BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 311, AFSCME, AFL-CIO
Mr. Gerald D. Ugland, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. J. Blair Ward, Assistant Corporation Counsel, Portage
appearing on behalf of the County.
The Union and Employer named above are parties to a 1999-2001 collective
agreement which provides for final and binding arbitration of certain disputes. The parties
requested the Wisconsin Employment Relations Commission to appoint the undersigned as
arbitrator in a dispute over cell phones and CB radios. A hearing was held on April 11,
Portage, Wisconsin, at which time the parties were given the opportunity to present their
and arguments. The parties completed filing briefs by June 29, 2001.
The Union's framing of the issue is preferred:
Did the Employer violate the collective bargaining agreement
banning the use of citizen
band radios and cell phones by employees? If so, what is the remedy?
This grievance arose as a result of a policy update issued on January 14, 2000, which
Personal cell phones are not allowed inside the County
facility or in county vehicles.
Personal CB radios are not allowed in
Hours of Work: 7:00 a.m. to 3:00 p.m.,
including two fifteen minute breaks at approximately
9:00 a.m. and 12:00 noon. Coffee consumption outside of vehicles is considered break
CB radios will be removed by our
mechanics the week of 1/17-1/21/00. If you have a CB
radio mounted in county equipment, list your name and vehicle number below and it will be
The policy noted above followed a meeting between the Highway Commission
Weronke and the bargaining unit members on January 11, 2000. Weronke told the crew that
upset because he was being investigated by the Highway Committee chairman. According to
employee Ken Young, Weronke said that if he was going to get that treatment, then he
away their CB's and their cell phones. Young thought that Weronke believed that an
reported the potential ethics violation or violation of County policy on a cell phone, although
employee understood that the phone call came from a shop telephone.
Weronke testified that he had been accused of using County equipment for his own
reasons, and as a result of a phone call, Douglas Warner, a County Board Supervisor on the
Committee, showed up at his home. Warner wanted to investigate whether Weronke was
hole saw kit for personal reasons. The kit was in a County vehicle in his driveway. The
later dropped. Weronke testified that he carries County equipment in his vehicle all the
incident occurred about a month before the January 11, 2000 meeting.
Young has worked for the County Highway Department for 29 years. He is
road foreman and was the Union President for six years. He recalled that CB's started
popular around 1989 or 1990. Highway Department mechanics installed CB's that
into the trucks. Young thought that employees had been bringing cell phones to work for the
three or four years. Young has had a CB in a truck and has had his own cell phone while
He used the CB to contact outside contractors during the summer. He used his cell phone to
the gravel and hot mix plants to coordinate work.
He believed his use of the CB and cell phone was efficient for everyone. Young used
his cell phone
twice during a critical time in his father's life. After the policy was instituted, his CB was
of the truck he drove. The County later provided him with a cell phone for talking to the
handling emergency calls as the road foreman.
Most of the trucks have two-way radios that work throughout the County. Weronke
that there is no need for employees to have a CB radio or a cell phone in their vehicles.
Union President William Burse thought that CB's have been installed in County
at least 1989. He was aware that some employees have had cell phones in their vehicles for
four years when he started his employment. He used a CB when he replaced a driver in a
and communicated with people in the gravel pits and black top plant. He believed that the
working there knew that he was waiting because of the CB communication, and that he
have to sit and wait as long as he would if those employees had to walk out to talk to him.
Burse used the CB when other drivers would advise him where to turn the truck around
blacktopping or chip sealing. He did not use a CB in a truck while plowing snow. Burse
did not feel
that he needed a CB for safety reasons. He knew that most of the larger trucks had CB's in
but not all of the trucks had them.
James Shevelson has been a mechanic with the Highway Department for more than
He is currently the Secretary and Steward for the Union. He has installed CB radios in
was told to do so by his supervisor. Shevelson asked employees about when they had CB's
in their trucks and made a list, which shows that only one person had a CB installed in 1989.
of them were put in during the latter part of the 1990's. Altogether, 21 employees bought
had them installed. Shevelson knew that not all of the trucks had CB's in them, but most of
seemed to have them. There are approximately 35 trucks owned by the Department.
Shevelson also interviewed employees about cell phones, and found that 11
bringing them to work as of January 13, 2000. He testified that he did not talk with all
Randolph Piotrowski has been employed at the Highway Department for eight years,
on state roads including the interstate. He put a CB in his truck in either 1994 or 1995. He
permission from a supervisor to use one. He used it for safety reasons, to alert semi drivers
presence on the highway. In his section, he has to turn around at the bottom of a hill into a
from a passing lane, so he let other truck traffic know that there will be a slow moving
vehicle on the
interstate that is going to turn off. He was often thanked for that information. Drivers have
him when he was plowing snow in the passing lane and they thought he was in the driving
the bright strobe lights. Truckers have called on their CB's to ask what lane he is plowing
particularly at night in a snowstorm.
Piotrowski was injured in an accident in 1994, before he had a CB in his truck. He
by a smaller refrigerated truck and believes that he would have been more severely injured
had a semi
truck hit him. He believes that most professional truckers are monitoring a CB, and being
alert them of his presence is a great safety measure. Piotrowski also noted that the
CB's a lot for communicating among themselves when they are using several trucks in the
to clean out snow. They tell each other if cars are trying to pass and try to prevent
Piotrowski testified that they have been told to keep their conversations to a minimum as
monitor them on scanners. They try to stay off the air and use it for necessary
Some employees do not like to use the two-way radios available in the trucks, because other
in the County may monitor those communications. Piotrowski does not use a cell phone.
Jeffrey Peterson has been with the Highway Department for 29 years as a truck
working in the sign room. He installed a CB in his truck in 1989, and was probably the first
to use one. He asked if he could put it in and has communicated with management on it
Peterson used his CB to communicate with other trucks and the foreman, as well as to talk to
at the gravel pit or the hot mix plant to let them know he is there to get a load. He seldom
when plowing snow and did not believe that the CB reduced risk on the road, but that its
was for the efficiency during construction season. Peterson did not have a cell phone.
David Sopa worked for the Highway Department for 30 years and had a CB in the
that he drove (a heavy hauler) but not in the truck he used on County roads. The big truck
during summer during construction. He talked to the road foreman, hired trucks and the
Commissioner on the CB regarding work. He thought using the CB was easier than using
the two-way radio because other people also use the two-way radio system. The
Commissioner called him
on the CB, and the foreman also initiated calls on the CB to him. Sopa has used the CB to
communicate with employees at the gravel pit and the hot mix plant.
Weronke testified that there was a County policy prohibiting personal items at work
implemented in about 1993. The County Personnel Director came to the Highway facility
everyone was told to take home personal equipment that did not pertain to work activities.
were not specifically mentioned, but Weronke considered them to be included. There were
bikes and engines being worked on, and all equipment that did not pertain to work was to be
home at that time. Weronke was not aware that cell phones were around in 1993. The first
became aware of CB's in County trucks was about 1998.
State road supervisor Dale Peterson was aware of the CB use by employees in
vehicles. There was an incident involving an employee who called the Highway
another County "Captain Cue Ball" over a CB radio. Peterson was told by the road
in that County that they would not use Portage County to do their center lining work
Peterson questioned the employee who allegedly made the statement but could
not prove it. The County advertised for other work after losing the work in that
supervisor told Peterson that they were going to use a private service, because Portage
employees could say anything they wanted on the CB's.
Weronke testified that he did not believe that CB's or cell phones provided a safety
for employees, and it was not in their job duties to communicate with other truck drivers or
general public. He was aware of an employee using a cell phone to plan his weekend
about 10 or 15 minutes while working overtime for the Department. He had also monitored
conversations with employees regarding inappropriate comments about management.
The Executive Board of the Union met with Highway Department management after
policy was issued on January 14, 2000, sometime within the following week, to present their
the issue. The meeting was not held to discuss implementing the policy.
THE PARTIES' POSITIONS
The Union asserts that the CB's were installed with the Employer's knowledge,
and urging. They were used frequently over a long period of time. Piotrowski used a CB
installed in 1995, and his supervisor said he could have it installed. Shevelson has worked
with CB's and has installed them in Highway Department vehicles. He knew of 20 trucks in
Department in which CB's were installed. He was told by his supervisor to install them in
trucks during 1998 and 1999. Peterson installed a CB in his truck in 1989 with the
permission. Sopa has communicated with the Highway Commissioner on his CB. The
initiated the call. Sopa has talked with a foreman on the CB. Young observed that the
specifically authorized CB's that employees bought to be installed in new trucks. No one
of the Employer having refused to allow a CB to be installed.
The Union argues that the CB's were beneficial to the employees. Piotrowski used
for safety to make semi-trailers and large trucks aware of his presence on the highway. He
notify truckers that he was turning, that there was a slow moving vehicle on the interstate.
turnaround is at the bottom of a hill. He testified that drivers have thanked him for letting
where his truck is on the freeway. In 1994, he was injured in an accident with a refrigerated
and at that time, he did not have a CB in the truck. He bought a CB for his own safety.
benefit of having a CB is that the employees can coordinate their work in getting gravel or
materials. The better coordination allows employees to end their workday on time and have
their private time.
The Union notes that at least 11 employees were using their own cell phones or
while on the job. Employees had been allowed to bring cell phones to work for three or four
and the Employer knew they had them and used them. Supervisors even called employees
personal cell phones. The cell phones were beneficial to employees, as they used them to
when working overtime, to make arrangements for childcare, and to deal with family
The Union believes that the banning of CB's and cell phones was a retaliatory act and
a business purpose. The Highway Commissioner was upset that an employee reported him to
Highway Committee Chair for an ethics code violation, and prohibited the use of the CB's
phones in retaliation. While the Employer contends that one employee said something
a CB, there is no just cause to discipline the whole staff.
The Union concludes by asserting that the possession and the use of CB's and cell
were past practices which were improperly terminated. These were clear, long standing,
exercised past practices that did not contradict any explicit provision of the collective
agreement. The practices benefited both employees and the Employer. The Employer
practices in a fit of anger as retaliation for the alleged act of one employee who was not
disciplined. Although the Employer could put reasonable restrictions on the use of CB's and
phones, it did not do so. Employees who bought their own CB's have suffered an economic
the Union asks that if the Arbitrator finds in favor of the Employer, that the Employer
reimburse each employee who bought a CB for a Department vehicle.
The County submits that its position is supported in an arbitration case between a
and the City of LaCrosse, in which an arbitrator found the City's rule prohibiting personal
a reasonable work rule. The bus drivers used them for 40 years, but after a fatal accident in
a child was killed by a bus, the City posted a rule prohibiting personal radios or any
or audio device on the bus. The arbitrator found no contractual basis in the collective
agreement that would allow bus drivers to use personal radios in their buses. This is similar
present case. There is nothing in the collective bargaining agreement here which would
employees to use personal CB's and cell phones in County vehicles.
The County argues that the Union failed to show that there was a past practice.
witnesses testified that they used cell phones and others testified that they did not even own a
phone. The same was true for the use of CB's. Some felt the need to use CB's for their
others would rarely use the CB because they did not see a need to do so. As far as
with gravel pit and hot mix plant operators is concerned, it is the job of the Highway
supervisors to coordinate between them and the County trucks. If
employees of the gravel pit and hot mix plant have to walk out to speak to County
is a working condition of those operations, not related to the working conditions of County
The County asserts that it did not violate the collective bargaining agreement by
employees to follow the terms of the Personnel Policy prohibiting the use of personal
property in the
Highway facility. If the Arbitrator finds that a past practice existed, it should be limited to
of CB radios and not cell phones, because the Union presented almost no evidence of
of cell phones. Further, any finding of a past practice of the use of CB's should be further
certain trucks for certain purposes. The Union's testimony demonstrated a consistent use of
in state section trucks while not in County section trucks. However, it remains the County's
that the policy update of January 14, 2000 was a management decision in the form of a
The Union, in Reply
The Union responds to the County's assertion that the ban of CB's and cell phones
the implementation of a prior policy, and states that the real reason for the ban was the
Commissioner's revenge for someone turning him in for a possible ethics or policy violation.
Union asks why was the policy not enforced before? The policy itself does not prohibit
personal property at work, and it was developed to prevent employees using the shop. The
Commissioner testified that he knew who called another County Highway Commissioner a
but did not discipline that person. Thus, banning CB's and cell phones is group discipline
action of one person contrary to the just cause concept.
While the County contended that no evidence of efficiency was presented, the Union
that the County has ignored repeated testimony of the coordination between privately
trucks and the gravel pit and black top plants. The County also ignored the fact that safety is
improved by the use of CB's, the Union states.
Contrary to the County, the Union contends that universal use of a practice is not
to establish a practice. The County should have waited for contract negotiations to repudiate
practice and allow the Union to bargain it into the contract. Custom or past practice need
emanate from language in the agreement. Finally, the Union asserts that the County's
reliance on a
transit case is misplaced, because the use of CB's for communication and safety is not the
listening to commercial radio for entertainment or current events.
It is generally accepted by arbitrators that, in the absence of written contractual
binding past practice must be unequivocal, clearly enunciated and acted upon, and
readily ascertainable over a reasonable period of time as a fixed and established
practice accepted by
both parties. Both the personal use of CB radios and cell phones lack some of those
Management knew of the practice of putting personal CB's in trucks, as it allowed
to install them and knew that employees used them to communicate and had in fact
with employees on CB's. However, the practice was not necessarily unequivocal, as
had taken steps in 1993 to rid the workplace of personal equipment. While CB radios were
specifically dealt with during the 1993 incident in which the Personnel Director came to the
Department, employees were told to take all personal equipment home. Employees knew or
have known that their CB's were personal equipment, since they paid for them in the first
Moreover, the practice of putting CB's in trucks was not done over a long period of
it was only done by about half of the employees. The record shows that only one of them
installed in 1989. Others were as recent as 1999, 1998, 1997, 1996, 1995 and 1994. This
meet the element of a "reasonable period of time" to establish a past practice. While some
felt there were safety issues and efficiency concerns, there is nothing in the record that
that the use of CB's rises to the level of a past practice that should be enforced as part of the
collective bargaining agreement.
The personal use of cell phones has even fewer elements of a binding past practice.
employees had them, and they came into existence in the mid to late 1990's. There is no
of management's acquiescence in the use of cell phones by employees.
While a practice does not have to be universal or apply to every employee to become
binding past practice, it is more likely to be accepted where it affects all or most of the
The greater the number affected, as well as the greater the period of time involved, the more
the practice was intended by both parties to carry forward. The use of CB's and cell phones
those elements, and there is no clear past practice that becomes binding on the parties.
The collective bargaining agreement provides in Section 2 that the County has the
establish reasonable work rules. A question remains as to whether the County established a
reasonable work rule in this case.
Frankly, the County owns the Highway trucks, and it can decide what equipment it
them. It is not reasonable to expect the County to reimburse employees for CB's now when
required employees to put them in the trucks in the first place. The employees did it on their
initiative, although County personnel installed them. The County may take them out, return
the employees, and use whatever equipment it wants in its own trucks. This rule is
However, the rule regarding cell phones is too broad to be reasonable. The rule
"Personal cell phones are not allowed inside the County Highway Facility or in county
would be reasonable for the County to prohibit the use of a personal cell phone
or any phone, for
that matter during work time. But it is unreasonable to have a rule that would
from carrying a cell phone. Cell phones are small and may be carried in a pocket, the same
wallet, a photo of kids, money and other personal items. The County does not prohibit
from carrying such personal items in the buildings or vehicles. Employees should not be
from using their personal items such as money or phones during their breaks or lunch
the extent that the rule would ban the presence of cell phones, it is overly broad and
infringes on employees' personal items and privacy.
Thus, while the use of CB radios and cell phones is not a binding past practice, the
rule that would prohibit employees from carrying cell phones on them inside the County
Facility or in County vehicles is not a reasonable work rule and should limited to prohibit the
phones during working hours only.
The grievance is denied in part and sustained in part.
The County violated the collective bargaining agreement,
specifically Section 2, paragraph
2, by issuing an overly broad rule prohibiting cell phones inside the County Highway Facility
County vehicles. The County is ordered to rescind that portion of the rule or to limit it to
the use of cell phones during working hours. The County's rule prohibiting CB radios in
vehicles is reasonable and does not violate the collective bargaining agreement.
Dated at Elkhorn, Wisconsin, this 16th day of July, 2001.
J. Mawhinney, Arbitrator