BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WEST DE PERE PUBLIC SCHOOLS
Cullen, Weston, Pines & Bach, Attorneys at Law, by Mr. Gordon E.
McQuillen, 20 North
Carroll Street, Madison, Wisconsin 53703, appearing at hearing and, on brief, by
Godfrey & Kahn, S.C., Attorneys at Law, by Mr. Dennis W.
Rader, 333 Main Street,
Suite 600, P. O. Box 13067, Green Bay, Wisconsin 54307-3067, appearing on behalf
West DePere School District.
The West DePere Education Association, hereafter Association, and West DePere
District, hereafter District or Employer, are parties to a collective bargaining agreement
provides for the final and binding arbitration of grievances arising thereunder. The
requested, and the District concurred, in the appointment of a Wisconsin Employment
Commission staff Arbitrator to hear and decide the instant dispute. The undersigned was so
appointed. The hearing was conducted in West DePere, Wisconsin, on January 31,
February 1, 1996. The hearing was transcribed and the record was closed on May 12, 1997,
receipt of post-hearing written argument and the transcript.
The Employer's statement of the issue:
Did the District violate the contract by availing itself of its rights
Statute 115.86 to participate in the Brown County Handicapped Children's Education
for children with exceptional education needs?
The Grievant frames the issue as follows:
Did the District violate the collective bargaining agreement in the
manner in which it availed
itself of the opportunities under Section 115.86 to participate in the Brown County
Children's Education Board programs for children with exceptional needs?
The Arbitrator adopts the following statement of the issue:
Did the District's participation in the Brown County Handicapped
Children's Education Board
(BCHCEB) program violate the collective bargaining agreement?
ARTICLE I - RECOGNITION
I. The Board recognizes the Association as
the exclusive bargaining agent on wages, hours,
and conditions of employment for all regular full and part time non supervisory certified
professional teacher personnel, hereinafter referred to as "teacher(s)".
ARTICLE II - MANAGEMENT RIGHTS
A. The Board retains and reserves unto
itself, without limitations, all powers, rights,
authority, duties and responsibilities conferred upon and vested in it by the laws and
of the State of Wisconsin and of the United States, including, but without limiting the
of the foregoing, the right:
1. To executive management and to the administrative
of the school system and
its properties and facilities, and the duties and responsibilities of its teachers.
2. To hire all teachers and subject to the provisions of law,
qualifications and conditions for their continued employment, or their dismissal or demotion,
to promote, and transfer all such teachers.
3. To establish or eliminate grades and courses of
including special programs,
and to provide for athletic, recreational and social events for students, all as deemed
advisable by the Board.
4. To decide upon the means and methods of instruction, the
selection of textbooks and
other teaching material, and the use of teaching aids of every kind and nature.
5. To determine class schedules, the hours of instruction, and
the duties, responsibilities,
and assignments of teachers with respect thereto, and with respect to administrative and non
teaching activities, and the terms of employment.
B. The exercise of the foregoing power, rights, authority, duties
and responsibilities by the
Board, the adoption of policies, rules and regulations, and practices in furtherance thereof
use of judgment and discretion in connection therewith shall be limited only by the specific
express terms of this agreement and Wisconsin Statutes Section 111.70 and then only
to the extent
such specific and express terms hereof are in conformance with the Constitution and laws of
State of Wisconsin, and the Constitution and laws of the United States.
. . .
ARTICLE VII - GRIEVANCE PROCEDURES
A. Definition: a grievance shall be defined as a claim by the
bargaining unit representative
of a teacher or teachers regarding the interpretation or application of hours, wages, and
conditions as stated by any provision of this Agreement.
. . .
ARTICLE XV - ASSIGNMENTS, TRANSFERS,
REASSIGNMENTS, AND STAFF
. . .
2. Teaching Conditions
. . .
e. Of the work day for Middle School teachers in grades 6-8,
team common planning
time, a personal planning time (continuous and equivalent to class periods of at least 40
shall be provided outside of a 45 minute duty-free lunch period. Student contact time shall
exceed 315 minutes daily. Student contact time is defined as instruction, advisor-advisee,
activity, study halls, or assigned duty such as lunchroom, hall, gym, bus, or playground.
. . .
ARTICLE XXII - JOB-SHARING
A. Job-sharing shall be defined as two teachers voluntarily filling
one full time position. Job-sharing is not to be confused with part time employment.
1. Job-sharing shall be limited to classroom teachers in
Kindergarten and 4-12.
2. Teachers desiring job-sharing status
will so request, in writing, no later than January
15 of the preceding school year. If approved, the position continues for the succeeding year
unless both job-sharers mutually agree to discontinue job-sharing. Requests for continuation
be acted upon each year. Approval or disapproval of such requests or continuations rests
with the Board and will be given by the Board by April 15.
3. Teachers sharing the position will assume all
of that position including
but not limited to duty periods or assignments, co-curricular assignments, in-service days,
conference days, faculty meetings, and department meetings.
4. Salary, fringe benefits, leaves, and seniority will accrue in
direct proportion to the
amount of time worked.
5. The teachers requesting and approved
for job-sharing must agree to return to full time
status for the term if one of the participants in the shared-job is unable to continue and a
person cannot be found to assume the job-share position.
6. In the event of lay-off, staff reduction, or denial of a
job-share renewal request, job-sharers shall retain the rights governed by Article XV of the
7. Shared-job holders shall not accept additional outside
employment that would affect
their ability to fulfill their responsibilities in the job-share position.
At all times material hereto, Toni Etter, hereafter the Grievant, has been employed
District as a full-time teacher. In August of 1993, the Grievant was notified that she would
LD kindergarten and first grade students at the Lincoln Elementary School in the morning
she would teach LD sixth grade students at the middle school in the afternoon. During the
1993-94 school term, the Grievant serviced middle school LD students by pulling them out
regular education classes.
During the 1994-95 school year, the Grievant was assigned to work in an elementary
school in the morning and in a middle school in the afternoon. During the morning, the
worked solely with LD students. During the afternoon, the Grievant provided special
services to sixth grade LD, CD, and ED students who were "included" in a regular education
classroom at a middle school. During the morning, these sixth grade special education
were serviced by Dennis Persick, an employe of Brown County Handicapped Children's
Education Board (BCHCEB).
Under the "inclusion" program, the sixth grade special education students were
primarily within the regular education classroom. At all times material hereto, the Grievant
been certified as an LD teacher and Persick has been certified as a CD teacher.
On February 7, 1995, the Grievant filed a grievance which alleged the following:
Statement of grievance (Please be clear and concise in your
statement of fact.)
West DePere School has contracted with Brown County
Handicapped Schools for CD teachers
in the elementary schools. The L.D. and E.C. teachers are hired by W. DePere Schools and
represented by the W.DePere Education Association. There has been mutual agreement
the L.D. and C.D. teachers to assist/help each other in the past. Recently, the C.D. teacher
began scheduling conferences and programming for L.D. students without the mutual consent
input of the L.D. teacher. Mr. Persick (C.D.) and Mrs. Etter (L.D.) have no shared
has created many communication problems. Mrs. Etter's concerns have been ignored
Persick has been included in decisions previously made by W.DePere hired staff.
of the present positions are necessary since a "job sharing" position is being created without
mutual agreement of the W. DePere Education Association.
The District's Step 1 response indicated that Persick and the Grievant were to reserve
a.m. to 8:00 a.m. for daily telephone conferences. Thereafter, the grievance was amended
correcting the specific sections of the contract alleged to have been violated. The original
amended grievance sought the same relief, i.e.,"Clarification of positions,
bargained with W.
DePere Education Association, opportunities for communication." The grievance, as
was denied by the District's Board of Education in a letter dated July 18, 1995.
POSITIONS OF THE
Position of the Grievant
For many years, the District has contracted with BCHCEB to provide CD and EEC
services to the District. District teachers and BCHCEB teachers have worked together
complaint from the Association.
The Grievant and Persick, together, filled a single full-time sixth grade special
position at the Middle School. By not assigning the Grievant to this sixth grade special
position, the District has violated the job sharing provisions of the collective bargaining
agreement. By assigning LD and ED work to Persick, the District has violated
For the first time during the 1994-95 school year, BCHCEB teachers were assigned,
engaged in, job duties which historically had been performed by District teachers.
the Grievant and Persick were assigned to perform work for which they were not certified.
this conduct, the District has violated the Recognition clause and the Management Rights
of the parties' collective bargaining agreement.
The District failed to bargain changes implemented in the inclusion program. By this
conduct, the District has violated Sec. 111.70, Stats.
The District has violated the agreement and the grievance should be sustained. The
District should return to the previous program or bargain with the Association over changes
implemented with the inclusion program.
Position of the District
Article I, Subsection A, of the collective bargaining agreement does not bar the
from participating in the Brown County Handicapped Children's Education Board programs.
controlling provision, Article II, Management Rights, clearly reserves to the District the right
subcontract for services. No provision of the contract specifically states that management is
required to offer work to bargaining unit members prior to contracting with BCHCEB to
Under Article XXII, two District teachers must volunteer to job share and the District
approve the job sharing. The arrangement between the Grievant and Persick is not job
within the meaning of Article XXII.
Neither the Grievant, nor any other teacher, is teaching outside of the teacher's
certification. The DPI clearly permits special education teachers to provide special education
services to all special education students.
The District has been responsive to the Grievant's concerns. There is no evidence
there was a request to bargain implementation of the new inclusion program. More
there is no duty to bargain since the District's Management Rights clause provides the
with the right to establish an inclusion program. The District asks the arbitrator to dismiss
The grievance, as filed, is broader than the issue which was presented to the
hearing. While many of the Grievant's arguments may be germane to the original grievance,
are not germane to the issue presented to the arbitrator at hearing. The arbitrator has limited
discussion to those arguments which are relevant to the determination of whether or not the
District's participation in the BCHCEB program violated the collective bargaining agreement.
Article II, Management Rights, Section A, recognizes that management has the right
decide upon the means and methods of instruction . . ." The decision to contract with
for professional teaching services is a decision on the means and methods of instruction. The
District acted in a manner consistent with its Article II, Section A, Management Rights,
contracted with BCHCEB to have Persick provide special education services to District
Article II, Management Rights, Section A, recognizes that management has the right
determine . . . the duties, responsibilities, and assignments of teachers . . ." The District
in a manner consistent with its Article II, Section A, Management Rights, when it (1)
the Grievant to provide LD services to elementary students in the morning and to provide
education services to sixth grade CD, ED, and LD students in the afternoon and (2) when it
assigned Persick to provide special education services to sixth grade CD, ED and LD
Article II, Management Rights, Section B, provides that the management rights
in Section A "shall be limited only by the specific and express terms of this agreement and
Wisconsin Statutes Section 111.70 and then only to the extent such specific and
hereof are in conformance with the Constitution and laws of the State of Wisconsin, and the
Constitution and laws of the United States." Relying upon this language, the Grievant argues
the District has violated the collective bargaining agreement by violating Sec. 111.70, Stats.;
115.86, Stats.; Sec. 121, Stats.; and Chapter PI 8.01 of the Wisconsin Administrative Code.
The Grievant argues that the District violated Sec. 111.70, Stats., because it failed to
bargain changes implemented in the inclusion program, including such changes as the
of Persick to service LD and ED students. The inclusion program was implemented at the
of the 1994-95 school term, at a time in which the 1994-95 collective bargaining agreement
in effect. Assuming arguendo, that the District was required to bargain over
in the inclusion program, the District's statutory duty to bargain would be triggered by an
Association request to bargain. City of Kaukauna (Fire Department), Dec.
At the time that the Grievant submitted her grievance of February 7, 1995, the
was the President of the West De Pere Education Association (WDPEA). The grievance
that the grievance was filed on behalf of the Grievant and the WDPEA. The grievance
does not expressly state that the Association is requesting to bargain over changes
in the inclusion program. Nor can such a demand be reasonably implied from the fact that
relief sought is "Clarification of positions, bargained with W. DePere Education Association,
opportunities for communication." The Grievant's letter of April 11, 1995, which the
agrees contains her proposal for resolving the grievance, does not contain any Association
to bargain changes in the inclusion program. Nor, contrary to the argument of the Grievant,
the Grievant's testimony establish that there was an Association request to bargain changes
implemented in the inclusion program.
In summary, it is not evident that the Association made a request to bargain changes
implemented in the inclusion program. Thus, there is no merit to the Grievant's argument
the District has violated Sec. 111.70 by failing to bargain changes implemented in the
The testimony of the District's witnesses, as well as the information contained in DPI
Bulletins No. 93.3 (Employer Exhibit #8) and 95.3 (Employer Exhibit #10), demonstrates
the Grievant's LD certification and Persick's CD certification permits each to provide
education teaching services to sixth grade LD, ED, and CD students. There is no reasonable
to conclude that the provision of exceptional education teaching services does not include
out" and attending to any special education student who is disruptive. By assigning the
and Persick to provide special education services to sixth grade CD, LD and ED students,
District has not violated Sec. 121, Stats., or Chapter PI 8.01 of the Wisconsin Administrative
Section 115.86 (2)(c), Stats., states, inter alia, that "A
school district shall be included
under such County program only to the extent approved by formal action of the school
The Grievant argues that the District violated this statute because the District's contract with
BCHCEB limits BCHCEB services to mentally retarded students and the support services
are necessary for these students.
The District's contract with BCHCEB is a contract to provide self-contained units to
service mentally retarded students and to provide support services to these students. This
however, does not contain any language which prohibits BCHCEB from providing other
educational services to the District.
More importantly, a finding that the District's school board did not take "formal
to contract with BCHCEB to provide the services which were provided by Persick, would
establish a violation of the collective bargaining agreement. The reason being that Article II,
Section B, does not require the District to exercise its Article II, Section A, rights in
with Sec. 115.86. The requirement of conformance "with the Constitution and laws of the
of Wisconsin, and the Constitution and laws of the United States" is only applicable to
provisions of the contract when these provisions are relied upon to limit an Article II
Article I, Recognition, Section A, recognizes that the Association is the exclusive
bargaining agent on wages, hours and conditions of employment for all regular full and
certified professional teacher personnel. While not expressly stated, the referenced "teacher
personnel" are employes of the District. To hold otherwise, would be to ignore the fact that
District's collective bargaining obligations do not extend to individuals who are not employes
By recognizing the Association as the exclusive bargaining agent for certified teachers
are employed by the District, the District has not limited its Article II right to contract with
BCHCEB to provide teaching services to the District. Such a conclusion is supported by the
that, for over twenty years, the District has contracted with BCHCEB to provide a variety of
teaching services, e.g., CD, EEC, speech, and language, without complaint
from the Association.
Article I recognizes that bargaining unit members will be certified. The term
is included in this provision for the sole purpose of identifying the District employes who are
represented by the Association. Article I does not contain any language which precludes the
District from requiring a special education teacher who is certified in CD, such as Persick, to
provide special educational services to LD or ED students, or from requiring a special
teacher who is certified in LD, such as the Grievant, from providing special educational
to CD or ED students.
Article XXII provides a mechanism by which two District teachers voluntarily fill one
full-time position. Article XXII does not require the District to create a full-time position.
The District did not create one full-time sixth grade special education position at the
school. The Grievant occupied a full-time position comprised of elementary and middle
assignments. The Grievant and Persick were not job sharing within the meaning of Article
The District did not violate Article XXII when it assigned Persick to provide special
services to the sixth grade in the morning and assigned the Grievant to provide special
services to the sixth grade in the afternoon.
The Grievant argues that, at times, she worked without a lunch period, had a partial
period, lost prep time, or exceeded the 315 minutes of student contact time required by
XV, A, 2(e). Neither the Grievant's testimony, nor any other evidence, demonstrates that
District's participation in the BCHCEB program deprived the Grievant of her contractually
required lunch or prep period, or caused the Grievant to exceed 315 minutes of student
Historically, BCHCEB teachers primarily serviced CD and EEC students. The
argues that this "past practice" limits the District's right to contract with BCHCEB. A "past
practice" is not a "specific and express" term of the agreement. Accordingly, it does not
to limit the District's Article II, Section A, rights. The provisions of the contract relied
the Grievant do not specifically and expressly limit the District's participation in the
program to services historically performed by BCHCEB or to services not previously
by bargaining unit employes.
The Grievant's concerns regarding the appropriateness of an individual student's IEP
the appropriateness of the District's implementation of an individual student's IEP must be
in a forum other than grievance arbitration. The undersigned has neither the expertise, nor
authority, to respond to these concerns.
In conclusion, Article II of the collective bargaining agreement provides the District
authority to contract with BCHCEB to provide educational services to the District. It is not
evident that the District has exercised this authority in a manner which violates any "specific
express term" of the agreement or Wisconsin Statutes Section 111.70.
1. The District's participation in the Brown County Handicapped Children's
Board (BCHCEB) program did not violate the collective bargaining agreement.
2. The grievance is denied and dismissed.
Dated at Madison, Wisconsin, this 27th day of February, 1998.
Coleen A. Burns /s/
Coleen A. Burns, Arbitrator