BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
EDUCATIONAL ASSISTANT EMPLOYEES LOCAL
SHEBOYGAN SCHOOL DISTRICT
Educational Assistant Employees Local 1750, AFSCME, AFL-CIO, hereafter Union,
Sheboygan School District, hereafter District or Employer, are parties to a collective
agreement which provides for the final and binding arbitration of grievances arising
Union requested, and the District concurred, in the appointment of a Wisconsin Employment
Relations Commission staff arbitrator to hear and decide the instant dispute. The
so designated. The hearing was conducted at Sheboygan, Wisconsin, on December 10,
hearing was not transcribed, and the record was closed on March 5, 1998, upon receipt of
post-hearing written argument.
The Union frames the issue as follows:
Did the Employer violate the contract and/or past practice
it denied Mary Ball the right
to bump Stephanie Erdman?
If so, what is the appropriate remedy?
The District frames the issue as follows:
1. Is the Arbitrator without procedural
jurisdiction over the dispute because the grievance
was not filed within the time period prescribed by the contractual grievance procedure?
2. If the Arbitrator has procedural
jurisdiction over the dispute, does either Article V, C of
the collective bargaining agreement or past practice confer upon Mary Ball a right to bump a
senior educational assistant to avoid being transferred to another building?
If so, what is the appropriate remedy?
The Arbitrator frames the issue as follows:
1. Does the Arbitrator have jurisdiction to
determine the merits of the grievance?
2. Did the District violate the collective bargaining
and/or binding past practice
when it denied the Grievant's request to bump into the position of Stephanie Erdman, a less
ARTICLE IV GRIEVANCE
The purpose of this procedure is to secure
equitable solutions to the problems which from time
to time arise, affecting the welfare or working conditions of Educational Assistants.
A grievance is defined as any alleged
violation of a specific provision or provisions of this
Agreement between the Union and Board of Education regarding wages, hours or conditions
employment. Aggrieved parties may be the Union or the Board of Education or any of its
Grievances of Educational Assistants will be
considered and processed in the following manner:
Step 1: An
Educational Assistant who believes he/she has cause for a grievance shall discuss the
matter with his/her Union steward if requested, and department head or supervisor within
work days of the time the alleged grievance occurred with the objective of resolving the
informally at the lowest possible administrative level. If there is a failure to resolve the
the aggrieved Educational Assistant may present within ten (10) work days his/her grievance
writing to his/her Principal or responsible supervisor. The Principal or responsible
give his/her written answer within ten (10) working days.
Step 2: If the
grievance has not been satisfactorily resolved as per Step 1, the grievance shall be
submitted in writing to the Director of Personnel Services within five (5) work days after
the Step 1 response. After receipt of the appeal, a meeting shall be held to discuss the
the Director of Personnel Services and other management member(s) of the Employer, the
employee and/or the Union representative and steward.
The Director of Personnel Services shall
give written response to the grievance within five (5)
work days after such meeting.
Step 3. If the
grievance has not been satisfactorily resolved as per Step 2, the grievance shall be
submitted in writing to the Grievance Committee of the Board of Education within five (5)
of receipt of the response of the Director of Personnel Services. Within five (5) work days
receipt of the appeal, a meeting shall be held to discuss the grievance with the Grievance
of the Board of Education and management members involved in Step 2, the aggrieved
and/or the Union representative and steward. The Grievance Committee of the Board of
shall, within five (5) work days after such meeting, respond in writing to the grievance.
Arbitration: If a satisfactory settlement of a proper grievance is not
reached in the
Steps outlined, the Union may submit the matter to arbitration in the following manner:
Within twenty (20) calendar days of the
Step 3 response, the Union shall notify the Director of
Personnel Services in writing that they intend to process the grievance to arbitration.
The notification to the district must be followed with the filing of
a written request to initiate
grievance arbitration with the Wisconsin Employment Relations Commission within ten (10)
the notification to the district referenced above. Requests to initiate grievance arbitration
filed with the Commission separately.
During the ten (10) day period referenced
above, the parties shall use their best efforts to select
a mutually agreeable arbitrator from the staff of the WERC who will serve as impartial
the case. When agreement cannot be reached, the arbitrator shall be appointed by the
the WERC staff.
The arbitrator shall have no authority to
modify, add to, subtract from or change any of the terms
or conditions of this Agreement or any amendments or supplements hereto.
The arbitrator shall hold a hearing as
promptly as possible and shall render his/her decision in
writing, and the decision shall be final and binding on both parties.
The fees and expenses of the arbitrator shall
be divided equally between the Board and the Union.
D. Time Limitations the time
limits may be extended by mutual agreement between the parties.
Saturdays, Sundays, days off, holidays, sick leave, vacations, and other approved absences
are not to be counted as part of the time limitations.
Seniority is the length of continuous service
as an Educational Assistant with the Sheboygan Area
School District from an employee's last date of hire.
The seniority rights of an employee shall
continue to accumulate during periods of layoff and
leaves of absences.
C. Layoff Recall
When a reduction in personnel is necessary,
the last person hired shall be the first person laid off
and the last person laid off shall be the first person rehired provided said person has the
perform the work available.
D. Job Posting
Notice of new positions or vacancies shall
be posted on bulletin boards for five (5) work days
and in the staff bulletin when and if published, stating the area of work and qualifications.
interested in the position shall apply in writing to the Director of Personnel Services.
the system will be interviewed for any vacancies for which they apply. Time spent in an
within the system shall not be deducted from the pay of the employee. The position shall be
to the most senior applicant, provided the employee has the ability to perform the work.
. . .
H. Trial Period
An employee awarded a different position
pursuant to Section D. Job Posting above shall serve
a forty-five (45) work-day trial period. Should the employee fail during the trial period, the
may return the employee to his/her former position or like position, providing one is
An employee who desires to return to
his/her former position may do so by making his/her
request in writing to the Director of Personnel Services within the first ten (10) work days in
Mary Ball, hereafter the Grievant, is an Educational Assistant who has been
District since January 28, 1985. During the 1996-1997 school year, the Grievant worked at
Elementary School as a CDB EA (Cognitively Disabled-Borderline Educational Assistant).
In the fall of 1996, District Director of Personnel Services, Joe Sheehan, determined
were too few CDB students at Jackson Elementary School to fund the Grievant's CDB
Following this determination, Principal Kolzow advised the Grievant that her CDB position
be funded because there were insufficient special education students to
meet DPI funding standards and that the Grievant would be moved to Cooper
where special education student numbers were higher. The Grievant told Kolzow and
she objected to this move because she was not the least senior, but did not ask that she be
to bump a less senior employe.
Thereafter, the Board of Education agreed to fund a one-year EA position at Jackson.
decision was based upon the Board's desire to avoid disrupting students after the start of the
In November of 1996, the Grievant was told that she could either move as a CDB
Cooper or have the one-year EA position at Jackson. The Grievant chose the one-year EA
at Jackson. At the time that she chose the EA position, she understood that she would
same functions that she would have performed as a CDB aide and that the position would
at the end of the 1996-1997 school year.
In March, 1997, Sheehan sent a memo to the Grievant reminding her that her
Jackson would be eliminated at the end of the school year and that she should look at
May 27, 1997, the Grievant sent the following to Sheehan:
I have been consulting with my union representative, Barb
Felde, and the Union Contract
Negotiator, Helen Isferding. They have informed me that when an Educational Assistant
position, she may assume the position of another Educational Assistant with a lower
seniority, as long
as both of them are in the same classification.
Therefore, I would like to exercise this
option and assume the position currently held by
Stephanie Erdman who has the lowest seniority at Jackson School.
On May 28, 1997, the Grievant sent the following to Sheehan:
Until the situation concerning my position at Jackson has been
resolved, I know I must apply
for other positions. Therefore, I would like to apply for the CDB opening at Grant School.
The Grievant obtained an EA position at Grant School and worked in this position
the 1997-1998 school year.
On May 29, 1997, Sheehan sent the following to the Grievant:
Mary, this letter is in response to your May
27 request to assume the educational assistant
position now held by Stephanie Erdman, who has the lowest seniority at Jackson Elem.
would like to make the following points:
1. You are not losing your position. Your
EEN position was transferred during the fall of 1996.
At that time you chose not to move with your position, but to change positions and accept
present General Education Educational Assistant position. At that time it was made clear
new position was to end at the conclusion of the 1996-97 school year, and that you would
be placed for the 1997-98 school year. Barb Felde, Carol Kolzow, you and I were at that
2. As I expressed at our last meeting this
spring with yourself, Carol Kolzow and Barb Felde, I
believe that the administration acted in good faith with you through this whole process. If
the Union believe that you have the right to "bump" within the building, you should have
last fall, when you made the choice to change positions. Again, as I stated, if you believe
"bumping" is the case, then, another Educational Assistant should have been given the choice
of you. You know that I believe in open, two-way communication, and I now question you
Union why this "bumping" process was not pursued in the fall so that the appropriate person
have been given the choice. I believe the appropriate person was given the choice and chose
change positions. That person was you.
3. I share the concern that Carol Kolzow
expressed regarding the continuity of services to
students. Your recommendation to take Stephanie Erdman (sic) position would unnecessarily
services to the students she serves. The reason why your position was transferred was that
number of students that you serve was low and thus your position was moved to where the
are attending school.
4. In checking with the Jackson staff,
indeed, two of the Educational Assistant positions are more
focused on one-on-one services with two specific students. This also has them performing
functions which are not asked of all Educational Assistants. Some of these include: going
out for all
recesses, assisting in the lunch room with eating skills daily, and assist students in the
physical education program.
In conclusion, I believe that Administration has acted fairly and
consistently with you. At this
time, I am not honoring your request to assume Stephanie Erdman (sic) position. The appeal
is available to you. I am prepared to assist you in providing you with job postings through
summer until you have a 97-98 position.
On June 2, 1997, the Grievant sent the
following to Sheehan:
Mr. Sheehan, after receiving your memo of May 29, I feel the
need to respond. The entire
situation has been poorly handled from the beginning, and I believe your proposed solution is
or equitable to all involved. I have been poorly represented by my union and unfairly treated
Sheboygan Area School District administration.
When you and others met in November to
consider staff reductions I was not present. Had I
been at that meeting to provide an honest appraisal of the staffing situation at Jackson
believe the situation would have been fairly and equitably resolved at that time.
conferred with Barb Felde, AFSCME 1750 President, on this matter, again, without my
provide input. Barb left that meeting with the impression that you were changing my status
CDB Educational Assistant, AND that my position, my duties, were also changing. She did
out until March of this year that she had been misled - that although I was not considered a
I continued being a full time CDB EA in all of my duties. Nothing changed except the
my name in your records. It would seem that the administration was doing a slight of hand
make itself look good on paper without actually making any change.
This year there have been four and one-half
CDB EA (sic) at Jackson, including myself. If it was
determined that the school warranted only three and one-half CDB EA's, then why did not
change? Why did the school continue having the same number throughout the entire school
And, when the decision to reduce the CDB EA staffing at Jackson was made, why did the
administration not adhere to the staff reduction rules contained in the union contract? Why
the least senior CDB EA removed from the program rather than one with much more
action, failure to abide by the union contract is grievable.
You are undoubtedly aware, as am I, that a
similar case occurred at the Pidgeon River School.
In that case, the senior staff retained the position. I would expect that similar cases would be
with in a similar fashion, that the same rules would apply in all cases.
In November, when I was informed of the decision to terminate
my assignment as a CDB EA,
to be reassigned as a GE EA, and that the position would end at Jackson at the end of the
school year, I talked with Barb Felde and Warren Wiesfeld on a number of occasions. At
I wanted to file a grievance, but they both advised against that then. I do not believe they
understood the situation. Additionally, they failed at the time to advise me of the seniority
the union contract.
Your remark, and I quote, "replacing
Stephanie Erdman would unnecessarily disrupt services to
the students she serves" belittles my role in the CDB program at Jackson School. I believe
will cause more of (sic) disruption. I have been helping with the youngest and those with the
severe special needs. It has been thought (and not by just myself) that one particular student
regress next year in my absence. He and I have a special rapport this year - he trusts me
secure where I am there.
And lastly, I need to reply to your statement
that some educational assistants have special duties.
We all have our "special duties". We are all assigned our work schedules by our
only do I do most of the clerical work in our CD room, I also assist the specialists in
Adaptive Physical Education, an inclusion music class, two inclusion Physical Ed classes,
inclusion Art classes. I also had to work intensely with third grade students to learn library
research reports, orals living biographies, etc.
I am very sorry that this whole issue has
developed as it has due to poor communication between
administration, the union representatives and myself. I have served the CD program for
years. I love my job and the rewarding experience my students have given me.
I feel my long-term honorable service to the
Sheboygan Area School District should at least give
me a fair treatment. I have not received that. Should we not be able to amicably settle the
I am fully prepared to file a grievance against the school district based on violation of the
Thereafter a grievance was filed; denied by the District; and submitted to arbitration.
POSITIONS OF THE PARTIES
The Grievant does not protest the elimination of a position from Jackson Elementary
but rather, protests the District's denial of the Grievant's right to bump into a position held
by a less
senior employe. During the 1996-1997 school term, the Grievant continued to do what she
always done. The Grievant hoped that student enrollments would increase such that a
become available at Jackson. The Grievant was not harmed until her request to bump was
the end of the 1996-97 school year.
Personnel Director Sheehan's testimony demonstrates that, if the Grievant had not
open position, then she would have been laid off. The right to bump occurs before a layoff
to avoid a layoff. The Grievant's request to bump Stephanie Erdman was made on May 27,
and involved a layoff that was to occur in the fall of 1997. It was not until May of 1997,
Grievant was denied the right to bump a less senior employe, that the Grievant had a
The answer to the grievance, provided at the last step prior to arbitration, contains no
allegation that the grievance is untimely. The grievance is timely and the arbitrator has
to determine the merits of the grievance.
The District did not transfer the Grievant. Rather, the District eliminated the
position at Jackson. As a result of this elimination, the Grievant had the option to fill an
position, bump, or go on layoff. Under protest, the Grievant posted into a position at Grant
In the past, when a position has been eliminated, most employes have chosen to take
position. Other employes, however, have chosen to bump a less senior employe. The
Grievant is one
employe who has been bumped out of a position. The past practice of bumping is
clearly enunciated and acted upon and readily ascertainable over a reasonable period of time.
argument that a bump would cause undue disruption is bogus.
The District's conduct caused the Grievant to lose a position for which she had posted
obtained through seniority. By denying the Grievant the right to bump a less senior
District is denying the Grievant her contractual posting and seniority rights.
Contrary to the argument of the District, the contract does not require that there be a
reduction in the total number of employes before the layoff/recall language, with its inherent
rights, comes into play. The contract provides employes with the right to bump when their
eliminated, even if the total number of the work force remains the same.
The Grievant should be allowed to bump into Stephanie Erdman's position at Jackson
be made whole. The make-whole remedy would include pay for the one-fourth hour per day
as a result of the denial of the request to bump.
Under Article IV, C, a grievance must be filed within fifteen days of the event or
which gives rise to the alleged grievance. When the Grievant accepted the General
Assistant position in November of 1996, she understood that she would no longer be
classified as a
CDB Educational Assistant and that she could not remain at Jackson after the 1996-1997
The event that caused the Grievant to leave Jackson at the end of the 1996-1997 school year
reclassification in November of 1996. Since the grievance was not presented until June of
grievance was not filed within the time period prescribed by the grievance procedure.
The time period for filing the grievance did not begin on the date the Grievant made
to bump Stephanie Erdman. The Arbitrator is without procedural jurisdiction over the
grievance must be dismissed.
The layoff clause does not reference work site. The layoff clause applies to a
personnel" and to "persons hired and laid off." The agreement covers all Educational
argument that the layoff clause applies separately to each building and not to the District as a
contravenes the plain terms of the layoff clause.
Layoff is a separation from employment, with an ensuing loss of benefits or status.
is not a separation from a building.
The Grievant was shifted to the same job in a different location without any loss of
employment status. Inasmuch as the Grievant was transferred and not laid off, Article V, C,
The collective bargaining agreement does not confer bumping rights when an
Assistant is transferred. Seniority is the controlling factor in awarding open positions, but
Grievant seeks a distinctly different right. The posting language relied upon by the Union
most senior qualified applicant to be appointed to a job that has been posted. It does not
Educational Assistant to take a position that is not open and that has not been posted.
None of the cases cited by the Union stand for the proposition that a seniority-based
bargaining agreement confers bumping rights in the absence of any contract language
bumping rights. The claim that bumping would not cause any disruption of educational
The evidence has not shown an unequivocal, clearly enunciated and acted upon and
ascertainable practice of bumping that is accepted by both parties. Nor does the contract
provide for bumping. The grievance is without merit and should be dismissed.
The "cause for the grievance" was the District's decision to eliminate the Grievant's
at Jackson Elementary School at the end of the 1996-97 school year. The Grievant was first
of this decision in November of 1996.
The Union argues that, at the time of the initial notification, the Grievant had hopes
student enrollment would increase and, thus, her position would not be eliminated at the end
1996-97 school year. Such a "hope," however, was dashed in March of 1997, when the
Director of Personnel Services confirmed that her position would be eliminated at the end of
1996-97 school year.
The Grievant did not challenge the elimination of her position at Jackson by asserting
had a right to bump a less senior employe until May 28, 1997. Since the Grievant did not
matter within fifteen work days of the time that the Grievant knew that her position at
be eliminated, the grievance was not filed within the time limits set forth in Article IV, C,
Article IV, C, does not expressly provide that a failure to adhere to the contractual
relieves the arbitrator of jurisdiction. Article IV, D, recognizes that such time limits may be
by mutual agreement of the parties.
In his denial of the Grievant's request to bump, Director of Personnel Services
an issue with respect to the timeliness of the Grievant's bumping claim. It is not evident,
that the District raised any timeliness objection when the District provided the Step 1, Step 2,
3 responses to the grievance.
Step 4 of the grievance procedure provides that the Union may submit the matter to
arbitration if a satisfactory settlement of a "proper grievance" is not reached in the previous
the grievance procedure. Since the District did not raise a timeliness objection in Steps 1
the undersigned is persuaded that the District implicitly agreed to accept the grievance as
thus, a "proper grievance" has been submitted to arbitration. Contrary to the argument of
District, the undersigned has jurisdiction to determine the merits of the grievance.
As both parties recognize, the collective bargaining agreement does not expressly
bumping rights. Article V, D, the job posting language relied upon by the Union applies to
positions and vacancies and awards the posted position to the most senior applicant, if
Neither this language, nor any other language relied upon by the Union, precludes the
eliminating a position which has been filled pursuant to Article V, D.
As the Union argues, Article V, D, requires that postings state the area of work, as
qualifications. Article V, C, Layoff-Recall, however, does not refer to "area of
work." The absence
of such reference leads to the conclusion that "area of work" is irrelevant for the purpose of
determining layoff and recall rights.
Under the language of Article V, C, a layoff occurs when there has been a "reduction
personnel." It is reasonable to construe a "reduction in personnel" to be a reduction in the
of employes. It is not reasonable to construe this phrase to mean a reduction in the number
positions assigned to a particular school building.
In the present case, the Grievant's position was eliminated at Jackson and the
provided with the opportunity to post into a vacant position. The Grievant posted into that
The fact that the Grievant posted into the position under protest does not alter the fact that
District did not reduce personnel. Since there has not been a reduction in personnel, the
rights provided in Article V, C, are not applicable to this dispute.
Neither Article V, nor any other contract provision, expresses or implies that the
of the Grievant's position at Jackson entitles the Grievant to bump into a position held by a
employe. The District did not violate the collective bargaining agreement when it denied the
Grievant's request to bump into the position held by Stephanie Erdman. The undersigned
the evidence of past practice.
The evidence of past practice demonstrates that the District frequently eliminates
positions and that, generally, the employes who occupied the eliminated positions post into
positions. On a few occasions, an employe in an eliminated position has received another
without posting into that position.
Virginia Neumeister, a retired teacher, testified that, on one occasion in 1982 or
classroom was dissolved and it was not immediately clear that she would have another
According to Neumeister, she discussed the matter with Principal Mattox and the
Principal assured her that he would take care of her. Subsequently, the Principal
a position which had been held by a less senior employe and the less senior employe received
position at another school. Neumeister does not know whether or not the less senior
voluntarily left the position. While it is evident that Neumeister received a position that had
occupied by a less senior employe, it is not evident that the less senior employe had been
of the position
When four of six General Education Aide positions were eliminated at Pidgeon River,
Union and the District discussed the matter and mutually agreed that the two most senior
would remain at Pidgeon River. According to Barb Felde, who represented the Union
Pidgeon River discussions, the remaining four employes posted into other positions.
Felde acknowledges that bumping rights were not a subject of discussion when the
resolved the Pidgeon River matter and that, at the time, Felde did not believe that bargaining
employes had any bumping rights. Felde confirmed Sheehan's testimony that the resolution
Pidgeon River matter was "crafted" specifically for the Pidgeon River situation.
Julie See and the Grievant each believe that employes who had positions eliminated at
River were permitted to bump into other positions. Their knowledge of these other employes
upon unsubstantiated hearsay and, thus, is not persuasive.
Julie See recalls that, when her position was eliminated at Pidgeon River, she
position at Wilson which was held by a less senior employe. The Grievant recalls that a
Joy Perna, was permitted to bump into two part-time positions, one of which had been held
Grievant. Assuming arguendo, that each of these witnesses is correct, the two
instances of bumping
would not be sufficient to demonstrate a binding past practice.
Neumeister recalls that Union Representative Helen Isferding advised Neumeister that
could bump, but that "no one else" agreed that Neumeister had bumping rights. Felde
in 1996, Isferding advised Felde that employes had bumping rights. It is not evident,
any District representative has agreed with Isferding's assertion that employes have bumping
In summary, the record does not demonstrate that the parties have a well established
mutually accepted past practice of allowing an employe whose position has been eliminated
into a position of a less senior employe. Nor does the contract language provide such a
right. The grievance is without merit and has been dismissed.
1. The Arbitrator has jurisdiction to determine the merits of the grievance.
2. The District did not violate the collective bargaining agreement and/or binding
practice when it denied the Grievant's request to bump into the position of Stephanie
Erdman, a less
3. The grievance is denied and dismissed.
Dated at Madison, Wisconsin, this 17th day of August, 1998.
Coleen A. Burns, Arbitrator