Madison, Wisconsin 53713, appearing
on behalf of the Association.
Mr. Alan Moeller, Corporation Counsel/Personnel Director,
Jackson County, 307 Main Street
Black River Falls, Wisconsin 54615, appearing on behalf of the County.
Jackson County Professional Police Association and Jackson
County are parties to a collective
bargaining agreement that provides for final and binding arbitration of disputes arising
The Association made a request, in which the County concurred, for the Wisconsin
Relations Commission to appoint a member of its staff to hear and decide a grievance
interpretation and application of the terms of the agreement relating to the use of squad cars.
Commission designated Stuart Levitan to serve as the impartial arbitrator. Hearing in the
held in Black River Falls, Wisconsin on March 25, 1999; it was not transcribed. The
written arguments on June 7 and August 13; the County filed written argument on July 20,
The Association states the issue as follows:
"Did the County violate the parties' collective bargaining
agreement when it unilaterally
discontinued the practice of allowing the grievant to drive a squad car to and from work? If
is the appropriate remedy?"
The County states the issue as follows:
"Is the employer's provision of a squad car
a bargain benefit or within the management rights of
the County and if so, is the County required to provide a squad car to deputies if the
performing light duty, reasonable accommodation, temporary, transitional duty?"
I frame the issue as follows:
"Did the County violate the parties'
collective bargaining agreement when it denied the grievant
use of a squad car for commuting purposes during the period he was on light duty? If so,
the appropriate remedy?"
This Agreement is made and entered into by and
between Jackson County, Wisconsin,
a Municipal Corporation, hereinafter called the "Employer," and the Law Enforcement
Relations Division of the Wisconsin Professional Police Association, for and on behalf of the
County Professional Police Association, hereinafter called the "Association."
ARTICLE I RECOGNITION
Section 1: The
Employer hereby recognizes the Association as the exclusive
bargaining agent for the purpose of conferring and negotiating on questions of wages, hours,
conditions of employment and the adjustment of employee complaints and employee
for all regular law enforcement employees employed in the Sheriff s and Traffic Departments
Jackson County, excluding the Sheriff, the Undersheriff, supervisory employees above the
sergeant, clerical employees, temporary and all other employees.
ARTICLE II - MANAGEMENT RIGHTS
Section 1: Except to the extent expressly
abridged by a specific provision of this
Agreement, the County reserves and retains, solely and exclusively, all of its Common Law,
Statutory, and inherent rights to manage its own affairs. Such rights include, but are not
direct all operations of the County;
B. To establish work rules and schedules of work;
C. To hire, promote, transfer, schedule and assign
employees in positions within the
D. To suspend, demote, discharge and take other
disciplinary action against
E. To relieve employees from their duties;
F. To maintain efficiency of County operations;
G. To take whatever action is necessary to comply with
State or Federal law;
H. To introduce new or improved methods or
I. To change existing methods or facilities;
J. To determine the kinds and amounts of services to be
performed as pertains to
operations; and the number of positions and kind of classifications to perform
K. To contract out for goods or services;
determine the methods, means and personnel by which County operations are
to be conducted;
M. To take whatever action is necessary to carry out the functions of the
situations of emergency.
Nothing herein contained shall divest the
Association from any of its rights under Wisconsin
Statutes, Section 1 1 1.70 as amended.
ARTICLE III - GRIEVANCE
Section 1: A grievance is defined as any
difference or dispute regarding the
interpretation, application or enforcement of the terms of this Agreement. The grievance
shall not be used to change existing wage schedules, hours of work, conditions and fringe
. . .
Section 4 Steps in the Procedure:
. . .
STEP 3: Any grievance which cannot be
settled through the above procedure may be
submitted to final and binding arbitration as follows:
The parties shall first attempt to
mutually agree on the selection of a Wisconsin
Employment Relations Commission (WERC) staff member to serve as arbitrator. If the
unable to agree, the WERC shall appoint a member of its staff to serve as arbitrator. The
of the arbitrator shall be limited to the subject matter of the grievance. The award of the
shall not add to nor delete from the express terms of the contract. Both parties shall share
the costs and expenses of the arbitration proceedings, if any, including transcript fees and
fees of the
. . .
ARTICLE XX - DURATION AND EXECUTION
Section I - This Agreement shall be binding and
full force and effect from January 1, 1997
through December 31, 1998.
Section 2 In the event the parties to this
Agreement have not agreed to a subsequent
Labor Agreement by the expiration date defined above, this Agreement shall continue in full
effect until a new Agreement is reached. Conferences and negotiations shall be carried on
the County and the Association as follows:
Step I - On or before July 15th of the expiration year of this
Agreement, the Association shall
notify the County of an intent to open the Agreement for negotiations on a Successor
Step 2 - The parties shall commence
bargaining at a mutually agreeable date and time.
Written proposals shall be exchanged at the first bargaining session.
Step 3 - The parties shall attempt to begin
bargaining no later than September 15th of the
expiration year of the Agreement.
This timetable is subject to adjustment by mutual
written agreement of the parties
consistent with the progress of negotiations.
. . .
ARTICLE XXII - ENTIRE MEMORANDUM OF
This Agreement supersedes the previous Agreement
between the County and the
Association, and constitutes the entire Agreement between the parties. Any amendment or
Agreement supplemental hereto shall not be binding upon either party unless executed in
the parties hereto.
The parties further acknowledge that
during the negotiations which resulted in this Agreement, they each
had the unlimited right and opportunity to make demands and proposals with respect to any
subject and that the
understandings and agreements arrived at by the parties after the exercise of that right and
opportunity are set
forth in this Agreement. Therefore, the County and the Association for the life of this
voluntarily and unqualifiably waives the right, and each agrees that the other shall not be
obligated to bargain
collectively with respect to any subject or matter referred to or covered by this Agreement
mutually agreed by the parties.
If a law is changed that makes a
change in this Agreement necessary, the parties may negotiate with
respect to such changes.
ARTICLE XXIII - UNILATERAL
Rights claimed in this Agreement shall be consistent with
those rights and responsibilities conferred upon
the Employer and the Association by applicable State and Federal Statutes.
Nothing contained in this
Agreement shall be interpreted as granting to either party hereto authority to
unilaterally establish any matter which is subject to collective bargaining pursuant to
Christian J. Mach, the grievant, has been a Jackson County Sheriff's Department
Officer since June 1985. This grievance concerns the aftermath of a work-related injury (a
anterior cruciate ligament behind his right knee) he suffered while chasing a suspect through
wooded area on March 30, 1998.
Following the injury Mach was placed on light duty for approximately ten weeks
22), during which time he continued to drive his assigned squad car to and from work while
performing the light duty assignments. Mach underwent surgery for the torn ACL ligament
23, and was thereafter provided with worker's compensation in the form of temporary total
Mach returned to work on October 6, 1998, performing clerical work in the
in the Jackson County courthouse adjacent to the Sheriff's Department. He worked his full
this way (other than when he was at physical therapy once a week), and continued to wear
uniform and weapon.
At some point during the fall of 1998, Sheriff Richard Galster read a magazine article
officer safety and employer liability which lead him to question the policy of allowing
light duty to continue to drive their squad cars. Accordingly, he determined on his own
establish a new policy under which deputies would not have use of a squad car unless they
full duty without restrictions.
Upon his return to work on October 6, 1998, Mach was informed that he would no
be allowed to use his squad car to commute to and from work. Mach and the Association
the matter, alleging that "this type of practice has been allowed for 15 plus years it
is taking benefits
from a patrol deputy's wages."
On October 16, 1998, Chief Deputy Dennis Blanchard replied to Mach's as follows:
The bargaining agreement does not provide, nor does it address,
use of patrol vehicle while
traveling to and from work. The vehicle is assigned to employees performing patrol duties,
investigations and to some supervisors. Department policy does not provide for use of
vehicles to travel to and from work unless the employee is so assigned. Other department
not assigned to patrol duty, are not provided with a vehicle to travel to and from work.
You are on medically restricted work
assignment and cannot perform the duties outlined in the
deputie's (sic) job description. Your travel, in uniform, in a marked patrol vehicle, places
you in the
position of having to involve yourself in a situation contrary to that restriction. This places
jeopardy of further injury, and probable inability to serve the public, which would expect
respond to that situation. That places the public at further risk as well.
We have a responsibility for your safety, especially under your
current medical restriction, to not
place you at risk for further injury. We have an expectation by the public to respond to a
obviously requires law enforcement action, not driving past without a response.
Conclusion: Use of department vehicle to
travel to and from work will not be permitted until you
have been medically cleared to return to unrestricted duty status.
On October 30, Mach responded to Blanchard, in part, as follows:
.During the time I was on light duty I was allowed use of my
squad car to travel to and from
work as has been past practice of the Department as long as I remember. Other deputies who
on light or restricted duty and still allowed to use their squad car to travel to and from work
been Deputy Bue, Deputy Haldeman, Deputy Christman, Deputy Holman, Deputy Berry and
learned others has as well prior to my employment in 1985.
Prior to Galster's reading the magazine article and ordaining the new policy, deputies
routinely allowed to use their assigned squad cars for commuting purposes during periods
were on restricted light duty. From December 22, 1997 to January 8, 1998, Deputy Melvin
his assigned squad car on 15 occasions to commute to duty as a dispatcher while recovering
knee surgery. From June 5 to June 28, 1997, Deputy Charle Berry used his assigned squad
commute to his light duty assignment following an leg injury. Mach himself had previously
assigned squad car to commute to light duty assignments following injuries in 1990 and
was also allowed to keep his squad car at his residence for several months in 1992-93 while
extended sick leave/worker's compensation.
On January 28, 1999, Mach was performing his light duty assignment, in full
uniform, at the
department when he was directed by a supervisor to drive the supervisor's marked squad car
from an auto body shop in Black River Falls for a headlight alignment.
POSITIONS OF THE PARTIES
In support of its position that the grievance should be sustained, the Association
avers as follows:
The County violated the parties' collective bargaining agreement
when it discontinued the
established practice of allowing deputies working a light duty assignment to drive a squad car
Because the use of a take-home vehicle is part of a compensation
package, it is a benefit that falls
within the scope of wages and benefits and is therefore a mandatory subject of bargaining.
the county may not unilaterally discontinue its provisions. Even in the absence of contractual
language providing officers with take-home vehicles, and established practice of providing
becomes a condition of employment which is binding on the parties. The arbitrator should
employer's claim that it had the management right to unilaterally terminate the practice.
It is also significant that courts and
commissions have found this to be a mandatory subject of
bargaining. In Wisconsin, it is well settled that a benefit which is a part of a compensation
is a mandatory subject of bargaining. Consequently, the employer did not have the
to unilaterally discontinue the provision of this benefit. The evidence shows that a binding
of allowing deputies on light duty to use take-home squad cars existed, making the
to allow the grievant to use his squad car to drive to and from work a violation of the
The hearing testimony established that the
Sheriff discontinued the practice after reading a
magazine article about the potential liability concerns for the department. Whether or not the
County's stated concerns were legitimate and genuine (points on which the record does not
the County's position) is irrelevant; the County simply cannot unilaterally discontinue the
because if fears there may be injury or lawsuits.
The grievance should be sustained and the
County ordered to pay the grievant $456.75,
representing 75 days of light duty, a 21-mile commute and a reimbursement rate of
In support of its position that the grievance should be denied, the County asserts and
A deputy's use of a squad car to commute is not a benefit
enforceable under the collective
bargaining agreement, as it is precluded by the agreement's "zipper clause" that nullifies any
alleged past practices.
If a deputy's use of County owned squad
cars to commute to work is not precluded under the
"zipper clause," the usage still does not give rise to an established "past practice." The
mutually agreed to and accepted
the practice of County owned squad vehicles being provided to
patrol deputies in order for them
to travel to and from their place of residence but rather the provision was unilaterally and
implemented by the County and therefore a binding past practice does not exist.
The Union seeks to have the alleged
"practice" supplement the collective bargaining agreement
so as to be binding on the parties and become an enforceable condition of employment.
party wished to clothe a course of conduct with contractual status, that practice must reflect
elements of a contract as possible; the practice must be the understood and accepted way of
things over an extended period of time, and the parties must understand their obligation to
doing things this way in the future. A "practice" known to just one side and not the other
normally be considered as the type of mutually agreeable item that is entitled to arbitral
It is clear the County did not believe and does not believe the alleged past practice has
obligation to provide squad cars to all deputies to allow them to commute to work, so this is
mutually agreeable item subject to arbitral enforcement.
The record does not support the Union's
contention that the alleged past practice allowed for
squad car usage irrespective of how long the light duty was to last, the nature of the
the light duties assigned to the deputies. The practice, if at all, shows a willingness of the
grant light duty to employes who require it and to allow for squad car usage for short term
from illness or injury. This is the first instance of an employe who required light clerical
duty for any
extended period of time, so that the practice of the parties in this situation cannot be readily
ascertained over a reasonable period of time.
Even if the matter is not precluded by the
zipper clause, and is found to be a past practice, it is
a past practice subject to unilateral revision by the employer under its management rights
In its reply brief, the Association argues further as follows:
The County errs in asserting that the "zipper clause" automatically
nullifies the established past
practice of allowing deputies working a light duty assignment to drive a squad car to and
The effect of a zipper clause must be evaluated on a case-by-case basis, including an analysis
relevant language and an analysis of the background of the dispute. The County improperly
the duty of an employer to bargain over changes in wages, hours and
conditions of employment. Even a zipper
clause stronger than the one found here has been held
to not nullify the established practice of providing take-home squad cars.
The ability of the County to rely on the
zipper clause in this collective bargaining agreement to
nullify the established past practice is explicitly restricted by another provision which
party from making unilateral changes affecting mandatory subjects of bargaining. As the use
of take-home squad cars is a form of compensation and thus a mandatory subject of
bargaining, the County
cannot rely on the zipper clause as it has proposed.
The County also errs in arguing that the
existing practice is not binding because it was voluntarily
implemented and because the County maintained the management right to eliminate the
When an employer provides a form of compensation (such as the take-home squad cars) over
number of years, that practice is readily ascertainable and becomes an implied contract term
cannot be nullified by a general management rights clause. Thus, the County does not have
management right to unilaterally end its practice of giving take-home squad cars to deputies
Accordingly, the arbitrator should sustain
the grievance and direct the County to pay the grievant
$456.75, representing 75 days of light duty, 21 miles per day round-trip, and a
of twenty-nine cents per mile.
The Association presented testimony and evidence of several deputies on medically
restricted duty who, over several years, used their assigned squad cars to commute during
periods of light duty. These instances were open, continuing, and with the employer's full
and acceptance. The record thus establishes that there was a past practice under which
restricted duty used their assigned squad cars to commute. The county argues that Mach's
for use of his squad car is materially different from the other examples in the record, which
shorter and more definite length. This after-the-fact rationale is not a distinction that is
enough to distinguish the past practice.
Then Sheriff Galster read a magazine article that gave him concerns over the
liability, employe safety and public understanding if the practice continued. The Sheriff's
are appropriate, and I find no fault in his motivation. He then unilaterally abrogated the past
authorizing the use that Mach sought. The Sheriff essentially acknowledged that the practice
existed, testifying at hearing that "the biggest difference" between operations before Mach's
and afterwards was "changing the way we do business."
The county, while still maintaining that no practice had been established, asserts that,
if one did arise, other provisions in the collective bargaining agreement nullified it. At
Article 22, the
collective bargaining agreement provides that only written amendments can supersede the
agreement then ascribed to. This, the county claims, successfully abrogates any past
that it is null and void. If the Association claim rests fully and solely on past practice, and
county's zipper argument is valid, the grievance would fail.
Certainly, the Association's claim does rest fully and solely on past practice; there
nothing in the text of the collective bargaining agreement to establish the benefit they seek.
question then becomes the validity of the county's zipper argument.
As it is an integral aspect of the collective bargaining agreement, the zipper clause
understood as a full and legitimate term in the relationship between the parties. However, its
presence in the agreement does not automatically resolve the legal question and authorize
employer action. "Rather, a complex and meticulous set of standards has evolved to evaluate
relationship of the waiver language" to the duty to bargain. City of Kansas City, Kan., 94
191, 195 (Berger, 1989). As set by courts and administrative agencies, public policy does
assume a waiver by a union of its statutory right to bargain over changes in terms and
employment." Suffolk Child Development Center, 277 NLRB No. 158, at 1349 (1985).
That statutory right to bargain is further enhanced in the instant analysis by
Article XXIII of
the collective bargaining agreement, which provides as follows:
Nothing contained in this Agreement shall be interpreted as granting to either party
authority to unilaterally establish any matter which is subject to collective bargaining
pursuant to Wisconsin Statutes.
The Association contends that the provision of the assigned squad car for commuting
purposes during periods of restricted light duty is a mandatory subject of bargaining, in that
relates to wages, hours and conditions of employment.
It is useful to set forth the general legal framework within which the issues herein
resolved. In Beloit Education Association v. WERC, 73 Wis. 2d 43 (1976), United School
District No. 1 of Racine County v. WERC, 81 Wis. 2d 89 (1977), and City of Brookfield v.
WERC, 87 Wis. 2d 819 (1979), the Court set forth the definition of mandatory and
subjects of bargaining under Sec. 111.70(1)(a), Stats., as matters which primarily relate to
hours, and conditions of employment" or to the "formulation or management of public
As the Court noted in West Bend Education Association v. WERC, 121 Wis.2d 1, 9,
As applied on a case-by-case basis, this primarily related
standard is a balancing test which
recognizes that the municipal employer, the employees, and the public have significant
stake and that their competing interests should be weighted to determine whether a proposed
for bargaining should be characterized as mandatory. If the employees' legitimate interest in
hours, and conditions of employment outweighs the employer's concerns about the restriction
managerial prerogatives or public policy, the proposal is a mandatory subject of bargaining.
In contrast, where the management and direction of the public
service or the formulation of
public policy predominates, the matter is not a mandatory subject of bargaining.
As noted above, there certainly are some public policy issues implicated in whether
use their assigned squad cars while performing restricted light duty -- financial (mileage
reimbursements), operational (availability of cars for deputies on full road duty), even public
(whether the public or even the officer might be at risk if the officer was pressed into duty
was physically unfit for). The county substantially weakened its public safety argument,
when a supervisor directed Mach to drive a marked squad for auto maintenance purposes,
to its stated desire to not have a physically infirm uniformed deputy in a squad car.
are clearly elements of this issue that relate squarely, even more directly, to wages and
The past practice involved the use of county squad cars; the remedy sought involves a
cash reimbursement. While the subject of the provision of a squad car for commuting
implicate enough public policy issues to be held under certain circumstances to be a
subject of bargaining, the matter of the cash reimbursement could not be anything other than
mandatory subject of bargaining.
At least one nationally respected arbitrator has even stronger views that vehicles for
enforcement officials is a mandatory subject of bargaining, and sustained a grievance even in
of an extremely strong zipper clause. In City of Kansas City, Kansas, 104, LA 711 (Bailey,
1995) the grievance was very much on point, concerning the police department's
termination of take-home vehicle assignments. The collective bargaining agreement at issue
This Memorandum of Understanding supersedes and cancels all
previous agreements, oral or
written, and all existing unwritten practices between the City and members of the
constitutes the entire Memorandum between the parties. (emphasis added).
By its explicit reference to the cancellation of "all existing
unwritten practices," and its lack of
language akin to that in Article XXIII of the instant agreement, the Kansas City collective
agreement seemingly gave the employer a very strong case. The arbitrator, however, found
the department's reduction in the take-home vehicles "may well have been a legitimate
decisionit did not eradicate the department's obligation to negotiate with the Union over the
binding past practice concerning take-home vehicle assignments." Id., at p. 718.
The county cites four instances in which WERC arbitrators have relied on zipper
deny grievances based on past practices. A close review of those cases show important
between the precedent the county claims and the instant grievance.
In Waunakee School District (Houlihan, 1992, No. 46802), the collective bargaining
agreement included the following language:
This Agreement supersedes and cancels all previous agreements
verbal or written or based on
past practice, between the School District and the Association and constitutes the
between the parties. (emphasis added).
By its explicit reference to, and rejection of, past practice, this language is significantly
is the zipper clause in the instant agreement.
In Marathon County (Courthouse), Case 146, No. 41722, MA-5445 (Schiavoni
and Forest County (Sheriff's Department), Case 61, No. 47776, MA-7379 (Burns 1993), the
collective bargaining agreement included the following language:
This Agreement constitutes the entire Agreement between the
parties and no verbal statement
shall supersede any of its provisions. Any amendments supplemental thereto shall not be
either party unless executed in writing by the parties hereto.
In Wisconsin Rapids (Firefighters), Case 106, No. 47179, MA-7192 (McGilligan,
the collective bargaining agreement included the following language:
This Agreement is subject to amendment, alteration or addition
only by subsequent written
agreement between, and executed by, the City and the Union where mutually agreeable. The
of any breach, term, or condition of this Agreement by either party shall not constitute a
in the future enforcement of all its terms and conditions.
Further, it appears that none of the agreements in the
cases which the county cites included
language of the nature found in Article XXIII of the agreement under review. Again, the
similar or comparable language in the cases which the County has herein cited is a significant
diminution of the force of its legal argument.
Over time, a practice arose under which deputies on restricted light duty
continued to use
their assigned squad cars for commuting purposes. Sheriff Galster then unilaterally
practice, thus requiring Deputy Mach to use his personal car, driving 21 miles per day for 75
light duty, without providing mileage reimbursement. In so doing, the Sheriff sought to
establish a matter subject to collective bargaining in Wisconsin.
Accordingly, on the basis of the collective bargaining agreement, the record
evidence and the
arguments of the parties, it is my
1. That the grievance is sustained, in that the employer has violated Article XXIII
unilaterally establishing a matter subject to collective bargaining in Wisconsin.
2. The employer shall provide mileage reimbursement to the grievant in the
Dated at Madison, Wisconsin this 10th day of November, 1999.
Stuart Levitan, Arbitrator