BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SCHOOL PROFESSIONAL AND
ASSOCIATION OF KENOSHA
CENTRAL HIGH SCHOOL DISTRICT OF
Mr. Rick D. Moore, Executive Director, Southern Lakes
United Educators, 32100 Droster Avenue, Burlington, Wisconsin 53105, appearing on behalf
of the Union.
Davis & Kuelthau, S.C., by Attorney Daniel G. Vliet, 111
East Kilbourn Avenue, Suite 1400, Milwaukee, Wisconsin 53202-4285, appearing on behalf
of the District.
School Professional and Employees Association of Kenosha County (herein the
Central High School District of Westosha (herein the District) were, at all times pertinent
parties to a collective bargaining agreement, dated February 7, 1996, covering the years
and providing for binding arbitration of certain disputes between the parties. On October 27,
the Union filed a request with the Wisconsin Employment Relations Commission to initiate
arbitration on a salary placement issue and requested a list of arbitrators, which was
parties jointly selected Thomas L. Yaeger from the list of arbitrators and a hearing was
on May 19, 1998. The District filed a brief on June 22, 1998, and the Union filed a brief on
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties were unable to stipulate to a statement of the issue. Therefore, the
frames the issue as follows:
Did the District violate the collective bargaining agreement by
denying grievant Nichols a lane
change in July, 1997?
If so, what is the appropriate remedy?
ARTICLE V SALARY
A. BASE SALARIES
Appendix A, Salaries, shall be the basic
rates of compensation for all teachers covered by this
B. SALARY TRACK
1. Professional personnel who earn credits
that will allow them to change a salary track shall be
allowed to change salary tracks twice within any school year. Such changes shall be able to
effected on October 1 for the first semester and March 1 for the second. If suitable
cannot be filed with the administration prior to the October or March date, the adjustment
corresponding increase shall not be effective until the next semester. The administration will
implement adjustments to the contract-of-employment upon receipt of the documentation that
credits validating the track change have earned. (sic) Salary payment changes shall be
the first pay date for credits filed on October 1 and on the fourteenth pay date for credits
March 1. Retroactive payments shall be made to pay dates indicated in the preceding
necessary to implement this section.
2. All credits offered for advanced salary
tracks must satisfy one or more of the following criteria:
a. The course is within a graduate degree
program culminating in a Masters of Education degree.
b. The graduate course is within a teacher's
current subject area.
c. The course is an education course (graduate level) at the
current level of the teacher's
d. The course (graduate level) is related to a
teacher's co-curricular assignment, with prior
e. The course is taken at the request of an
administrator, or by the request of the teacher with
prior approval of the administration, with a copy of the request on file. Any course which
the school day or conflicts with inservice must have prior administration approval.
3. It is the teacher's responsibility to keep
the Board informed by the submission of transcripts
of programs in salary track changes. Teachers planning such a change during the coming
must notify the Board of their intent by June 1. Failure to comply with this notification
the teacher must wait to move on the salary schedule until the following school year.
The District and the Union were parties to a collective bargaining agreement covering
1995-97 school years. The salary schedule, contained in an appendix to the contract,
step increases for each year of service up to 10 and lane changes for each six credits of
completed up to a Masters degree plus 30 credits. The process for obtaining a lane change is
forth in the provision above. In order to meet the contract's notification deadline
District prescribes a particular form to be filled out and turned in by the teacher, identifying
course, the subject matter, the dates of the course, the institution offering the course, the
credits offered, and the total number of credits the teacher would have upon completion.
must be submitted by June 1 and is subject to approval or disapproval by the District
The grievant, Steve Nichols, has been employed as a guidance counselor at Central
School since the 1991-1992 school year and is a member of the bargaining unit. As of 1997,
in the MA+24 lane on the salary schedule and sought to advance to the MA+30 lane for the
On January 6, 1997, Nichols submitted a written request for a personal day on
in order to participate in a credit option program being offered at the annual conference of
Wisconsin School Counselors' Association (WSCA), which was approved by the District
Administrator, Gerald Sorensen. (Union Ex. #1). This was the first time course credit was
at the conference. On February 11, he requested leave to attend the WSCA Conference on
20 21, indicated that the cost incurred would be $180.44, and requested
Sorensen also approved. (Union Ex. #2).
On May 27, 1997, Nichols turned in a form requesting approval of a 3 credit course
Wellness being offered through Silver Lake College later in June. (Joint Ex. #2). He
indicated he would be at the MA+30 level upon completion and added a margin note stating:
includes the 3 cr. earned during the WSCA conference also through Silver Lake." The
Administrator, Gerald Sorensen, reviewed the form and returned it to Nichols for
regarding the institution offering the Wellness course. Nichols provided the requested
and Sorensen approved the request on May 28.
In July, transcripts for the 6 credits Nichols earned in the Wellness course and
Conference were received by Sharon Llanas, the District Comptroller. Upon searching the
Llanas was unable to find a notification form for the WSCA Conference and informed
Sorensen determined that Nichols had not provided proper notification to obtain approval for
credits and, therefore, was not eligible for a lane change in the 1997-1998 school year.
In September, 1997, Nichols was informed he would not receive a lane change for
1997-1998 school year. Upon inquiry, Sorensen told him that district policy requires that a
notification form be used for each course taken and the margin note regarding the WSCA
was insufficient under the policy to receive credit. Nichols filed a grievance and also
submitted a new
form for the WSCA Conference, which was approved, and a lane change was granted for the
following year. According to the salary schedule, the difference in Nichols' salary as a
result of not
receiving the lane change in 1997-1998 was $1,243.00.
POSITIONS OF THE PARTIES
The Union argues that Nichols' actions were consistent with the notification
the contract and, therefore, he should have been granted the lane change for 1997-1998. The
points out that the relevant clause in the contract does not specify a particular method by
must be given, but merely states that notification must occur by June 1 in order to make a
in the coming year. The Union takes issue, therefore, with Sorensen's assertion, contained
October 8, 1997 letter to Nichols, that the lane change denial was due to Nichols' failure to
with the provisions of the contract.
Testimony was offered from Tom Olszewski and Linda Berns, two teachers who
bargaining team which negotiated the relevant language into the contract. Both witnesses
that the purpose of the clause was twofold: (1) to insure that teachers pursued credits in
areas, and (2) to enable the District to do timely budget planning based on accurate salary
The Union's position is that Nichols' notification
form satisfactorily met both criteria and complied with the language of the contract. In
the Union notes that the original notice was given in advance of the June 1 deadline and, that
Nichols turned in a separate form for the WSCA Conference in September, 1997, Sorensen
The Union further disputes the District's assertion that the requirement of separate
notification forms for each course was a commonly understood and uniformly applied District
Although Sorensen asserts in his October 8 letter, as well as in a September 23 memo, that
policy exists, the Union points out that this policy has never been reduced to writing.
contrary to the District's assertion that the District Comptroller, Sharon Llanas, explains this
to each teacher who picks up a notification form, as Ms. Llanas in fact testified, the Union
this was not a commonly understood policy. Testimony was offered from Olszewski and
well as from a third teacher, Steven Maastricht, to the effect that they had never been told of
form per course requirement by Llanas or anyone else. Further, the Union notes that Llanas
specific recollection of telling this to Nichols.
With reference to the uniformity of the policy, the Union offers several examples of
where teachers submitted forms detailing multiple courses, which were approved. Evidence
submitted in the form of four multiple course applications for different teachers which were
between 1989-1991. Thus, the Union argues that even if such a policy did exist, its
arbitrary and inequitable and therefore, Nichols should prevail.
Finally, the Union argues that the District should be, in effect, barred from denying
lane change due to the District Administrator's failure to object to the notification form in a
manner. The Union states that the form was submitted to Administrator Sorensen on May 27
at least, contained information from which Sorensen should have concluded that Nichols was
including two courses for a total of six credits. Sorensen apparently read the form (although
not the margin note), because he returned it to Nichols on May 28, seeking clarification
school offering the course, which Nichols provided. Sorensen then approved the form as
The Union argues that, if the notice was inadequate, Sorensen should have informed Nichols
on the 27th when he asked for the clarification and, had he done so, Nichols
could have submitted
another form for the WSCA Conference credits prior to the June 1 deadline. The Union's
is that Sorensen's failure in this regard should prevent the District from denying the lane
For the stated reasons, the Union believes that the District violated the contract by
Nichols the lane change.
The District argues that it is a longstanding and universally understood policy that
seeking credit for course work must fill out and timely submit a standardized form for
the Administrator's approval and that each course requires a separate form. Since
Nichols did not
comply with this requirement, but included two courses on the same form, he failed to
the notification clause in the contract and, therefore, was not entitled to a lane change in
While the contract does not specifically reference the notification format, or the one
per form rule, the District notes that this has been a longstanding and universally understood
for many years and cites authority to the effect that the practice of the parties establishes the
of contract terms and, once established, should not be revised in arbitration. Here, the
that the use of the particular form, as well as the rules for its use had, in effect, been merged
contract by common consent and acquiescence.
With respect to the form and practice, the District offered the testimony of Sharon
the District Comptroller since 1992. Her duties for the District include budget, accounting
payroll, which also involves tracking salary movement for teachers due to step and lane
testified that each teacher planning on obtaining graduate credit must obtain a notification
her and that it is her standard practice to tell every teacher that they must turn in one form
course taken, per District policy. She stated that in preparation for the hearing she reviewed
approximately 600 notification forms turned in during her tenure and in no case had any
teacher, or Nichols himself, ever included more than one course on the same form. This,
states, not only establishes the existence and acceptance of the policy, but also permits the
that Nichols himself was aware of it and had complied with it in the past.
In further support of its position, the District points to the wording of the form itself,
is drafted in the singular. According to the District, this clearly shows the intent that the
form be used
only for one course and buttresses the argument that anyone reading the form would
Taken in conjunction with the reminders from Llanas, there could be no doubt as to the
method of providing notification of an intended lane change.
Further, the District points out that in the past Nichols himself had been denied a lane
because he had not obtained prior approval for a course by timely submitting the form, and
grieve the matter. Based on this, therefore, he not only knew the proper procedure for
credit, but also apparently was accepting of the policy behind it. In light of this, he should
be permitted to complain about the application of the policy or argue that he was unaware of
Finally, in anticipation of the Union's argument, the District contends that where the
failed to comply with the established notification policy the burden to correct the mistake was
teacher and the District was not under an affirmative duty to discover it and point it out. To
the district points out that it is in the teacher's interest to comply with the policy and make
proper steps are taken. In fact, District points to the language of Article V, Section B. 3,
states: "Failure to comply with this notification
means that the teacher must wait to move on the salary schedule until the following
school year." in
arguing that Nichols had a duty to comply with the policy and clearly would not be permitted
change if he did not.
The District states that Nichols' notification form violates the policy, not only in that
to two different courses, but also in that the reference to the WSCA Conference does not
the specified information about the course which the form calls for. In fact, Sorensen
when the form was initially submitted he did not even read the margin note, which did not
be an attempt to notice an additional course, and was unaware of the credits earned at the
Conference until the transcripts were received in July, when the problem was discovered.
In conclusion, the District argues that there was a longstanding and universally
that required teachers seeking lane changes to turn in notification forms for each course by
Nichols failed to comply with the policy by failing to submit a separate form for the WSCA
Conference in February, 1997, and the notice provided on the form submitted on May 27
insufficient. Because he did not comply with the terms of the collective bargaining
Nichols was not entitled to a lane change in the 1997-1998 school year and the District did
the contract by denying it.
This case arises out of a dispute over interpretation and application of a clause in the
collective bargaining agreement governing lane changes in the salary schedule. The District
that Nichols failed to give the notice required by Article V, Section B. 3 of the contract in a
fashion and, therefore, was not entitled to a lane change in 1997-1998. The Union contends
Nichols met the contract requirements and, therefore, the District violated the contract by not
granting the lane change.
While Article V, Section B. 3 clearly requires the employe to provide the notice of
June 1 in order to make a lane change in the coming year, it is silent as to what form the
take. Taking the contract language on its face, therefore, the notice filed by Nichols would
to be sufficient because it references two separate courses, each worth three credits, indicates
Nichols will be receiving six total credits and will be have accumulated MA+30 credits.
was filed by May 27, thus meeting the June 1 deadline. Assuming that the transcripts
Nichols actually received the credits, which they did, based upon the contract language
should have been moved from the MA+24 lane to the MA+30 lane in 1997-1998.
The District argues, however, that its policy, established by a consistent practice over
years, is that teachers must turn in a prescribed form for each course taken, that all District
of this requirement and accepted it. It concludes, therefore, this is the proper construction of
contractual notice clause. In support of this contention the Comptroller,
Sharon Llanas, testified that of the hundreds of forms submitted during her six-year
listed more than one course, and that she personally instructs all teachers as to this
Also, the District notes that the form itself is worded in the singular, implying that only one
is to be listed.
According to the District, Nichols' margin note reference to the WSCA Conference
form he submitted on May 27 violated this unwritten policy because it combined two courses
form and gave inadequate information about the WSCA Conference course to meet the
requirements. From Nichols' standpoint, however, Sorensen had already approved the
in February and no further approval was necessary. Thus, Nichols' note on the May 27
was a reminder about and explanation for the additional three credits listed, and not another
The District's contention that the one course per form policy was universally known
accepted is disputed. In addition to Nichols, three other teachers testified that they had never
of the policy. Tom Olszewski, a member of the bargaining team which negotiated the
Article V, had never heard of the one form per course requirement. Likewise, Linda Berns
Steven Maastricht did not know of the policy. Further, both testified that, as members of the
Grievance Committee, had they been aware of such a policy they would have explained to
that his grievance was groundless.
It is also disputed that this policy has been universally applied. The Association
evidence 1/ copies of approved notification forms listing multiple courses, or forms giving no
specifics at all. All the forms are worded in the singular and, in fact, since 1990 the current
been in use. On this basis, the Union contends that a past practice has not been established
the District's one course per form should be treated as an implied term of the collective
agreement. The District refers the undersigned to Elkouri and Elkouri, How
Arbitration Works (5th
Ed.) in support of the proposition that past practice of the parties can establish the meaning
ambiguous terms in a contract, and, if so, should not be changed by an arbitrator absent
reasons. However, in order for that principle to apply it must first be established that the
precedent to finding a binding practice exist. In order for a past practice to rise to the level
becoming an implied term of the contract it must be clearly established that the practice is
and has been acquiesced in by both parties. In Bonduel Education Association, Case 1, No.
54681, MA-9760 (Jones, 6/19/97), cited by the Union, Arbitrator Jones observed:
In order to be binding on both sides, an alleged past practice must
be the understood and
accepted way of doing things over an extended period of time. Additionally, it must be
by the parties that there is no obligation to continue doing things this way in the future. This
that a "practice" known to just one side and not the other will not normally be considered as
of mutually agreeable item that is entitled to arbitral enforcement.
1/ Diane Pawasarat filed a form on June 1,
1989 listing three separate courses, a form on May 22, 1990 listing
two courses, and a form on May 28, 1991 listing four courses, all of which were approved,
the latter two by the
current Administrator, Gerald Sorensen. Laura Campbell filed a form on November 27,
1991 outlining a thirty-two
credit degree program, which was approved by Sorensen. Phillip Knigge filed a form on
April 9, 1998, referencing
a thirty-two credit Master's program, but providing no detail, which was approved by
Sorensen. Pawasarat also
filed a form on February 15, 1995, indicating an intention to obtain three credits for an
unspecified Summer School
course, which was approved by Sorensen.
In the instant case, it is undisputed that the District understands that the procedure
is that teachers intending to take courses and/or make a lane change pick up a form from the
Comptroller, which must be turned in before June 1 and approved by the Administrator in
make a lane change in the subsequent school year. The purpose is twofold. First, it allows
District to review and indicate its concurrence that the course satisfies the requirements of
B. 2, thus eliminating the possibility of a dispute arising after the course has already been
Second, it puts the District on notice of an intended lane change and resulting salary increase
advance of the District finalizing its budget so that an adequate amount of money can be
for such salary increases in the coming year. The District's witnesses testified that its
intention is that
teachers fill out one form per course. However, the evidence showed that aspect of the
has not always been uniformly enforced over the years, nor was it universally communicated
faculty. None of the four teachers who testified, all of whom have been in the District for
recall ever having been told of it. Of additional significance is the fact that other teachers
have in the
past been permitted by the current Administration to list several courses on the same form
being denied a lane change. The form, itself, while clear on the deadline, is silent as to how
courses may be referenced. 2/ In fact, the record discloses no prior case where a teacher has
before been denied a lane change on this basis. Prior to this incident there was nothing on
or Llanas' oral instructions to indicate that a teacher would be denied course approval and/or
commensurate lane change for including more than one course on a notification form.
2/ The operative language at the top of the
notice form is: IN ORDER FOR YOU TO MAKE A SALARY
TRACK CHANGE NEXT YEAR, THIS FORM MUST BE SIGNED BY MR.
SORENSEN BEFORE JUNE 1, 1997.
YOU WILL NOT BE PENALIZED IF YOU FAIL TO MAKE THESE CHANGES, BUT
NO CHANGES WILL BE
MADE WITHOUT THIS NOTIFICATION. (Emphasis in original)
Thus, the record evidence is insufficient to establish that there was a binding past
permitting only one course per form for approval.
The propriety of the credits Nichols earned at the WSCA Conference in February is
question. When Nichols filed a separate form for the credits in September, 1997, it was
Indeed, Sorensen had previously approved Nichols' written request for leave to attend the
his request for reimbursement for the cost of the course after he had taken it. According to
when he approved Nichols' May 27 notice he did not read the margin note regarding the
Conference, and therefore, was unaware that Nichols had obtained six credits for two
courses until the transcripts arrived in July. Only then did Sorensen realize that Nichols was
credit for the WSCA Conference, over a month past the time when notice forms were to
submitted. As stated in the District's brief, since the grievant had not filled out a separate
the WSCA course, the District refused to move him on the salary schedule to the MA+30
Setting aside for the moment the fact that in the past Sorensen had approved notices
multiple courses and had approved credit where the notices said nothing about the course at
the District's action in this case in keeping with the requirements of the contract? The
believes it was not. It is the undersigned's view that the primary purpose of the form is to
advance approval for the courses taken. If only one course per form can be approved, the
Administrator does not know by looking at the form he is reviewing for approval whether he
already approved other courses that, taken together with the current request, equal the
number of credits for a lane change. If the credits are approved, the lane change will follow
matter of course and so the line referring to "Proposed Degree/Total Accumulated Credits"
only to put the District on notice of the lane change for budgetary purposes. Indeed, by
referring to the form, the Administrator would have no way of knowing, other than the
representations of the teacher by completing the form, that a lane change was warranted.
Further, the District's argument ignores that Nichols had previously provided the
written information about and received approval, time off and reimbursement for the WSCA
workshop. On January 6 he requested a personal day for February 19 to participate in a
course at the WSCA Conference. One February 11, he requested leave to attend the
February 20 and 21 and also submitted a request for tuition reimbursement. Sorensen
of these requests and, therefore, Nichols was entitled to rely on the fact that the District had
this conference for credit. In his May 27 notice of intent to make a salary track change he
a note by way of reminder that three of the six credits claimed had been earned at the WSCA
Conference. This, too, was approved by Sorensen. On the strength of this evidence it is
Sorensen had adequate information prior to June 1 regarding the WSCA Conference to
the requirements of Article V, Section B. 2 of the contract had been satisfied. Furthermore,
received notice on May 27, that Nichols believed he would have six credits that qualified him
lane change. Sorensen could have objected to Nichols' failure to include the WSCA
course on the appropriate form as early as January 6, or February 11 when he initially
to take the course or when he requested tuition reimbursement for the course. Rather, he
receipt of the transcripts in July to raise the issue of the sufficiency of the notice about a
had approved five months earlier.
Therefore, I find that because there was not a binding past practice rising to the level
implied term of the agreement teachers were not contractually obligated to complete a
standardized form for each course taken for credit toward salary track advancement. Thus,
District, by denying Nichols' movement on the schedule for failure to do so, after he had
satisfied the requirements of Article V, violated the parties' collective bargaining agreement.
the District should have advanced Nichols to the MA+30 lane. To remedy this violation the
must reimburse Nichols $1,243.00 which is the value of movement to MA+30 lane as
Based upon the foregoing and the record as a whole, the undersigned enters the
The District violated the collective bargaining agreement by denying grievant Nichols
change in July, 1997. Accordingly, the District is directed to pay to the grievant back pay in
amount of $1,243.00.
Dated at Madison, Wisconsin, this 19th day of March, 1999.
Thomas L. Yaeger, Arbitrator