BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SOUTHERN DOOR EDUCATIONAL SUPPORT
SOUTHERN DOOR COUNTY SCHOOL
Mr. Miguel E. Salas, Executive Director, Bayland UniServ,
appearing on behalf of the Association.
Godfrey & Kahn, S.C., by Mr. William G. Bracken,
Coordinator of Collective Bargaining Services,
appearing on behalf of the District.
The Association and District named above are parties to a 1995-1997 collective
agreement which provides for final and binding arbitration of certain disputes. The parties
Wisconsin Employment Relations Commission to assign an arbitrator to hear a grievance
part-time employees. The undersigned was appointed and held a hearing on March 5, 1998,
Brussels, Wisconsin, at which time the parties were given the opportunity to present their
and arguments. The parties completed filing briefs by May 7, 1998.
The parties did not agree on the framing of the issue. The Arbitrator frames the
Did the District violate the collective bargaining agreement by the
manner in which it scheduled
study hall aides and paid them for three hours and 55 minutes per day? If so, what is the
The crux of this grievance revolves around the fact that if employees in the District
hours per day or more, they would be entitled to some health insurance benefits paid by the
In this case, the District scheduled three study hall aides to work no more than
and 55 minutes per day, thereby falling short of the threshold for benefits by five minutes
The facts are complicated by the fact that the aides may have spent more time on the job
hours and 55 minutes, although they were not scheduled to do so and not paid for the extra
The situation arose when two former study hall aides left the District. The District
Administrator, Joseph Innis, looked at the needs of the District for 1997-98 school year and
that because of overlapping time, three aides would be needed to do the job that two had
done. The District took into consideration the fact that benefits would not be paid in these
positions, a factor to consider under revenue caps.
The High School Principal, Lois Mahaffey, interviewed and hired the three aides
Trelka, Theresa De Keyser, and Bonita Vogel. Mahaffey told the prospective employees that
job was to take attendance and maintain order. She did not tell them that they had to be in
classroom at any certain time, and she told them that they can walk out the door with the
the period ends. She also told them that they would be part-time employees with no benefits.
Mahaffey believes that the study hall can be done in three hours and 55 minutes, and there
between seven and nine extra minutes in their schedules to get keys, come to the office for
schedule changes, and retrieve supplies.
Trelka is scheduled to start at 8:40 a.m. and end at 12:35 p.m., precisely three hours
minutes. He often punches the time clock earlier than 8:40, usually around 8:25 to 8:30
a.m. His first
study period starts at 8:45 a.m. and his last period ends at 12:33 p.m. Thus, he has been
for an extra five minutes before the class period and has two minutes after it. Trelka has an
seven minutes total when a class period is not in session.
Trelka punches the time clock in the janitors' room in the high school. The high
is about 150 feet away, and the study hall is on the second floor. Trelka goes to the office
his mail so that he will know whether there are changes in students' schedules or absences or
trips, any matters that would affect students' attendance or their opportunity to get passes to
library, etc. He makes copies of the seating chart about once every two weeks, which is
students are added or leave. He feels that he should be in the classroom before students
Under the District's policy, students are considered tardy if they arrive after the bell rings.
a little more lenient and does not consider them tardy if they are not in their seats at the
sound of the
De Keyser is scheduled from 7:50 a.m. to 11:45 a.m., again, three hours and 55
first study hall period starts at 7:55 a.m., and her last period ends at 11:41 a.m. She has
before class and four minutes after class, or a total of nine minutes before and after the class
De Keyser usually punches the time clock between 7:40 and 7:45 a.m. The room is locked
arrives, and she has to get keys, turn on lights, unlock the desk. She goes to the office,
mail, and makes copies of the seating chart. She believes that she should be ready at 7:50
students when they start to arrive. She noted that it takes about two and one-half
minutes to walk
between the high school office and the study hall, and that when she arrives, the kids are
De Keyser was a substitute teacher in the District in the 1996-97 school year. She
instructions for substitutes from Mahaffey regarding procedures which included the following
Be in your room before the students arrive. This is not only a
legal responsibility, but a necessity
in establishing good discipline and effective control. Except in a crisis situation,
never leave students
unattended. If you must leave, please notify the office.
De Keyser believes that the statement regarding being in the room before the students
to her as an aide as well as substitute teachers.
Bonita Vogel was scheduled in the fall semester to work between 11:10 a.m. and
again, another three hours and 55 minutes. Her first class period starts at 11:16 a.m. and
her last one
ends at 3:03 p.m. Accordingly, she was scheduled for six minutes before class and two
a total of eight minutes in excess of class period time. She often arrives and punches in at
10:55 a.m. She goes to the office, checks her mail box, and gets supplies. She makes
copies of the
seating chart about once a week. In the spring semester, Vogel's schedule was changed to
time. Vogel likes to be in the room when the last period ends, in advance of her starting
The parties agree that the aides are paid for according to their scheduled time, not the
shown on the time cards.
The Association President, Dolores Jeanquart, filed the grievance because employees
working more than three hours and 55 minutes. She objected to the District's motive to deny
benefits. She testified that this matter has come up in the District before, and when she met
during the processing of this type of grievance in 1994, he told her that all employees need
extra time or give a few minutes for nothing. Jeanquart also believes that the District has
scheduled all other positions for either full hours or half hours.
Other employees who have been previously scheduled for less than four hours include
Kay in food service and Mary Zettel, who had been scheduled as a study hall aide for at
times, between three and one-half hours and three hours and 50 minutes.
Mahaffey does not believe that the job takes more than three hours and 55 minutes,
there are between seven, eight and nine extra minutes in the schedules of the three aides
She told them what time their study hall periods started but she did not tell them exactly
they had to be in the classroom. She did not tell them to stop in the office first, get mail,
In response to the grievance and employee complaints that they did not have
to do the job with the extra seven to nine minutes, Mahaffey retraced the actions of an aide
punching in, locking the custodial office door, walking to the office, pulling mail from
10 seconds, walking to the upstairs study hall, and opening the door. She kept a stop
during this exercise, and her time was two minutes and 22 seconds. She did not use the
for this exercise.
Mahaffey has offered to have other employees perform certain functions if aides
perform their tasks in three hours and 55 minutes. For example, an office monitor could
charts and mail to the aides on the second floor, or a custodian could open the door. She
she would find ways to accommodate the aides' needs and solve their problems.
THE PARTIES' POSITIONS
The Association argues that the Grievants' assigned hours do not allow enough time
complete their assigned duties as instructed by the Administration. The grievance is not only
contractual issue but one of fairness and equity. In order to complete their duties as required
District policies and written procedures, the Grievants are forced to work more than the three
and 55 minutes scheduled by the District, and they are entitled to be paid for all
the time they work
and to all benefits consistent with their actual hours.
While the Association acknowledges the District's right to schedule employees' work
it contends that its actions are nothing more than a thinly veiled attempt to avoid providing
contractual fringe benefits to employees and still reap the benefit of no less than four hours
daily from the study hall aides. This expectation of donated time amounts to involuntary
the Association states.
The Association also disputes the District's claim that there is enough time for the
to perform their assigned duties and contends that at least an additional five minutes each day
necessary to do the work. Mahaffey's letter (Association Exhibit #7) instructs study hall
to be in the classroom before students arrive and to never leave students unattended. The
never received a job description, and they relied on Mahaffey's letter and an inservice to
their assigned duties.
De Keyser, the first study hall associate to arrive in the morning, punches in no later
a.m., and her time cards show that she consistently arrives five to ten minutes before her
start time. The warning bell is at 7:50 a.m. and study hall starts at 7:55 a.m. Mahaffey's
instructs associates to be in their rooms before students arrive, advising employees that this is
responsibility as well as a necessity in maintaining classroom control. In order to comply
procedures, De Keyser must arrive earlier than her scheduled 7:50 a.m. start time to
responsibilities. She has to go to the high school office to pick up keys to unlock classroom
check her mail box in the office for schedule changes and excused absences, make copies of
charts and necessary changes as a result of class drops and adds by students, and then go to
hall, which is about two and a half minutes away from the office. Students are usually
waiting for her.
If she did not arrive for work before 7:50 a.m., it would be impossible for her to complete
before the first class warning bell. While Mahaffey has argued that it is not necessary
for De Keyser
to be in her classroom before 7:55 a.m., De Keyser testified that study hall associates are
for monitoring hallways between classes.
Vogel's schedules hours start at 11:10 a.m., with her first period starting at 11:16
regularly punches in at 10:55 a.m. because she has no time to copy and update seating charts
information regarding attendance in the six minutes that is allowed by the District. If Vogel
get schedule changes such as library closings, lists of students taking part in a blood drive,
would not know which students were excused from study hall. The six minutes before the
insufficient time when one considers that study hall associates are also responsible for
supervision between classes. Furthermore, the Association notes that the prior study hall
leaves at the 11:12 bell, so Vogel must be in the classroom at 11:12, not 11:16. So if she
two minutes and it takes two and a half minutes to walk from the office to the study hall,
she do anything before being in her classroom?
Trelka has similar assigned duties before the start of his work day and has to be at
classroom before students arrive and supervise hallways between classes. It is the District's
that students be in their seats when the bell rings or be considered tardy. The five minutes
start of class is not enough time for him to punch in, stop at the office for information and
be in his
When Jeanquart filed a similar grievance in 1994, Innis told her that employees all
donate extra time. Such a statement clearly indicates the mind set of the Administration in
work hours. Administrators know that it is not possible for all the duties to be done in the
allotted and they expect employees to perform duties outside of paid work hours. The
testimony and exhibits prove that the work assigned cannot be done within the three hour and
minute work schedule. Clearly the Administration expects extra work for no pay and no
benefits. This is contrary to the letter and spirit of the collective bargaining agreement, and
Arbitrator must find that the Grievants work at least four hours per day to complete their
are eligible for benefits.
The Association argues that the District has failed to prove that employees are
unnecessary job duties. The position posting and job description do not outline all of the
Grievants were not even given job descriptions. Mahaffey refused to answer questions at the
about what the Grievants' starting and ending times were and claims not to remember telling
employees when to be at work. Mahaffey claimed that she only told the employees what
to cover and implied that it was their choice to come to work at certain times. Are
show up when they want to and make up the job as they go?
The Association notes that there is a dispute on whether the Grievants must stop at
to check their mail boxes before they go to their classrooms. While Mahaffey admitted that
a good idea, she refused to state that they must stop in the office. And while she testified
that it is
unnecessary for them to arrive before their scheduled starting time, her own letter contradicts
The Association claims that Mahaffey's statement that her letter applied to substitutes and not
regular employees is ludicrous, and she admitted that the responsibility to monitor students
The Association further asserts that the District has not proven there is enough time
employees to perform necessary assigned duties within their scheduled hours. The starting
District Exhibit #17 ignore the fact that Vogel and Trelka must be at their classrooms
minutes earlier in order to monitor hallways and be at their rooms before students arrive.
starting time for De Keyser omits the five minute period between the warning bell and
of study hall. When one takes out those minutes, it leaves three minutes for Trelka and four
for De Keyser and Vogel to perform other duties. If one subtracts the two and a half
minutes it takes
to get from the office to the study hall, Trelka is left with 30 seconds to check the mail and
and Vogel have an entire minute and one half to get keys, make copies, update seating charts
review mail before going to their first class. Mahaffey allowed 10 seconds for Trelka to
This is not typical, and her breakdown of the work day must be disregarded.
The Association argues that the grievance must be decided on the facts, not on the
schedule or the method of payment for hours worked. The Grievants are scheduled to work
minutes short of the minimum benefit eligibility, at 20 hours a week. Each of them work
their schedule of three hours and 55 minutes per day. Because each works at least four
due to Administrative directives, the District has violated the contract in denying benefits.
District believes that if employees are not paid for more than three hours and 55 minutes,
ineligible for benefits. However, the District forgets that these employees are hourly
salaried employees. As hourly employees, they are entitled to be paid for the time spent
The District first asserts that the management rights clause gives it the right to
direct the workforce. The phrase "management of work" relates to the number and types of
positions necessary to perform the functions of the employer. The District previously had
employees scheduled as study hall aides, and it now believes that three employees would
The District's right to decide how to schedule the work is upheld by the express language in
management rights clause and there is no other contractual limitation on that right. It is clear
parties have intended management to decide how many employees are needed and what their
schedule will be.
The District notes that it has scheduled employees for less than four hours in the past
objection from the Association. Employees have been scheduled for three hours and 50
three hours and 42 minutes, three hours and 45 minutes, three hours and 55 minutes, as well
hours and 50 minutes and five hours and 50 minutes. The District does not have to schedule
employees only in one-half hour or one-hour intervals. Other study hall aides have been
in three hour and 55 minute blocks of time since 1994-95 two days a week and five hours
minutes on the other three days a week. The Association did not object to the District's
less than four hours per day in the past.
The minimum hourly threshold for defining an employee's work day does not apply
part-time employees and employees hired after January 1, 1990 pursuant to the labor
Grievants were hired after 1990, and any attempt by the Association to argue that there
contractual provision that requires the Board to schedule part-time employees a certain
hours must fail.
The District states that it has compelling policy reasons for converting two study hall
positions into three study hall aide positions, based on staffing needs at the high school and
overlap during lunch hours when all three are on duty. While recognizing that these
would not be entitled to certain fringe benefits, this was a secondary factor in the
schedule three employees for three hours and 55 minutes. Tight budgets in the presence of
imposed revenue controls makes the cost of providing fringe benefits a concern for school
However, Innis emphasized that the primary reason for the manner in which he scheduled the
employees was based on the actual job that needed to be done and the staffing needs. The
under the previous arrangement and the current one are about the same. The Arbitrator
second guess the District's decision in terms of how to best meet the operational needs of the
and the contract clearly gives the District the right to decide the number of employees
do the job.
The District asserts that the Association has failed to meet its burden of proof in
that the study hall aides should be scheduled for four hours or prove that they are actually
four or more hours. The only evidence the Association submitted were time sheets form the
Grievants. However, the Grievants are always paid for the time they are scheduled to work
hours and 55 minutes and not the time that is shown on their time cards. The same
is true of all
other staff employees.
The District argues that the fact that employees can punch in and out at their own
does not prove that they spent that time working on the job as study hall aides. The time
represent other discretionary time, such as talking to people in the office or other activities
directly related to the position of study hall aide. The Association offered no proof that the
listed on the time sheets was directly related to the required duties of the aides.
Further, the District notes, the Association showed no proof of the time that it took
mail boxes in the office or make copies of seating charts once every two weeks. Instead, the
proved that the employees have plenty of time to complete their tasks, and still have up to
minutes per day for ancillary duties. The District has proven that the Grievants can perform
is expected of them in the allotted time of three hours and 55 minutes. While the Grievants
like to stretch the job into five minutes more to qualify for benefits, the work schedule is
the District's control, not the employees' control. For the Association to prevail, the
would have to accept the theory that employees are at liberty to decide how much they need
The contract gives the District that right in Article I.
If the employees do not have enough time to make seating charts or get keys, the
make other arrangements and have secretaries make copies of the charts or have someone
keys to open doors. Making copies of the seating arrangement is not a requirement of the
Trelka is scheduled to be with students for three hours and 48 minutes, leaving him seven
minutes. De Keyser has nine extra minutes, and Vogel has eight minutes. This is plenty of
accomplish all that the District has required of the study hall aides. Mahaffey found that two
and 22 seconds
was needed, without making copies of the chart, and that leaves anywhere from four
and one half to
six and one half minutes to perform any other duties and still meet the District's allotted time
job. The Association would have to show that the employees' duties as required by the
amount to 12, 13 and 14 minutes per day to bring them up to the four hour threshold of
benefits. The District maintains that the Association has failed to do this.
The District requires the employee to have students in the classroom when the bell
the employees want to get there earlier, that is their own choice. Making copies of the
is not a requirement of the job. The District asks that the grievance be denied.
In Reply - the Association:
The Association responds to the District by first stating that the contract, which
insurance to employees based on hours worked, supports the Association's position, because
employees have worked the requisite number of hours to qualify for insurance benefits. The
has been aware of the lack of time allotted for these employees to complete their assigned
chosen to overlook the fact that they work at least four hours daily. Administrators were
far back as 1994 that study hall aides could not complete all assigned duties within a three
minute schedule, and it was again reminded of the problems with this grievance. The parties
the 1994 grievance but the District refused to make any adjustments to these Grievants.
The Association asserts that the time cards prove that employees work more than four
a day. Their duties were given them by Mahaffey during job interviews, at an inservice
through a letter directed to all study hall employees.
While the District claims that a past practice supports a work schedule of less than
it is possible that those employees were able to complete all assigned duties within their
time. The District ignores the fact that Mahaffey told employees what their assignments
when to do them. The Association also takes issue with the District's position regarding De
testimony she was clear that she does not have the authority to ask a secretary to do
her, and any suggestion now that there are other means of completing certain duties is
speculation and inappropriate at this point. The only reason the District brings up solutions
to persuade the Arbitrator that it will work with employees to resolve inequities. The fact
parties are in arbitration is evidence enough that this will not happen.
The Association is not arguing that the District does not have the right to assign
schedule employees. It is the manner in which the District carried out its decision which is
The Association asserts that the District's position that it can schedule work hours in any
chooses does not mean that there is no restriction at all. The management rights clause
construed to imply that the District has the right to negate contract provisions. The
four hours daily, regardless of the so-called work schedule set by the District.
The Association points out that the District's examples of other employees working
four hours daily does not reflect the fact that each employee listed has additional hours three
week that brings them over the threshold for benefit eligibility. Only one employee
three hours daily is disqualified for benefits, and her work schedule is much different than
Grievants' schedule. The District does not show what duties the employees had, and no
can be drawn as to whether those employees were expected to work more hours to complete
In Reply - the District:
After reviewing the Association's brief, the District believes there is a discrepancy
its expectations of the job duties and the employees' own version of what is required of the
Association tries to stretch the job duties to include monitoring halls before first reporting to
assigned study hall, reporting to work earlier than necessary, and photocopying. Those tasks
required by the District but are done on the employees' own volition.
The District objects to the Association's appeal to fairness and equity, and asserts that
Arbitrator cannot dispense her own sense of fairness but must dismiss the grievance since no
clause has been violated. The District is not forcing employees to work more than three
55 minutes. The District has no argument with the Association that Grievants should be paid
the time they work to complete their assigned tasks. The parties are really arguing about
empowered to structure the employees' work day. The District does not expect employees to
their time, and it has scheduled the jobs to match the specific class periods that need to be
The District notes that the Association's reliance on Exhibit #7 is misplaced, because
exhibit refers to substitute teachers and not study hall aides. The District accepts the fact
hall aides should be in their classroom slightly before students arrive one or two
minutes not 10
to 15 minutes. Students attendance is done once the period begins. For example, the
De Keyser to be in the room by 7:55 a.m. when the first period starts, not at 7:50 a.m. If
arriving at 7:40 or 7:45, that is her choice and not required by the District. She should not
compensated for work that the District does not require.
The Association has mischaracterized Mahaffey's testimony regarding the two
22 seconds that it takes to punch in, unlock the custodial office door, walk to the office, pull
walk to the study hall and open the door. The Association says it takes that amount of time
from the office to the study hall, and that is not true. Further, study hall aides are not
monitor hallways before their first class period. The District agrees that the aides should
come to the
office and pick up mail, but this does not take much time.
The District also objects to the Association's statement that the Administration felt it
squeak five minutes of free labor and avoid its obligation to pay benefits. The District is
employees for the time it is requiring them to work, and it does not expect free labor. The
Association is wrong when it states that De Keyser has to be in her classroom no later than
the District only expects her to be there by 7:55 a.m. when the first bell rings, not
the warning bell.
If students are waiting on the steps, that is acceptable to the District. The District finds the
Association's reliance on
time cards to be without merit. The time cards are not used to pay employees and
only used to verify
that the employee spent at least the scheduled work time on a particular day or were
The Association misinterprets the management rights clause in the contract. It argues
there is a reasonable standard on the District's discretion in imposing arbitrary and capricious
expectations in job assignments on employees. The word "reasonable" applies to the Board's
adopting rules, not to the sentence which allows the Board to manage work and direct the
force. This is not about adopting reasonable rules but about management's ability to assign
employees to perform the available work. The District states that it has exercised its
right in a fair manner, and the fact that three employees will not receive fringe benefits is
under the contract.
Article XI of the collective bargaining agreement defines full-time employees as those
work the school year for at least 20 hours per week or who work the fiscal year at least 30
week. Article XX provides for health insurance benefits based upon full-time status, not
status. Employees falling below the threshold of 20 hours per week for the school year are
entitled to insurance benefits paid for by the District. That is why the five minutes per day
a critical factor in this grievance.
Article I of the contract says that " the management of work and the direction of the
working force is vested in the Board of Education." Article XI provides for a minimum
for each job classification but does not apply to employees hired after January 1, 1990. The
Grievance were all hired after January 1, 1990. It is significant to note that the parties
there would be no minimum number of hours worked, and they contemplated a situation that
fall below other stated minimum hours in the contract.
In structuring benefits to apply to full-time employees who meet certain levels of
parties clearly contemplated that part-time employees as defined in the contract would not get
insurance benefits. The Grievants hold part-time positions that do not include benefits.
scheduled in a manner that just barely misses the threshold for benefits, but this is allowed
Article I and XI. Thresholds are established for a reason, and people must meet those
to gain the benefits. Otherwise, the contract would not need to establish any level of hours
employment to receive benefits.
The records shows that employees have put in more time than they are scheduled, but
have done so on their own and without the permission of the employer. Certainly these
are not obligated to work any more time than they are being paid for, and if they are not
able to get
the work done in that time, the District will have to deal with it. The District cannot expect
employees to donate their time and work for nothing. And employees cannot expect to set
hours in order to gain benefits. They all took the job with the understanding that it was for
hours and 55 minutes, and no benefits attached to the job. They are not being asked by the
to work "off the clock" without compensation to the contrary, they have taken it
to work extra
minutes, without permission to do so. To now give them benefits based on their own
would be a stretch, at least for the Arbitrator. Where would one stop? Could employees
work 41 hours to get one hour of overtime, without permission? Could employees decide to
25 hours rather than 20 to get the benefit of 90 percent paid health insurance, instead of
percent level?Trelka and De Keyser have five minutes between their
scheduled starting time and
their first study hall period, and Vogel has six minutes. The aides seem to believe that they
in the classroom at their scheduled starting time, but the record does not show that this
the District's expectation. The District expects them to be in the classroom just before the
period begins. Thus, there are five to six minutes to stop in the office, check the mail, do
things, and be at the classroom before the final bell rings. The Association's reliance on
is misplaced, since it was sent to substitute teachers, not study hall aides, and applies to
teachers. The Association seems to have added duties such as monitoring hallways
before the first
study period and being there five minutes in advance to justify the few extra minutes
Grievants are spending at school. However, the District does not require these duties.
There is not
a lot of time to prepare for the job, but there is not much preparation work that is needed. If
cannot get supplies or seating charts or whatever is needed to do the job, it is the District's
The Arbitrator has reviewed the entire contract and finds no provision that has been
by the District's action in scheduling and paying the Grievants for three hours and 55
contract calls for no minimum number of hours, and in fact, notes that any minimum once
applies to employees hired before 1990. While it may seem inequitable to the Association
employees to fall short of the threshold for benefits by a mere five minutes, it would also be
inequitable to the District to have employees make their own schedule up to fill in five
minutes to gain
benefits. The case cannot be decided on grounds of equity, but whether or not the collective
bargaining agreement has been violated. I conclude that it has not been violated.
The grievance is denied.
Dated at Elkhorn, Wisconsin this 27th day of May, 1998.
Karen J. Mawhinney, Arbitrator