BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WHITE LAKE EDUCATION
BOARD OF EDUCATION FOR THE SCHOOL DISTRICT OF
WHITE LAKE, WISCONSIN
Mr. Stephen Pieroni, Staff Counsel, and Ms. Joanne
L. Huston, Associate Staff Counsel,
Wisconsin Education Association Council, 33 Nob Hill Drive, P. O. Box 8003, Madison,
Wisconsin 53708-8003, for the White Lake Education Association, referred to below as the
Mr. Robert W. Burns, Godfrey & Kahn, S.C., Attorneys at
Law, 333 Main Street, Suite 600,
P. O. Box 13067, Green Bay, Wisconsin 54307-3067, for the Board of Education for the
District of White Lake, White Lake, Wisconsin, referred to below as the Board or as the
The Association and the Board are parties to a collective bargaining agreement which
in effect at all times relevant to this proceeding and which provides for the final and binding
arbitration of certain disputes. The parties jointly requested, on December 26, 1995, that the
Wisconsin Employment Relations Commission appoint an Arbitrator to resolve a dispute
in a grievance filed on behalf of Dennis Highfield, referred to below as the Grievant. The
Commission appointed Richard B. McLaughlin, a member of its staff. The parties
the grievance be held in abeyance to permit the dispute to be addressed in collective
The Board, on June 21, 1996, filed an "Objection to Substantive Arbitrability/Motion to
In a letter to the parties dated July 2, 1996, I stated:
I write to confirm receipt of the District's motion to dismiss,
and to state my understanding
of the status of this matter.
Commission policy requires any staff arbitrator to secure the
concurrence of both parties
to an arbitration request prior to scheduling hearing. If one party objects that the underlying
dispute is not arbitrable, then the case file is closed, and the filing fee refunded. In such
requesting party must abandon the request or seek to compel arbitration through a court or
a complaint of prohibited practice.
I understand Mr. Burns' motion to question the substantive
arbitrability of the grievance.
I do not believe I have authority to address that issue unless the two of you so agree.
I write to advise you of my view of the status of this file. If the
two of you agree to
submit the issue of arbitrability to me, then I will address that issue. If not, I must close the
and refund the filing fee.
Please advise me of your position on this matter. . . .
Informal attempts by the parties to resolve the matter continued, but again proved
In a letter filed with the Commission on January 24, 1997, the Association offered to
the Board's motion. In a letter dated January 31, 1997, I noted "I have not received a
to my letter of July 2, 1996 . . . and would ask each of you to confirm that I should address
issue of substantive arbitrability before you undertake further briefing of the point." The
Association responded on February 11, 1997, in a fax which stated:
. . .
We are inclined to brief the substantive arbitrability issue.
However, it appears that Mr.
Burns is also arguing procedural arbitrability. If the latter is the case, it appears we would
need testimony on the procedural arbitrability issue or an agreement between the parties that
Association could assert facts in its brief which could be presumed to be true for the purpose
responding to the motion. If the facts proved to be inaccurate at hearing, the employer could
resurrect the procedural arbitrability issue. Our preference is to leave the procedural
issue for the arbitrator to decide as part of the case on the merits.
. . .
The Board filed a response on February 17, 1997, which states:
Responding to your letter of January 31, 1997, Attorney Steve
Pieroni and I conferred
today with respect to the above-referenced matter. To avoid the
necessity of a separate prohibited practice proceeding with regard
to the question of
substantive arbitrability of this matter, we are willing to proceed with your consideration of
on a bifurcated basis.
In addition, we jointly submit the issue of procedural arbitration
for determination at this
stage of the proceedings. As proposed in Mr. Pieroni's letter of February 11, 1997, if this
is determined to be substantively arbitrable and further, you determine it to be procedurally
arbitrable at this motion stage, the District would not waive its procedural arbitrability issue
hearing as to any underlying facts referenced by the Association that could be challenged at
hearing. . . .
The parties filed briefs and a waiver of any reply brief by May 5, 1997.
The parties were unable to stipulate the issues for decision. I have determined the
poses the following issues:
Is the September 29, 1995 grievance substantively arbitrable?
If so, was the September 29, 1995 grievance timely filed within
the meaning of Article VI
of the collective bargaining agreement?
RELEVANT CONTRACT PROVISIONS
The board acting for said District recognizes the Association as
the exclusive and sole
bargaining representative for the following unit of employees whether under contract, or on
employed or to be employed by the District all as are included in the certification instrument
II: No. 17603 Decision No. 12545) issued by the Wisconsin Employment Relations
on the 30th day of April, 1974:
It is HEREBY CERTIFIED that a majority of the eligible
employees who voted at said
election in the collective bargaining unit consisting of all full-time and regular part-time
personnel teaching at least 50% of a regular teaching schedule, but excluding supervisors,
managerial employees, confidential employees and all other employees, have selected White
Association as their representative; and that pursuant to the
provisions of Section 111.70,
Wisconsin Statutes, said labor organization is the exclusive bargaining representative of all
employees for the purposes of collective bargaining with the Municipal employer, or its
authorized representatives, on questions of wages, hours and conditions of employment.
. . .
A. The Board agrees that the individual teacher shall be free
restraint or coercion by the Board or its agents, in the designation of
representatives or in self organization or in other concerted activities.
B. Representatives of the Association and their affiliates,
after obtaining prior approval from
the Superintendent, or his/her designee, shall be permitted to transact Association business
on school property at reasonable times, provided that this shall not disrupt normal school
operations, according to existing policy.
C. The Association and its representatives, after obtaining
approval from the building
principal or his/her designee, shall have the right to use school facilities and equipment,
including typewriters, mimeographing machines and other duplicating equipment at
reasonable times when such equipment is not otherwise in use. The Association shall pay
for the costs of all materials, labor, supplies or repair resulting directly from such use.
D. The Association and its representatives shall have the
right to post notices of
activities and matters of Association concern on Association bulletin boards. The
Association may use the District mail service and teacher mail boxes for
communication to teachers.
E. Members of the Association shall be permitted to attend
Association related activities as
required with prior approval of the Superintendent and without pay. The total number of
such excused days shall not exceed six (6) in any school year. Each person shall be
allowed no more than two (2) days per year. The Superintendent will be notified no less
than forty-eight (48) hours prior to the commencement of such leave.
F. Designated representatives of the Association shall be
allowed to receive telephone calls
and other communiques concerning Association business only during preparation
(unassigned) school hours. The Association shall utilize a credit card for any toll calls
made. Page 5
G. It is expressly understood that the Association retains the
right to negotiate during
the contract term any changes that may occur within the scope of wages, hours or
conditions of employment. This section, G, was added in the 1976-78 agreement.
A. The District recognizes the teachers (sic) full
rights of citizenship. Nothing
contained herein shall be construed to deny or to restrict any teacher such rights as
s/he has under the laws of Wisconsin and the United States or other applicable
laws, decisions and regulations.
B. A teacher called to appear for jury duty or other legal
duty when subpoenaed shall not lose
compensation for the performance of such obligation. The teacher will pay the District
what the teacher earns for jury duty.
C. No teacher shall be required to appear before the Board
or its agents concerning any matter
which could adversely affect the continuation of that teacher in his/her office, position,
employment, or the salary or any increments pertaining thereto, unless s/he has been given
prior written notice of the reason for such a meeting on interview and shall be entitled to
have a representative of the Association present to advise him/her and represent him/her
during such interview.
D. All rules and regulations governing employee activities
and conduct shall be
interpreted and applied uniformly.
E. The Board shall maintain a telephone in the faculty
workroom for individual teacher use
in phoning parents and other personal calls not incurring toll charges.
. . .
1. A "Grievance" is a claim based upon an event or
condition which affects the
wages, hours and conditions of employment of a teacher or group of teachers as
it pertains to the interpretation, meaning or
application of any of the provisions of this agreement. A
grievance must be
initiated within fifteen (15) days after the occurrence or event upon which a
grievance is based.
. . .
3. The term "Days" when used in this article shall, except
where otherwise indicated
mean working days; thus, weekend or vacation days are excluded
1. The purpose of this procedure is to secure, at the lowest
level, equitable solutions to the problems which may from time to time arise
pertaining to the interpretation, meaning or application of any of the provisions of
C. General Procedures:
1. Since it is important that grievances be processed as
rapidly as possible, the
number of days indicated at each level should be considered as a maximum and
every effort should be made to expedite the process. The time limits specified
may, however, be extended by mutual agreement.
2. In the event a grievance is filed at such time that it
cannot be processed through all
the steps in this grievance procedure by the end of the school term, which if left
unresolved until the beginning of the following school term, could result in
irreparable harm to a party in interest, the parties agree to make a good faith effort
to reduce the time limits set forth herein so that the grievance procedure may be
exhausted prior to the end of the school term or as soon thereafter as is practicable.
3. In the event a grievance is filed so that sufficient time as
stipulated under all levels
of the procedure cannot be provided before the last day of the school term, should
it be necessary to pursue the grievance to all levels of the appeals, then said
grievance shall be resolved in the new school term in September under the terms
of this agreement and this article, and not under the succeeding agreement.
. . .
D. Initiating and Processing
1. Level One - The grievant will first discuss
his/her grievance with his/her principal
or immediate supervisor, either directly or through the Association's designated
representative. The principal shall be told that this is a grievance and not just
conversation. . . .
2. Level Two - (a) If the
grievant is not satisfied with the disposition of his/her
grievance at Level One, or if no decision has been rendered within five (5)
working days after presentation of the grievance, s/he may file the grievance in
writing with the Superintendent of Schools. This presentation must be made within
fifteen (15) days of the principal's response.
(b) Within five (5) working days
after receipt of the written grievance by the
Superintendent, the Superintendent will meet with the grievant and/or their
representative in an effort to resolve it.
(c) If the written grievance is not
forwarded to the Superintendent within twenty-five (25) days after the facts upon which the
grievance is based become known or
the act or condition on which the grievance is based occurred, then the grievance
will be considered as waived.
. . .
4. Level Four
. . .
(c) Each individual grievance shall be heard and
arbitrated by a separate arbitrator,
unless the partied (sic) agree to combine more than one grievance to be arbitrated.
The procedure in this paragraph shall not apply to grievances concerning
nonrenewals or dismissals. In such cases the procedure in Paragraph E below shall
It is understood and agreed that the function of the
arbitrator shall be to interpret
and apply specific terms of this agreement. The arbitrator shall have no power to
add to, subtract from, modify or amend any terms of this agreement.
The decision of the arbitrator, if within the scope of
his/her authority, as defined
in the preceding paragraph, shall be binding on both parties. A court may modify
or correct the award of an arbitrator or resubmit the matter to the arbitrator where
the arbitrator has issued an award which contains errors of law or fact.
. . .
E. Nonrenewal or Dismissal Arbitrations:
1. This procedure shall apply for grievances proceeding to
arbitration concerning the
dismissal or nonrenewal of a bargaining unit member. Within ten (10) working
days following appeal of the grievance to arbitration, the Board and the Association
shall request the Wisconsin Employment Relations Commission to submit a list of
five (5) impartial arbitrators. The Board and the Association shall then alternately
strike two parties on each slate, with the party filing the grievance exercising the
first and third strikes. The Board and the Association shall exercise their strikes
within ten (10) days following receipt of the slate from the WERC. The remaining
arbitrator shall then be notified of his/her appointment as arbitrator.
. . .
. . .
5. Grievances concerning nonrenewal or dismissal shall be
initiated at Level Three.
. . .
. . .
A. When the Board determines that it will consider the
possible nonrenewal of a
teacher, it shall be in compliance with Section 118.22, Wisconsin Statutes. A
teacher given preliminary notice of nonrenewal shall receive a private conference
if requested pursuant to Section 118.22, Wisconsin Statutes, however, the teacher
may request up to thirty (30) days (sic) notice prior to this conference. If the
scheduling of the private conference extends beyond March 15th, then the teacher
and the Association shall enter into a written waiver of the timeline and notice
provisions of Section 118.22, Wisconsin Statutes.
B. The Board shall at the time of the notice, also supply the
teacher with full disclosure of all
charges and allegations being made. Such disclosure shall contain:
1. A detailed complete statement of all reasons for the
2. Specific acts or conduct which are the basis for the stated
reasons including the
dates and places where such acts or conduct occurred.
3. Copies of any reports, evaluations, letters or any other
written material which the
Board will consider or has considered with respect to the proposed nonrenewal.
C. Such information shall be supplied in legible form and
shall constitute the written basis of
the employer's case against the employee to the date of the notice.
A. If the Board determines to reduce, in whole or part, the
number of teaching
positions, the Board may lay off only the necessary number of teachers taking into
account and protecting the seniority of all teachers in the system who are certified
for retention in that department. No teacher may be prevented from securing other
employment during the period s/he is laid off under this subsection. Such teachers
shall be reinstated in inverse order of their being laid off, if qualified by
certification for such reinstatement. This shall not result in a loss of credit for
previous years of service. No new or substitute teachers may be hired while there
are laid off teachers available who are certified to fill the vacancies and who apply
for the position.
B. Teachers affected by a staff reduction will be notified of
vacant positions when they occur
within the District if such vacancies are within their area of certification. Such notification
shall occur for up to two (2) years from date of lay-off. To be recalled, a teacher must
be eligible for the open position with regard to certification and must have taught in that
department immediately preceding the layoff. Recalled teachers will be re-employed only
if they accept the offer of employment during the school year within five (5) days after
receiving the offer, or within fifteen (15) days if the offer is made for employment at the
beginning of a school term. The notice shall be sent to the last known address of the
employee on file in the District records.
C. Nothing in this Article shall be interpreted to restrict the
Board's authority to determine
the number of positions to be reduced in a given school year.
A. Seniority is defined as length of service as a full or
part-time certified teacher
within the District as of the teacher's first working day.
B. By November 1 of each school year, the Board will
publish and distribute to all teachers
and the Association a seniority list ranking each teacher from greatest to least seniority.
This list shall also itemize, after each name, such teacher's area(s) of certification. A
finalized list shall be provided the Association by March 1 of each year which list shall
include all corrections, deletions and additions of teachers for the school year. In no event
will personnel outside the bargaining unit be included on the seniority list nor will the
Board add such personnel to the seniority list in the event of lay-off.
C. In the event of more than one (1) teacher having the
same seniority ranking, prior written
evaluations of the teacher during his/her tenure shall determine his/her being placed in the
higher position on the seniority list.
. . .
A. The Board or its administrative officers in recognition of
the concept of progressive
correction, shall notify a teacher in writing of any alleged delinquencies, indicate
expected correction and indicate a reasonable period for correction. Alleged
breaches of discipline shall be promptly reported to the offending teacher.
B. A teacher shall at all times be entitled to have present a
representative of the Association
when s/he is being reprimanded, warned or disciplined for any infraction of rules or
delinquency in professional performance. When a request for such representation is made,
no action shall be taken within fifteen (15) minutes with respect to the teacher or until such
representative of the Association is present.
C. No teacher shall be discharged, non-renewed, suspended,
reduced in rank or compensation for disciplinary purposes without just cause.
D. 1. When, in the judgment of the Superintendent, a
condition or situation
warrants, the Superintendent may suspend a staff member, pending action
by the Board.
2. Because such action could only follow the most grave
situation, the Superintendent
shall file written charges with the Board of Education and shall forward copies of
said charges to the suspended staff member.
3. The Board shall schedule a hearing to act within three (3)
days upon the charges.
Said hearing shall satisfy the requirements of Level Three of the grievance
procedure contained herein. All other provisions of the grievance procedure shall
apply, including the right of the staff member to appeal the Board's decision to
Level Four if s/he is not satisfied with the decision.
. . .
A. An inservice committee composed of four (4) teachers
and one (1) administrator
shall determine teacher activities on inservice days designated in the agreement.
The final adoption and evaluation of the district-wide and individual inservice
program shall be based on the recommendation of the administrator with the
approval of the Board of Education.
B. Teachers on noon hour duty shall receive compensating
time for such duty.
C. Teachers will agree to substitute for playground aide
when ill, if asked.
D. The District shall make every reasonable effort to supply
all teachers with
sufficient supplies and teaching materials to properly discharge their duties.
E. Whenever a teacher is requested by the Board or by the
Superintendent to secure a
temporary certification, the Board shall pay any fees involved.
TEACHING HOURS AND CLASS LOAD
A. The school day shall begin at 7:45 A.M. with teachers
on duty in the building.
The school day shall end at 3:15 P.M. except for those teachers with extra-curricular and
co-curricular duties and teacher bus drivers. Teachers are
encouraged to remain for a sufficient period after the close of the pupil's school
day to attend to those matters which properly require attention at that time,
including consultations with parents when scheduled directly with the teacher,
except that on Fridays or on days preceding holidays or vacations, the teacher's
day shall end at the close of the pupil's day.
B. The weekly teaching load for all teachers shall be thirty
(30) high school class periods of
student contact time. Contact time is defined herein as any time a teacher is assigned to
direct the learning or supervise the behavior of students. Without his/her consent, no
teachers shall be assigned to more than thirty (30) high school class periods of pupil
contact per week. Each teacher shall be assigned a minimum of five (5) non-contact high
school class periods per week.
C. All teachers shall receive a duty free uninterrupted lunch
period of thirty (30) continuous
D. If a teacher shall teach more than the normal teaching
load as set forth in this
article, s/he shall receive additional compensation at his/her pro rata hourly rate for
each teaching period in excess of such hours.
E. Daily preparation for effective teaching, correcting
papers, themes and attending similar
activities require many hours of application outside the classroom and add to the
professional responsibilities of the teacher. In addition, demands are made for attendance
at staff conferences, parent-teacher conferences which demands can readily become
excessive. It is accordingly agreed that if staff conferences and/or parent/teacher
conferences shall exceed thirty (30) hours per school year, outside of teacher and
preparation periods and prescribed in-service training sessions, the Board will pay the
teacher for these services in excess thereof at the teacher's pro rata hourly rate.
. . .
A. The basic salaries of teachers covered by this agreement
are set forth in Appendix
B which is attached to and incorporated in this agreement. . . .
. . .
A. The parties recognize the importance and value of a
procedure for assisting and
evaluating the progress and success of both newly employed and experienced
personnel for the purpose of insuring quality instruction. All monitoring
observation of the work performance of a teacher shall be conducted openly.
B. In the event that the teacher feels his/her evaluation was
incomplete or unjust, s/he may
put his/her objections in writing and have them attached to the evaluation report to be
placed in his/her personal file.
C. In cases of negative teacher evaluation, the evaluator will
hold a conference with the
teacher and outline and discuss a program of professional improvement for the teacher to
D. Any complaints regarding a teacher, which have an effect
on his/her evaluation or
his/her continued employment that are made to the administration by any parent,
student or other person shall be in writing and promptly called to the teacher's
attention. Said teacher shall have the right to answer any complaints and his/her
answer shall be reviewed by the administration and attached to the filed complaint.
E. Copies of teacher evaluation shall be made available to
the teacher and initialed by both
F. Prior to any evaluation, the administration shall explain
to all teachers in the system the
evaluation instruments, the evaluation visits and the method of evaluation.
G. Evaluations shall only be made by certified
administrators, supervisors or
specialists certified by the D.P.I.
H. All evaluations shall be complete.
I. Length of time of classroom observation shall be noted
on the evaluation.
J. The absence of an evaluation in any year in a teacher's
file shall denote satisfactory work
The "NOTICE OF GRIEVANCE AND REQUEST FOR REMEDY" form reads thus:
Date of Submission: September 29, 1995
Person and Level of Submission: Level
II, Harold Brennan, Superintendent
. . .
(The Grievant) was non-renewed for 1995-96 to a 6/7 teaching
position for financial reasons,
yet the District's finances have improved for 1995-96. (The Grievance) is working a 6/7
but his workload has increased.
Article I, Recognition
Article IV, Association Rights
Article V, Teacher's Rights
Article XIV, Fair Disclosure
Article XV, Layoffs
Article XVI, Seniority
Article XVIII, Discipline
Article XXIII, Teaching
Article XXIX, Teacher
(The Grievant) be returned to a full-time teaching position and
any and all appropriate
The only evidence of an earlier level is a handwritten note from Brennan to the
September 8, 1995, which states: "If you think you still want to file a grievance, please put
Brennan responded to the Level II grievance in a letter to the Grievant and the
dated October 6, 1995, which states:
Grievance is untimely as it pertains to a Board action months
prior to the grievance. Sec.
Article VI (A)(1).
Further, the grievance does not allege a violation of any provision
of the Master Agreement.
(The Grievant's) "workload" remains at 6/7 of a full schedule. There is no other definition
"workload" in the Master Agreement. Grievance is denied as I find no violation of the
The Association responded by filing a Level III grievance, dated October 10, 1995,
the allegations of the Level II form.
THE BOARD'S POSITION
After a review of the relevant background, the Board argues that "(t)he Association's
grievance on behalf of (the Grievant) is substantively inarbitrable because it does not allege
specific contractual violation, in terms of interpretation, meaning, application or anything
This directly contradicts the provisions of Article VI, Sections A, 1 and B, 1. Even "a
review" of the "pertinent" agreement provisions cited on the grievance "reveals those
in fact, are not pertinent."
More specifically, the Board argues that Article I recognizes the bargaining unit, but
nothing to do with the reduction in (the Grievant's) course load." Article IV sets out certain
Association rights and Article V sets out certain rights of teachers, but neither has any
a course load reduction. Article XV governs layoff, but is inapplicable to the 1/7 reduction
Grievant's work load. The Board puts the point thus: "(the Grievant's) schedule has been
reduced; he has not been laid off." Articles XVIII and XXIX are irrelevant because the
load reduction is not related to work performance. Article XXIII is irrelevant because
Article XIV is the "only provision" which "even arguably could be relevant here."
provision, however, governs disclosure of the basis for a non-renewal. The Board,
Association will assert the financially motivated reduction must be altered in light of
post-reduction improvement in District finances, contends "the Association's presumed
flawed." Initially, the Board argues that Article XIV is tied to the date of the notice, thus
post notice events, "financial or otherwise," irrelevant. Beyond this, the Board contends
XIV "does not grant the Association the right to second guess the discretion of the Board in
making its financial decisions." Even if the Board's financial situation has improved, the
agreement imposes no obligation to fund any specific level of positions.
Even if the grievance could be found substantively arbitrable, the Board argues it
be found procedurally arbitrable. The grievance is "woefully untimely." Acknowledging
procedural arbitrability issues are typically "within the province of the arbitrator," the Board
argues that the issue must be raised "to emphasize the lack of merit to this grievance," and
protect (the Board) from any later arguments of waiver."
Article VI, Sections A and C establish that the Association had fifteen days to grieve
Grievant's reduction. That reduction occurred in March of 1995, and the grievance, filed on
October 10, 1995, cannot be considered within the clear time limits of Article VI.
The Board concludes the grievance must be dismissed either as procedurally
substantively inarbitrable or both.
THE ASSOCIATION'S POSITION
After a review of the relevant background, the Association argues that the grievance
substantively arbitrable. The definition of "grievance" in Article VI does not expressly
any claims concerning alleged contractual violations. Settled law establishes that "(w)here
parties have agreed to submit all questions of contract interpretation to the arbitrator, a claim
which on its face is governed by the contract is substantively arbitrable." The grievance
this test by alleging the Board's action toward the Grievant "violates the layoff and salary
provisions of the 1993-95 Master Agreement."
More specifically, the Association contends that Article XV "requires that the Board
in good faith by only reducing the necessary number of teaching positions." Evidence will
according to the Association, that the Board never had a good faith basis to reduce the
workload. Beyond this, the Association contends evidence will show the Board has yet to
reduce the Grievant's workload. Since the reduction was not necessary, it violates the
of Article XV.
Since the Board has continued to require the Grievant "to perform the equivalent of a
full-time teaching load while failing to pay him for full-time work at the agreed upon salary,"
can also establish a violation of the salary schedule. Anticipating a Board contention, the
Association asserts that Article XV, Section C, cannot be considered to dictate any other
conclusion. That provision must be harmonized with Article XV, Section A, and the
of the sections is, inevitably, a subject for arbitral interpretation.
The Association then contends the grievance is procedurally arbitrable. In March of
"the Association was not aware that the stated financial reasons for the layoff did not exist."
Grievant did not become aware of "the financial status of the District" or "the number of his
students" until the following fall. The submission of the grievance on September 29,
within fifteen working days of a conversation between the Grievant and the Superintendent.
any event, the grievance alleges an ongoing violation.
The grievance must, according to the Association, be found procedurally and
The initial issue for decision is whether the grievance can be considered substantively
arbitrable. The standards governing the enforcement of an agreement to arbitrate date back
Steelworkers' Trilogy. United Steelworkers v. American Mfg. Co., 363 US 564 (1960);
United Steelworkers v. Warrior & Gulf Navigation Co., 363 US 574 (1960); United
Steelworkers v. Enterprise Wheel & Car Corp., 363 US 593 (1960). The Wisconsin
Supreme Court incorporated, from the Trilogy, the teaching of the limited function served by
reviewing authority in addressing arbitrability issues. Dehnart v. Waukesha Brewing Co.,
Inc., 17 Wis.2d 44 (1962) The Court, in Jt. School Dist. No. 10 v. Jefferson Ed. Asso.,
stated this "limited function" thus:
The court's function is limited to a determination whether there is
a construction of the
arbitration clause that would cover the grievance on its face and whether any other provision
the contract specifically excludes it. 78 Wis.2d 94, 111 (1977)
The Jefferson Court held that unless it can "be said with positive assurance that the
clause is not susceptible of an interpretation that covers the asserted dispute" the grievance
be considered arbitrable. 78 Wis.2d at 113.
"Grievance" is broadly defined at Article VI, Section A, 1 as "a claim based upon an
or condition which affects the wages, hours and conditions of employment of a
teacher . . . as it
pertains to the interpretation, meaning or application of any of the provisions of this
The grievance form presented to the Board questions the Grievant's reduction from a
a 6/7 time position. The Association argues the grievance on that basis and adds that the
has inappropriately compensated a teacher with a full-time load at a 6/7 pay rate. Either
of this dispute states a claim governed, on its face, by the agreement's definition of a
Articles XV and the salary schedule, as implemented through Articles XXIII, XXV and
B cover either claim on its face. Thus, the first element of the Jefferson analysis has been
The second element of the Jefferson analysis turns on Article XV, Section C, a
pointed to by the Association to address a potential Board argument. Section A of Article
focuses a Board decision to reduce staff on "the number of teaching positions." The layoff
process then focuses on "teachers," requiring that "only the necessary number of teachers"
selected for layoff to implement the Board's reduction of positions. Section C cautions
arbitral intrusion into the policy decision to reduce positions. This would appear to point
scrutiny at the number and the identity of the individuals selected for layoff, rather than
at the underlying policy decision which prompted a layoff. Whether or not this
reflects the appropriate interpretation of the section, the Jefferson analysis turns on the
of an agreement provision which "specifically excludes" a grievance from the scope of the
arbitration clause. Section C presumes arbitral interpretation of the layoff process and states
admonition on the scope of the necessary review. This may force arbitral inquiry away from
policy decision to reduce positions, but does not specifically exclude review of the
of the policy decision, including the decision to select the Grievant for layoff. As applied to
issue of substantive arbitrability, the fineness of this distinction is irrelevant. The provision
be viewed as a specific bar to arbitral review of the implementation of a layoff decision.
Beyond this, Article XV, Section C has no bearing on the grievance to the extent it
compensation issues independent of the decision to layoff. Article XV, Section C has no
on the grievance if it questions whether the Grievant's workload can contractually be viewed
an overload requiring additional payment. In sum, the agreement does not contain any
specifically excluding the grievance from arbitration. Thus, the second element of the
analysis has been met, and the grievance must be considered substantively arbitrable.
The most troublesome aspects of the parties' arguments turn on the issue of
arbitrability. Article VI, Sections A, 1 and 3 govern this determination, and require that the
grievance must be initiated within fifteen working days after the occurrence or event upon
a grievance is based. These provisions make the underlying source of the complaint crucial.
Whether the grievance is characterized as a compensation or a layoff issue thus assumes a
significance beyond that posed by the determination of substantive arbitrability.
As written, the grievance challenges the layoff decision, and the record shows no
within the 1995-96 school year upon which the grievance could be based. The first sentence
the "Statement of Grievance" focuses on improving District finances. This urges the
of "newly discovered evidence" upon which the layoff decision of the preceding Spring
be questioned. There is, however, no arbitration record to reopen for the purpose of
such evidence. Nor is there any apparent "event" occurring in September of 1995 which
the layoff decision. That the Grievant and the Superintendent discussed his situation early in
1995-96 school year cannot obscure that the layoff decision was made and implemented the
The implementation of the layoff has contractual significance. Article VI, Section A,
read with Article VI, Section C, 1 establish, as a general proposition, the significance the
attribute to prompt resolution of grievances. Article VI, Section C, 2 underscores this as
specifically applied to this grievance. Deferring a grievance questioning a layoff commenced
the Spring of 1995 until the following Fall is not reconcilable with Article VI, Section C, 2.
Other agreement provisions make it unpersuasive to look beyond the events of the
of 1995 as the basis for the grievance. If, as the grievance states, the event underlying the
grievance is a non-renewal, then Article XIV demands that the Board act based on the
then available to it. The asserted evidence of financial improvement in September was no
apparent to the Board the preceding Spring than it was to the Grievant. Nor are these
addressed if the matter is handled as a layoff under Article XV. As noted above, whatever
the Grievant had about the financial basis for the layoff could have been brought in the
1995. To the extent the financial basis of the layoff decision can be questioned under Article
it is not apparent how the funding of 1/7 of one position could not be questioned in the
1995, but could be questioned the following Fall. Nor is it apparent how this inquiry can be
squared with the provisions of Article XV, Section C. The first sentence of the grievance
questions not the Grievant's selection for layoff, but the policy decision to reduce any
at all. As applied to the reduction to a 6/7 position, there is no persuasive evidence of an
"occurrence or event . . . upon which (the) grievance is based" which took place within
working days of the filing of the grievance.
The Association contends that the grievance poses a compensation issue which could
have been posed until the following school year, when potential workload issues became fact.
This draws on the second sentence of the "Statement of Grievance," and focuses on
provisions implementing the salary schedule. This argument has considerable persuasive
but cannot be accepted.
The Association's argument is not well rooted in the grievance. The Association's
to make the grievance into a compensation issue attempts to address the absence of an event
September, 1995, upon which to base a layoff grievance. The strain between this argument
the grievance is, however, apparent. The "Pertinent Contract Provisions" section of the
adopts a shotgun approach, scattering the wide range of agreement provisions set forth
This approach, however, makes the grievance look less like the focused, compensation issue
argued by the Association than an unfocused search for a remedy. Entire unrelated articles,
including provisions governing jury duty and substitution for playground and lunchroom, are
called into play by the grievance. Beyond this, the grievance cites a series of provisions that
the questioned Board conduct to matters which, at best, impact workload indirectly, such as
discipline under Article XVIII and evaluation under Article XXIX. Nor is the citation to
governing compensation without difficulty. The grievance cites "Article XXIII,
Conditions." Article XXII, however, is entitled "TEACHING
CONDITIONS" and is inapplicable
here. Article XXIII governs "TEACHING HOURS AND CLASS LOADS" and
applicable, but the absence of any reference to a specific subsection is troublesome. More
troublesome than this is the absence of any citation to Article XV which implements
schedule the Association now urges as the basis for the grievance.
The difficulty of reconciling the grievance to the Association's arguments is ultimately
traceable to the fact that the grievance questions layoff or non-renewal, not compensation
This is underscored by the "Remedy Requested" portion of the grievance. That section seeks
Grievant's return to a full-time position, not overload compensation.
Even if the grievance is treated as one concerning compensation, it is not apparent
event occurred within fifteen working days of September 29, 1995, to trigger it. There is no
apparent connection between the Superintendent's September 8 conversation with the
any issue of compensation. If the Grievant seeks overload compensation, it is difficult to
understand why the grievance does not say so. The tie to compensation issues is even
strained by an examination of the processing of the grievance. Article VI, Section D, 1
the Grievant to first discuss a grievance with his "immediate supervisor," and identify that
discussion is "a grievance and not just conversation." How the Grievant's discussion with
Brennan complies with this is not apparent. Brennan's handwritten note of September 8 does
answer a grievance, but seeks that it be filed, if it exists. Whatever was said in that
it has no discernible relationship with the requirements of Article VI,
Section D, 1.
In sum, identifying the grievance as one posing a compensation issue strains the terms
the grievance and cannot obscure that there is no event occurring within the 1995 school year
which would trigger a compensation grievance. The grievance seeks to reopen consideration
events which occurred the preceding Spring. This violates a number of provisions within
Article VI. Thus, the grievance cannot be considered procedurally arbitrable.
Before closing, it is necessary to tie this conclusion more closely to the parties'
The Association contends that the grievance, however characterized, states a continuing
I have, in past cases, accepted continuing violation theories, see School District of Augusta,
MA-3437 (McLaughlin, 6/85) and Board of Education, Suring Public School District,
MA-9916 (McLaughlin, 9/97). Acceptance of this argument cannot, however, ignore
contract language and the facts of each case. In each case in which I have accepted the
I concluded it could be applied without reading express timelines out of existence. That is
possible in this case. The contract contains several provisions requiring the layoff aspect of
grievance to be raised within fifteen days of the event triggering the layoff. Here, the date
layoff is unclear, but it is undisputed that it occurred the school year preceding the filing of
grievance. There can be no dispute the Grievant was aware of his layoff. There is, then, no
to apply a "continuing violation" theory of the grievance in a fashion which does not read
VI, Sections A, 1; A, 3; C, 2; and D,1 out of existence.
The more troublesome aspect of the issue regarding procedural arbitrability concerns
Association's characterization of the dispute as one posing a compensation issue. That
more amenable to the application of a continuing violation theory. This grievance, however,
contains no clear reference to compensation issues, other than those posed by the Grievant's
reduction to a 6/7 position in the Spring of 1995. There is no clear statement of an event
triggering the otherwise undefined compensation dispute occurring in September of 1995.
too, accepting a continuing violation theory would read the grievance timelines out of
Denial of a determination of the merits of a dispute should not be granted lightly. However,
significance of enforcing express timelines cannot be ignored:
Where the parties have clearly agreed that grievances are to be
filed within so many days of
the action in question, arbitrators uniformly uphold those provisions, however harsh the
An untimely grievance will be rejected as
nonarbitrable absent waiver or some unusual circumstance. Labor
Arbitration, Second Edition (Matthew Bender, 1997) at 8-28.
. . .
If the agreement does contain clear time limits for filing and
prosecuting grievances, failure
to observe them generally will result in a dismissal of the grievance if the failure is
How Arbitration Works, Fifth Edition (BNA, 1997) at 276.
In this case, the grievance timelines are apparent and the Grievant was aware of the
taken toward him in the Spring of 1995. The September 29 grievance must be considered
This conclusion should not be read to require detailed pleading in a grievance. The
processing of grievances should be no more formal than necessary to comply with the
labor agreement. Denial of a determination of the merits of the grievance risks elevating
over substance. No less a danger, however, is to arbitrally create a grievance never brought
the work site. The provisions alleged in the grievance range from a description of the unit to
Association rights to use District equipment. To examine those provisions and imply a
never plainly alleged risks elevating contract interpretation to contract creation.
The September 29, 1995 grievance is substantively arbitrable.
The September 29, 1995 grievance was not timely filed within the meaning of Article
of the collective bargaining agreement.
Dated at Madison, Wisconsin, this 14th day of October, 1997.
Richard B. McLaughlin /s/
Richard B. McLaughlin, Arbitrator