BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MARATHON COUNTY HIGHWAY DEPARTMENT
LOCAL 326, AFSCME, AFL-CIO
Ruder, Ware & Michler, S.C., by Attorney Dean R. Dietrich,
500 Third Street, P.O. Box 8050, Wausau, Wisconsin 54402-8050, appearing on behalf of
Mr. Philip Salamone, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 7111 Wall Street, Schofield, Wisconsin 54476, appearing on
behalf of Marathon County Highway Department Employees Local 326, AFSCME, AFL-
Marathon County Highway Department Employees, Local 326, AFSCME, AFL-CIO,
hereafter Union, and County of Marathon, hereinafter County, are parties to a collective
agreement that was in effect at all times relevant to this proceeding and which provides for
binding arbitration of certain disputes. The Union, by request to initiate grievance arbitration
by the Commission on April 26, 1999, requested that the Commission appoint either a staff
or a Commissioner to serve as Arbitrator. The Commission appointed James R. Meier on
1999. Due to a scheduling conflict the arbitration was transferred to Paul A. Hahn on July
Hearing in this matter was originally scheduled for July 21, 1999 and was postponed until
20, 1999. Hearing in this matter was held on September 20, 1999 at the Personnel
Department in the
Marathon County Courthouse, Wausau, Wisconsin. The hearing was not transcribed. The
filed post-hearing briefs which were received by the Arbitrator on November 8, 1999. The
were given the opportunity and filed reply briefs which were received by the Arbitrator on
22, 1999. The record was closed on November 23, 1999.
The Union did not submit a statement of the issue.
Whether the County violated the Labor Agreement when it
denied the Grievant's request to
reimburse him for the cost of prescription eyeglass lenses? If so, what is the appropriate
I adopt the statement of the issue as proposed by the County as being a fair
the issue which I must decide.
Article 1 Recognition
The County recognizes the Union as the exclusive bargaining
representative for all regular full-time and regular part-time employees of the Marathon
County Highway Department excluding
supervisory, professional and office personnel, the commissioner, assistant commissioner,
assistant engineer, shop supervisor, patrol superintendent, assistant patrol superintendent, and
purchasing agent for the purposes of conferences and negotiations with the employer or its
representative on questions of wages, hours and other conditions of employment.
Article 2 Management
Public policy and the law dictate clearly the Department's primary
responsibility to the
community as being that of managing the affairs efficiently and in the best interests of our
employees, and the community. The employer's rights include, but are not limited to, the
but such rights must be exercised consistent with the provisions of this contract.
. . .
4. To establish reasonable work rules and rules of conduct.
. . .
Article 3 Grievance Procedure
1. Definition of a
Grievance: A grievance shall mean a dispute concerning the
interpretation or application of this contract.
2. Subject Matter: Only
one subject matter shall be covered in any one grievance. A
written grievance shall contain the name and position of the grievant, a clear and concise
of the grievance, the issue involved, the relief sought, the date the incident or violation took
the specific section of the Agreement alleged to have been violated, the signature of the
. . .
. . .
F. Decision of the
Arbitrator: The arbitrator shall not modify, add to or delete from the
express terms of the agreement.
STATEMENT OF THE CASE
This grievance arbitration involves Highway Department Local 326, representing the
employes set forth in Article 1 Recognition (Jt. 1) and Marathon County. The
Union alleges a
contract violation by the County for not reimbursing the Grievant in an amount of
$93.00 for damage to his personal prescription eyeglasses that occurred while Grievant was
on May 27, 1998. On May 27, 1998, Grievant was assigned to work with a chainsaw and
which required the use of safety eyewear pursuant to the County Employee Handbook. (Jt. 2
Jt. 3) Grievant asked Mike Wanke, County Highway Department purchasing agent, for
and was given a box of UVEX safety glasses. Upon completion of his shift, Grievant
the safety glasses had scratched the lens of his personal prescription eyeglasses. Grievant
the scratched lenses with County Highway Commissioner Speich and Risk Manager
that point, the Grievant was denied his request for replacement of his prescription eyeglass
(Jt. 2, pg. 1)
On July 7, 1998, Grievant wrote to the Company which made the UVEX safety
advising them that his prescription glasses had been scratched and informing the Company
County had refused to reimburse him to replace his eyeglass lenses. Grievant requested
to rectify his problem and inquired as to the Company's position to reimburse the Grievant
replacing his prescription lenses. The Company responded on July 13, 1998 informing the
that for several years the boxes containing UVEX eyeglasses had a
warning leaflet attached to the safety glasses advising the potential wearer that the
might damage prescription lenses. (Jt. 2, pgs. 1 and 2) On August 6, 1998, the Grievant
a grievance to Commissioner Speich alleging that the UVEX eyewear box given to Grievant
contain a caution leaflet informing Grievant of the potential damage to prescription eyewear
requesting reimbursement of $93.00 for replacement of Grievant's prescription lenses. (Jt.
2, pg. 7)
On August 6, 1998 Commissioner Speich denied the grievance for the following
Grievant was issued new safety glasses in the original box; (2) the glasses were purchased
over a year
ago and there is no evidence that the manufacturer attached one of the labels to this particular
of glasses; (3) the Grievant was aware of alternate safety eyewear available; and (4) it
employe's responsibility to determine what items fit his needs. (Jt. 2, pg. 9) The
through the parties' contractual grievance procedure. On November 4, 1998 Marathon
Personnel Director Karger denied the grievance as it failed to state a specific section of the
agreement that had allegedly been violated, and that the County suspected that an older
glasses did not contain a warning leaflet. The County by Karger denied the Union's request
"non-precedential settlement." (Jt. 2, pgs. 10 and 11) The Union processed the
grievance to the
County Personnel Committee which met on December 7, 1998 and denied the Union's
a non-precedential settlement and postponed the hearing on the grievance to a later date. (Jt.
13) On March 1, 1999 the Personnel Committee met again, considered the grievance and
Notification of this action was received by the Union in a March 4, 1999 letter from
Director Karger. (Jt. 2, pg. 16) The Union subsequently advised the County that it intended
proceed to arbitration over the dispute.
No issue was raised at the hearing as to the arbitrability of the grievance. Hearing in
matter was held by the Arbitrator on September 20, 1999. The hearing closed at
POSITION OF THE PARTIES
The Union argues that there is no dispute that the County required the Grievant to
protective eyewear which directly resulted in damage to Grievant's personal prescription
The Union further argues that while the manufacturer of the UVEX safety glasses took the
that all the glasses for several years have had a warning label attached to them, there is no
to rebut the Grievant's testimony that the warning was not attached to the glasses or in the
safety glasses issued to him on May 27, 1998.
The Union takes the position that the County's right under the Management Rights
promulgate work rules, and therefore the Employee Handbook (Jt. 3), requires that the
for proper personal protective equipment is the County's and not, as alleged by the County,
Citing arbitration treatise and case law, the Union submits that the exercise of the
management function to direct the work force places the responsibility on the County to
care for the Grievant's personal property. This is true, the Union submits, even in cases
is an absence of specific language other than a reference to work rules and even where the
was not determined to be negligent.
Citing two instances where the County reimbursed employes for damage to personal
the Union argues that there is a past practice of the County assuming liability for personal
Union takes the position that in this case before the Arbitrator, even if the contract language
to be ambiguous regarding the County's liability, the evidence of past practice requires a
the practice has given meaning to the ambiguous language of the contract and as such the
is enforceable as being a part of the parties' labor agreement. Therefore, the Union submits,
by specific contract language or past practice, the County is liable to reimburse Grievant for
of replacing his prescription eyeglasses.
In its reply brief, the Union objects to the County's raising of a procedural
challenge for the first time in the County's initial post-hearing brief. The Union argues that
County did not raise an arbitrability issue throughout the processing of the grievance nor did
County raise an arbitrability issue at the arbitration hearing. The Union argues that the
arbitration case law supports a finding that the County, by waiting until its post-hearing brief
challenge the arbitrability of the grievance, has waived its right to defend the Union's
The Union restates its position that County Highway Commissioner Speich is in error
he stated, in denying the grievance, that it is the employe's responsibility to determine what
items fit the employe's needs. The Union argues that it was the County's obligation to have
the Grievant of the potential damage to his personal eyeglasses from wearing the UVEX
Lastly, the Union submits that for the reasons set forth in its post-hearing briefs the
should be sustained by the Arbitrator and the Grievant made whole for his loss.
The County takes the position that the grievance is not arbitrable. The County
the grievance procedure requires that any grievance state the specific section of the parties'
agreement alleged to have been violated. Since there is not any provision which
mentions, in any respect, the County's obligation to pay for damaged personal property
unit personnel the grievance is not arbitrable. The County argues that the collective
agreement provides that the arbitrator shall not modify, add to or delete from the express
the agreement; the Arbitrator in this case is limited to an interpretation and application of the
provisions of the labor agreement. Since no such written provision exists, the County
grievance is not subject to arbitration and therefore should be "summarily dismissed."
As it relates to the facts of the case, the County points out that the practice of the
to issue safety glasses to employes that request them, and, as this is a personal safety item,
does not issue used glasses. The County submits that the box of UVEX glasses given to the
was issued pursuant to its standard procedure. The County further points out that there is no
evidence in the record that the box of glasses issued to the Grievant did not include the
manufacturer's warning. The County submits that since the box of glasses issued to the
purchased in 1997, (citing Jt. 2 at p. 9) it is reasonable to assume that this particular batch of
did contain the caution leaflet shown in Joint Exhibit 2 at pages 3 and 4.
The County submits, as its third argument, that to require the County to reimburse
Grievant for damaged prescription lenses would result in an irreconcilable conflict in the
County argues that there is no work rule or contract language that names the County as liable
damage done to an employe's personal property while using protective safety equipment.
County submits that the Grievant could have chosen a style of safety eyewear that would not
been placed directly on his prescription eyeglasses and would not have scratched his lenses.
The County cites arbitration and treatise case law regarding situations where an
equipment or personal property is damaged or stolen while on the Company's premises,
most cases have involved tools. The County then addresses the elements considered by
in determining Company liability. Under the question of whether the County's safety and
provision was applicable, the County takes the position that most arbitrators have rejected the
argument that safety and health provisions of labor agreements apply in cases where an
equipment or personal property is stolen or damaged while on Company premises. As to
a bailment relationship existed between the parties, the County points out that the Grievant's
property (eyeglasses) was not given to the County to be held in trust for him. As to whether
County exercised reasonable care or was negligent in regard to the Grievant's property, the
takes the position that it exercised reasonable care in issuing Grievant what the County
a new pair of personal safety eyewear with the applicable warning. As to whether the
contained language express or implied to impose liability, it is again the County's position
parties' collective bargaining agreement does not contain any language whatsoever that would
the County liable for damage to Union members' personal property. As to whether there
contract negotiations on the subject, the County submits that the parties have never negotiated
reimbursement of damaged or lost personal property.
In its reply brief the County takes the position that it was the Grievant that chose the
brand protective eyewear over other types of safety eyewear, and that the Grievant had the
of choosing safety goggles or a safety shield instead of the UVEX safety eyewear. The
submits that it is impossible for the County to anticipate the potential damage that may be
an employe's personal property every time the employes select a form of safety eyewear.
takes the position that to place the burden and responsibility on the County to maintain
for the Union members' personal property overreaches the boundaries of reasonableness.
The County, in response to the Union's past practice argument, states that no binding
practice exists to support the Union's position. The County points out that the Union's entire
evidence were two incidents where the County reimbursed employes for their damaged
County, after discussing the standard criteria to prove the existence of a past practice, states
there has been no mutuality between the parties as to any past practice for reimbursing
damaged personal property. When the County reimbursed the employes for the two incidents
testified to by the Grievant, this was the result of mere happenstance or generosity and
not binding on the County. Lastly, as to the past practice argument, the County points out
instances of reimbursement to an employe for damage, which was caused not by the County
another employe, does not support a finding that the alleged past practice was unequivocal
enunciated an acted upon and readily ascertainable over a reasonable period of time as a
established practice mutually accepted by both parties.
In summary the County argues that the Grievant was free to choose which form of
eyewear the Grievant felt most comfortable with and the County acted reasonably in issuing
Grievant the UVEX safety eyewear. The labor agreement (Jt. 1) does not make the County
damage to personal property items in an employe's possession. The County submits that
the Grievant's request would result in special treatment to one employe and similar requests
to follow. The County states that it could not possibly have violated the terms of the
bargaining agreement and the grievance therefore is not arbitrable and should be summarily
For the foregoing reasons, including its arbitrability defense, the County requests that the
dismiss the grievance in its entirety.
The essential facts in this matter are not in dispute. (Jt. 2) I first address the
arbitrability argument. The County first raised this defense in its post-hearing brief. The
its reply brief, vigorously objects to the County raising this issue or position in its
The County's argument is that the grievance procedure of the parties' labor agreement
for a grievance to be arbitrable the action of the County must violate a specific term of the
There clearly is no provision of the agreement that specifically
refers to, discusses or determines the obligation of the County to reimburse employes
personal property is damaged while on the job and in the performance of their assigned
Union responds to this argument by taking the position that the Management Rights clause of
agreement and the work rules created under that clause that require an employe to wear eye
protection when performing certain work is the provision that covers this fact situation. (Jt. 1
The Union further argues that the County has waived its right to make this argument at this
this matter. 1/ Lastly the Union argues in its post-hearing brief that even if there is not a
provision of the agreement covering the facts before me I can make a decision by
common law of the workplace. 2/
1/ Winnebago County, WERC Case 184, No.
43883, MA-6098 (Gratz, 1990). Cited at page 2 of
2/ Steelworkers v.
Warrier & Gulf Navigation Co., 46 LRRM 2416, 2419 (1960). Cited at page 9
I will first dispose of the waiver argument. I am in agreement
with the Union that the
County waited too long in the process to raise the arbitrability argument or defense to the
grievance. The County cites arbitrator Sembower in Joy Mfg. Co. for the proposition that
employer can raise an arbitrability issue at any time in the arbitration proceedings because
arbitrability of the grievance relates to the arbitrator's jurisdiction to hear the grievance. 3/
However, as Sembower makes clear ". . . it is an extremely valid objection on the part of
party if one of them raises so significant an issue as this for the first time in arbitration. . .
I also note that in Sembower's case the arbitrability argument was raised for the first time at
arbitration hearing. At least if this defense is raised at the arbitration hearing, the Union has
opportunity to defend or ask for a continuance to prepare a defense; such is not the case
an employer raises the issue for the first time, as in this case, in its post-hearing brief. 5/ I
believe the weight of the case law argues for waiver by the County in this case of the
defense and I so find.
3/ Joy Mfg. Co., 44 LA 304, 306 (Sembower,
1965). Cited at page 10 of County post-hearing brief.
4/ Id. At page
5/ I have carefully
reviewed my notes of the County's Opening Statement at the arbitration hearing in this
matter. I find that the arbitrability defense was not raised during the Statement or at any
other time during the
I next address the Union's argument that even in the absence of
a specific contract
provision I should find that typical common-law practices of the work place can become part
a collective bargaining agreement. 6/ While it can certainly be argued that the Supreme
as cited in the aforementioned footnote, took a broad view that not every issue between
be covered by the language of a collective bargaining agreement, one cannot forget or ignore
context of that case. The Court was dealing with a refusal of an employer to arbitrate and
grievance clause in that case was very broad, unlike the definition of a grievance in the case
before me. Further, one cannot ignore the dissent of Justice Whittaker who would hold that
arbitrators are not imbued with such general powers but are confined to the provisions of the
labor agreement. 7/ I believe that I subscribe to the theory of the majority of arbitrators that
must look to the provisions of the labor agreement for our authority and for guidance in our
analysis and decision making.
6/ Steelworkers, supra, at page
The labor arbitrator's
source of law is not confined to the express provisions of the contract, as the industrial
common law -- the practice of the industry and the shop is equally a part of the
collective bargaining agreement
although not expressed in it.
7/ Steelworkers, supra,
at page 2422.
This is an entirely new
and strange doctrine to me. .. I find nothing in the contract that purports to
confer upon arbitrators any such breadth of private judicial power.
In this case, I believe that the County's requirement for the
wearing of safety eyewear on
certain jobs contained in its workrules (Jt.3) and enacted under the Management Rights
provides the contract language under which I am able to consider whether the County has
obligation to reimburse the Grievant for replacing the lenses to his prescription eyeglasses as
alleged in the grievance. I note here that I agree with the cases cited by the County that the
Safety and Health article of the parties' agreement does not apply to personal wear or items
as glasses but only to the person himself. I also find that there is no past practice by the
of reimbursing employes for damage to their personal belongings while on the job. The
offered evidence of only two incidents covering twenty five years of the Grievant's
where the County reimbursed Grievant and another employe for damage caused by another
employe. The Union's past practice evidence meets none of the commonly accepted
for proving a binding past practice. 8/
8/ Celanese Corp. of America, 24 LA 168,
172 (Justing, 1954)
In the absence of a
written agreement, 'past practice,' to be binding on both parties, must be
(2) clearly enunciated and acted upon; (3) readily ascertainable over a
reasonable period of time as a fixed and
established practice accepted by both parties.
Cited at page 3 of County
I therefore limit my analysis to the specific facts of this case
under the contractual and
work rule provisions that I have found to give me the jurisdiction to rule in this matter. I
define the issue as to whether the County had an obligation to provide the Grievant with
equipment that was not defective or to put it another way would be suitable for the purposes
which it was intended; I find that the County had such an obligation.
I credit the testimony of County witness Wanke, the County
Purchasing Agent, that the normal procedure, which he followed in this case, was to issue
employes who needed protective eyewear a box containing new glasses. I also, however,
the testimony of Grievant, an employe of thirty three years, that neither the UVEX glasses
received from Wanke nor the box in which they were contained had the warning label that
have advised the Grievant that the UVEX glasses could not safely be worn with his
eyewear. While the County argues that Grievant could have chosen other eyewear, there
without the warning, no reason for him to do so and Wanke's testimony makes clear that the
UVEX safety glasses were commonly chosen by employes when they were required to wear
I believe and so find that if the County requires employes to
wear safety equipment, it has
a corresponding obligation to ensure that equipment is safe for the employe to use. 9/ In this
case, while there was nothing wrong with the UVEX glasses themselves, without the warning
employes with prescription eyewear, the glasses were defective. To hold otherwise would
the employe liable for something over which he has no control or even knowledge. I believe
is reasonable to assume that had the warning been attached to the eyeglasses Grievant would
have used them or, if he had, the finding in this case would be different. I liken it to the
hypothetical if the County issued an employe a safety shield for bridge or blacktop work with
crack in the shield, the County would have an obligation but so would the employe if the
were clearly visible. There was nothing in this case to give the Grievant any idea that he
putting his prescription eye glasses at risk by wearing the UVEX glasses.
9/ Wilson Manufacturing Company, 70 LA,
995-996 (Tyler, 1978).
I do not agree that it
requires specific contract language to determine that the Company has a degree of
responsibility for employe tools. The right to demand (tools) requires an equal amount of
right of responsibility
to protect these tools when they are in the custody of the company. . . .
I am not unmindful or unappreciative of the concern of the
County that by finding for the
Grievant in this matter it will, in the County's words, result in irreconcilable conflict in the
future. Therefore, I will state clearly for the parties that my decision is limited to the
of this case. My decision should not be taken that I have found or made a decision that there
an obligation on the County to reimburse employes for damage to or loss of their personal
Based on the foregoing and the record as a whole, I enter
The County violated the Collective Bargaining Agreement when
it failed to reimburse the
Grievant for damage to his personal eyeglasses.
The Grievant will be reimbursed for the reasonable cost of
replacing the prescription
lenses of his personal eye glasses scratched in the process of wearing UVEX safety glasses
27, 1998. The County has the right to request reasonable proof of said replacement cost.
Dated at Madison, Wisconsin this 10th day of
Paul A. Hahn, Arbitrator