BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CESA #11 HEAD START ASSOCIATE
AND PROFESSIONAL STAFF
COOPERATIVE EDUCATIONAL SERVICE AGENCY
(Team Leader Pay Grievance)
The above-captioned parties, herein "Association" and "Agency", are signatories
a collective bargaining agreement providing for final and binding arbitration. Pursuant
thereto, hearing was held in Turtle Lake, Wisconsin, on April 21, 1998. The hearing was
transcribed and both parties filed briefs that were received by June 8, 1998. Based upon the
entire record and arguments of the parties, I issue the following Award.
Since the parties were unable to jointly agree on the issues, I have framed them as
1. Is the grievance arbitrable?
2. If so, did the Agency violate
Article VI and Article XXI of the contract by abolishing
the Team Leader position and by taking away the $1.00 an hour differential formerly paid to
the grievants and, if so, what is the appropriate remedy?
The Agency used Team Leaders at its various sites to manage its educational centers
and to perform such duties as supervising assistants and bus drivers; organizing staff
meetings; canceling school; serving as liaison to the central office; and managing certain
Their job description, (Joint Exhibit 19), provided in pertinent part:
. . .
RESPONSIBILITIES: Supervise Center Assistants and Bus
Drivers, Organize Staff Meetings, School Cancellations, Liaison to Central Office,
Administrative Management of the Center, Maintain Confidentiality of all Client
Information and Other Responsibilities and Duties as Required.
REQUIRED: Leadership Skills, Problem Solving
Skills, Supervision Skills, Flexible Scheduling, Generally Available at the Center.
. . .
They thus were responsible for running each Center on a day-to-day basis, for which
were paid a $1.00 an hour differential over and above their regular wages.
Largely because of a new state mandate that provides for more stringent day care
requirements, the Agency at the end of the 1997 school year abolished the Team Leader
position and took away the $1.00 an hour differential from the nine (9) former Team
The Agency at that time created a new Site Facilitator's position which complies with new
state regulations and which is outside the bargaining unit. Those new regulations, HFS 46
Licensing Rules For Group Day Care Centers, provide in pertinent part:
. . .
2. The center director shall be
responsible for the supervision of the planning and
implementation of the center's program for children, the education of staff at the
center, staff meetings and orientation and continuing education for the staff.
3. A center
director shall be employed on one of the following schedules:
* a. At
least 10 hours a week for the exclusive purpose of carrying out center
director responsibilities in a single full day center location licensed for 50 or fewer
* b. At
least 20 hours a week for the exclusive purpose of carrying out center
director responsibilities in a single full day center location licensed for 51 or more
. . .
The Agency therefore by letter dated June 20, 1997, (unless otherwise stated, all
hereinafter refer to 1997), invited the nine (9) former Team Leaders to apply for said
Five (5) Site Facilitators were needed for the Agency's Centers at Amery/New Richmond;
Almena/Rice Lake; Menomonie/Ellsworth; Boyceville; and Chippewa Falls/Cornell. Four
former Team Leaders applied for said positions and all four (4) were hired. The other five
(5) former Team Leaders have remained in the bargaining unit.
The job description for the new Site Facilitator position provides:
JOB TITLE: Site
CLASSIFICATION: Supervisory Management Position -- Exempt
. Able to
project a genuine, nurturing, welcoming, positive, and open presence with eye
contact, excitement and energy.
. Written and
oral communication skills -- clear and complete, demonstrating
appropriate respect and good listening skills.
appropriate mentally healthy behavior and effective communication
effective leadership, teaming, and conflict resolution skills.
. Expresses a belief in the Federal
Head Start program for both children and parents
. Be responsible for the supervision
of the planning and implementation of the centers
program according to Wisconsin Day Care Regulation skills (DCHFS 46.05(1)(B)2a)
. Assisting in
the supervision of center staff and complete the Performance Appraisal
Process in conjunction with component coordinators
center staff meetings and team development activities
orientations for new staff, volunteers, parents
. Support the
ongoing, continuous education of staff
. Participate in
the hiring, evaluation and termination of staff
. Schedule to
work force, approve absences, overtime, comp time, breaks, etc.
. Approve all
. Recruit, train,
and monitor substitutes and volunteers
public relations function within the community
component coordinators with record checks
. Perform Bus
Driver alcohol and drug testing procedures
. Facilitate the
parent and community concerns process
parent involvement activities at the center level
. Assist in
developing family literacy services
. Manage labor
contract issues at the center level
. Oversee the
the development of the center calendar
. Monitor and
meet all day care licensing, federal performance standards, and federal
health and safety standards
. Assist in
center accreditation process
. Other duties
through Action Support for the Program Mission/Vision/Values
. Use Program
. Manage Time
. Identify and Implement Innovative
practices (challenges the process)
. Inspires a
shared vision among center staff
Communicates optimistically, positively, and with honesty and openness
effective problem solving skills
. Creates an
atmosphere of trust and shared ownership
. Sets clear
goals and outcomes
. Provides team
with encouragement, support and appreciation
. Displays skills
to positively promote the program
confidentiality of all family and staff information
. Ability to
demonstrate high degree of compassionate partnering ability
. Ability to
work with diverse groups of people
. Meet State
Daycare Center Director Regulations
knowledge and skills in the area of Human Resources
supervisory experience such as Team Leader, Center Director, etc.
completion of First Aid/CPR training
demonstrate through past performance appraisal process strong communication,
facilitation, and leadership skills
in a leadership or supervisory skills class
After learning that the Agency intended to abolish the Team Leader position and to
create the new Site Facilitator position, Association Executive Director Alan D. Manson by
letter dated May 14 informed Head Start Program Director Barbara Wehman that the
Association wanted to bargain over the matter. Manson and Wehman subsequently met and
discussed the issue over the next several months, during which time no formal grievance was
The Association on October 28 filed the instant grievance wherein it claimed that the
Agency had violated the contract by taking away the $1.00 an hour differential paid to the
(5) former Team Leaders who remained in the bargaining unit. Wehman by letter dated
November 10, (Employer Exhibit 6), informed Manson that the grievance had been
improperly filed because:
. . .
We do not believe the grievance was filed at either level
1 or 2 in accordance with the
terms of the current contract. There was no mutual agreement to hold this grievance in
abeyance for discussion at the October 23 meeting. We were informed that the union
intended to address this issue during a September phone call; however, there was no mutual
agreement to operate outside of the current contract language.
. . .
By letter dated November 19, Manson informed Wehman that the grievance had been
properly filed and that:
. . .
You cannot, without lying, deny that we have talked
about the Team Leader pay
situation several times since the summer. You cannot deny, without lying, that you agreed
to meet with me to discuss the Team Leader situation and possible grievance on 10/28/97,
and that you never raised any procedural issue prior to your letter of 11/10/97.
The grievance procedure allows
NUE to file a grievance. NUE has filed this one. I
filed it, for NUE, at Step 2 since we have been discussing it for some time.
If you insist that it be filed with the
immediate supervisors of the Team Leaders, rather
than with you, it is quite obvious that the outcome would be for the immediate supervisors
to deny the grievance and for it then to be filed back with you.
Nevertheless, if you insist that this
grievance be refiled with the immediate supervisors
of the Team Leaders involved in the grievance, I will do so, even though that will result in
time and costs to both parties. You can either call or write to direct me to refile this
grievance with the immediate supervisors.
The Agency denied said grievance, hence leading to the instant
As for the changes caused by the Agency's actions, former Team Leader Marge
Rettenmund testified that she sometimes still performs her former Team Leader duties when
she is involved with busing issues; when she prepares purchase orders; when she
fills in for the Site Facilitators about three days a week; when she helps out in the
and when she takes care of summertime matters. On cross-examination, she acknowledged
that she has not been told to continue her busing duties or to continue to prepare purchase
orders and that other employes also prepare purchase orders and are involved in busing
issues. She also stated that she cannot work ten hours a week at the Agency's Eleva
Former Team Leader Mary Donatelle, now a Site Facilitator at the Amery/New
Richmond Center, testified that she now supervises the day-to-day operations at the Center;
that she oversees the bus operations; that she handles parental complaints; that she serves as
a liaison for the central office and the school site; that she sets up training; that she hires
that she handles staff issues such as scheduling; that she evaluates all employes; that she
organizes staff meetings; and that she cancels school. On cross-examination, she agreed that
but for evaluating other employes, she as Team Leader could have performed all of the
present duties she now performs as a Site Facilitator.
Site Facilitator Betty Skapyak, Rettenmund's immediate superior, testified that she
has not designated any special tasks to Rettenmund; that a "number of people" get involved
with school closings; that she discharges employes; that she has hired aides and other
employes; that she helps hire teachers, that she writes up employes over attendance
and that employes submit their time off requests to her for approval. She also told
Rettenmund to refer parental complaints to her. On cross-examination, she said that
Rettenmund has handled parental complaints and bus issues.
Head Start Director Wehman testified that some Team Leader duties were transferred
to the Site Facilitators; that new day care rules require designating Center directors who can
supervise staff; and that said new rules did not require transferring the former Team Leader
duties to the Site Facilitators. She also said that the former Team Leaders could not spend
10 hours a week at each site, as is now required.
POSITIONS OF THE PARTIES
The Association contends that its grievance is arbitrable because it was filed as soon
as it learned after informal discussions with Head Start Program Director Wehman that the
Agency would not change its course. As to the merits, the Association asserts, "The central
question here is whether or not the Employer can remove job responsibilities, and a job title,
and specific compensation for those responsibilities and that title, from bargaining unit
employes, thereby demoting them, without violating the terms of the collective bargaining
agreement." It thus argues that while the Agency can phase out the Team Leader positions
from the bargaining unit through attrition, it violated Articles VI and XXI of the contract
because five (5) of the former Team Leaders are now
serving as "de facto Team Leaders in their
various sites due to the established patterns of
their Head Start colleagues and clients." As a remedy, the Association seeks reinstatement
of the Team Leader positions and back pay.
The Agency maintains that the grievance is not procedurally arbitrable because it was
untimely filed. It also asserts that it was entitled under the contract to eliminate the Team
Leader responsibilities because no employes have been demoted; because it has the
contractual right to transfer the Team Leader responsibilities to a management level position;
because it in any event had "just cause for eliminating the Team Leader responsibility and
pay"; and because the Association has not proven that any former Team Leaders are
continuing to perform their duties.
The first issue that must be decided here is whether the grievance was untimely filed
and thus procedurally barred under Article IV, Section 1, of the contract which provides in
AIf the employee does not submit his grievance to the
immediate supervisor within 15
workdays after such employee knew of the act or condition on which the grievance is based,
the grievance will be deemed waived."
Article IV goes on to state:
The parties hereto agree to follow each of the foregoing
steps in the processing of a
grievance. If CESA fails to give a written answer within the time limits set out for any step,
the grievant may immediately appeal to the next step. Grievances not processed to the next
step within the prescribed time limits shall be considered dropped. The timelines may be
extended by mutual agreement of the parties.
. . .
Here, the Association filed its October 28 written grievance well after the Agency
in the spring of 1997 that it would be abolishing the Team Leader position. However, there
was a valid reason for the Association's delay: Manson on May 14 put the Agency on
express notice that the Association wanted to bargain over said matter and he and Head Start
Program Director Wehman subsequently continued to discuss it in an effort to informally
resolve it. Up to the time of Wehman's November 10 letter referenced above, neither
Wehman nor anyone else on the Agency's behalf ever put
Manson on notice that he had to file a written grievance within 14 days to protect the
Association's right to grieve and to then arbitrate this matter.
Given Manson's good faith attempts to resolve this issue and his May 14 notice to
the Agency that the Association was contesting the Agency's actions, I find that the Agency
has not been prejudiced by the Association's delay in filing its written grievance and that it
therefore is inequitable to hold the Association to a contractual time limit that Manson
reasonably believed had been waived by the Agency in their informal discussions. Hence,
grievance is arbitrable.
As to the merits of said grievance, it is well recognized that -- absent any express
agreement to the contrary -- an employer retains the inherent right to abolish existing job
positions and to create new ones. See How Arbitration Works,
Elkouri and Elkouri (BNA,
5th Ed., 1997), p. 697-699. Thus:
Arbitrators have often recognized the right of
management, unless restricted
by the agreement, to eliminate jobs (and where a few duties remain to reallocate them) where
improved methods or other production justification exists and management otherwise acts in
good faith. Arbitrators likewise have recognized management's right, where not restricted
by the agreement, to eliminate job classifications (and reallocate the remaining duties) when
done in good faith for a justifiable purpose.
In upholding the right of
management to eliminate jobs or classifications,
Arbitrator Howard S. Block offered the following evaluation:
impact of a changing technology upon the work force has posed problems
to both management and labor not easy of solution. That this issue has been a
persistent and vexing one over the years is indicated by the significant number of
arbitration proceedings on this subject dating back to the earliest reported decisions.
A review of these decisions reveals that they fall into two fairly distinct categories
which seem noteworthy here: (1) One line of cases emphasizes that where a Collective
Bargaining agreement sets forth a comprehensive rate structure, the wage rate
established for each classification evidences an agreement between the parties as to
the wage rate, as well as the classification; these cases go on to provide that, in
general, the terms of this bargained for exchange may not be unilaterally altered. To
the extent that some of these decisions regard the classification structure as being
unalterably frozen during the life of
the Agreement, they do not represent the weight
of arbitration authority. (2) A second group of cases holds that the existence in the
Agreement of a negotiated rate structure does not guarantee that the classifications
will remain unchanged during the term of the Agreement. The reason advanced for
this interpretation is that economic necessity in a competitive market makes it
essential that management have the degree of flexibility necessary to adapt the work
force to changed conditions. Where arbitrators have upheld management's right to
eliminate jobs or classifications and reallocate residual job duties, they have stressed
that such changes must be made in good faith, based upon factors such as a change
in operations, technological improvements, substantially diminished production
requirements, established past practice, etc. It is this second line of cases which
appears to reflect the present weight of authority on this issue. (citations omitted).
Id, at 698-699.
Here, since there is no contractual language mandating the continuation of the Team
Leader classification, and since the Agency had a legitimate business reason for doing so, the
Agency was free to abolish it pursuant to the broad management rights' proviso contained
in Article III of the contract, entitled "CESA Functions", that states:
CESA hereby retains and reserves unto itself all powers,
rights, authority and
responsibilities to manage and operate the CESA system. The exercise of such power,
authority, duties and responsibilities of CESA, the adaptation of policies, rules and
and practices in furtherance thereof, shall be limited only by the specific and express terms
this Agreement and the laws and regulations of the State of Wisconsin and of the United
States of America. The foregoing statement of the functions of CESA shall not be
to exclude other functions of CESA not heretofore set forth; CESA retaining all functions
rights to act not specifically covered by this Agreement, including the right to subcontract out
for goods and services, provided there is no reduction in the hours of employees who were
employees as of 4/13/95.
Contrary to the Association's claim, the abolition of the Team Leader position does
not constitute an unjust demotion under Article VI of the contract which states:
No employee shall be disciplined, demoted, or suspended
without just cause and, after
three (3) years. . . of probation, no employee shall be terminated without just cause.
Rather, it merely reflects the Agency's right under Article III to best manage its
in response to a new state mandate which imposes higher daycare requirements.
However, that is a separate question of whether, as contended by the Association,
the Agency is violating the contract by having the former Team Leaders perform their former
duties without the added compensation they previously received.
If the former Team Leaders are still required to perform the distinguishing
characteristics of their prior jobs, the grievance would be upheld because the Agency cannot
escape paying for the contractually-mandated dollar-an-hour wage premium provided for in
Article XXI of the contract through the subterfuge of removing an employe's title, but not
the duties encompassed by that title.
As to that, former Team Leader Rettenmund testified that she still performs some of
the same duties she previously performed as a Team Leader. In addition, Site Facilitator
Donatelle, a former Team Leader, testified that but for evaluating other employes, she as a
Team Leader could have performed all of the present duties she now performs as a Site
Facilitator. Their combined testimony establishes that there is considerable overlap between
the two positions.
However, Site Facilitator Skapyak -- Rettenmund's immediate superior -- testified
without contradiction that she told Rettenmund not to perform some of her former Team
Leader duties and that, furthermore, "other people" also get involved with some of those
Trying to sort out who performs what duties is not an easy task here -- a point
acknowledged by the Association when it states the issue is "difficult to ascertain. . ."
Nevertheless, I conclude that the Agency has not violated the contract because
Skapyak and Wehman testified that the Site Facilitators now exercise significant supervisory
duties - such as evaluating employes, hiring employes and discharging employes that were
performed by the former Team Leaders. These supervisory duties, along with the fact that
they now must spend ten hours a week at their Centers, are the distinguishing characteristics
of the Site Facilitator's positions and they thereby show there is a significant difference
between their duties and the duties formerly performed by the Team Leaders. If employes
like Rettenmund therefore believe that they are still performing their former Team Leader
duties, they have the right to grieve any such assignments.
In light of the above, it is my
1. That the grievance is arbitrable.
2. That the Agency did not violate Article VI or Article XXI of the contract by
abolishing the Team Leader position and by taking away the $1.00 an hour differential
formerly paid to the grievants.
3. That the grievance is hereby denied and dismissed.
Dated at Madison, Wisconsin this 4th day of September, 1998.
Amedeo Greco, Arbitrator