BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
VILLAGE OF ALLOUEZ
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Jonathan M. Conti,
1555 North RiverCenter Drive, Milwaukee, Wisconsin 53212, appearing on behalf of the
Davis & Kuelthau, S.C., by Mr. William G. Bracken,
Employment Relations Service Coordinator,
219 Washington Avenue, P.O. Box 1278, Oshkosh, WI 54903-1278, appearing on behalf of
The International Brotherhood of Teamsters Local 75, hereinafter referred to as the
and the Village of Allouez, hereinafter referred to as the Employer or the Village, are parties
collective bargaining agreement which provides for final and binding arbitration of certain
which agreement was in full force and effect at all times mentioned herein. The parties
Wisconsin Employment Relations Commission to assign an arbitrator to hear and resolve the
grievance regarding the Employer's action to discontinue the practice of allowing Union
the use of the Employer's facilities, equipment and tools to work on their own personal
during non-working hours. The undersigned was appointed by the Commission as the
held a hearing into the matter in Allouez, Wisconsin, on March 26, 2002, at which time the
were given the opportunity to present evidence and arguments. The hearing was transcribed.
parties filed post-hearing briefs by June 12, 2002, marking the close of the record.
The underlying factual circumstances leading to this grievance are not in dispute.
years preceding the grievance, the members of the Union were allowed by the Employer to
facilities, equipment and tools located in the Public Works garages, Park shops and Water
Department garage to clean and perform routine maintenance on their personal vehicles.
had to be performed during non-work hours and only the employees themselves were
be on the Employer's premises while doing so. On August 23, 2001, the Employer notified
all of its
employees that the practice would no longer be allowed "effective immediately" and that this
was being taken by the Village "for liability reasons" pursuant to the advice of the Village's
The parties were unable to stipulate to the issue and left it to the Arbitrator to frame
in the award.
The Union would state the issue as follows:
Did the Village violate the collective bargaining agreement or
past practice when it
eliminated allowing bargaining unit employees the use of the Village's facilities, equipment,
to work on their personal vehicles during non-working hours, and if so, what is the
The Employer would state the issue as follows:
1. Did the Village violate the 1999-2001 Collective Bargaining
Agreement when it issued a work
rule prohibiting Village employees from using Village facilities and equipment for personal
2. If so, what is the appropriate remedy?
The Arbitrator states the issue as follows:
Did the Employer violate the collective bargaining agreement
when it discontinued the
practice of allowing bargaining unit members the use of Village facilities, equipment, and
non-working hours to perform maintenance or other work on their personal vehicles? If so,
the appropriate remedy?
ARTICLE 2. MANAGEMENT RIGHTS
Except as otherwise provided in this Agreement or as may
the wages and hours and
working conditions of Employees, the Union recognizes that the management of the Village
exclusively in the Employer. All power, rights, authority, and responsibilities customarily
solely by management are hereby retained. Such rights include but are not limited to the
A. To direct and supervise the work of its
B. To hire, promote and transfer
C. To layoff Employees for lack of funds or
other legitimate reasons;
D. To discipline or discharge Employees for
E. To plan, direct and control operations;
F. To determine to what extent any
process, service or activity shall be added, modified or eliminated;
G. To introduce new or improved
methods or facilities;
H. To schedule the hours of work;
I. To assign duties;
J. To issue and amend reasonable
K. To require the working of overtime
hours when necessary in the performance of Village business;
L. To take whatever action is
necessary to comply with State or Federal law.
ARTICLE 24. DURATION OF AGREEMENT
. . .
24.02. This Agreement nullifies any previous existing
policy or procedure established by and
between the Village of Allouez and the employees of the Departments of Public Works and
Maintenance covered by this Agreement. This Agreement, reached as a result of collective
bargaining, represents the full and complete agreement between the parties and supersedes all
. . .
The Union maintains that the practice of allowing the employees the use of the
facilities and equipment was, and is, a clear and unequivocal past practice and that it is
the parties. It cites Richard Mittenthal's article "Past Practice and the Administration of
Bargaining Agreements," 59 Mich. L. Rev. 1017 (1961) and its "characteristics" of a binding
practice and argues that the practice at issue here has each of those characteristics, i.e.
consistency, longevity and acceptability.
Ergo, this practice is binding on the parties. Further,
evidence of the past practice is relevant to the issue presented here since it does not conflict
clear and unambiguous contract language and thus may be introduced to provide a basis of
governing matters not included in the contract.
The Union cites a number of prior awards and portions of Elkouri and
propositions that the practice here constituted a personal employee benefit of "peculiar
value" and that arbitrators in the past have been more inclined to find such practices binding
parties. In short, it argues that this practice extended a significant personal benefit to the
which could not have been unilaterally eliminated by the Employer.
The Union argues that the Employer's reliance on the management rights clause in
of its actions is misplaced because the management rights clause does not address the
established past practices and hence does not negate the practice at issue here.
Nor can the Employer rely on the so-called "zipper clause" since the practice has
followed for many years and the zipper clause, as a "perfunctory sign off in a long series" of
contracts, does not allow the Employer to unilaterally eliminate it. The Union cites Western
Frontiers, Inc., 97 LRRM 1408 for the proposition that a zipper clause is not a "green light
unilateral action" and that pro-forma zipper clauses do not nullify a past practice where the
does not conflict with the express terms of the contract.
Citing Winnebago County, WERC, Case 311, No. 57139, MA-10524 (Crowley,
the Union says that, since the practice had become an implied term of the parties' collective
bargaining agreement, the Employer could not abrogate the practice by issuing a work rule
repudiate it by following the well-recognized procedure of giving timely notice to the Union
repudiation giving the Union the opportunity to negotiate a provision in the agreement to
the practice. In this case, the Union argues that the Employer failed to give it any notice of
to discontinue the practice during the negotiations for the current agreement, but rather,
employees of the termination of the practice one week after negotiations had concluded.
The Union argues that the Employer's stated reason for the repudiation, i.e. that its
carrier advised against its continuance due to potential liabilities, is exaggerated and
the benefit to the employees. It points to the fact that over the past 27 years during which
practice has been in effect, there have been no injuries to employees or anyone else, nor has
been any damage to personal property. In any event, says the Union, the Village could have
alleviated some of the potential liability by having the employees sign liability waivers as a
of the use of the facilities and equipment. The Union argues that the restrictions currently
the use of these facilities and equipment, i.e. the fact that employees are not allowed to bring
members or friends to the facilities nor are they allowed to work on vehicles other than their
further alleviates the liability concerns of the Village.
Finally, regarding the Employer's assertion that a Wisconsin Department of Industry,
and Human Relations inspection of its Public Works building in March, 2001, which found a
of building code violations, presented a reason for the elimination of the practice, the Union
that this is mere pretext since the Village continues to allow employees to work in the
because the Village advised that even if a new Public Works building were to replace the
the practice would still be prohibited.
The Employer argues that the management rights provision in the CBA reserves all
rights, authority and responsibilities normally reserved to management and that this includes
to issue reasonable work rules. It argues that the elimination of the practice at issue here
such a "work rule." Further, the Employer says that this particular work rule was issued to
the health, safety and welfare of employees" and others and to comply with the advice of its
insurance carrier that the discontinuance of the practice would limit the Employer's liability.
The Employer argues that the only limitation upon its exercise of the rights retained
management rights provision would be a matter otherwise addressed in the CBA and it
the agreement does not contain any other provisions which restrict its rights in this
regard or even mentions the issue of after-hours use of Village facilities, equipment or
argues the Employer, it is free to exercise its rights and issue the work rule eliminating the
The Employer asserts that any "alleged" past practice is irrelevant to the outcome of
this dispute because the
management rights provision is clear and unambiguous as to the Village's right to issue
reasonable work rules and,
consequently, the Arbitrator "is precluded from resorting to the past practice of the parties"
in order to resolve the
dispute. In any event, no binding past practice exists in this case because the parties did not
mutually agree to it and,
to the extent that any practice existed at all, it was "mere happenstance."
The Employer argues that, regardless of the foregoing, the "zipper clause" found
Article 24 nullifies any past practice and asserts that the language in this clause alone
dismissal of the grievance.
Finally, the Employer says that the "work rule" here was reasonable because it was
related to a legitimate objective of management, namely, "to be as certain as possible that
are not unduly exposing their employees and others to injury and themselves to liability." In
of its argument that the practice exposed the Village to liability and employees to harm, it
the occurrence of February 5, 2001. On this date an employee working on his car after
some gasoline into the storm sewer at the garage located next to the Village Hall. The odor
gasoline permeated the Village Hall and three apartments located above the garage. The Fire
Department evacuated these buildings and, perhaps, some homes nearby, due to the smell
Village was forced to put the apartment tenants up in a local motel. The Village also
hearing scheduled for that evening at Village Hall.
As a result of the events of February 5, 2001, the Village hired Insurance Services,
assess the various risks to the Village and to recommend alternatives for the reduction or
of them. Accordingly, two employees of that company provided the Village with their
of which was the use of Village facilities and equipment after hours. The Village contends
two investigators concluded that the Village was subject to "significant liability" as a result of
practice. Further, the Village received a report from the Wisconsin Department of
and Buildings Division, which recommended that the Village prohibit the use of its facilities
equipment by employees during off-work hours. Finally, the Village received a letter from a
Robert Cooke, the manager of the safety and health division of a company called Alpha
Science, wherein he concluded that, in his opinion, allowing workers to use company
a potential of liability. The Employer argues that these reports and opinions support its
support the proposition that its actions were reasonable.
The Union's Reply Brief
The Union argues that the Employer's position that the management rights clause is
unambiguous and may not, therefore, be modified by a past practice is without merit because
not mention the treatment of past practices and because such a clause may not be used to
overrule another clear and unambiguous contract term. As a binding past practice, as the
asserts this is, it becomes an implied term of the contract and may not be abrogated under
that the employer is merely exercising its management rights to promulgate a work rule.
The Union characterizes the "zipper clause" as "a perfunctory sign-off in a long
series" of contracts between
the parties and asserts that it is nothing more than a pro-forma clause which cannot nullify a
past practice where the
practice does not conflict with the express terms of the contract. Citing Fruehauf Trailer
Company, 29 LA 372,
375 (Jones, 1957) and Printpack, Inc., 112 LA 1115 (Crider, 1999).
The Union argues that the Village fails to show that the risks associated with the
so significant as to outweigh the personal employee benefit of it. It points out that there
no injuries and no property damage during the 27 years the practice has been in existence
the employees are prohibited from bringing family or friends to the facilities during
hours. It also argues that the Village could have had employees sign liability waivers to
liability exposure, but did not do so, and points out that the gasoline spill in February, 2001,
which no one was injured and no property damage occurred, could have as easily happened
The Village's Reply Brief
The Village argues that there is no clear and unequivocal past practice because there
mutual agreement to the practice and because the practice lacks consistency. It lacks
argues the Village, because "significant" restrictions were placed on it over the years. First,
the Village required employees to obtain permission before using the facilities and to check
in and out. Then, in 1997, the Village limited the use of its facilities and equipment to
The Village repeats its assertion that since the management rights clause language is
unambiguous as to the right of the Employer to issue reasonable work rules it may not be
by a past practice.
The Village asserts that it is under no obligation to negotiate with the Union prior to
work rules and, therefore, the Union's position that the abrogation of the practice should
bargained with the Union is without merit.
Finally, the Village repeats its prior arguments regarding the "zipper clause"
the practice and its assertion that the "work rule" was reasonable.
The Employer argues that no past practice exists in this case and that if the Arbitrator
to find that one does exist, its existence would be irrelevant to the analysis of the issues here.
the Union's grievance hinges upon the existence of a binding past practice, an analysis of
Initially, we need a clear and workable definition of "past practice." Richard
provides it for us in his article "Past Practice and the Administration of Collective Bargaining
Agreements," 59 Mich. L. Rev. 1017, 1019 (1961):
First, there should be clarity and
consistency. A course of conduct which is vague and ambiguous or which
been contradicted as often as it has been followed can hardly qualify as a practice. But
where those in the plant
invariably respond the same way to a particular set of conditions, their conduct may very
well ripen into a practice.
Second, there should be longevity and repetition. A period
of time has to elapse during which a consistent pattern of
behavior emerges. Hence, one or two isolated instances of certain conduct do not ordinarily
establish a practice . . .
. Third, there should be acceptability. The employees and the supervisors
alike must have knowledge of the particular
conduct and must regard it as the correct and customary means of handling a situation. Such
frequently be implied from a long acquiescence in a known course of conduct. Where this
acquiescence does not exist,
that is, where employees constantly protest a particular course of action through complaints
and grievances, it is
doubtful that any practice will be created.
The record here clearly supports the notion that the practice of allowing employees
of Village facilities, equipment and tools after work hours was clear and consistent over a
in excess of 27 years notwithstanding the Village's argument that two changes in the practice
instituted over that period of time. In 1996, the Village required that employees wishing to
facilities after work hours seek permission to do so and further required employees wishing
tools to check them in and out. In 1997, the Village limited the use of the facilities,
tools to employees only. In both cases, the Union accepted the modifications without
These changes had no substantive effect on the practice and do not support the argument that
defeat the requirement of consistency.
Certainly, the record confirms the fact that this practice meets the requirements of
and repetition. No one denies the fact that it has been in effect for over 27 years in its
save the two modifications mentioned above. Thus, an ample period of time has elapsed
a consistent pattern of behavior has emerged.
The testimony of Village witnesses and Union witnesses alike prove that the
supervisors both had knowledge of the practice and regarded it as the customary course of
and, until August 23, 2001, no one protested it. Hence, the acceptability element is
therefore, conclude that the Union has proved, as it had the burden to do, the existence of a
past practice and, as such, should be given status as an implied term of the agreement
The Employer argues that, binding past practice notwithstanding, it has the authority
under the management
rights provision to issue reasonable work rules and that the elimination of the practice here
was just that, an issuance
of a reasonable work rule. It argues that the rule was "reasonable" because it was designed
to protect the health, safety
and welfare of the employees. First of all, the record does not support the argument that the
practice was dangerous
to the employees or to anyone else. In 27 years, no one had been injured nor had any
property damaged resulted from
the after work hours use of these facilities by the employees. The only incident associated
with the use of the facilities
which could be viewed as evidence of potential liability is the gasoline spill in 2001. This
incident could have just as
easily happened during regular work hours. As such, it cannot be said that the incident was
caused by the practice.
It was caused by the nature of the work which takes place in the facility on a daily basis.
The Village had reduced its
liability to third parties to a great extent in 1997 when it restricted the use to employees
only. To further restrict its
liability it could have taken the simple step of requiring each employee desiring to use the
facilities to sign a waiver
or hold harmless agreement. As for the Village's argument that it had the authority to
discontinue the practice
pursuant to the management rights provision, the Arbitrator disagrees. As a binding past
practice, it has become a
contractual obligation; it has become an implied term of the parties' collective bargaining
agreement and, as such,
could not have been abrogated by a work rule any more than any other express term of the
contract. In this regard,
the Arbitrator embraces Arbitrator Mawhinney's reasoning in Manatowoc County (Highway
276, No. 49581, MA-7995 (Mawhinney, 3/94):
For many successive contracts, the parties have agreed that it is
not oppressive to continue the existing amenities
and practices for the duration of the contract, while it is usually impossible to spell out all
the practices under which
people work. If the Employer wants to change one of those practices or amenities in effect,
it needs to do so at the
bargaining table, and not unilaterally during the term of the contract.
Also see In re Weyerhaeuser Co., 95 LA 834, 838 (Allen, 1990):
My feeling is that where the past practice has been established for
such a long period of time, where the employees
working there have been given reasonable grounds for believing that it will continue and they
therefore could be
expected to adjust their personal lives to working under these conditions, and where the
practice began through a
definite understanding between the Company and the employees . . . then this is strong
evidence that this is the kind
of practice which will become a part of an Agreement unless the Agreement clearly states
that this is not to be so. In
the face of such established usage the plain management prerogative clause and the clause
that this is the "entire
understanding" between the parties is not enough to prevent this past practice from becoming
a definite part of the
Agreement. Those clauses have their specialized meanings to be sure, but they, by
themselves are not enough to defeat
such a history and pattern of circumstances as exists in this case . . . .
The Arbitrator rejects the Village's reliance on City of Wisconsin Rapids, Case 106,
No. 47179, MA-7192
(McGilligan, 9/92), which it asserts stands for the proposition that where an employer has
reserved the right to
establish work rules, past practice becomes irrelevant. The parties in Wisconsin Rapids had
a long bargaining history
which resulted in specific contract language prohibiting the practice of firefighters using City
facilities and equipment
after work hours and conclusively demonstrating the City's consistent non-acceptance of the
practice the Union sought
to preserve. It is doubtful that a binding past practice could have been shown under those
facts but it was unnecessary
for the Arbitrator to so find.
Past practices are not etched in stone. They may be repudiated by either party via
the other prior to or during the bargaining process. In this way, the other side has the
to attempt to negotiate the practice into the contract if it so desires. Arbitrator Mittenthal
following to say with regard to this issue:
Consider first a practice which is, apart from any basis in the
agreement, an enforceable condition of employment
on the theory that the agreement subsumes the continuance of existing conditions. Such a
practice cannot be
unilaterally changed during the life of the agreement. For . . . if a practice is not discussed
during negotiations most
of us are likely to infer that the agreement was executed on the assumption that the practice
would remain in effect.
That inference is based on the parties' acquiescence in the
practice. If either side should, during the negotiations
of a later agreement, object to the continuance of this practice, it could not be inferred from
the signing of a new
agreement that the parties intended the practice to remain in force. Without their
acquiescence, the practice would no
longer be a binding condition of employment. In the face of a timely repudiation of a
practice by one party, the
other must have the practice written into the agreement if it is to
continue to be binding." Proceedings of the 20th
Annual Meeting of NAA, 1, 35-36 (BNA Books, 1967); Mittenthal, "Past Practice and the
Administration of Collective
Bargaining Agreements," Proceedings of the 14th Annual Meeting of NAA,
30, 56-57 (BNA Books, 1961).
In this case, the Employer could have taken the issue to the bargaining table but
withhold notification of its intent to discontinue the practice until one week after the new
bargaining agreement had been ratified. As they say, timing is everything and the timing
by the Village in this instance was suspicious.
Finally, I reject the Employer's assertion that the so-called "zipper clause" found at
Article 24 entitled
"Duration of Agreement" eliminates the past practice between these two parties. This clause
is a boilerplate "exclusive
agreement" or "general waiver" clause which fails to specifically identify and nullify this
binding past practice.
Practices which are continued from contract to contract, even though not written into the four
corners of the
agreements, are as effective as though they had been. Arbitrator Edgar A. Jones in Fruehauf
29 LA 372, 375 (Jones, 1957) said:
The repeated execution of collective bargaining agreements which
contain exclusive agreement provisions has no
magical dissolving effect upon practices or customs which are continued in fact unabated and
which span successive
contract periods. Although not verbalized in the current agreement, such practices may
nonetheless comprise as
effective and binding a part of it as any of its written provisions . . .
Arbitrator Charles J. Crider addresses this issue well in
Printpack, Inc, 112 LA 1115, 1117 (Crider, 1999):
The rationale for the cases where a practice
prevails over a zipper clause is set forth in Elkouris' HOW
ARBITRATION WORKS at page 645: "All binding force of customary practice may be
eliminated if the contract
language is quite strong." Based on this authority, a purchaser such as Printpack relies at its
peril on a boilerplate
zipper clause to nullify practice. Printpack's rote clause is only a workaday contract sign-off
it does not conclusively
show an intent to void a practice. A buyer must negotiate explicit, concrete and unambiguous
language clearly stating
the initial labor contract between the parties nullifies any practice not expressly included in
the written agreement .
. . .
The Village in this case also relies at its peril on the clause at Article 24 and since
does not "conclusively show an intent to void" the practice at issue here the grievance is
In light of the foregoing, it is my
The Employer violated the collective bargaining agreement when it discontinued the
of allowing bargaining unit members the use of Village facilities, equipment and tools during
non-working hours to perform maintenance or other work on their personal vehicles and the
is sustained. The Village is ordered to reinstate the practice.
Dated at Wausau, Wisconsin, this 6th day of September, 2002.
Steve Morrison, Arbitrator