BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MANITOWOC COUNTY SUPPORTIVE SERVICES
LOCAL 986-A, WISCONSIN COUNCIL 40, AFSCME,
Mr. Neil Rainford, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, on behalf of the Union.
Mr. Steven J. Rollins, Corporation Counsel, on behalf of the
The above-captioned parties, herein "Union" and "County", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Manitowoc, Wisconsin, on February 1, 2001, at which time the parties agreed that I
my jurisdiction if the grievance is sustained. The hearing was transcribed and the parties
filed briefs that were received by March 16, 2001.
Based upon the entire record and arguments of the parties, I issue the following
Since the parties were unable to jointly agree on the issue, I have framed it as
Did the County violate Article 3 and/or Article 15 of the contract
when it refused to grant
grievant Mary Zellner's September 19, 2000 request to take vacation time after her
2000, anniversary date and, if so, what is the appropriate remedy?
The County for a number of years allowed employees to request and/or to use their
vacation time after their anniversary date had passed, provided that it was used by the end of
month. If the leave was not used up by the end of the month, it was forfeited.
Grievant Zellner, who has a seniority date of September 6, 1978, thus applied for
leave after her anniversary date had passed when she submitted requests on
September 10, 1997,
September 9, 1998, and September 20, 1999 (Joint Exhibits 10b, 10c, and 10d). She
allowed to use up her vacation time in each of those years.
Based on that past experience, Zellner on September 19, 2000 (unless otherwise
dates herein refer to 2000), asked her supervisor, Clerk of Circuit Court Joe Bauknecht, for
permission to use her 22.5 hours of unused vacation by September 30. Bauknecht granted
request on September 19, but that permission was revoked on the same day by Personnel
Sharon N. Cornils pursuant to the County's policy which requires employees to submit
requests before their anniversary dates. As a result, Zellner was forced to forfeit her 22.5
unused vacation. About eight other employees were forced to forfeit their accrued vacation
the same reason.
Earlier, Bauknecht on August 29 approved the vacation requests submitted by
and Janet Bonin who had submitted their requests before their anniversary dates and who
to take their vacation time after their anniversary dates had passed (Joint Exhibits 8
Bauknecht on August 30 told Zellner and other employees at a staff meeting about the
County's new policy. Zellner said that she did not then submit a vacation request because
still under the assumption that she could use her vacation until the end of September as she
had in the
On August 31, Bauknecht distributed the following memo to all Clerk of Court staff:
. . .
Vacation time must be used.
(Unless emergency no extensions.)
Overtime must be granted by
Supervisor EXCEPT weekends 1st Supervisor, 2nd
Time cards must be initialled by
supervisor, then me.
Time cards must be filled out daily.
Supervisors will inspect time cards. Time cards will be turned
in by 12:00 noon on the Friday before payday, unless requested by Payroll Department
Late time cards will be processed in the next pay period.
(Emphasis in original). We will not
call to remind you.
All memos will now include your
initials and will be returned to me by date indicated on memo.
Please return this memo to me initialled by
September 8, 2000. (Joint Exhibit 3).
Zellner and other employees then initialled the memo and returned it to Bauknecht.
The County Personnel Department's in-house publication, entitled "Benefit News",
stated in February, 2000, that employees from then on had to submit their vacation requests
their anniversary dates and that if they did not do so, they would forfeit their vacation time.
Exhibit 5(b)). The County's Personnel Policy and Procedure Manual (Joint Exhibit 6c) was
amended in April, 1998, to the same effect.
Zellner, a Judicial Assistant in the Clerk of Courts' office, testified that she was
unable to take
her vacation before her September 6 anniversary date because of her work load and because
to wait for fellow employee Karen Karstaedt to take her vacation before she could take her
also said that she was unaware that the County had changed its policy in 2000 to now require
employees to submit vacation requests before their anniversary date. She therefore submitted
request after her September 6 anniversary date because she had been told some time ago by
in the Payroll Department that "vacation time was not taken off the computers until after the
Manitowoc County Circuit Court Judge Fred A. Hazlewood corroborated Zellner's
by stating that her work load made it impossible for Zellner to have taken her vacation
September 6 anniversary date. He testified without contradiction:
. . .
"Miss Karstaeadt, as I recall, was planning to take vacation to be
in a position to assist one of
her sons and his wife with a new baby, and of course when the baby would arrive was
in the air, but that would be the trigger
event for her vacation, and it was my understanding that Mary put
off taking her vacation until
that time or that time was known."
. . .
Juvenile Clerk Teresa Shebesta and Civil Clerk Joyce Vnuk both testified that they
seen the Benefits News that mentioned the County's new policy. Former Payroll Supervisor
Bessert testified about the practice of allowing vacation extensions before 1996 when she left
employment. She said that employees regularly were allowed to request vacation extensions
their anniversary dates and to use up all of their accrued vacation by the end of the month.
LaViolette, the current Payroll Supervisor and Bessert's successor, testified that employees
granted such vacation extensions from 1997 to 2000 until it was finally changed to reflect the
County's new policy. Bauknecht testified that he on September 19 initially approved
request for a vacation extension, and that it was subsequently denied by Personnel Director
pursuant to the County's new policy. Cornils, in turn, described how that new policy came
how it was publicized in various County publications.
POSITIONS OF THE PARTIES
The Union contends that the County violated the contract because Zellner "had a
contractual right to use or extend her vacation based on 'unusual circumstances' that
from using her vacation within one year of its being earned," and because Article 3
the past practice surrounding vacation extensions must be continued since the Union has
to change that past practice. As a remedy, the Union asks that the County be ordered to
Zellner with the 22.5 hours of vacation that she was forced to forfeit.
The County asserts that it did not violate the contract because "the contract expressly
that an employee's vacation extension be approved by the Employer"; that "The parties have
modified the express language of the contract by past practice"; that its denial of Zellner's
was reasonable; and that she is "not entitled to either a contractual or an equitable remedy."
This case turns on the application and interplay between Article 3 of the contract,
"Management Rights Reserved", and Article 15, entitled "Vacations".
Article 3 states in pertinent part:
Unless otherwise herein provided, management of the work and
direction of the working force,
including the right to hire, promote, transfer, demote, or suspend, or otherwise discharge for
cause, and the right to relieve employees from duty because of lack of work or other
reason, is vested exclusively in the Employer. If any action taken by the Employer is proven
be justified, the employee shall receive all wages and benefits due him or her for such period
involved in the matter.
Manitowoc County shall have the sole right
to contract for any work it chooses and to direct its
employees to perform such work wherever located subject only to the restrictions imposed by
Agreement and the Wisconsin Statutes. In the event the Employer decides to subcontract any
which will result in the layoff of any County employees, said matter shall first be reviewed
Unless otherwise herein provided, the
Employer shall have the explicit right to determine the
specific hours of employment and the length of work week and to make such changes in the
of employment of the various employees as it from time to time deems necessary for the
operation of its department. The Employer may adopt reasonable work rules except as
provided in this agreement.
The Employer agrees that all
amenities and practices in effect for a minimum period of twelve
(12) months or more, but not specifically referred to in this Agreement, shall continue for
of this agreement. The parties recognize the County's right to implement an
Program. Practices and policies established pursuant to the Employee Assistance Program
be considered a past practice, regardless of how long they exist. The County reserves the
modify or discontinue any portion of the program. The decision of the County to modify or
discontinue any portion or all of the program shall not be subject to the grievance procedure.
. . .
Article 15 states in pertinent part:
Each employee shall earn vacation in the following
One (1) week vacation upon
completion of one (1) year service.
Two (2) weeks vacation upon
completion of two (2) years' service.
Three (3) weeks vacation upon
completion of seven (7) years' service.
Upon completion of nine (9) years of
service the employee shall be granted an additional one
(1) day per year for each year of continuous service completed from the ninth
through the eighteenth (18th) year of service so that effective with the
completion of the
eighteenth (18th) year of service, such employee will be entitled to five (5)
Upon completion of nineteen (19) years of
service, the employee shall be granted an
additional one-half (1/2) day per year for each year of continuous service completed from the
nineteenth (19th) year through the twenty-second (22nd)
year, so that effective with completion
of the twenty-second (22nd) year of service, such employee will then be
entitled to twenty-seven (27) days of vacation.
When a holiday falls within an employee's paid vacation
period, the employee shall be granted the
paid holiday in lieu of a vacation day.
If an employee terminates his or
her employment for any reason during the year, he or she shall
receive vacation pay at the rate of one-twelfth (1/12th) of the total from the
of his or her employment to the termination date of his or her employment for each month of
service during that year.
All employees shall be
required to use all accumulated vacation time during the year, and each
employee shall be obligated to use his or her vacation within one (1) year of its being
In the event of unusual circumstances preventing the employee from taking such vacation, he
or she must apply to his or her respective Department Head, or the Department Head's
designee, subject to the approval of the County Personnel Committee for any deviation from
this rule. (Emphasis added).
employee shall give a minimum of one (1) week's advance written notice of requested
vacation time off. Exceptions may be made by the Department Head, or his or her Designee
in the event of emergencies or other urgent and unexpected circumstances. The Employer
shall respond and give reasons for any denial in writing within one (1) week of receipt of the
These two provisions thus raise the question of whether a past practice has arisen
vacation requests under Article 3 and, if so, what effect such a practice has in applying the
language of Article 15.
As to the former, the record establishes that a past practice existed which allowed
to ask for vacation extensions after their anniversary date and to also take such
vacations after their
anniversary dates, provided only that they were taken by the end of that month. Thus,
was granted such vacation extensions in 1997, 1998 and 1999, and Payroll Supervisor
testified that that was the practice from 1996 until it was changed in 2000. Former Payroll
Bessert also stated that that was the practice before 1996. Indeed, the record fails to show
employee before 2000 was ever denied such a vacation extension.
The record also shows that the County unilaterally changed that practice in 2000
bargaining with the Union and without securing its agreement to any such change. In
there were references to the change in some of the County's publications, there is no proof
Union officials or Zellner ever read them before Bauknecht told employees at the August 30
meeting that the practice had changed and before he distributed a notice to that effect on
(Joint Exhibit 3).
The County claims that this past practice must be disregarded in favor of the
Article 15, Section D, which states that "each employee shall be obligated to use his or her
within one (1) year of its being earned" unless there are "unusual circumstances" in which
request for a vacation extension must be approved by a department head or his/her designee,
which it must be approved by the County Personnel Committee.
Here, the Union correctly points out that the County's Personnel Committee never
Zellner's extension request, as Cornils testified that that function had been delegated to her
Personnel Committee. While that may be so, the contract itself does not refer to any such
designation. Moreover, since the contract expressly refers to the "Department Head, or the
Department Head's designee. . .", when it addresses to whom vacation requests must be
the parties certainly could have referred to the Personnel Committee's "designee" if they had
More importantly, Cornils never inquired whether there were any "unusual
surrounding Zellner's extension request. She was required to conduct such an inquiry
proviso presupposes that the County will conduct a fair inquiry to determine whether
circumstances" warrant such an extension. Had she done so, she would have learned
Hazelwood testified - that Zellner's job duties prevented her from taking her vacation earlier.
failing to conduct such a basic inquiry, the County failed to fulfill this important contractual
In addition, there is no merit to the County's claim that the language of Article 15
Article 3 because the former "clearly and unambiguously states that vacation must be used
year of its being earned. . ." and because a past practice cannot contradict such clear and
unambiguous contract language. For while there is a division of arbitrable opinion on this
believe the best explication of the past practice doctrine was made by Arbitrator Richard
. . .
By relying on practice, the burden of the decision may be shifted
from the arbitrator back to the
parties. For to the extent to which the arbitrator adopts the interpretation given by the
themselves as shown by their acts, he minimizes his own role in the construction process.
significance of practice as an interpretive aid lies in the fact that the arbitrator is responsive
values and standards of the parties. A decision based on past practice emphasizes not the
viewpoint of the arbitrator but rather the parties' own history, what they have found to be
agreeable over the years. Because such a decision is bound to reflect the parties' concept of
rightness, it is more likely to resolve the underlying dispute and more likely to be acceptable.
solution created from within is always preferable to one which is imposed from without.
citation omitted) "Past Practice and the Administration of Collective Bargaining
Arbitration and Public Policy, Proceedings of the 14th Annual
Meeting of the National Academy of
Arbitrators", (BNA, 1961), p. 38.
. . .
He added: "The practice, in short, amounts to an amendment of
the agreement". Id, at 42. He
Thus, the union-management contract
includes not just the written provisions stated therein
but also the understandings and mutually acceptable practices which have developed over the
Because the contract is executed in the context of these understandings and practices, the
must be presumed to be fully aware of them and to have relied upon them in striking their
Hence, if a particular practice is not repudiated during negotiations, it may fairly be said that
entered into upon the assumption that this
practice would continue in force. By their silence, the
parties have given assent to "existing modes of procedure." In this way, the practices may
implication become an integral part of the contract. Id., at 37.
He further stated:
"Those responsible for the administration of
the agreement can no more overlook these practices
than they can the express provisions of the agreement. For the established way of doing
usually the contractually correct way of doing things. And what has become a mutually
interpretation of the agreement is likely to remain so. Hence, the full meaning of the
frequently depend upon how it has been applied in the past." Id., at 37.
The United States Supreme Court also has explained that:
"the labor arbitrator's source of law is not
confined to the express provisions of the contract, as
the industrial common law the past practices of the industry and the shop is
equally a part of the
collective bargaining agreement although not expressed in it." United Steelworkers of
v. Warrior and Gulf Navigation Co., 363 U.S. 574, 581-582 (1960).
Arbitrator Mittenthal therefore concluded that a "past practice
alone" can modify clear
contractual language when there has been "mutual agreement to the modification" and when
parties "have evinced a positive acceptance or endorsement of the practice." (Footnote
omitted). Id, at 42-43.
There is one more principle that must be recognized here:
"the law abhors a forfeiture. If an agreement is susceptible of
two constructions, one of which
would work a forfeiture and one of which would not, the arbitrator will be inclined to adopt
interpretation that will prevent forfeiture." How Arbitration
Works, Elkouri and Elkouri (BNA, 5th
Edition, 1997), p. 500. (Footnote citations omitted).
This principle applies here because accrued vacation benefits represent a form of
already have been earned and banked. That is why we oftentimes refer to a "vacation bank".
result, such an important earned benefit cannot be forfeited unless there is the clearest
agreement to that effect.
The universal past practice here clearly establishes that accrued vacation time is not
forfeited even if an employee does not request and/or use his/her accrued vacation before
Accordingly, I conclude that the past practice language in Article 3 governs this
because the parties over the years mutually agreed that employees could ask for and/or
vacation extensions after their anniversary dates, provided only that such vacation leave was
by the end of the month. As a result, this past practice cannot be unilaterally abrogated by
County. Instead, it can only be changed in contract negotiations. The County therefore
Article 3 when it altered this past practice and when it refused to grant Zellner's vacation
She therefore is entitled to have her entire 22.5 hours of vacation restored to her vacation
In light of the above, it therefore is my
1. That the County violated Article 3 of the contract when it unilaterally altered
practice surrounding vacation extensions and when it denied grievant Mary Zellner's request
2. That to rectify its contract violation, the County shall immediately credit 22.5
to grievant Mary Zellner's vacation account and it in the future shall maintain the past
surrounding vacation extensions until such time as it is changed in contract negotiations.
3. That to resolve any disputes that may arise over application of this Award, I
retain jurisdiction for at least thirty (30) days.
Dated at Madison, Wisconsin this 5th day of July, 2001.