BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
ELCHO EDUCATIONAL SUPPORT
ELCHO SCHOOL DISTRICT
(Grievance Involving Barbara Nelson)
On October 4, 1996, the Elcho School District filed a Unit Clarification petition with
the Wisconsin Employment Relations Commission (Case No. 29, No. 54489, ME (u/c)-854)
alleging that a certain bargaining unit position, that of a long-term substitute teacher, be
excluded from the voluntarily-recognized collective bargaining unit whose description is set
forth below. On December 12, 1996, the parties to this dispute filed a grievance arbitration
request with the WERC which requested that William C. Houlihan, a member of the
Commission's staff, hear and decide a grievance pending between these parties. That
grievance arises over a dispute as to whether the substitute teacher, whose position prompted
the Unit Clarification petition noted above, is appropriately in the teacher bargaining unit.
Hearing on both matters was scheduled and postponed. Ultimately, a grievance arbitration
hearing (followed by a Unit Clarification hearing) was held on July 10, 1997, in the Elcho
School District offices, Elcho, Wisconsin. A transcript
of the proceedings was made and distributed by November 10, 1997. Post-hearing
reply briefs were submitted and exchanged by February 12, 1998. Post-briefing objections
were made and withdrawn by February 20, 1998.
This arbitration addresses the bargaining unit status of the one academic year
appointment of Barbara Nelson to a substitute music position. The Unit Clarification matter
is being held in abeyance.
BACKGROUND AND FACTS
Kathleen Hutchinson was the K-12 music instructor for the Elcho School District.
Ms. Hutchinson requested and received a one year leave of absence for the 1996-97 school
year. In order to accommodate Ms. Hutchinson's leave of absence, the District posted her
position at a number of placement offices, including that operated by the UW-Stevens Point.
That posting, on school district letterhead, provided as follows:
May 22, 1996
Vacancy for 1996-1997 school year
only. K-12 General Music Instructor. Interested
candidates should send letter of introduction, resume, credentials, transcripts and license
by June 14, 1996, to:
Dr. Gary H. Twining, District
School District of Elcho
P.O. Box 800
Elcho, WI 54428
Telephone Number: (715) 275-3205
EQUAL OPPORTUNITY EMPLOYER
While the District had previously employed substitute teachers, it had never
hired a substitute for a full academic year.
Barbara Nelson, the grievant, applied for and was interviewed for the position on
August 1 by Dr. Twining and Ms. Hutchinson. It is Ms. Nelson's testimony that a portion
of the interview addressed the economics of the posted position. It is her testimony that Dr.
Twining explained that she would begin by receiving substitute pay at a rate of $57.50
per day for the first ten days. She indicates that Twining indicated there may be a
before she went on the contractual schedule. She indicates that Twining produced a
copy of the Master Collective Bargaining Agreement and turned to the salary schedule.
Dr. Twining noted her five years of experience and the number of credits she received
pointed out the place on the schedule where an individual with five years experience and a
bachelor's degree plus six credits would be found. That salary was in excess of $29,000.
There followed a discussion with respect to benefits during which, according to
Nelson, Twining indicated the availability of health, dental and life insurance as well as
retirement. He is alleged to have indicated that the only benefit she would not qualify for
would be the payment of credits for extra classes. According to Nelson, Twining indicated
that the $29,000 salary might increase when the collective bargaining agreement was settled.
Nelson's version of this conversation is corroborated by Ms. Hutchinson.
It is Dr. Twining's testimony that he did point out the 10-day substitute pay rate. It
is his belief that he thereafter indicated that Ms. Nelson would be receiving base salary. He
acknowledges pointing to step five of the salary schedule, and indicates that he did so to
her how much money she would earn if she were on a regular teacher's salary, with a
teacher's contract. On cross-examination, Twining indicated that he wanted position
candidates to know what their salary schedule placement would be in the event Hutchinson
did not return. He indicated that he had been informed that there was a significant chance
Hutchinson was not going to return, and he wanted to recruit the best candidate possible. It
was his further testimony that Hutchinson had never indicated to him that she may not
and that the conversation with Nelson relative to salary schedule placement could not have
occurred on August 1, because Hutchinson was in the room. He speculated that that
conversation may have occurred in a prior telephone conversation he had with Nelson.
On August 5, Dr. Twining offered Ms. Nelson the job, and she accepted. Following
her acceptance of the position at Elcho, Ms. Nelson took a leave of absence at the parochial
school where she had been teaching. She also turned down two other job interviews for
positions for which she had applied. After Twining offered Nelson the position, he invited
her to attend a school board meeting that evening.
Ms. Nelson did attend the August 5 school board meeting at which the Board
approved Ms. Nelson's appointment as a long-term K-12 general music instructor substitute
for the 1996-1997 school year. The Board motion also made reference to a salary according
to Board policy for long-term substitutes.
On or about August 21, Ms. Nelson moved her belongings to the Elcho schools.
While she was moving into the classroom, she got or was given her contract, signed it, and
returned it to the central office. She immediately thereafter realized that the salary figure
at odds with her recollection of the offer made. She believed there to be a $5,000
discrepancy. Within 30 minutes, Ms. Nelson returned to the office and retrieved the signed
contract. She indicated to office personnel that the salary was in error, and there were no
fringe benefits provided.
Nelson brought her concern to Dr. Twining and the two had a series of conversations
following August 21. During the course of the two to three conversations, Dr. Twining
offered to attempt to get health insurance. Twining also offered to allow Ms. Nelson to
withdraw from the position. Nelson declined because she had no alternative employment.
Nelson testified, and Twining denied, that Twining indicated that there was a $17,000 budget
shortfall, and he had to find a way to cut it out of the budget.
It was Twining's testimony that he wanted to resolve an honest dispute during the
course of his negotiation with Nelson. He approached the Board to grant benefits because
he did not want an unhappy teacher in his system.
The series of conversations led to a meeting on August 26, 1996. The meeting
involved Nelson, Twining, and Tom Prahl, the Association president. Twining initially
objected to Prahl's attendance, but acquiesced to Prahl's presence. Prahl was there
representing the Association, at his own invitation. During the course of that meeting, Ms.
Nelson suggested a series of benefits to be added to the contract proffered by the District.
Twining agreed, subject to Board approval. Twining and Nelson ultimately arrived at a
contract, which included nine sick days, one personal leave day, one funeral leave day, all
benefits afforded a newly-hired teacher, and the salary schedule initially offered by the
District. Prahl did not endorse the agreement, and indicated that a grievance may be
The agreement was reduced to contract form. The contract issued to Ms. Nelson was
on the teacher form contract contained in the collective bargaining agreement. It was not on
the form provided to substitute teachers.
The School District of Elcho has a substitute teacher compensation and benefit policy.
That policy calls for the District to pay $57.50 per day for days 1-10, $65.00 per day for
11-30, and $132.24 per day for days 31 and thereafter. District policy calls for the District
to pay state retirement once teachers cross a 440-hour cumulative teaching threshold, to
provide for a term life insurance policy, and Social Security. A portion of the District
substitute teacher selection and utilization policy calls for the school principals
to establish and maintain a list of certified substitute teachers that are interested and
for temporary substitute work. On October 22, 1996 (following Ms. Nelson's hire), the
Board adopted a substitute compensation and benefit policy which provides as follows:
Substitute instructional pay will be $60.00 per day plus an
additional $5.00 if one travels
over 30 miles round trip. Those individuals who substitute in the District for 20 days per
school year will receive $75.00 per day for days 21 and thereafter.
During the 1996-1997 academic year, Ms. Nelson performed the full range of duties
expected of a K-12 music teacher. Her economic treatment was a hybrid of the collective
bargaining agreement and the substitute policy of the Board. Amended Board policy
provided for mileage reimbursement for substitutes who commuted a certain distance. While
Ms. Nelson exceeded the identified distance, she was not paid mileage. The benefits cited in
the August 26 agreement were benefits taken from the collective bargaining agreement. Ms.
Nelson was paid extra duty pay for certain tasks, the source of which was the collective
bargaining agreement. The rate of pay paid was that applicable to a long-term substitute.
On September 4, 1996, Prahl filed a grievance with the Principal on behalf of the
Association. The grievance provides: "The District has issued an individual contract to
Barbara Nelson, music teacher, that is inconsistent with the terms and conditions of the
Master Agreement. The grievance lists numerous alleged contract violations and has a
substantial remedy request.
On September 20, the grievance was appealed to Dr. Twining. The grievance was
denied on October 14 by Dr. Twining. The grievance was appealed to the School Board on
October 18. On October 23, counsel for the School Board responded to the grievant's appeal
by indicating that it was in the best interests of the parties to proceed directly to arbitration.
As noted above, on December 9, 1996, the parties contacted the undersigned and requested
that I serve as Arbitrator in the matter.
While the District has never hired a full-year substitute, it has
hired substitutes who
worked for substantial periods of time. In January of 1996, Tasha Johnson substituted for a
full semester, and was paid per the District substitute policy. Marcella Dietrich substituted
for the periods of 12/1/93 through 4/16/94 and again for 10/9/95 through 1/18/96. During
both of those periods of substitution, Ms. Dietrich was paid in accordance with the District's
substitute policy procedure.
Following the incident which gave rise to this grievance, both parties advanced
proposals in their then-ongoing negotiations. Specifically, the Association proposed to place
substitute teachers in the bargaining unit after one semester. The District proposed to amend
the recognition clause to specifically exclude substitute teachers.
The parties were unable to stipulate the issue. The District believes the issue to be as
Whether or not the grievant, Barbara Nelson, was employed
during the 1996-97 school
year in a position covered by the collective bargaining agreement between the School District
and the Elcho School Teachers' Association and if so, what is the appropriate remedy?
The Association believes the issue to be as follows:
Did the Employer violate the collective bargaining agreement by
its failure to pay the
grievant, Barbara Nelson, consistent with the terms of the parties' collective bargaining
agreement in terms of compensation and benefits? If so, what remedy is appropriate?
I do not believe the stated issues to be mutually exclusive. Both are addressed in this
RELEVANT PROVISIONS OF THE COLLECTIVE
The Board recognizes the Association as the exclusive and sole
for the following unit of employees whether under contract, on leave or employed.
The bargaining unit shall include all
certified teaching personnel, including classroom
teachers, special teachers, guidance counselors, librarians, part-time teachers and teachers on
leave, but excludes principals, and the District Administrator.
. . .
INDIVIDUAL TEACHER'S CONTRACT
A. The individual teacher's contract as negotiated for the
term of this agreement shall be
as set forth in Appendix D. Contracts shall be issued by March 15 for the following year
must be returned by the teachers by April 15.
B. In any case, specific grade, subject,
and extra-curricular duties for the following year
shall be assigned in writing by May 15. A separate contract for extra-curricular duties,
binding on both parties, must accompany those assignments voluntarily assumed by a
The teacher must sign and return this contract within five (5) working days after receiving it.
If negotiations have not been completed by contract issuance time, the amount of salary
inserted on the individual contract shall include earned lane and step increments on the prior
year's salary schedule. The Association agrees to include the earned increment as part of the
total package costs of the settlement.
. . .
1. A "grievance" shall be defined for
the purpose of this agreement as a dispute
concerning hours, wages and/or working conditions, but shall be limited solely to the
provisions of this agreement.
2. A "grievant" may be a teacher,
group of teachers, or the Association.
3. The term "days" when used in this
Article shall, except where otherwise
indicated, mean working days; thus weekend or vacation days are excluded.
. . .
D. Initiation and Processing
1. Level One Within twenty (20) days of the event
which gave rise to the grievance,
the grievant will first discuss his/her grievance with the principal or immediate supervisor,
either directly or through the Association's designated representative. Within this period the
grievant shall have submitted the grievance in writing to his/her immediate supervisor or
principal. The immediate supervisor or principal shall within ten (10) days respond in
to the written grievance.
. . .
POSITIONS OF THE PARTIES
It is the position of the Association that this grievance is substantively arbitrable.
Association contends that when one of the questions before the Arbitrator is whether an
employe should be included in a collective bargaining agreement or compensated in
accordance with a collective bargaining agreement, the Arbitrator has the authority to address
the issue of the individual's proper compensation in accordance with the collective bargaining
agreement. The Association cites authority in support of its position.
The Association contends that the underlying grievance was timely. The Association
points out that the grievance procedure defines "days" as working days. Vacation and
weekdays are excluded. Nelson's compensation for the 1996-1997 school year was not
finalized by the District until August 26, 1996. Therefore, August 26, 1996 is the "incident
date" on which the timeline for the Level 1 grievance procedure began to run. The
filed on September 4, 1996 was filed well within the twenty (20) day timeline. Additionally,
the Association points out that the District never challenged the timeliness of the grievance
at any point between its filing on September 4, 1996 and the July 10, 1997 hearing, and
should be considered to have waived its right to challenge the timeliness.
The Association argues that the Elcho district should be held to the contractual pay
rate for the job Nelson performed. The Association contends that the posting and the job
itself were for a regular teaching position under the collective bargaining agreement. The
Association argues that nowhere in the posting does it indicate that this is a substitute teacher
position. The Association notes further that Nelson was not hired from the Elcho substitute
teacher's list. It contends that Nelson's duties and her teaching performance throughout the
school year were that of a regular contract teacher, and did not coincide
with what one would traditionally expect from a substitute teacher. Nelson taught
independently, using her own professional judgment, she developed her own lesson plans,
conducted classes and issued grades without guidance from a supervisory instructor or
The Association notes that Twining pointed to the salary schedule during Nelson's
interview. The Association contends that he did so because it was the appropriate place for
Nelson's placement. It attacks his explanation for having done so as implausible.
The Association points out that Nelson relied upon the information provided by
Twining at the interview, in asking for a leave of absence from her previous employment and
for turning down two other interviews for full-time teaching employment for the 1996-1997
The Association contends that Dr. Twining's salary offer which consisted of twenty
(20) days at a substitute teacher pay rate is inconsistent both with the collective bargaining
agreement and with the expectations placed upon Nelson. Accordingly, the Association
contends that the District violated the collective bargaining agreement by requiring Nelson
to accept a long-term substitute teacher pay rate for the first twenty (20) days of her
appointment. The individual contract executed between Nelson and Twining may not
supersede the terms of the parties' collective bargaining agreement.
It is the District's position is that it denied the grievance on the basis that Ms. Nelson
is not covered by the collective bargaining agreement as a substitute teacher and because she
agreed to be paid on a per diem basis, all consistent with the
District's past practice as it
relates to recognition and payment of substitute teachers. The District contends that the
recognition clause has remained unchanged since the 1977-78 school year. The District
routinely utilizes substitute teachers but the issue of the inclusion or exclusion of substitute
teachers has never been an issue in the negotiations between the District and the Association.
The Board has treated long-term substitutes consistently in the past. The District cites its
January, 1996 use of Ms. Johnson and its two uses of Marcella Dietrich.
It is the view of the District that the grievance should be denied because Ms.
employment as a long-term substitute teacher is not covered by the collective bargaining
agreement. In essence, the District contends that this matter should be denied and dismissed
for lack of jurisdiction because Ms. Nelson's employment as a substitute teacher is not
covered by the collective bargaining agreement between the parties.
The recognition clause does not specifically address substitute teachers. However,
the past practice and the bargaining history of the parties along with prior decisions of the
WERC establish that Ms. Nelson is properly considered a substitute teacher excluded from
the bargaining unit at issue here.
The District argues that past practice and District policy establish that Ms. Nelson
properly excluded from the bargaining unit. The recognition clause is ambiguous because it
is silent on the issue of substitute teachers. However, the past practice of the parties
establishes that the parties did not intend to include substitute teachers in the bargaining unit.
The Employer cites Elkouri and Elkouri, How Arbitration
Works, for the proposition that it
is the task of the rights arbitrator to carry out the mutual intent of the parties and for the
additional premise that where practice has established a meaning for language contained in
past contracts and continued, the language will be presumed to have the meaning given it by
In this dispute, the recognition clause is silent with respect to the inclusion or
exclusion of substitute teachers. Substitute teachers have been routinely used by the District
and paid on a per diem basis. The Association does not
dispute that short-term substitute
teachers are excluded from the bargaining unit. The Association also concedes that the issue
of inclusion or exclusion of substitute teachers in the bargaining unit has never been a subject
of contract negotiations. The Association argues that long-term substitute teachers should
be treated differently than short-term substitute teachers. However, contends the District,
there is no basis for that distinction in the parties' past practice or in the law.
The District contends that prior WERC decisions indicate that substitute and
temporary teachers are not properly included in a bargaining unit with a regularly-employed
teaching staff. The District cites Neosho Joint School District No. 3, a grievance
arbitration authored by Arbitrator Gallagher, and Mount Horeb Joint School District No.
6, a complaint case authored by Examiner Fleischli in support of its position. The Employer
also cites a number of WERC cases for the proposition that temporary employes, who lack
a reasonable expectation of continued employment lack a requisite community of interest with
regular full-time and regular part-time employes and are thus properly excluded from a
bargaining unit consisting of regular full-time and regular part-time teachers.
There is a threshold issue of timeliness raised in this proceeding. I believe that the
event which gave rise to the grievance occurred on August 21 when Ms. Nelson was first
given her contract of employment. It was on that day that the misunderstanding underlying
this arbitration became crystallized. Ms. Nelson provided actual notice of her claim and
dissatisfaction immediately. The Employer was on actual notice virtually simultaneously
the issuance of the written contract. Dr. Twining and Ms. Nelson attempted to resolve their
dispute in the days immediately following August 21. A formal grievance was filed on
September 4. Article X, Section D(1) allows twenty working days for the initiation of a Step
One grievance. September 4 falls well within the twenty working day time frame for the
initiation of a grievance contesting the August 21 contract. The District had actual
knowledge of the dispute. The Association satisfied the technical requirements of the
collective bargaining agreement. The grievance is timely.
The essence of the substantive dispute in this matter is whether or not the position,
occupied by Ms. Nelson, falls within Article I, Recognition. On its face, that article is not
ambiguous. It provides: "The bargaining unit shall include all certified teaching personnel.
. ." It goes on to make broadly-stated inclusions, and include "classroom teachers", and
exclusions which are narrow and specifically supervisory. The music teacher position has
historically been included within the unit. During the period of time in which Ms.
occupied the position, it was undeniably a bargaining unit position. On its face, Article I
makes no distinction between a permanent on-going employe and a one-year substitute.
The Employer contends that Article I is ambiguous because of its prior noted
The Employer does not argue that the language is ambiguous on its face; rather, the
contends that due to the practice the language must be construed to be ambiguous.
practice is used to interpret and/or clarify language which is on its face ambiguous. It is the
rare case where an arbitrator construes clear and unambiguous language to be ambiguous
through collateral evidence.
By all accounts, this was the first instance of a full-year substitute employed by the
Elcho system. The practice relied upon by the District never extended to full-year
substitutes. The District points to three prior incidents where it used long-term substitutes
and applied the substitute policy conditions of employment. Those examples support the
District's contention that it has established a practice relative to substitutes. However, none
of those examples extend to full-year substitutes.
The District did not behave as if it was applying a clear, unambiguous practice or
policy in hiring and compensating Ms. Nelson. I credit Ms. Nelson's version of the
August 1 interview conversation. 1/ I believe Twining pointed to the salary schedule
contract as part of an explanation of Nelson's compensation. He further made note of
contractually provided fringe benefits, that are not a part of substitute compensation.
1/ Her testimony was
clear and persuasive. It was further corroborated by the only third party witness
in the room, Ms. Hutchinson. Twining's testimony was confused and
Nelson and Dr. Twining executed a contract for the
year. The format of
the contract was in accordance with the collective bargaining agreement as were the benefits
provided. The salary was in accordance with the District substitute policy. Ms. Nelson was
subsequently paid extra duty pay for activities, seemingly in accordance with the collective
The District subsequently amended its substitute compensation policy. The
amendments included a change in the per diem rates and a
mileage provision. While it is at
least arguable that Ms. Nelson's per diem days had passed prior
to the effective date of the
newly-implemented per diem rates, it can hardly be argued that
the mileage provision ought
not to have applied to her. She commuted 40 miles per day. The unilateral substitute
rate was applicable to those commuting 30 miles per day. I believe this to be noteworthy in
that the District did not apply substitute policy to Ms. Nelson throughout the 1996-97
calendar academic year.
The District's application of its substitute policy toward Ms. Nelson was inconsistent
The Employer contends that this grievance should be denied because Ms. Nelson is
not in the bargaining unit. The Employer claim in this regard begs the question. The basis
of this claim assumes the grievant is not in the bargaining unit. In this
unit, Ms. Nelson's bargaining unit status is wholly dependent upon the meaning of the
Recognition clause. It is the task of the Arbitrator to construe the meaning of the words of
I do not believe the existence of bargaining history has any consequence to this
dispute. The Association has obviously tolerated one-semester substitutes as exceptions to
its recognition clause. This is the first incident of a full-year substitute. Neither party made
proposals to amend Article I until this dispute arose. The prior bargaining history has
operated to do no more than to leave the unit as defined by Article I.
The District has relied upon prior decisions issued by the staff and commission of the
WERC. There is no per se rule excluding all
substitute teachers from certified bargaining
units of teachers. Furthermore, Commission representation caselaw is largely irrelevant to
this dispute. In certifying and clarifying bargaining units, the Commission examines
appropriate unit questions and applies statutory criteria. This case does not seek an
administrative application of the statutes. Rather, this Award seeks to interpret the meaning
of the words negotiated by the parties. 2/
2/ Madison Metropolitan
School District, WERC Dec. No. 14161-A, 1/7/77, which, among other
concerns, notes the anti-fragmentation consequences of excluding temporary
I believe the District's reliance on the Neosho case is misplaced. That case is a
grievance arbitration, issued by a colleague, which is entitled to consideration, but which is
not binding in this dispute. The case is easily distinguishable. The recognition clause in
Neosho was applicable to "all Non-supervisory teaching personnel (full-time and part-time)
employed by Neosho State Graded School District No. 3. This does not include substitute
teachers. . ." The exclusion of substitute teachers is a critical provision distinguishing this
case from that. That language, which has no parallel in the Elcho contract, excludes
substitute teachers from the coverage of the agreement.
Similarly, the recognition clause of the contract involved in the Mount Horeb dispute
had an explicit exclusion of substitute teachers from the scope of the unit. While it is true
Examiner Fleischli concluded that there was no expectation of continuing employment in that
matter, the contractual exclusion of substitute teachers from the unit played a role in that
decision. In this dispute, the Employer contends that such an exclusion is implicit in the
words used by these parties. I disagree.
The District contends that Nelson had no expectation of continued employment and
should therefore be excluded from the bargaining unit as a temporary employe. The record
is mixed on that question. The posting was ". . . for the 1996-1997 school year only. . ."
vacancy was created by a one-year leave of absence. However, Dr. Twining made an effort
to imply that the appointment could be permanent. It was his testimony that, "I wasn't sure
she (Hutchinson) was going to return after the year's leave of absence." (Tr. 124). Twining
further testified that he told Nelson that Hutchinson may not be returning (Tr. 140); that he
". . . wanted to encourage them (candidates) to take an active interest to be, to accept the
contract. . . (Tr. 140); that "I might have indicated there was a possibility of a permanent
position." (Tr. 143). This record does not support an unequivocal finding of no reasonable
expectation of continued employment. I believe that Twining attempted to create an
expectation of continuing employment.
The Association is not bound by the agreement negotiated by Twining and Nelson.
Prahl attended but did not assent to the bargain. To the contrary, he warned of a grievance
to be filed.
In summary, I believe that the one-year substitute position falls squarely within the
bargaining unit described in Article I. While the parties may have carved out a one-semester
practice exception to that, that is not the question posed in this proceeding, nor is it
in this Award. I believe the position falls within the bargaining unit and is covered by its
provisions. I therefore believe that the District violated the contract in its compensation of
Ms. Nelson including its per diem payments for days 1-30, and
its subsequent placement of
her below her experience and education level. To the extent the individual agreement she
executed with the District calls for fewer fringe benefits than are provided by the collective
bargaining agreement, it is a nullity.
The grievance is sustained.
The Board is directed to pay Ms. Nelson per the terms of its collective bargaining
agreement for the year 1996-97.
Dated at the City of Madison, Wisconsin this 16th day of June, 1998.
William C. Houlihan, Arbitrator