BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
PESHTIGO SCHOOL DISTRICT
PESHTIGO EDUCATIONAL SUPPORT PERSONNEL
Mr. James A. Blank, Executive Director, United Northeast
Educators, 1136 North Military Avenue,
Green Bay, Wisconsin 54303-4414, appearing on behalf of the Association.
Godfrey & Kahn, Attorneys at Law, by Mr. Dennis W.
Rader, 333 Main Street, Suite 600, P.O.
Box 13067, Green Bay, Wisconsin 54307-3067, appearing on behalf of the District.
Peshtigo School District hereinafter referred to as the District, and Peshtigo
Support Personnel Association, hereinafter referred to as the Association, are parties to a
bargaining agreement which provides for final and binding arbitration of grievances.
Pursuant to a
request for arbitration the Wisconsin Employment Relations Commission appointed Edmond
Bielarczyk, Jr., to arbitrate a dispute over the payment of benefits during the months of July
August of 1997. Hearing on the matter was held in Peshtigo, Wisconsin on November 25,
stenographic transcript of the proceedings was received by December 3, 1997. Post hearing
arguments and reply briefs were received by February 5, 1998. Full consideration has been
the evidence, testimony and arguments presented in rendering this Award.
During the course of the hearing the parties where unable to agree upon the framing
issue and agreed to leave framing of the issue to the undersigned. The undersigned frames
"Did the District violate the collective bargaining
agreement when it failed to pay
insurance premiums for benefits during the months of July and August 1997 for four
on April 23, 1997 received layoff notices informing them that their services were not needed
following school year?"
"If so, what is the appropriate remedy?"
. . .
Management retains all rights of
possession, care control and management that it has by law, and retains the right to exercise
functions, except to the precise extent such functions and rights are restricted by the express
of this Agreement. These rights include, but are not limited by enumeration to the following
To direct all operations of the school system;
To establish and require observance of
work rules and schedules of work assigned by the immediate supervisor, or work assignment
presented in writing, in duplicate form, by other than the immediate supervisor, before work
assigned to another supervisor's employee;
4.01.3 To hire,
promote, transfer and schedule employees within a job department;
suspend, discharge and take other disciplinary action towards employees for just
relieve employees from their duties because of lack of work or any other legitimate
maintain efficiency of school system operations;
4.01.7 To take
whatever action is necessary to comply with State or Federal law;
introduce new or improved methods or facilities;
4.01.9 To select
employees, establish quality standards and evaluate employee performance,
so long as the final evaluation is performed by the immediate supervisor, not precluding
supervisors from having input;
To contract out for goods or services
provided that no employee will be reduced in hours or laid off as a result of subcontracting;
determine the methods, means and personnel by which school system operations
are to be conducted;
To take whatever action is necessary to
carry out, in situations of emergency, functions of the school system;
4.01.13 To determine the educational and
operational policies of the School District; and
assign employees within a job department, and outside a job department on a
maximum five (5) day temporary basis to ensure continuous service to the District, only in
situations when an employe has called in sick or is taking an emergency day, and the District
has exhausted all reasonable effort to obtain a substitute. Work assigned outside of a job
department shall be done on a rotated basis as equitably as possible.
. . .
. . .
Section 5.10 If by May
15th school year employees do not receive notice of nonemployment
for the subsequent school year, it shall be presumed that the employee will be re-employed in
subsequent school year.
. . .
Section 9.01 In the event the
District determines to lay off employees within a job
department, the following procedure shall be used:
9.01.1 To the extent feasible, the layoff shall
be accomplished through normal attrition.
9.01.2 If the
layoff cannot be achieved through normal attrition then temporary and
probationary employees shall be laid off.
9.01.3 If further layoffs take place, volunteers in the affected job department
shall be laid off
9.01.4 In the event of a reduction in work force, the Employer shall identify the
position(s) to be eliminated or reduced, and shall notify these employees in those positions.
Employees whose positions have been eliminated or reduced due to the reduction in work
force, or have been affected by a layoff/elimination of position, shall have the right to bump
into a position equal to or closest in number of hours in their department(s) for which they
are qualified which is held by the least senior employee in the employee's department. In
case shall a new employee be employed by the Employer where there are laid off employees
who are qualified for vacant or newly-created position(s).
9.01.5 Subsections 9.01.2, 3 and 4 shall not apply when the layoff of employees
in restricting the District from adequately staffing peak work periods. Instead the least
employees shall have their hours reduced to the extent consistent with the District's right to
adequately staff peak periods.
Employees who are to be laid off shall be notified in writing at least two (2)
weeks in advance of the effective date of layoff. Severance pay in lieu of two (2) weeks
layoff will also be granted. The severance pay would be two (2) weeks of any employee's
Laid off employees may request payment for unused vacation days earned prior
to the layoff at the last rate of pay prior to the layoff.
Employees on layoff shall be recalled in reverse order of layoff to vacant
positions within their job department provided that they are qualified. Full-time employees
be recalled to full-time positions, and part-time employees shall only be recalled to part-time
positions. Notice of recall shall be sent by certified mail to the last known address of the
as found in District records, and shall constitute sufficient notice to the employee, whether or
such notice is actually received. It is the employee's responsibility to inform the Employer
change of address.
Employees on layoff status shall have the right to refuse recall for temporary
unit employment without losing the right to permanent recall.
Section 9.06 An employee shall lose
all seniority rights after having been on layoff for
eighteen (18) months.
Seasonal and student help may be maintained during periods when bargaining
unit employees are on layoff.
. . .
Employee Benefits and Fringes
Section 24.01 -- Health and Dental
Insurance. All regular, full-time and part-time
employees shall be eligible for health and dental insurance as allowed by and pursuant to the
restrictions of the insurance carrier. Employees shall be allowed to enroll in the dental
program without enrolling in the health insurance program. The District may change
carriers so long as there is no reduction of benefits. The benefits shall be equivalent to the
The District will pay the following
portions of premiums for employees eligible for insurance
determined by the carrier:
1080 -- 2080 hours 95%
900 -- Less than 1080 hours 75%
less than 900 hours Prorated
New employees must elect to participate or not to
participate in such health and dental
programs within thirty (30) days of their date of employment. Failure to make an election to
participate shall be deemed to be a waiver of the right to participate. In the event that an
subsequently wishes to participate in a plan, that employee shall be bound to meet all
and other requirements for participation as are imposed by the insurance carrier and shall in
pay any applicable surcharges for that participation. Any eligibility or underwriting
the insurance company shall supersede any provision of this contract.
Section 24.02 -- Group Term Life
Insurance. All employees are covered by a group term
life insurance policy chosen by and paid for by the District. The coverage for all full-time
and part-time employees working thirty-five (35) hours or more per week shall be in the
$20,000, while the coverage for all part-time employees working less than thirty-five (35)
week shall be in the amount of $10,000. The group term life insurance remains in full force
as long as the employee remains active with the District.
Section 24.03 -- Health, Dental and Life
Insurance While on Extended Leave of
Absence. In the event that an employee is placed on "extended leave of
absence", the employee may
have the health, dental and term life insurance continued in force as a member of the group
for up to
eighteen (18) calendar months from the date of the start of "extended leave" if permitted by
carrier. The employee is obligated to pay the full premium for the insurance coverage. This
must be made to the District payroll office on or before the first (1st) day of
each month. The failure
to remit the payment in a timely manner will be understood as a desire on the part of the
to discontinue the coverage. The payment of the premium is the entire responsibility of the
therefore, no bills, invoices or statements shall be sent to the employee by the District.
Section 24.02 -- Worker's Compensation
Insurance. All full-time and part-time
employees insured during the course of employment and eligible for compensation are
report all accidents or injuries to their immediate supervisor or designee immediately after
accident or injury occurs. Report forms may be obtained from the employee's immediate
Section 24.05 -- Long Term
Disability Insurance. All employees shall be covered by long
term disability insurance chosen by and paid for by the District. The insurance shall pay
percent (90%) of the employee's salary upon disability after a sixty (60) calendar day
The District may change insurance carriers so long as there is no reduction in benefits.
Section 24.06 -- Wisconsin
Retirement System. All full-time and part-time employees who
work six hundred (600) hours or more per year, as required by law, shall be provided this
The Employer shall pay the Employer's share and pay the full contribution of the
Section 24.07 -- Early
Retirement. The Employer agrees that upon retirement the employee
shall be paid for one hundred percent (100%) of his/her accumulated but unused sick leave
payment at the employee's discretion may be used for the purpose of continued payment of
current health insurance plan or the employee may opt for a cash payment.
. . .
Terms of the Agreement
This Agreement, reached as a result of
collective bargaining between the parties, constitutes the entire Agreement between the
no verbal statements or past practice shall supersede any of its provision. Any amendment
agreement supplemental hereto shall not be binding upon either party unless executed in
between the parties. The parties further acknowledge that during the negotiations which
this Agreement, each had the unlimited right and opportunity to make demands and proposals
respect to any subject or matter not removed by law from the area of collective bargaining,
the understandings and agreements arrived at by the parties after exercise of that right and
opportunity are set forth in this Agreement. Nothing in this provision, however, shall
modification of this Agreement at any time by mutual consent of the parties.
. . .
On April 23, 1997 the District notified employes Laura Plosczynski, Sally Nischke,
VandeHei and Shirlee Risner, hereinafter referred to as the grievants, that they would be laid
effective the last day of the school year. They were also informed that insurance benefits
provided until the end of June. On May 19, 1997 the Association filed the instant grievance
the District violated past practice, and, Article II and Article XXIV as well as other
provisions of the collective bargaining agreement when it failed to pay the District's share
and dental insurance premiums on behalf of the grievants for July and August of 1997.
the matter was processed to arbitration in accordance with the collective bargaining
There is no dispute that the grievants properly received their lay off notices. The
demonstrates that after Nischke received a lay off notice, Nischke posted for and filled a
custodial position during the summer of 1997, was recalled to an aide position, and had no
The record also demonstrates that the District placed Lori Olson on lay off on
1993 and did not pay any insurance premiums on her behalf after November, that Lucile
retired in October of 1996 and thereafter the District did not pay any insurance premiums on
behalf, and that Peggy Bacon left the District in March of 1997 and thereafter the District
did not pay
any insurance premiums on her behalf.
The Association contends the District violated the collective bargaining agreement
failed to pay insurance premiums for four (4) employes that worked the 1996-1997 school
Association asserts the prerequisite for insurance coverage for July and August is, and always
been, completion of the preceding school year. The Association argues this has been the
the District and points to the testimony of Donna Andrews (Tr. pp. 30-31) and Susan Cota
34) in support of this position. The Association argues Laura Plosczynski's testimony (Tr.
pp. 38-39) demonstrates she received assurances from the District's Business Manager
Mark Lindem that
she would not have to worry about summer premiums because it was being withdrawn over
school year. The Association concludes this assurance demonstrates that benefits continue
school-year employes based upon completion of their work year.
The Association argues that payment of certain fringe benefits are earned benefits
an employe based upon their past service. Where employes have completed the school year
completed their side of an employment commitment. The Association contends the employe
earned the compensation whether it is paid immediately or deferred through the summer
Association argues the District argument that benefit eligibility ceased because the employe
returning to work is flawed because payment for the summer insurance began during the
and the employe completed the work year. The Association also argues that the arbitrator
distinguish between employes that resigned or retired during the school year and those who
completed the work year. The Association also asserts the examples cited by the District
employes who did not complete the work year or were employes who were not members of
bargaining unit. The Association concludes the District failed to demonstrate a practice of
providing summer insurance.
The Association further contends insurance benefits are part of an employe's overall
compensation. The Association argues the District has a practice of withholding monies
employe's paychecks during the work year to cover summer insurance and points out the
bargaining agreement provides that insurance is available to employes based upon annual
worked. The Association also points out each of the grievants in this matter satisfied the
number of hours for insurance and had payroll deductions throughout the school year to
share of the summer premiums. The Association asserts terminating benefits based on a lay
essentially begins with the following school year deprives these employes of part of their
The Association also argues the manner in which the District deducts premium
from employes demonstrates the intent of having insurance coverage for school year
through the non-working summer months. The Association asserts teachers are treated in
manner and argues the lay off notices the employes received did not affect the benefits
earned in the
The Association also argues the collective bargaining agreement when read in its
supports the Association's position. The Association contends its position is based upon the
of earned benefits. The Association also points out some provisions of the agreement,
Section 21.01 (sick leave), Article XXII, Holidays, and Article XXIII, Vacations, have
based upon length of an employes work year. The Association points out there is no
between calendar year and school year employes for personal and bereavement leave.
The Association argues the collective bargaining agreement clearly identifies the
insurance benefits is the number of hours worked during the employe's work year, with the
employer contribution of ninety-five per cent (95%) for employes who work more than one
and eighty (1080) hours per year. The Association concludes it is obvious that had the
intended for there to be a distinction in coverage for school year employes, the same would
stated in the collective bargaining agreement. The Association asserts the language is
that insurance benefits are paid on an annual basis and the threshold for determining
eligibility is total
hours worked within the year.
The Association also argues that the parties, having established specific categories for
purposes of sick leave, holiday, and vacation benefits, could have negotiated a provision
July-August insurance benefits for school year employes. The Association asserts the fact
not do so supports its contention that the District pays July and August insurance benefits to
employes that have completed their work year.
The Association also argues that had Nischke not filled the custodial position and
subsequently been recalled to an aide position she would have suffered the inequitable result
having benefits for July and August. The Association asserts such a result flaws the
rationale in this matter. The Association also asserts that should the District prevail in this
District could notify all school year employes they were laid off in order to avoid paying
August fringe benefits.
The Association also argues the District has a practice of continuing insurance
school year employes during the summer. The Association asserts this practice was
when the District paid summer benefits to Jean Schultz.
The Association also asserts that the District's claims of other school year employes
resigned, retired or were laid off during the school year are distinguishable because those
never completed their work year.
The Association contends the evidence herein does not support the District's claim
bargaining history supports its actions. The Association argues that a review of the
exhibits reveals that the parties simply did not deal with the particular issue before the
during the course of negotiations.
The Association would have the undersigned sustain the grievance and direct the
reimburse the grievants for any out of pocket expenses they incurred as a result the
termination of their insurance coverage.
The District contends there is no language in Article II or Article XXIV that
insurance payments to laid off employes. The District points out Article II merely describes
of employes and Article XXIV, while setting forth rights to certain benefits, does not
payment of health insurance premiums to laid off employes. The District also argues that the
Association's representative who bargained the first contract for the Association
the hearing that Article XXIV does not require the payment of health insurance premiums for
employes (Tr. p. 21).
The District also argues that while Article IX guarantees numerous rights to laid off
it does not include employer paid insurance premiums for any laid off employes. The
out this is supported by the Association's bargaining representative's testimony (Tr. pp.
The District also points out the Association's representative has in the past made proposals
employer paid insurance premiums for laid off employes but that he did not make such a
the District during negotiations which culminated into the parties first collective bargaining
agreement. The District argues that because such proposals have been raised in other
not at Peshtigo demonstrates the benefits requested in the instant matter are not guaranteed
collective bargaining agreement.
The District also argues the laid off employes had no expectation of continued
during the summer and therefore had no rights to employer paid insurance premiums. The
points out it gave proper notice of lay off to the grievants and it paid its percentage of the
insurance premiums until the end of June. The District also points out that because it gave
notification of lay off to the grievants prior to May 15th, 1997 it complied
with Article V, section 10
of the collective bargaining agreement.
The District also contends there is no past practice of paying insurance premiums for
or resigned employes. The District points out that Andrews first testified that Schultz
lay off notice in August but then acknowledged she did not know the effective date of
off (Tr. p. 32). The District concludes the Association therefore fails to demonstrate it's
claim. The District also asserts the examples it has provided demonstrate the District has not
insurance premiums for employes it has laid off, that have retired, or, who voluntarily left
The District also points out that Article XVII precludes the Union from relying on a
practice and the Article IV and Article XXVII reserve to the employer all rights not
restricted by the
collective bargaining agreement.
Association's Reply Brief
The Association asserts the collective bargaining agreement unequivocally provides
to employes based upon hours worked. The Association argues that because the grievants'
completed their work year they are entitled to insurance over the summer months based upon
of them meeting the required number of hours for insurance eligibility. The Association
argues that Article XXIV clearly guarantees insurance based upon annual hours. The
asserts the District's payment of insurance premiums in July and August for school year
establishes a practice and demonstrates the intent of the parties, that school year employes
summer insurance benefits during their work year.
The Association asserts the District misapplied the lay off language in this matter.
Association argues the prospective nature of the layoffs and the fact the grievants completed
work year distinguishes the instant matter from the examples cited by the District.
The Association also argues it is not attempting to obtain something it did not achieve
negotiations. The Association does point out the District only submitted proposals made by
Association during the first negotiations and argues the District failed to provide any
about all proposals made in the first and subsequent negotiations. The Association also
practice of continuing benefits for returning employes and the practice of deducting summer
contributions from employe paychecks during the work year are obvious indications of the
continue benefits through the summer.
The Association also stresses that proposals made in another school district are
the instant matter. The Association contends the mere fact two employe groups are
the same union does not provide a nexus between proposals. The Association argues each
unit, like each employer, has its own goals and priorities.
The Association also contends the uncertainty of continued employment in subsequent
years supports the union's position that nine (9) month employes insurance is based upon
of the preceding school year. The Association stresses Nischke is an example with her
a custodial position over the summer and being recalled to her aide position at the beginning
1997-1998 school year. The Association raises concerns as to what happens if the employe
recalled to work such that there is no break in service. The Association avers an inequitable
would occur if the District is allowed to terminate benefits based upon prospective notices.
The Association also argues that the fact the District did not deduct monies from the
grievants' paychecks to pay for their share of the summer insurance premiums is irrelevant.
Association asserts that whether or not the District decided to stop taking money out of the
is not a basis for determining whether the District's actions complied with the terms of the
The Association also contends that the District's reliance on Article IV, Management
is misplaced because the instant matter is covered by the terms of the collective bargaining
District's Reply Brief
The District contends the collective bargaining agreement does not guarantee health
benefits to those employes that have been laid off and that it complied with the terms and
of the collective bargaining agreement when it laid off the grievants. The District points out
notice of lay off was not for the following school year but a notice of immediate lay off.
also argues the deduction of payments for insurance premiums does not guarantee insurance
for the summer months. The District also points out the three employes, Plosczynski,
Risner, did not work the entire school year with Plosczynski being hired in September,
hired in November, and Risner hired in December. The District avers that insurance
paid in July and August only if the employment status of the employe does not change. The
also avers that when Plosczynski was told not to worry about summer insurance at the time
hire that it was presumed she would be employed the following school year. The District
that contrary to the Association's claims, the collective bargaining agreement when read as
support the District's actions. The District also contends there is no practice of continuing
insurance for school year employes who have been laid off and that the parties bargaining
supports the District's case.
The District would have the undersigned deny the grievance.
A careful review of the record demonstrates this is the first time in the bargaining
the parties that a school year employe was laid off at the end of the school year.
The Association assertion that Article XXIV, Employe Benefits and Fringes,
threshold for eligibility for the health insurance fringe benefit is correct. However, this
not direct the District to pay fringe benefits on an annual basis nor can it be construed as
the District to pay a form of deferred compensation because school year employes have
their work year. While the Association has emphasized that the school year employees must
their work year in order to be eligible for July and August insurance premium
payments, the language of Article XXIV is silent concerning "completion of the work
under the theory of the Association, an employe who normally works two thousand and
hours per year, calendar year employes, who had worked more that one thousand and eighty
in a year and was then placed on lay off should receive a full twelve months of insurance
Also under the Association's theory calendar year or school year employes who retired or
left after having worked one thousand and eighty (1080) hours in a calendar year should
receive a full
twelve months of benefits. The undersigned finds that Article XXIV does not require such a
and concludes that Article XXIV does not mandate that benefits be paid on an annualized
most Article XXIV can be read as establishing the monthly co-pay percentages for the
employes. Nothing in this provision establishes that an employe that had worked all or a
part of a
school year would have premium contributions made by the District on their behalf during
The Association has also argued that the payment of July and August premium
a form of deferred compensation of earned benefits. If payment of dental and health
premiums are earned benefits employes that are laid off during the school year (Olson),
retire during the school year (Schonfeld), and employes that voluntarily leave the District's
(Bacon), have earned premium payments beyond their last month of employment. The
demonstrates that in none of these types of instances has the employe received the benefit
last month of employment. There is no specific language identifying July and August
payments as deferred compensation of earned benefits for school year employes who have
the school year. Therefore, the District did not violate the terms and conditions of the
bargaining agreement when it properly notified the grievants they were laid off at the end of
school year and did not pay their July and August insurance premiums.
The Association also argued that when the District paid summer benefits to Jean
District demonstrated a practice of paying summer benefits. However, Andrew's testified
did not receive her lay off notice until August (Tr. p. 32) and that she filed the grievance in
because the District had not complied with Article V. Herein the District gave notice prior
May 15th requirement of Article V and thus the District's actions
regarding Schultz are
distinguishable from the instant matter. As this was the only incident identified by the
of a laid off employe that the District paid July and August insurance premiums the
concludes this one instance does not establish a practice of paying July and August insurance
premiums to laid off employes. However, the undersigned does find that the Schultz matter
demonstrates that if an employe is not notified by May 15th the District
must pay the insurance
premiums for a continuing employe.
The record demonstrates this is the first time the District issued a lay off notice to
at the close of the school year that was also in compliance with the May
15th requirement of Article
V. The record also demonstrates that when the District laid off Olson it complied with the
requirement of Article V, and, complied with the two (2) week notification requirement
of Article IX. The District did not pay any insurance premiums for the laid off
employe past the
month in which the employe was laid off. A careful review of Article IX demonstrates it
contain any provision that mandates the District to continue the payment of any insurance
past the employes date of lay off. Thus the undersigned concludes that when the collective
agreement is read as a whole there is not a requirement that the District pay insurance
July and August for school year employes who were given proper notification and laid off on
day of the school year.
The Association had also claimed the circumstances surrounding Nischke demonstrate
would be an absurd result if the District is allowed to lay off employes at the end of the
only to recall them at the beginning of the next school year. However, there is no evidence
District is attempting to circumvent the intent of the expectation of continued employment
required by Article V. Of the four employes the District gave lay off notices to only
recalled. There is no evidence Nischke suffered any loss because of the District's actions.
loss of benefits during the summer may seem harsh to a recalled employe the District's
not violate any of the clear terms and conditions of the collective bargaining agreement.
when there is no evidence the District was attempting to circumvent the clear language of
The Association has also argued that the District's method of deducting contributions
employes for July and August premium payments demonstrates the parties' intent that
employes shall receive health and dental benefits until the start of the next school year.
noted above, the instant matter is the first time the District laid off employes at the end of
year and properly notified employes they would not be employed in the following school
the method of deductions may demonstrate an expectation of continued employment, such
do not mandate the continuation of premium payments past the employes lay off. The
spread the deductions over a school year employe's twenty (20) pay periods. Just as with
lay off, termination or retirement, the District would have to reimburse employes for monies
unnecessarily deducted. The record demonstrates that the District made the proper
in the instant matter.
The burden herein is on the Association to demonstrate that the District's actions
the terms and conditions of the collective bargaining agreement. While both sides presented
and testimony concerning the parties bargaining history on this issue, the record demonstrates
neither party addressed this specific issue at the bargaining table. The undersigned therefore
concludes that the Association has failed to meet its burden to demonstrate the District
intent of the parties when it failed to pay July and August insurance premiums for the
Therefore, based upon the above and foregoing and the testimony, evidence and
presented the undersigned concludes the District did not violate the collective bargaining
when it failed to pay the grievants July and August insurance premiums. The grievance is
The District did not violate the collective bargaining agreement when it failed to pay
premiums for benefits during the months of July and August 1997 for four employes who on
23, 1997 received layoff notices informing them that their services were not needed for the
Dated at Madison, Wisconsin, this 6th day of
Edmond J. Bielarczyk, Jr. /s/
Edmond J. Bielarczyk, Jr., Arbitrator