BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MELLEN EDUCATION ASSOCIATION
SCHOOL DISTRICT OF MELLEN
Mr. Barry Delaney, Executive Director, Northern Tier
UniServ-West, appearing on behalf of the
Ms. Kathryn J. Prenn, Weld, Riley, Prenn & Ricci, S.C.,
Attorneys at Law, appearing on behalf
of the District.
The parties named above jointly requested that the
Wisconsin Employment Relations
Commission appoint the undersigned to serve as an arbitrator in a dispute involving a request
leave without pay. The undersigned was appointed and held a hearing in
Mellen, Wisconsin on
September 23, 1998, at which time the parties were given the opportunity to present their
and arguments. The parties completed filing briefs by December 3, 1998.
The issue to be decided is:
Did the District violate the collective bargaining agreement when it denied the
James Wiener, the use of a pay deduct day for April 6, 1998, for the purpose of a family
If so, what is the appropriate remedy?
The parties refer to a day of absence without pay as either a pay deduct day or a
or unpaid leave. The Grievant is James Wiener, a teacher in the District for 19 years. For
last ten years or so, he has used both personal leave and pay deduct days to extend the Easter
and take family vacations in Florida. He has used all three personal leave days available
labor contract, and sometimes taken up to two unpaid leave days to create full weeks of
In the school year of 1988-89 or 1989-90, when Eugene Johnson was the
District Administrator, Wiener requested personal days in conjunction with unpaid
leave days before
the scheduled Easter break. Johnson approved that leave. In the early 1990's,
Sally Sarnstrom was
the District Administrator for two years. Wiener asked for personal days along with unpaid
days to extend his family vacation to Florida. Sarnstrom approved those requests. Richard
then became the District Administrator, and during the next three years, he also approved
request to use personal days and unpaid leave days to extend Easter break. Next, a
District Administrator, Don Kolich, was serving the District when Wiener took personal days
unpaid leave days over Easter. The record does not show Kolich's approval and the request
spring of 1996 appears to have the approval of a principal, Mr. Wagner, on the form rather
Kolich's signature. At any rate, there was administrative approval of this leave request.
Wiener extended Presidents' Day by using three personal days and two unpaid leave days to
vacation. Wiener always used the personal days and unpaid leave days to take a family
None of those administrators expressed any dissatisfaction regarding the requests for
Douglas Hamilton became the District Administrator in 1996-97. Wiener again
two personal days and two unpaid leave days for extending the Easter break to take a
Florida. Hamilton approved those. Hamilton did not say anything to Wiener about this
During the 1997-98 school year, Wiener found a note in his mailbox on the second
school from Hamilton regarding the extension of holidays. Wiener met with Hamilton, who
him that he wanted to notify Wiener early on that he should not use personal days or unpaid
days to extend holidays during the school year. Wiener mentioned that he had done so
in the past and there was no cost to the District. A substitute, at $60 per day, makes less
a regular teacher does. When teachers take personal days, they have the cost of the
deducted from their regular pay. When a teacher takes an unpaid leave, the District pays
cost of the substitute. Hamilton said that he and the Board members were not as concerned
saving money as having the regular teacher in the classroom. Hamilton said he was told by
Board to tell Wiener that he was not to extend the holiday breaks by the use of personal days
unpaid leave days. Wiener asked Hamilton which Board members had said that, and
not tell him. Hamilton testified that he
did not tell Wiener that he absolutely could not use an unpaid leave day to extend his
he strongly discouraged him from doing so.
Wiener knew that no restrictions had ever been placed on personal days, so in
of 1997, he applied for those three days in front of Good Friday for the next spring. He
wait to ask again for the unpaid leave day at a later time. Hamilton approved Wiener's
personal days for April 7, 8 and 9 of 1998, but noted on the bottom of the request form the
"Jim, I am approving your request even though the 9th is an inservice
day. April 10th
could be a make-up depending on the weather and would then be a scheduled day."
On January 20, 1998, Wiener requested an unpaid leave day for April 6, 1998, which
Hamilton denied with the following note on the bottom of the form:
"The intent of personal leave and unpaid days is not for vacation. The school
calendar is approved a year in advance to accommodate family trips for parents,
students and staff."
The language on personal leave (which will be noted later in the Discussion section of
Award) has been in the contract since the 1977-78 school year. Hamilton was not present
language regarding personal days was negotiated into the contract. Hamilton talked with the
about the intent of personal leave, and noted that the language was watered down by the way
used over the years. There is no Board policy on the way personal days or unpaid days can
On January 28, 1998, Wiener sent the following memo to Hamilton:
A. A pay deduct leave day will serve as no cost to the School
District of Mellen,
actually the district is subject to save money.
A. I have no desire to make such a request again for the following reasons:
1. My daughter will be a senior during the school year of 1998-99 and will be
on the senior class trip during the Easter time period thus eliminating family
travel during that school season.
2. With ratification of the new contract pending, particular language will delete
personal days in front of or behind a scheduled vacation beginning with the
1998-99 school year.
A. I was informed that board members want the regular classroom teacher in the
classroom as often as possible instead of a substitute teacher. The annual senior
class trip that is sanctioned by the School District of Mellen not only allows for
teacher chaperones to be away from their scheduled classrooms and students,
it is also an extra expense to the district. That teacher chaperone still draws
their regular salary while on the trip and in addition the district also must pay
a substitute teacher while the regular teacher is away. I am one hundred percent
in favor of the senior class trip because of the travel educational value it affords
the students. However, I must also state that I have taken several students from
the School District of Mellen on similar educational trips over the years. I
believe that these students have received equal travel educational value as
students receive on the senior class trip, and at no cost to the district. As I
mentioned above, at a savings to the district.
Mr. Hamilton, I am officially making a second request to you for a pay deduct leave
Monday, April 6, 1998 based on past practice and equality within our district. If you wish
this more please contact me.
On January 28, 1998, Wiener filled out a second form requesting a pay deduct day
6th. Hamilton denied this request again, with the following note this time:
"Using a pay deduction for an instructional day on a recurring basis for a vacation
is not a reasonable request."
Wiener had also talked with Board members but they told him that Hamilton was in
of this matter. They also told him that they wanted to keep the trained, regular teachers in
classroom rather than have a substitute teacher in the classroom. Hamilton denied the
because he wanted a regular teacher in the classroom, there was a shortage of substitutes at
and Wiener's request was on a recurring basis.
The Union filed a grievance over the matter. There is no procedural issue in this case.
Hamilton first became concerned about the use of personal leave and pay deduct
extend holidays around the beginning of 1997. He noted that Mellen teachers have a greater
of personal leave than other districts. There are 31 teachers at Mellen. Hamilton noted
times of the year Easter, boys basketball tournament, and Christmas break
when the use of time
off becomes of more concern to him than other times of the year.
When Hamilton approved Wiener's request for two personal days and two unpaid
for March of 1997, he told him that he would approve it, but that it was not a good time of
to be gone and that he was concerned about the number of substitutes in the building.
When Kathy Kretzschmar asked for personal leave and an unpaid leave day for April
1996, Hamilton also visited her and explained that it was hard to have a substitute around the
holidays. She tried to change her plans but was unable to do so. Hamilton approved this
Hamilton stated that he talked with Wiener early on in the 1998-99 year because of
recurring pattern of taking vacation around Easter. Hamilton noted the difficulty of getting
substitutes over the holidays, and the school has the senior trip, which requires three
one as a chaperone and two to replace the teachers on the class trip. The District is short of
substitutes at that time of the year. Hamilton told Wiener that he objected to his taking
during the regular school year on a recurring basis. However, he would authorize pay
for special events.
The District has a short list of available substitutes there are only about 11
of whom also substitute in Ashland or Glidden. The substitutes are not all certified in all
do not always want to substitute in some areas. One of the substitutes is a
Board member and is not
supposed to work in the District except in a crisis because of a conflict of interest.
Seven out of 31 teachers were gone on April 6, 1998, before the
Easter break. Only
six substitutes were available, so other teachers rotated to take care of one teacher's
were other absences during that week, due to personal leave, sick leave, some workshops,
senior trip which took two teachers out of the school. The District had to use the Board
who is on the substitute list even though it is not supposed to use that person.
Hamilton has not denied anyone the use of personal leave days. He has spoken with
regarding the three critical times of Easter, Christmas and the basketball tournament, and he
out that they should get their leave requests in early and they would be honored on a
first-come-first-serve basis. No one has requested to use unpaid leave days to extend
vacations since Hamilton
denied Wiener the use of an unpaid leave day.
The District does not have records for leave requests before the fall of 1995. In
to the Union's request for information while processing this grievance, Hamilton supplied the
following information to the Union's representative, Barry Delaney:
"In 1995-96, James Wiener was the only person to use unpaid personal leave for the
purpose of extending a scheduled school calendar vacation, 4 days, April 2, 3, 4, &
8. Paula Cramer was on unpaid medical leave January 1 through March 18, 1996.
Bruce Seiffert used ½ day unpaid leave May 16 and Brian Basolo used
leave May 18.
In 1996-97, two unit members used unpaid leave. James Wiener used two days
of unpaid leave to extend vacation March 26 and 27. Kathy Kretzschmar used
one day April 4 to extend vacation. Keith Ochsner used a ½ of unpaid leave to
his son to college January 30 and Lynette Teppo Smith used 6 days of unpaid leave
for medical reasons February 27, March 3 & 4, April 10 & 14, and May 16.
The school year 1996-97 was my first year with the District and I talked verbally
with all four bargaining unit members prior to approving the unpaid leaves. I have
only talked to two bargaining unit members in regard to taking unpaid leave and
personal leave to extend a scheduled school calendar vacation, Kathy Kretzschmar
and James Wiener. Kathy tried unsuccessfully to make other arrangements but did
not apply for unpaid leave. James Wiener made no attempt to reschedule personal
leave and also requested an unpaid personal day which was denied.
In review, James Wiener is the only bargaining unit member to request personal
leave and unpaid leave on a recurring basis for the past 3 years."
Hamilton is not aware of any records prior to the fall of 1995 and received the above
information from the bookkeeper. He did not have personal knowledge of Wiener's prior
personal leave and pay deduct leave, but was told by the bookkeeper and Board members
Hamilton interprets the contract language regarding personal leave to mean that
not have a floating holiday to use such leave. He stated he can turn down a request for
leave if he could not get a substitute, although he tries to accommodate requests if possible.
believes that he has the discretion to grant to deny unpaid leave days.
The District has a form for leave, and one line includes a place for leave "other" or
not listed, and notes that it is a pay deduct leave.
During contract negotiations for a 1997-99 contract, the District proposed to restrict
of personal leave by proposing the following language:
Beginning in the school year 1998-99 the Board of Education will grant each teacher
a maximum of three (3) days personal leave per year for the transaction of necessary
personal business not covered under reimbursable leave. Personal leave may not be
used on the day before or the day after school breaks or vacation periods, nor on in-service
days and days when parent-teacher conferences are scheduled. Personal
leave also may not be used in conjunction with days off without pay for the purpose
or reimbursable leave. Personal leave also may not be used in conjunction with days
off without pay for the purpose of an extended vacation during the school year.
The Board offered to put an extra $330 on the salary schedule for teachers in exchange
for the above
language, but the teachers rejected the offer and the proposed language was not put into the
contract. Hamilton noted that the contract language for personal leave had been construed
years to become a floating holiday.
Cliff Reithel has been a teacher in the District for 23 years and has been on the
committee for the last nine bargains. He recalled that in the bargaining for a 1991-92
former District Administrator Richard Stokes introduced language to restrict the use of
days before and after holidays. The Union did not agree to that proposal. When the District
proposed restrictions on personal days for the 1997-99 contract, the Union's negotiating
took the issue back to the whole bargaining unit for a vote that was separate from the rest of
contract, and it was voted down although the unit approved of the rest of the contract.
heard of the District proposing any changes in the way that unpaid leave days were used.
has not taken any unpaid leave but has taken personal days around a holiday to extend a
Reithel also stated that he believed that "special leave" as used in Article VI,
means any day that teachers took off, whether a sick day, a personal day or a salary deduct
believes that is the way the contract has been interpreted for more than 20 years. However,
that there were no issues over "special leave" since no one had ever been denied any leave
Reithel admitted that requests for pay deduct days were subject to review and approval by
James Bodin has been a teacher in the District for 25 years and has been on the
committee for 19 years. He also recalled that in 1991-92, the District proposed language to
the use of personal days but was unsuccessful in that attempt, as well as the attempt in
issue of pay deduct days also was discussed in the 1997-99 bargain, according to Bodin,
the Board's proposal that personal leave could not be used in conjunction with days off
Bodin took a couple of semesters off without pay while doing his graduate and post
work, with the District's approval. He took personal leave and professional leave around
break for two years in a row. The personal leave was for his own vacation time. Bodin
a former principal who went back to teaching took pay deduct days for a hunting trip around
Thanksgiving, but no one knows whether those days extended the holiday or not. Bodin
Reithel that the "special leave" in the contract could include any type of leave for any day
teachers are scheduled.
The parties ratified the 1997-99 contract in February of 1998 and signed it on
1998, before the date of April 6th, the date that Wiener requested as unpaid
leave and the day that
Hamilton had already denied.
Susan Witt has been a teacher in the District for 29 years. She used five unpaid leave
and three personal days for a vacation in 1990 for a trip abroad. Johnson approved her
Kathy Kretzschmar has taught for eight years in the District. In 1997, she used one
leave day and three personal days to extend the Easter break. In 1998 school year, she used
personal days to extend the Easter break. Hamilton approved of all of those requests.
Lisa Marks has taught in the District for 16 years. She has used both personal days
unpaid leave days for vacations in the past. She could not recall exactly how many days or
when they were taken, but she thought she had taken two or three days both personal
leave days -- to extend the Christmas holiday. She assumed that Johnson was the first
Administrator to approve her requests. Marks thought she also took personal and unpaid
to extend the Christmas holiday when Sarnstrom was the District Administrator. She
may have also
used some days in a similar manner when Stokes was District Administrator. She has used
days as vacation to extend the Labor Day holiday for the last four years. The current
including Hamilton always granted these.
Pat Kruzan has taught school for 24 years in the District. She used unpaid leave in
when she went to Germany for two weeks with her parents. She needed 10 days to
parents for medical reasons, and used four sick days, three personal days and three unpaid
days. While in Germany, she spent some time sightseeing. Kruzan recalled that she used
days twice to extend holidays once around Christmas to take her in-laws to the
airport and another
time before Memorial Day to attend a wedding.
Charles Gretzlock has been a teacher in the District for 31 years. He has not used
leave days, but he has used personal days to extend a scheduled break. He used a personal
1996, 1997 and 1998 to extend the Labor Day holiday. Hamilton approved of all of those
Before Hamilton became the District Administrator, none of the teachers who
ever been told that they could not use personal days or unpaid leave for vacation or in
with a holiday or scheduled break. The teachers assumed that they had to have approval for
deduct days from the administration.
THE PARTIES' POSITIONS
The Union argues that Article VI, Section I(4) is an unpaid leave that covers all
where an employee is not requesting "special leave." Special leave means specific leave
that is covered elsewhere in the collective bargaining agreement, such as reimbursable
leave for graduate study, leave of absence for extended time, personal leave, professional
maternity and child-rearing leave.
While the District has argued that the term "special leave" applies to personal leave
professional business leave because of the heading of the article, the Union points out that it
have been easy to say "personal leave or professional leave" instead of "special leave."
parties did not agree upon language using the terms of personal leave and professional leave,
term "special leave" must mean something else besides personal and/or professional leave.
negotiators are not illiterate people.
Moreover, the District provides leave request forms that bargaining unit members
out for taking different types of leave, including personal days, professional days, and pay
days. Employees have to ask for pay deduct leave. Obviously, an employee would not
request a pay
deduct day instead of a personal or professional day if he or she could receive part of his or
salary. Under the District's argument, paragraph 4 would serve no purpose.
The Union points out that long-term negotiators Bodin and Reithel testified that over
20 years, the term "special leave" was not interpreted by the parties to mean just professional
personal leave, but also covered other specific leave mentioned in the agreement, such as
other reimbursable leave, leave of absence of extended time and child-rearing time.
The District Administrator stated that Wiener was the only person to use "unpaid
leave" to extend a vacation by four days. The District's argument that subsection 4 only
personal leave fails because the District could not have given Wiener four days off for
where the contract limits personal leave to three days per year.
The Union notes that the record is full of testimony of teachers always being granted
personal leave days for the use of vacation. Moreover, if it was acceptable for Wiener to
personal leave days in 1995-96, as well as six other years, why wasn't it okay to do so in
Seven out of eight Union witnesses gave examples of employees taking paid personal days or
personal days for vacations that extended a scheduled school calendar vacation. No one was
denied a pay deduct day, much less one to be used as an unpaid personal leave day for
extended a calendar scheduled vacation.
While the District proposed putting restrictions on the use of personal leave days
negotiations for the 1997-99 contract, the Union did not agree to such restrictions which the
is now trying to enforce on a pay deduct day after it was unsuccessful in negotiating
In the event that Article VI, Section I(4) is found not to be the controlling factor in
grievance, there is certainly a long standing practice of teachers being able to use paid
leave days and unpaid personal leave days (or pay deduct days) for the purpose of vacation
a school calendar scheduled vacation. There are no situations where a teacher has been
pay deduct day. Such a practice must be considered binding because it is unequivocal, in
more than 20 years, and is a fixed and established practice accepted by the parties.
The Union finds the District's reliance on Article VIII(C) to be without merit. The
regarding past practices only comes into play when a past practice is in conflict with a
the collective bargaining agreement, and in such cases, the agreement's provisions prevail.
contract language does not say that all past practices will cease. The past practice of
deduct days does not conflict with any provision of the agreement. The District also argued
only those grievances involving interpretation of contract language can be advanced to
Since Article VIII(C) deals with past practices, past practice issues are arbitrable.
The Union disputes the District's argument that it can change an unwritten agreement
how pay deduct days are to be used. The District must notify the Union and allow it the
negotiate the issues. The Management Rights' clause of the contract says that the parties
construe the enumerated rights in a manner that conflicts with applicable statutes. Wis. Stat.
has been interpreted to mean that the employer must notify the union of a change the
wants regarding wages, hours or working conditions and bargain with the union prior to
implementation. Article VIII(D) of the contract makes the duty to bargain a requirement
The Union contends that the District violated Sec. 111.70, Stats., and thus the
where it never notified the Union that it was going to implement restrictions on the use of
deduct days. Arbitrators have held that where a collective bargaining agreement requires the
employer to negotiate changes in working conditions during the term of the agreement, it
the agreement when it fails to do so and implements changes without allowing the union to
The Union asks for a cease and desist order which also provides that the District's
of pay deduct days follow the past practice until such time the parties agree to change the
The District contends that the Grievant's claim does not fall within the negotiated
of a grievance. Article III, Section B, states that: ". . . Only those grievances involving
disagreement of interpretation and/or application of a specific provision of this
agreement can be advanced to binding arbitration." The Grievant seeks short term
upon demand. There is no such provision in the collective bargaining agreement about such
While the Union asserted in its written grievance that the denial of the Grievant's
was disciplinary, there is no evidence of any disciplinary action in the record. The Grievant
that Hamilton's statement to him was a verbal reprimand, but the fact that he did not like
something does not make the statement a disciplinary action.
The District was unsuccessful in trying to tighten down the personal leave language in
negotiations for the 1997-99 collective bargaining agreement and it recognizes that personal
can still be used as vacation days to extend a school break period. However, the granting of
request for an unpaid leave day was subject to the discretion of the District, and it chose not
the request. The decision to exercise its discretion in an area not covered by the bargaining
agreement cannot be considered as discipline. The Grievant went on his vacation even
District told him that it was a bad time to be gone due to the shortage of substitute teachers.
In its written grievance, the Union also alleges that Article VI, Section C, paragraph
relevant. The paragraph relates to the maintenance of staff absence records and correction of
problems, and the District is not aware of any problems regarding the maintenance of the
absence records. The District states that the Union also alleges a violation of Article VI,
I, entitled "Personal Leave and Professional Leave." The grievance is not about personal or
professional leave and Section I is not relevant.
While the Union also alleges a violation of the spirit of past practice, the District
past practice of unpaid leave days upon demand. Even if there were such a past practice,
VIII, Section C, states that the agreement supersedes all past practices with respect to wages,
and/or conditions of employment. The agreement was executed on
March 24, 1998, and was
effective as of July 1, 1997. Any practice of unpaid leave on demand which may have
of the 1996-97 contract year was extinguished as of July 1, 1997. On that date,
recaptured its management rights to use its discretion to approve unpaid leave days. Even
Union's witnesses agreed that the use of unpaid leave days was subject to the District's
Accordingly, the District finds no specific provision of the collective bargaining
that can be used by the Union as the basis for its grievance, and argues that the grievance
The District contends that it had the right to deny the request for unpaid leave in
the Management Rights Clause, as well as its inherently reserved management rights. It is
the District may not exercise its management rights in an arbitrary or capricious manner.
Grievant testified that he was being singled out. In fact, the Grievant was the biggest user of
leave days for vacation over a school break period. He was the
only teacher who had done so for three years in a row prior to the 1997-98 school
year. He was
allowed to use his personal leave days for vacation, even though he might be missing an
day and possibly a student make-up day.
Hamilton reluctantly granted the Grievant's request for 1997 because he had already
his plans. But well in advance of the spring of 1998, the Grievant was on notice that he
plan on using unpaid leave days over the 1998 Easter break. The Grievant was told that
for unpaid leaves should be reserved for non-recurring special occasions, that the District
its regular teachers in the classroom as much as possible, and that the District is short of
teachers at that time of the year because of a senior trip. On April 6 through 9, 1998, at
substitute teachers were required each day from a substitute teacher list that is fairly short.
teachers were away for workshops, the class trip and absences because of illness. The
to rotate teachers to cover one class, and a Board member ended up subbing even though it is
conflict for him to do so. Thus, the denial of the Grievant's request was based on a real
not arbitrary or capricious.
The Grievant admitted that a regular teacher does a better job than a substitute
Although the Grievant also stated in his letters to Hamilton that the District would save
hiring a substitute, the District is not interested in granting its teachers vacation when school
session in order to save money. The District wants the best education for its students and
that is best done by having its regular teachers in the classroom as much as possible.
The District also submits that the requested remedy is beyond the scope of the
authority. Article III says that the arbitrator cannot subtract from, modify or amend any
terms of the
agreement. The Union seeks to add a provision for short-term unpaid leave to the
specifically, short-term unpaid leave upon demand. The District believes the arbitrator is
from doing so by Article III. Such a provision must be obtained at the bargaining table, not
the grievance process.
The only issue that Union wishes to reply to is the District's claim that Wieners'
day request was denied partly because there are not enough substitutes around the Easter
Union believes that this is a bogus issue. The District scheduled the senior class trip for the
before the Easter break of 1998. On Monday, April 6, 1998 the day that Wiener
requested a pay
deduct day the District had to obtain two substitutes for two teachers who went on
the senior class
trip. Hamilton testified that the senior class trip had to occur between the basketball and
seasons. The basketball season ended the third week of March for the boys' team and the
week of March for the girls' team. The senior class trip could have been scheduled for the
of March or the first part of April.
The Union submits that if the need for substitutes was a genuine problem for the
April 6-9, the District would not or could not schedule the class trip for this week, since
would be going on the class trip and substitutes would be needed. Since the District
class trip for April 6-9 and not earlier in April or March, the issue of not having enough
available around Easter vacation is a bogus issue.
The District states in reply that the Union's omission of two sections Article
1 and Article VI, Section C(5) means that the Union is apparently acknowledging
that neither of
those provisions were relevant to the instant dispute. The District wishes to point out certain
inaccuracies in the Union's brief. Particularly, that the District expressed its concerns about
of personal days and pay deduct days before the instant grievance, in both the 1991-92 and
negotiations. Also, Kretzschmar named three, not five, other employees in addition to
have used pay deduct days to extend the vacation period. Smith's leave was for medical
not for a vacation, and Kretzschmar had no idea of when the leave days fell.
The District states that the "special leave" referred to in Article VI does not refer to
leave, and the most logical interpretation of Section I(4) is that it is a penalty provision for
who have not followed the proper procedures for requesting personal leave or professional
The District further notes that even though there is no unpaid leave provision in the
the District has granted requests for unpaid leave on a case-by-case basis. Those leaves have
for various durations, at various times of the year for various reasons, including medical
The Union has argued that there is a past practice of granting pay deduct days for vacation
in conjunction with a school break. The District has tried to accommodate requests on a
case-by-case basis, but that accommodation does not rise to the level of a past practice.
For the sake of argument, if there is a past practice and it is subject to the arbitration
the grievance procedure, there is no evidence of a practice of unpaid leave days upon
of the Union's witnesses testified that requests for unpaid leave days have always been
the approval of the Administration. Their testimony shows that the District has the authority
For the sake of further argument, even if there were a binding past practice of
unpaid leave upon demand, the District provided notice to the Union through the trail of
correspondence in this grievance that such a practice would not continue. The bulk of that
correspondence preceded the conclusion of the parties' negotiations for the 1997-99
agreement. The agreement was executed on March 24, 1998. The grievance belongs to the
and it is the Union who must initiate a grievance. By February 24, 1998, the Union had
the District's response at Level 2. The Union was also aware of the District's
position from Level 1 of the grievance procedure. Therefore, the Union was put on
notice of the
District's position regarding the alleged past practice long before the end of negotiations, and
an opportunity to negotiate with respect to the issue but chose not to do so.
The District submits that the Union's failure to bargain an unpaid leave provision into
contract, once placed on notice, is fatal to its case here. Since the past practice alleged
serve to clarify ambiguous language, it is not necessary to have the Union's agreement to
The District concludes by stating that it does not believe there is any past practice or
language requiring it to grant a request for unpaid leave over the Easter break to extend a
The District's denial of the request was reasonable, and not arbitrary or capricious.
This case raises several issues, the first of which is whether the collective bargaining
agreement itself provides for unpaid leave. Under Article VI, Section F, teachers may be
for an extended leave of absence for two years for education. That section does not apply to
case, although it provides for unpaid leave. This case is over short-term unpaid leave, a day
here and there, to string along with other paid days off to make a vacation break.
Article VI, Section I is called "Personal Leave And Professional Leave." It states:
1. The Board of Education will grant each teacher a maximum of three days per
year for the transaction of necessary personal business not covered under
2. Previous arrangements must be made with the Superintendent of Schools when
such leave is desired.
3. When leave has been properly requested and granted the individual concerned
will have only the salary of a substitute worker deducted from his or her pay.
4. Teachers failing to request special leave will have all the salary deducted for
5. Personal leave is not cumulative. Arrangements for substitutes will be made
only by the school administrative staff.
6. At the beginning of every school year each teacher shall be credited with three
(3) days to be used for the teachers professional business; these professional
days are noncumulative. Professional business days may be used for any
educational purpose within the confines of the teacher's specific instructional
area. The teacher planning to use a professional business day shall notify the
administration at least one week in advance of his/her absence. Professional
business days shall be used to visit or view other instructional techniques or
Under paragraph 4 above, there is some ambiguity over what the parties meant by
leave". The Union makes a valid point, that if the parties meant to restrict "special leave" to
personal and professional leave, they could have easily said so. However, a fair reading of
article as a whole confirms the District's position that the article refers to personal and
leave. It does not refer to all types of leave, as suggested by the Union, and other types of
stated elsewhere in Article VI, such as sick leave in Section C, extended leave in Section F,
maternity and child-rearing leave in Section L. Moreover, the District is correct when it
paragraph 4 of Section I is a penalty provision for not following the procedure, and it would
apply in this case.
There is a strong past practice of teachers using unpaid leave and the District always
it. Past practices are helpful in interpreting ambiguous language, but they may also establish
conditions of employment where the contract does not address the matter. See Clark County,
Case 102, No. 55013, MA-9866 (Arb. Jones, 11/97). Past practices may even rise to
binding commitment by both sides. See City of La Crosse, Case 287, No. 54407, MA-9670
Nielsen, 8/97). To be a binding past practice, the practice must be unequivocal, clearly
and acted upon, and readily ascertainable over a reasonable period of time as a fixed and
practice accepted by both parties.
I find that the past practice in question meets the criteria to be a binding practice. It
unequivocal through several different District Administrators. It has been clearly enunciated
acted upon through these several administrators and several staff members. Nearly one-third
bargaining unit can recall instances of using unpaid leave to extend a scheduled break such as
Day, Christmas or Easter, and they recalled using unpaid leave for a vacation, medical leave,
a variety of reasons. Wiener himself used unpaid leave for the last ten years in a row. No
ever denied this leave until Hamilton denied it to Wiener. The practice goes back at least 15
and possibly more. The District did not have records going back that far, and bargaining
members testified to events going back into the early 1980's. The District did, however,
form for teachers to indicate what kind of leave they were taking. That form called for both
and support staff to designate how many days of pay deduct leave they were taking. Giving
to this past practice promotes the parties' expectations and promotes stability in the
relationship. Given the period of time and the number of different administrators, employees
expect leaves to be granted in a consistent manner and not by the personal preferences of
The fact that teachers asked for and received approval of leave time is of no
in this grievance. Teachers asked for approval for personal days as well as approval for
leave days, and the District acknowledged that it had little or no control over personal days.
Moreover, approval was always given routinely. The parties have no examples of when
was denied a request for either personal leave or unpaid leave.
The next question is whether Article VIII, Section C, under "Terms of Agreement,"
eliminates the past practice. That language states:
This agreement supersedes all past practices or understandings with respect to
wages, hours and/or conditions of employment.
Article VIII, Section D states the following:
The provisions of this agreement shall be effective as of July 1, 1997 and shall
continue in full force and effect until June 30, 1999 at which time the agreement
shall expire without notice to or notice by either party, unless prior thereto the
parties have mutually agreed, in writing, to only amend or modify this agreement.
The MEA maintains all rights to bargain the impact of any Board decision
significantly affecting wages, hours, and working conditions that the Board may
make during the term of this agreement.
It is fair to say that the practice of taking unpaid leave to extend a vacation touches
matters of wages, hours and conditions of employment. Does the statement regarding the
superseding all past practices wipe out all past practices per se both those that would
interpret the contract and those not mentioned in the contract? The parties did not further
which past practices they intended to eliminate by this statement. Moreover, there is no
waiver of the right to bargain over wages, hours and conditions of employment. Article VIII
be read to include Section D. Significantly, right after the parties agreed that the contract
superseded past practices, the parties also agreed to bargain the impact of any Board decision
significantly affecting wages, hours, and working conditions that the Board may make during
term of this agreement. The parties have not agreed to a strong "zipper" clause, and the
of Article VIII should be narrowly construed where it tries to both eliminate certain past
and retain the right to bargain over wages, hours and conditions of employment.
Since the parties would still have to bargain over decisions significantly affecting
hours and working conditions, the Union's position on Section C is preferred
namely, that those
past practices in conflict with the contract are superseded by the contract. Accordingly,
does not eliminate this past practice.
There is still an issue regarding arbitrability. The grievance procedure, Article III,
A. Purpose: To enable the Union to express a complaint with the
that the complaint will receive prompt attention. Only those grievances
involving the administration of this agreement can be advanced to binding
B. Definition of Grievance: Any disagreement involving wages,
conditions of employment between the Union and the District can be grieved.
Only those grievances involving disagreement of interpretation and/or
application of a specific provision of this agreement can be advanced to binding
The District has argued that because there is no specific provision providing for
leave upon demand, this grievance is not arbitrable under Article III. The question is
Article III bars arbitration of a past practice that is a part of the parties' whole agreement?
the District raised no procedural objections, it has raised the issue of substantive arbitrability
which it may do at any time up through the hearing. Union negotiators were long under the
impression that Article VI provided for unpaid leave under the term "special leave," even
the precise question had never come up. The Union also points to Article VIII as a source
grievance. The Union sought an interpretation of the District's application of Article VI, as
as Article VIII, as the parties debated the issue through the grievance procedure. Allowing
grievance to be arbitrated advances the purpose of Article III, Section A, wherein the parties
agreed that grievances involving the administration of this agreement can be advanced to
Next issue. The District argued that even if there were a binding practice, the Union
put on notice by the processing of this grievance that the District was terminating the
the Union failed to secure language to keep the practice. While it is generally recognized
practices need not become enshrined and last forever, it is also recognized that the party
to end the practice repudiate it before or during negotiations for a successor contract. The
to give notice is to allow the other party to attempt to have the practice written into the
if it wishes to retain the practice. In cases where there is a past practice that is not in the
contract, many arbitrators hold that the practice cannot be terminated unilaterally during the
of the contract.
Arbitrator Richard Mittenthal has been widely quoted on this subject, particularly the
"Consider first a practice which is, apart from any basis in the agreement, an
enforceable condition of employment on the theory that the agreement subsumes the
continuance of existing conditions. Such a practice cannot be unilaterally changed
during the life of the agreement. For . . . if a
practice is not discussed during negotiations most of us are likely to infer that the
agreement was executed on the assumption that the practice would remain in effect.
"That inference is based largely on the parties' acquiescence in the practice.
If either side should, during the negotiations of a later agreement, object to the
continuance of this practice, it could not be inferred from the signing of a new
agreement that the parties intended the practice to remain in force. Without their
acquiescence, the practice would no longer be a binding condition of employment.
In face of a timely repudiation of a practice by one party, the other must have the
practice written into the agreement if it is to continue to be binding." Proceedings
of the 20th Annual Meeting of NAA, 1, 35-36 (BNA Books, 1967);
Practice and the Administration of Collective Bargaining Agreements," Proceedings
of the 14 Annual Meeting of NAA, 30, 56-57 (BNA Books, 1961).
The question is whether there was an effective and/or timely repudiation of the past
The quote above from Mittenthal appears to state that a timely repudiation of a past practice
occur during negotiations for the successor agreement. Other arbitrators have indicated that
repudiation of the past practice could take place before such negotiations, or at any time
agreement, although the practice would be continued for the life of the current agreement.
An effective and/or timely repudiation of a past practice should, at a minimum, put
firmly on notice that the other party will no longer adhere to the practice in the successor
or that it will no longer give its acquiescence to the practice. Further, the repudiation should
given in a manner that places the parties in a position whereby the party wishing to retain the
practice knows that it has to bargain to obtain language securing the practice.
That did not happen in this case. While the Union was aware that Hamilton was
to the use of unpaid leave by the processing of the grievance, the Union was not clearly on
that the District was repudiating the past practice and that it should seek to obtain language
negotiations. The Union's grievance committee notified Hamilton on February 11, 1998,
wanted to initiate Level 2 of the grievance procedure. Hamilton gave a response at Level 2
February 24, 1998, and the grievance committee appealed it to the Board on March 3, 1998.
Board denied the grievance on March 25, 1998, and the Union notified Hamilton on March
1998, that it was appealing for arbitration. Among other things, the steps of a grievance
allow parties to reach an accommodation. So while the contract was being ratified in
of 1998 and executed on March 24, 1998, the grievance was still being processed
steps. The Board had not even reached its decision until a day after the contract was
More importantly, however, is the fact that the Board was in negotiations during this
of time and knew how personal leave had been administered and knew that it had to bargain
change, even though the language was arguably in its favor. Thus, the District
was well aware that the past practice regarding personal leave weakened its position in
restrictions on personal leave. The District was prepared to put money on the table to
personal leave restrictions, but the Union rejected the money. While the District was
hard for those restrictions, it knew that Hamilton and/or the Board was unhappy with the
leave was being used by some, particularly Wiener. It's proposal to the Union even tried to
the use of personal days in conjunction with days off without pay to extend a vacation (see
sentence of the proposal).
Thus, under the facts and circumstances of this case, the District should have been
to repudiate the past practice during the negotiations for the successor contract. I find that
handling of Weiner's grievance was insufficient to put the Union on notice that it was
the past practice. The District needed to put the Union squarely on notice and give it the
to bargain to obtain language to secure the past practice. The District's failure to do so
the practice should remain in effect at least through the current collective bargaining
The grievance is granted.
The District is ordered to maintain the past practice of allowing teachers to use unpaid
without restrictions in a manner consistent with the past practice, including to extend a
around a scheduled school break, at least through the term of the current collective
Dated at Elkhorn, Wisconsin this 6th day of January, 1999.
Karen J. Mawhinney /s/
Karen J. Mawhinney, Arbitrator