BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WHITE LAKE EDUCATION ASSOCIATION
WHITE LAKE SCHOOL DISTRICT
Mr. Stephen Pieroni, Staff Counsel, Wisconsin Education
Association Council, 33 Nob Hill
Drive, P.O. Box 8003, Madison, Wisconsin 53708-8003, on behalf of the White Lake
Godfrey & Kahn, S.C., Attorneys at Law, by Mr. Robert W.
Burns, 333 Main Street, P.O.
Box 13067, Green Bay, Wisconsin 54307-3067, on behalf of the White Lake School
On December 20, 1994, the White Lake Education Association, hereinafter the
Association, and the White Lake School District, hereinafter the District, jointly requested
the Wisconsin Employment Relations Commission appoint a staff arbitrator to hear and
instant dispute, in accord with the grievance and arbitration procedures contained in the
Collective Bargaining Agreement. Thereafter, the Commission designated James W.
a member of its staff, to arbitrate in the dispute. Hearing was held before Arbitrator
on July 18, 1995, in White Lake, Wisconsin. Due to Arbitrator Engmann's leaving the
Commission's employ, Jane B. Buffett, a member of the Commission's staff, was designated
replace Mr. Engmann as Arbitrator. The Association subsequently moved to have Arbitrator
Buffett hear the case de novo. The District
opposed the motion and the parties filed briefs in
support of their respective positions on March 4, 1996. On March 8, 1996, Arbitrator
issued her ruling granting the Association's motion. Arbitrator Buffett subsequently became
unavailable due to illness, and the Commission designated David E. Shaw, a member of its
to arbitrate in the dispute. Thereafter, the parties entered into discussions regarding entering
a stipulation to supplement the record made by Arbitrator Engmann. On July 24, 1997, the
parties submitted a "Stipulation in Lieu of Additional Testimony" in the matter, as well as
initial briefs. By August 14, 1997, the parties submitted their reply briefs in the matter.
Based upon the evidence and the arguments of the parties, the undersigned makes and
issues the following Award.
The parties were unable to stipulate to a statement of the issues and have agreed the
Arbitrator will frame the issues to be decided.
The Association would state the issues as being:
Did the Employer violate the collective bargaining agreement
when it denied the Grievants,
Eileen Vaudt, Marian Wahleithner, Kim Koelzer and Sharon Tainter, the option plan
Article XXVII? If so, what remedy is appropriate?
The District would state the issues as follows:
Are unit members who work less than 20 hours per week
ineligible to receive health insurance
The District also raises an issue as to the timeliness of the grievance.
The Arbitrator frames the issues to be decided as follows:
(1) Is the grievance timely?
If so, then:
(2) Did the District violate Article XXVII, Sections A, B
and C, of the parties' 1993-1995 Collective Bargaining Agreement when it denied the
Grievants the benefits
provided by these provisions of the Agreement? If so, what is the appropriate
The following provisions of the parties' 1993-1995 Agreement have been cited, in
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
Education 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 such employees for the purposes of collective bargaining with the
employer, or its lawfully authorized representatives, on questions of wages, hours and
. . .
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.
2. A "Grievant" may be a teacher or group of teachers or
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.
. . .
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. In the event of a grievance, the employee shall perform his/her
assigned work task and grieve his/her complaint later unless it endangers his/her
health or safety.
. . .
PROFESSIONAL QUALIFICATIONS AND
. . .
E. Teacher volunteering to take additional loads because of
nonavailability of substitutes, shall
be compensated at the rate of 1/7th of the substitute daily pay per high school class period,
however, this shall not apply to study hall situations (unless a class sent to study hall
results in that teacher supervising more than fifteen (15) students above that hour's normal
load for that class period).
. . .
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. The teacher's pro rata hour/daily rate shall be determined
in the following manner:
1. Teacher's Scheduled Annual Salary
No. of Contracted Days
(189) = Daily Rate
2. Pro Rata Daily Rate
Maximum Teaching Periods
(7) = Hourly Rate
. . .
A. The Board shall make payment of insurance premiums
for each employee to assure
insurance coverage for a full twelve (12) month period for all employees who
complete their contractual obligation. If an employee terminates his/her
employment for reasons other than illness prior to June, his/her subsidy shall
B. In the event that an employee, absent because of illness
or injury, has exhausted sick leave
accrual, the hospital-surgical-medical insurance shall continue throughout the balance of
the contract year as defined in Section A above.
C. 1. The Board shall provide 100%, less a
$42.90 per family or $22.94 per
single teacher contribution per month ($44.25 family/$23.66 single for
1994-95), of the cost of hospital-surgical-major medical and dental
insurance premiums. This contribution to begin upon ratification of this
2. If a teacher does not carry health insurance with
the school because of dual
coverage, the school agrees to pay for an option plan at the cost of 100%
less the $22.94 ($23.66) teacher contribution, single rate coverage. This
is to give the employee the right to insurability.
. . .
The employes involved, Koelzer, Tainter, Vaudt, and Wahleithner, are four part-time
teachers employed by the District for the 1994-95 school year. The parties stipulated that all
employes were assigned the equivalent of at least 15 high school class periods of student
time per week, but none was assigned more than 19 such periods, and that each was assigned
least 2 1/2 non-contact class periods per week. Individually, Koelzer, Vaudt and
were assigned to teach 19 hours per week. Tainter was initially given a teaching contract for
hours per week, which included a P.O.P.S. Co-Coordinator assignment, and subsequently
(mid-September, 1994) was issued an "administrative contract" for P.O.P.S. Coordinator for
per week and a teaching contract for 17 hours per week.
Koelzer worked 19 hours per week in both the 1992-93 and 1993-94 school years and
not receive any insurance benefits in those years, and did not grieve. All four employes
informed by Superintendent Brennan when they were hired that they were not eligible for
insurance benefits. Under the District's contract with its health insurance provider, WEA
Insurance, only employes in this group "who work 20 or more hours per week" are eligible
health insurance coverage, and that has also been the case for at least the six years prior to
1994-95 school year. Koelzer was included on the seniority lists published by the District
1993-94 and 1994-95; Vaudt and Wahleithner were included on the 1994-95 lists, and
included on the list published August 19, 1994, but not on the list published on October 31,
or February 24, 1995.
At the beginning of the 1994-95 school year, prior to the first payroll, the
Treasurer, Debra Syrjala, received a memorandum dated August 24, 1994 from
Brennan stating that seven teachers would not have their Association dues withheld from their
paychecks, including the four employes in this case. Syrjala inquired of the District's
as to why and was referred to Brennan. Brennan explained that those seven employes were
covered by the parties' Master Agreement and therefore were not eligible for the payroll
deduction. Syrjala then informed the Association President, Kayle Wahleithner, of the
action. Wahleithner discussed the matter with Brennan on or about August 25th, and asked
those employes working at least 19 hours be covered by the voluntary dues
deduction. Syrjala was informed on September 19, 1994 by the Bookkeeper in the
period that Koelzer, Vaudt and Marian Wahleithner would have dues deducted. In the past,
teacher who had submitted authorization for the deduction of Association dues, had the dues
deducted from their paychecks, regardless of the number of hours per week they worked. In
discussions on this matter, the subject of how part-time employes were being treated was
with regard to their bargaining unit status and their rights under the Master Agreement. In
course of those discussions, it became evident that the parties differed on who was covered
Master Agreement and entitled to benefits under that Agreement, with the Association
that teachers with a workload of at least 17.5 hours per week qualify and the District
20 hours per week is the minimum required to entitle its teaching employes to benefits.
On October 4, 1994, the Association filed the instant grievance alleging violations of
Article XXVII, Sections A, B and C of the Agreement. The parties were unable to resolve
dispute and proceeded to arbitration on the grievance.
POSITIONS OF THE PARTIES
The Association argues that the parties' Agreement defines a full-time teaching
so as to easily be able to calculate a 50% teaching schedule for purposes of defining the
unit status, i.e. 17.5 hours per week. Under the Agreement's Recognition clause, employes
teach 50% of a regular teaching schedule to be included in the unit. An employe in the
unit is entitled to insurance benefits pursuant to Article XXVII. Article XXIII defines a
day as lasting from 7:45 a.m. until 3:15 p.m. with a half-hour duty-free lunch, i.e., the
day is 7 hours. Thus, a regular teaching schedule is 35 hours of work a week. This position
buttressed by Article XII, E, which provides that teachers taking additional loads due to
unavailability substitutes shall be compensated at the rate of 1/7th of the substitute day pay.
Similarly, Article XXV, D defines a teacher's pro
rata hourly/daily rate as 1/7th of the teacher's
daily rate thus recognizing the teacher's work day as 7 hours. Further, Article XXIII, B,
work load for all employes as 30 high school class periods of student contact time and each
full-time teacher is also entitled to a minimum of five non-contact high school periods per
was stipulated that each of the employes was assigned the equivalent of at least 15 high
class periods of student contact time per week, and at least 2 1/2 periods of non-contact time
week. Thus, they were assigned the equivalent of at least 50% of a full-time teacher's
Accordingly, those four employes were bargaining unit employes and therefore should have
offered the option plan under Article XXVII of the Agreement.
With regard to Tainter, it is obvious that the District changed her initial 18 hour per
contract in order to avoid paying her benefits under Article XXVII, C, 2. The P.O.P.S.
assignment was not an administrative position in a legal sense, and had no administrative
The assignment was consistent with the duties of a bargaining unit teacher and she was given
pay increase for administrative duties connected with the assignment. The facts support
assertion that the assignment must be counted toward her bargaining unit status. Further,
like the other three employes, was listed on the District's seniority list which evidences an
acceptance of those employes as bargaining unit employes.
With regard to the employes' entitlement to insurance benefits, the parties'
provides an option plan, i.e., a tax-sheltered annuity (TSA) for bargaining unit employes who
not carry health insurance with the school because of dual coverage. The District's
with the insurance carrier to provide benefits only to those employes working 20 or more
per week is not dispositive. Rather, the issue is whether these employes were employed at
50% of a regular teaching schedule, and if so, were they entitled to the TSA option part of
negotiated fringe benefit package. As none of them sought health insurance coverage, the
District's unilateral decision to provide benefits to employes working 20 or more hours per
is irrelevant. Further, if there is a conflict between the Agreement and the insurance policy
obtained by the District, the Agreement must control. Citing Elkouri and Elkouri,
Arbitration Works (4th Edition, 1985) at 363. The Association also cites a number of
awards wherein the arbitrator found that where there was a conflict between the insurance
and the collective bargaining agreement, the latter prevailed and the employer was required
provide the benefits which the parties had negotiated, but which were not covered by the
policy. Similar to the situation in GAF Corporation, 77 LA 256 (Rezler, 1981), the
was not privy to the District's arrangement with the insurance carrier to provide insurance to
employes who are employed 20 or more hours per week. The eligibility for health insurance
unilaterally adopted by the District and should not determine whether or not an employe is
for the TSA option. Rather, the outcome should be determined on the basis of whether or
four employes worked at least 50% of a regular teaching schedule. Further, the Association
reasonably assumed the District would purchase insurance to cover employes who taught at
50% of a regular teaching schedule. The policy was never shared with the Association, and
District never raised the issue. Prior to this grievance, the Association had no reason to
whether the District was complying with the Agreement. Further, the District can arrange
carrier to provide the insurance benefits or the TSA option to employes who work 17 1/2
or more per week at any time upon its demand.
The Association also asserts that there is no binding past practice which is dispositive
this case. The District's reliance upon Koelzer's having worked 19 hours during the
school year without grieving the refusal to provide health insurance benefits is misplaced.
evidence in this case does not meet the criteria for finding a valid past practice. First, one
instance does not qualify as a past practice. Further, the Association was not informed
carrier could provide benefits to employes who were employed at least 17 1/2 hours per
Finally, a past practice cannot overcome clear and unambiguous contract language. Here,
employes meet the threshold requirement for bargaining unit status set forth in the
clause of the parties' Agreement. Thus, they were entitled to the TSA option referenced in
XXVII, paragraph C, 2.
In its reply brief, the Association responds to the timeliness issue raised by the
The Association asserts that the grievance arose because the District removed some part-time
employes from the voluntary dues deduction list, which action led to a discussion as to who
in the bargaining unit and what benefits those employes in dispute should receive. The
grievance was timely filed upon the Association's learning of the District's unilateral
with the insurance carrier to provide insurance benefits for employes who were employed 20
more hours per week. With regard to the District's reliance upon Koelzer's having been
at 19 hours per week during the previous two school years, the testimony of Wahleithner
that she was not asked by Koelzer to file a grievance and that Koelzer mentioned in a casual
conversation that she did not receive health insurance benefits, but is not clear she mentioned
Wahleithner that she was employed 19 hours per week. Further, Wahleithner testified that
was unaware of the insurance provisions before the 1994-95 school year. It was only in the
of 1994 that she became aware of the contradiction between the 20 hour per week cutoff that
Superintendent had negotiated with the insurance company and the language in the
This is understandable as there were only a few part-time employes who were employed
considerably above the 50% teaching schedule or considerably below it. At some point,
informed Wahleithner that the insurance company would not cover employes unless they
employed 20 hours per week. Wahleithner did not perceive a need to question that
as it was not presented in the context of a dispute regarding a particular employe's
insurance or TSA benefits. Thus, there is no evidence of a knowing waiver by the
concerning this issue, as it had not arose prior to the fall of 1994, nor were there any
discussions between the Association and management concerning the interface between the
contract language and the 20 hour per week minimum in the insurance contract.
The definition of a "grievance" does not require finding that this grievance was
filed. The Agreement defines "grievant" to include the Association. In this case the
is the Grievant and it filed the grievance within fifteen days of its learning that certain
were employed at least 50% of a regular teaching schedule and had been denied insurance
benefits. The "event" is the Association's knowledge that insurance benefits were being
to employes who were employed at least 50% of a regular teaching schedule. Further, the
grievance can be seen as a continuing contract violation with the District's conduct
a separate violation for every paycheck the affected individuals were denied the TSA
The Association notes that it is not seeking to recover compensation for the period
of time prior to the filing of the grievance, and that the remedy only applies to the
The Association also asserts that the language in the Agreement that "at least 50
of a regular teaching schedule" is clear and unambiguous, especially in light of Article XXIII
Teaching Hours/Class Load. The stipulation that the four employes were assigned the
of at least 50% of a full-time teachers' workload further supports the contention that the they
employed at least 50% of a regular teaching schedule. Accordingly, they were entitled to the
benefit pursuant to Article XVII, C, 2 - Insurance Provisions. The individual insurance
does not create a latent ambiguity in the collective bargaining agreement.
The Association reasserts that there is no binding past practice supporting the
actions. Apparently Brennan told the employes that they were not eligible for insurance
and they relied upon his representations and did not ask the Association to investigate. At
Brennan got away with individual bargaining until the Association became aware of it.
never a formal bargaining proposal or serious discussion had with the Association
regarding a 20-hour per week minimum. Brennan negotiated the 20-hour rule with the
company on his own. The parties' Agreement does not refer to the 20-hour requirement and
is nothing in the insurance policy which would prevent the insurance company from offering
coverage/TSA option to employes employed 17 1/2 hours per week. The record evidence
a lack of mutual understanding between the District and the Association as to whether or not
contract language permitted insurance benefits to be denied employes employed 17 1/2 hours
week and that makes untenable the District's claim of a binding past practice.
The District's assertion that the insurance contract must be read in conjunction with
Agreement, in that the recognition clause in the Agreement determines which employes are
eligible to be in the bargaining unit and the insurance contract limits eligibility for insurance
benefits, leads to absurd results and therefore should be disfavored. That argument requires
Arbitrator to change the plain meaning of the recognition clause and the plain meaning of
XXIII - Teaching Hours and Class Load. The Arbitrator would have to add five (5) hours to
workweek in order to make the collective bargaining agreement correspond to the insurance
contract, which would be impermissibly adding terms and conditions to the parties'
Further, Article XXVII applies to all bargaining unit employes regardless of whether or not
work 50% of a regular teaching schedule or more and is not limited to employes working 20
or more per week. Under the District's logic, it could avoid many benefits of the collective
bargaining agreement by merely bargaining with a third party to diminish the terms and
of that agreement. Such an analysis is not rational, nor persuasive. Lastly, the fact that
the grievance will cost the District money it did not wish to pay or anticipate paying begs the
issue, and is irrelevant. The Association requests that the District be ordered
to contribute to the four employes' TSA account at the single rate amount for the
The District asserts that the grievance is untimely pursuant to Article VI of the
Agreement, which provides that grievances must be initiated within fifteen (15) days after the
occurrence or event upon which the grievance is based, and which further provides that the
limits in the grievance procedure are to be considered a "maximum period". The parties
at hearing that the Association did not grieve this issue until the instant grievance, despite the
that the four employes all worked less than 20 hours per week prior to the 1994-95 school
and had been told they were ineligible for benefits because of their hours. Pursuant to the
grievance procedure, the Association should have initiated the grievance within a maximum
fifteen (15) days after the first employe working less than 20 hours per week, but more than
1/2 hours per week, was denied eligibility for health insurance benefits. The Association
waited at least two years to file a grievance, and it is therefore untimely. The assertion that
Association had not "discovered" the alleged violation before then is irrelevant. Wahleithner
testified that the Association neglected to file the grievance previously because it had always
presumed that an employe needed to work 20 hours per week to be eligible and did not
until now, that unit members were allegedly eligible for health insurance benefits if they
only 17.5 hours per week. The Association cannot claim that it did not know about the
contracts, since they are referenced specifically in the Agreement and are public records,
accessible to the Association. Moreover, the date upon which the Association "discovered"
alleged violation, how it discovered it and why it perceived a grievance are irrelevant. The
grievance procedure does not incorporate the "discovery rule". The 15-day limitation in the
contract begins to run from "the occurrence or event upon which the grievance is based".
date is the date upon which the employes first contracted to work less than 20 hours per
as a result, were denied health insurance benefits. Thus, by its own stipulation, the
waited long after the 15 day limitation period had run in order to initiate the grievance, and
therefore the grievance should be dismissed.
With regard to the substantive issues, the District first asserts that the Master
and the insurance contract must be read together. It is a basic tenet of contract interpretation
the contract must be construed as a whole. By focusing attention solely on the "fifty
language in the Recognition clause, the Association improperly isolates that part of the
from Article XXVII, E, with which it must be read. That latter provision expressly refers to
health insurance contract, which in turn, limits eligibility to 20 or more hours per week.
Construing the Agreement and the insurance contract as a whole, the proper conclusion is
Recognition clause determines which employes are eligible to be in the bargaining unit
and the insurance contract limits eligibility for insurance benefits to those unit
employes who work
more than 20 hours per week.
The Association improperly seeks to change the terms of a binding insurance contract
its members' total compensation package. The health insurance contract is binding upon both
parties. Article XXVII, E, provides that it is changeable only by mutual agreement.
Superintendent Brennan testified that it was his understanding that the individual contracts
the carrier that have been in existence to this point have been in existence by mutual
of the parties. In asking the Arbitrator to decide if 17.5 hours rather than 20 hours is the
for insurance eligibility, the Association essentially seeks to unilaterally change the terms of
binding insurance contract. Additionally, the Association seeks to change the total
package to its members. Superintendent Brennan testified that to comply with the remedy
the eligible class in the plan would have to be changed and that would result in a change in
cost of the program. Just as the District cannot lawfully make such changes unilaterally,
may the Association.
Next, the District asserts that the Association's position in this matter would lead to
absurd result and should therefore be avoided. Brennan testified that if there in fact had been
agreement with the Association that 19 hour people got benefits, it would result in two 19
people costing the District more than if it had hired one full-time person. The District has
consistently implemented cost controls over the past five or six years, including contracting
certain teachers at 19 hours per week, just below the 20- hour cutoff, to save benefit costs.
have ever agreed to a 17.5 hour cutoff would not result in a cost savings in hiring 19-hour
employes and would be absurd.
The Association's counsel testified that the District's counsel stated at Board hearings
involving the reduction in hours of Wahleithner, Koelzer and Vaudt for the 1995-96 school
that the hours were being reduced to under half-time, i.e. from 19 hours per week to 17
week, in order to render them ineligible for benefits. The Association erroneously concludes
the comment that the District impliedly conceded the Association's argument that the
cutoff for benefits is 17.5 hours per week, rather than 20 hours. The Association's
later admitted on cross-examination that the District's attorney never conceded in his
that the cutoff was anything less than 20 hours per week. Also, what the District did with
to the 1995-96 school year is irrelevant as to this grievance involving the 1994-95 school
Given the controversy that existed at the time the employes' hours were reduced for the
school year, the District had every right to hedge its bets by reducing their hours to a level
there would be no dispute. Thus, it cannot be implied that the District somehow conceded
17.5 hour cutoff.
The Association's contention that the District's inclusion of the four employes on its
seniority list constitutes an admission that the cutoff point is 17.5 hours per week is also
The Superintendent testified that he prepared those seniority lists and included the employes
those lists despite their part-time hours, because he perceived a controversy within the
about whether part-time teachers were unit members under the Master Agreement. Brennan
testified that being uncertain as to how that controversy would be resolved, he included those
employes on the seniority lists.
The District argues that in the alternative, it has established a past practice of
health insurance benefits only to those unit members working more than 20 hours per week.
the argument that the health insurance contract modifies the Recognition clause is rejected,
provisions must still be reconciled, since a contract cannot be interpreted to render one
meaningless. The only way to reconcile the "50 percent" language of the Recognition clause
the 20-hour language of the health insurance contract is to presume that the "50 percent"
is ambiguous, i.e. that "50 percent" in this context means 20 hours, not its dictionary
of "one-half". Accepting the presumption of ambiguity, the District then prevails because it
established a past practice of providing health insurance benefits only to those employes
more than 20 hours per week. The Superintendent testified that the 20 hours has been the
for the six years he has been in the District, and Association President Wahleithner testified
she, Koelzer, and everyone else in the Association has always, until now, operated under the
notion that 20 hours was the cutoff. Thus, a past practice exists and is one which the
has "made mutual" by failing to object to it for so long.
In its reply brief, the District asserts that the Association's entire case is built upon
percent" language in the Recognition Clause and that it leaps to the conclusion that every
bargaining unit member is entitled to insurance benefits. The Association ignores the fact
parties have expressly incorporated the terms of the insurance policy within their collective
bargaining agreement. Therefore, even if the Association is correct that the four employes
be viewed as bargaining unit members under the Recognition clause, it is unable to avoid the
that the very terms of the contract it incorporated exclude employes who work less than 20
per week. The District could not unilaterally change the hours eligibility provision of the
insurance contract anymore than it could unilaterally change the deductible provisions for
arrangements. Clearly, the Agreement requires that it be applied in harmony with the
contracts and that is consistent with the actual practice of the parties' using the 20-hour
insurance purposes. The Association's excuse that it had no reason to look into the issue
the 1992-1993 school year because there were only a few part-time employes either
considerably above 50 percent or considerably below 50 percent is both unsupported by any
reference to the record and is a tacit admission that the parties have historically used the
cutoff. The awards cited by the Association with regard to resolving conflicts between a
bargaining agreement and an insurance policy are inapplicable since they dealt with instances
where there was a conflict between the two
documents. Here, the insurance policies are incorporated into the parties' Agreement.
of the Association's argument in this area assumes language exists stating that bargaining unit
members receive insurance regardless of the terms of the policy. To the contrary, the
states that bargaining unit members receive insurance pursuant to the terms of
policies. Those terms exclude employes who work less than 20 hours per week. There is no
merit to the Association argument that the District never shared the policy with the
and never raised the issue. The parties' mutually negotiated Agreement specifically
the insurance policies, which presumably both parties had at their disposal during those
negotiations. If the Association never read them, that was their choice, but they have clearly
comfortable with the District's application of those policies until the instant grievance. The
Association asks that the District only disregard those terms of the policies with which it
issue, however, the parties' decision to "bootstrap" the insurance contract into their
must be respected in total, not selectively applied. The District disputes that it would be a
result to deny these employes the TSA option. It is not a harsh result to apply the contract
manner those employes fully expected in the first place. They were specifically informed
would not be eligible for insurance prior to entering into their 1994-95 contract and nothing
taken away which they had expected. Lastly, if the Association took issue with the P.O.P.S.
assignment of Tainter, it should have filed a grievance as to the issuance of that
contract. Since no such grievance was filed, the Association should not be permitted to
this coverage issue into a question regarding that assignment, as that latter issue is not before
Article VI, Section A, 1, of the Agreement provides that, "A grievance must be
within fifteen (15) days after the occurrence or event upon which a grievance is based."
Section C, 1, of that Article provides, "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
and every effort should be made to expedite the process."
In this case, the "event" grieved is the District's refusal to make contributions toward
TSA option under Article XXVII, Section C, 2, of the Agreement on behalf of the four
involved (those working 17.5 hours per week, but less than 20). In Koelzer's case, that first
occurred when she was hired to work 19 hours per week for the 1992-93 school year, and
occurred as to Tainter, Vaudt and Wahleithner with the start of the 1994-95 school year.
had been told when they started that they were not eligible for insurance benefits. While the
Association filed the grievance in this case, it is based upon the District's actions with regard
those employes, and their knowledge of the District's actions must be imputed to the
for the purpose of determining compliance with the contractual time limit for filing a
That said, this is nevertheless a classic example of a "continuing violation". If the
Association's interpretation of the Agreement is found to be correct, i.e., that employes
17.5 hours per week or more are entitled to the benefits under Article XXVII, C, 2, then
month the District refused to provide the benefit to those employes constituted a separate
violation. In such circumstances, the failure to grieve in the past does not result in a waiver
the right to grieve that same action in the future. The employes' failure to grieve the denial
the benefit before October 4, 1994 results in a waiver of any claims they might have had
than 15 days prior to that date, but it does not constitute a waiver of their right to challenge
District's actions from that date forward. Therefore, it is concluded that the grievance is
as to the alleged violations occurring after October 4, 1994 with regard to the four employes.
Substantively, this grievance first requires a determination of who is eligible for
benefits under the terms of the parties' Agreement. If it is determined that all employes
by the Agreement, i.e., all employes in the bargaining unit, are eligible for such benefits, it
then be necessary to decide the question of what constitutes "50% of a regular teaching
as set forth in the parties' description of the bargaining unit in Article 1, Recognition.
With regard to the first question, it is the employes' rights under the Master
that are at issue. In determining those rights, one must first look to the terms of the
The relevant language of Article XXVII, Section A, provides:
"The Board shall make payment of insurance premiums for each
employee to assure insurance
coverage. . . for all employees who complete their contractual obligation."
That language is broad and appears to encompass "all employes" in the bargaining unit
complete their contractual obligation." However, the parties have also expressly referenced
specific insurance contracts in Article XXVII, Section E, of the Agreement. Having
the reference to the specific insurance contracts with WEA Insurance into their Agreement,
parties are deemed to have been aware of the terms of those contracts when they did so,
with regard to something as basic as who is eligible for coverage under those contracts.
The unrebutted testimony of Superintendent Brennan was that the District's health
insurance contract with WEA Insurance provided for an eligibility class of employes working
or more hours per week when he first came to the District in 1989. Contrary to the
assertion, there is no evidence in the record that the District unilaterally and without the
Association's knowledge, went to WEA Insurance and changed the eligibility class. The
testimony cited by the Association (Tr. p. 98) establishes that since the threshold for
coverage was already established at 20 hours per week when he arrived in the District,
Brennan has had no reason to discuss the matter with any Association representative
instant dispute arose. The evidence in the record indicates that the contract with WEA
for health insurance has contained a 20 hour per week threshold to be eligible for coverage
at least 1989, and there is no evidence that it was anything different before Brennan's arrival
the District. That being the case, and reading Sections A and E of Article XXVII together,
must be done, it is concluded that the parties intended that the eligibility threshold
in the insurance contract modify Section A to the extent that "all employees" is to be read to
all employes who are eligible pursuant to the terms of the insurance contract. Thus, the 20
more hours per week threshold in the insurance contract applies to this dispute. Since all
individuals in issue in this dispute worked less than 20 hours per week during the 1994-95
year, none of them were eligible for insurance benefits. While there is some indication in
record that the carrier would be willing to reduce the 20 hours per week requirement, that is
issue for the parties to address in negotiations.
The Association asserts that the four individuals were entitled to the TAS option
under Article XXVII, Section C, of the Agreement for the 1994-95 school year. As the TAS
option is provided for those teachers who do not carry health insurance through the District
"because of dual coverage", it follows that teachers who are not eligible for the District's
insurance coverage in the first instance, are not entitled to receive a benefit for not carrying
coverage. Thus, assuming arguendo that the four individuals
were in the bargaining unit at the
time, the District did not violate Article XXVII of the parties' Agreement by denying them
insurance benefits or TAS option under that provision for the 1994-95 school year.
Based upon the foregoing, the evidence, and the arguments of the parties, the
makes and issues the following
The grievance is denied.
Dated at Madison, Wisconsin this 14th day of January, 1998.
David E. Shaw /s/
David E. Shaw, Arbitrator