Grievant Corona, an educational assistant who serves as a hall monitor at J.I. Case
School, served as the scorekeeper for the girl's sophomore and varsity basketball teams on
games during the 1995-1996 school year for which she received payment of $15 for each
a total of $30 per event. Corona did not serve as scorekeeper for the team's home games
that job was held by someone else. The District agrees that Corona performed her
very well and that she was fully qualified for the position.
Corona in the spring of 1996 asked Stephen Benkert, the head girl's basketball coach,
she could keep her scorekeeper's job for the ensuing 1996-1997 school year. Benkert gave
a response which led her to believe that she would be retained for that position.
Benkert told Corona in the fall of 1996 that she would not be given her former
job. Said job, instead, was then given to high school student Ryan Lepisto, the son of
basketball coach Gene Lepisto. Corona was subsequently allowed to take tickets at certain
events, an activity that generated less money than her former scorekeeper's duties.
Benkert decided to not offer Corona her former job because of what he believed to be
Corona's inappropriate conduct as a fan the year before when she shouted encouragement
team's home games when she was not serving as scorekeeper. Benkert thus testified that
players on the team and their parents had complained to him about Corona's actions and
believed to be her too-zealous cheering as a fan. Benkert acknowledged that Corona never
inappropriate comments when she was working as the scorekeeper on away games.
Benkert also admitted that neither he nor anyone else on the District's behalf had ever
mentioned this problem to Corona before the decision was made not to use her services for
subsequent 1996-1997 school year. He also said that he never mentioned this problem to her
because: "When a person pays their admission price, I guess they're allowed to say whatever
For her part, Corona testified that when she asked Benkert why she could not keep
scorekeeper's job, he replied that it was because of an incident, never identified, that
happened in the
past year. Corona surmises that said incident referred to when she reported certain
for disciplinary action, thereby resulting in a one-game suspension of one of the players.
Corona filed the instant grievance on December 3, 1996, leading to the instant
POSITIONS OF THE PARTIES
The Association argues that the grievance is arbitrable because "the law favors
labor disputes" and because Article VI, Section 1, of the contract "confers substantive
insofar as it permits the Employer the right to hire and to determine the basis of retention" of
assistant assigned to 'any and all work'". On the merits, the Association claims that the
non-retention as a scorekeeper was "arbitrary and capricious" because her work was
because her demeanor as a fan was not made a condition of her scorekeeper's duties; and
the hiring of a student to replace her was unreasonable. As a remedy, the Association
make-whole remedy that reinstates Corona to her scorekeeper's job and pays to her whatever
of money she lost when said job was taken away from her.
The District, in turn, contends that the grievance is not arbitrable because the
bargaining agreement does not apply to non-bargaining unit jobs such as scorekeeper and
other extra-duty positions and because the grievant was "not acting within the scope of an
when she accepted and performed the job of scorekeeper." It also maintains that there in any
is no merit to the grievance because its actions here were not unreasonable, arbitrary or
because Benkert had a valid basis i.e. complaints about Corona's role as a fan
for not rehiring her
for the 1996-1997 school year.
In agreement with the Association, I find that the District did not treat Corona very
it never brought any complaints to her attention at a time when she was serving as
when she could have done something about them. Had the District done so, it is entirely
Corona would have modified her behavior as a fan. Moreover, since Corona performed her
scorekeeper's duties in an acceptable manner, the District surely owed Corona a full
to why she could not continue in that role, which is something it never offered until the day
The District's treatment of Corona, however, is a separate question of whether her
is arbitrable under the contract and whether the District violated the contract.
As to that, the Association relies on Article VII Section 1, of the contract that defines
grievance as follows:
1. A grievance is a claim which alleges that one or
more provisions of this Agreement have been
incorrectly interpreted and/or applied. Such claim must be based on an event or condition
which affects wages, hours, and/or conditions of employment of one or more assistants.
The Association maintains that substantive arbitrability exists here because Corona is
the District has violated the following underlined parts of Article IV of the contract, entitled
The Board retains, without limitation, all powers, rights,
authority, duties, and responsibilities
conferred upon it and invested in it by the laws and Constitution of the State of Wisconsin,
the United States, including, but without limiting the generality of the foregoing, the sole and
exclusive right to hire, assign, transfer, promote, demote, discipline, and discharge all
determine the basis of selection, retention, and promotion, to direct and
supervise the performance
of any and all work, to judge efficiency and competency in the performance of
work assigned, to
dismiss or lay off temporarily or permanently, and to subcontract any and all work. The
the right to determine the jurisdiction of the assistant's work. (Emphasis added).
Article IV's reference to "retention" and "any and all work", however, only refers to
bargaining unit work, as the contract does not even refer to extra-duty positions such as
scorekeeping. The scorekeeper's job thus has never been considered bargaining unit work,
Benkert testified without contradiction that said jobs have been offered to teachers and even
non-school employes over the years. Benkert also testified that in filling said jobs, he has
guided by any collective bargaining agreements with any labor organizations because it is
understood by all that said extra-duty jobs are not covered under any labor
Resources Supervisor Mary Jane Soldana and Activities Director Paul Kolpek corroborated
The grievance therefore is not substantively arbitrable because it raises an issue that
unrelated to Corona's bargaining unit duties and because Article VII, Section 1, limits
alleged violations of the contract.
Contrary to the Association's claim, this result is not contrary to the public policy of
encouraging the arbitration of labor disputes since said policy as set forth in such
cited cases as
United Steel workers v. Warrior & Gulf Navigation Co., 36 U.S. 574 (1960),
Technologies, Inc. v. Communication Workers of America, 475 U.S. 643 (1986), and John
Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964). has no applicability
when, as here, the
dispute centers on work that is not covered by a contract and hence is not grievable.
That also is why there is no merit to the Association's additional claim that "the
making such jobs available to employes had become a 'benefit' as that term is defined in
law" under such cases as Saginaw Mining Co., 76 LA 911 (Ruben,
1981). Thus, Saginaw centered on whether the employer violated the contract when it
its prior practice of giving out free holiday hams at Christmas time. It therefore had nothing
with whether employes could grieve over their employer's actions in removing them from a
non-bargaining unit provision. The Association's reliance on
Management Rights, Hill & Sinicropi (BNA,
1986), is also inapposite for the same reason.
In light of the above, it is my
That the grievance is not substantively arbitrable; the grievance is therefore
Dated at Madison, Wisconsin this 31st day of August, 1998.
Amedeo Greco, Arbitrator