BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TOMAHAWK SCHOOL DISTRICT
TOMAHAWK EDUCATION ASSOCIATION
Mr. Barry Delaney, Executive Director, Northern Tier UniServ-
West, appearing on behalf of the Union.
Mr. Henry Lamkin, District Administrator, appearing on behalf
of the District.
Tomahawk School District, hereinafter referred to as the Employer or the District,
Tomahawk Education Association, hereinafter referred to as the Association, are parties to a
collective bargaining agreement which provides for final and binding arbitration of grievances
thereunder. The Association made a request, with the School District concurring, that the
Employment Relations Commission designate a Commissioner or member of its staff to hear
decide a grievance filed by the Association. The undersigned was so designated. The
transcribed, the parties filed post-hearing briefs and reply briefs, and the record was closed
The parties do not agree as to the statement of the issue.
The District suggests that there are two issues to be resolved in
Issue # 1: Did the District violate Article
2C by transferring Ms. Mielke to the high school to
fill the requirements of students entering the 9th grade in the Tomahawk
Issue # 2: Did the District violate Article 16F & G by
filling the middle school position with
The Association words the issue differently: (d)id the
violate the rights of the
grievant under the collective bargaining agreement by not giving the grievant the middle
position that was filled by two interns? If so, what is the appropriate remedy?
I define the issue as whether the District violated the rights of
the grievant under the collective
bargaining agreement when it transferred Sue Mielke from her position in the middle school
special education teacher to a special education teaching position in the high school? If so,
the appropriate remedy?
The parties cite the following contractual provisions.
Article 2 Management Rights Clause
A. The following Management Rights Clause is understood
to be the function of the
Board. This clause is intended to fill the present void in the master agreement, but in no
replace or nullify any of the expressed provisions of the master agreement presently in effect.
. . .
C. Without limiting the generality of the foregoing
(paragraph 1), it is expressly
recognized that the Board's operational and managerial responsibilities includes (sic):
. . .
The direction and arrangement of all the working forces in the
system, including the right to hire,
suspend, discharge or discipline, or transfer employees.
. . .
The creation, combination, modification or
elimination of any teaching position deemed advisable
by the Board.
The determination of the size of the working force,
the allocation and assignment of work to
employees, the determination of policies affecting the selection of employees, and the
of quality standards and judgment of employee performance.
. . .
Article 4 Savings Clause
If any article or part of this Agreement is held to be invalid
operation of law or by any
court of law, or if compliance with or enforcement of any part should be restrained by such
the remainder of the Agreement shall not be affected thereby, and the parties shall enter into
negotiations for the purpose of arriving at a mutually satisfactory replacement for such article
thirty (30) days after official notification of a change in law.
. . .
Article 16 Layoff/Vacancies
Layoff Procedure: The School Board may from time to time have
to reduce the teaching staff
because of declining enrollments, budgetary limitations, or changes in educational programs.
the Board faces such a situation, the District Administrator will recommend to the Board
teachers to layoff.
Standards for Layoff: The District Administrator will base his/her
recommendations on the
1. Normal attrition
2. a) Length of Service Except as
listed below in 2b, the teacher with the least length of service
in the Tomahawk school system shall be laid off first.
b) Consideration of Qualifications
The School Board shall be permitted to exempt teachers
from the provisions of 2a (above) whenever:
(1) The teacher's
area of licensed certification is required for the maintenance of an existing
(2) The teacher is the head coach of a
conference sport and cannot be replaced by appointing a
qualified member of the remaining staff. Whenever a head coach of a conference sport is
laid off, the
Board shall have the sole right to determine the replacement and the appointee must accept
(1) Voluntary layoff
The District Administrator may consider for layoff any teacher who has
submitted to the District Administrator a written and signed statement indicating the teacher's
to volunteer for layoff status. Such statement must be submitted to the District Administrator
before, January 1 of the school year preceding the year of layoff.
rejection of volunteer for layoff is the prerogative of the Board.
Any teacher placed on voluntary layoff
status shall retain all rights and privileges accorded under
Sections C, D, & E of the Article.
No teacher placed on voluntary layoff shall
acquire, nor be accorded, any special recall rights not
granted to teachers of regular layoff status. Nor shall any teacher on voluntary layoff status
reinstated to regular teaching status by means other than those stated in this Article.
C. Notification: The Board will notify each teacher being
considered for layoff of the elimination
of his/her position and of his/her re-employment rights by April 1 of the calendar year in
layoff will take place.
D . Recall Procedure: When a teaching position becomes
available, the Board will recall last laid
off teachers according to the same standards the Board followed when it reduced the work
The Board will mail a recall notice by
certified mail to the teacher's last known address. The
notice will advise the teacher of the time and place to report for duty. The following rules
to recall rights:
1. Each teacher is responsible for keeping
the Board informed as to his/her current address.
2. A teacher who does not respond in
writing to a recall notice within fourteen (14) calendar
days of the date on which notice was mailed loses all rights to be recalled.
3. Re-employment rights of laid off
teachers will terminate at the end of the second (2nd) school
year following the year of layoff notification.
4. A teacher shall not lose his/her recall
rights if they secure other employment during the recall
E. Benefits: Any teacher on layoff status may, during the recall
period, elect to continue any, or
all, benefits which are part of this contract by:
1. Notifying the District Administrator in writing of the desire to
continue the benefit.
2. Paying the entire cost of said benefit.
The Board will make no payment for any
benefit for teachers on layoff status.
The Board will prorate contributions for all benefits for any
teacher who is recalled to a part-time
status. The amount of contribution will directly correspond to the individual's fraction of
Any teacher who is reduced to, or recalled
to, a part-time status shall accrue seniority at the
normal full-time rate for the period worked on part-time status.
Any teacher who is recalled under this article shall retain all
rights, benefits and seniority that may
have accrued prior to the time of layoff.
No teacher will be laid off for any portion
of a school year if said teacher is contracted on an
individual basis to teach for that year.
C. If a vacancy/vacancies occurs and the District decides to fill
the vacancy/vacancies, the
District shall fill said vacancy/vacancies with a qualified bargaining-unit member if that
be made available and applies for the position(s). State certification does not necessarily
the person is qualified. The District retains the sole right to determine if a person is
During the course of the school year vacancies will be posted
the Faculty Rooms.
During the summer months vacancies will
be posted in the District Administrator's Office.
Bargaining-unit employees will have seven
(7) days to apply. The district, in return, will
notify said applicants of its decision within three (3) days of its determination.
G. All vacancies, permanent or new, except those created by
leaves granted under the
collective bargaining agreement for the duration of a semester or more, shall be filled by
covered or to be covered by the collective bargaining agreement and afforded all rights
All vacancies created by leaves under the
collective bargaining agreement of a semester or
more shall be filled by an employee covered by the collective bargaining agreement and
rights therein, except the recall provision. Internal transfers shall maintain recall rights, but
employees filling said temporary positions or temporary positions caused by transfers shall be
any recall rights.
All vacancies, permanent or new and less
than a semester, may be filled by long term
substitutes who shall not be considered bargaining unit employees.
All employees filling vacancies created
under the collective bargaining agreement of a
semester or more and not receiving recall rights shall be given credit for such service in the
Tomahawk School District, including experience on the salary schedule and credit toward the
probationary period, should they ultimately be hired to fill a full time teaching position.
Long term substitutes shall be defined as
those substitutes filling in for one position for a
semester or more and shall be differentiated from a short term sub who might fill in for an
period of time but less than one semester.
Susan E. Mielke has been employed as a special education teacher by the Tomahawk
District since 1987. For her first 7 years of employment she was assigned to the District's
School. In 1994, however, she applied for a posted special education 6th
grade teaching vacancy in
the District's Middle School, to which the District had attempted to append additional athletic
Initially Ms. Mielke was unsuccessful in her effort. A District administrator advised
although she was both certified and qualified for the position of a Middle School special
teacher she was not a coach for any of the athletic coaching positions posted with the
and, therefore, would not be appointed. The successful applicant for the transfer was
employee, Steve Laskowski, who has a certification of K-12 Learning Disabilities (LD) and
qualified and willing to be a coach.
Ms. Mielke filed a grievance challenging the administrative decision that had turned
transfer request, asserting that the District's unilateral addition of coaching responsibilities to
teaching position violated the "Standards Clause" (Article 6) of the parties' collective
agreement. Following an arbitration hearing Ms. Mielke prevailed in her grievance, and the
was ordered to grant Ms. Mielke the position that she had sought in the Middle School.
No. 51203, MA-8529, Greco, 3/95)
That arbitration award was issued on March 16, 1995. Ms. Mielke, however, was
special education students tend to be troubled by change, particularly mid-year change. For
reason, she opted to finish the school year at her original position at the High School (as
permitted by the arbitration award), thus enabling her students to finish the school year with
change in their teacher.
However, Ms. Mielke never was transferred into the 6th grade
special education teaching
position ordered by the arbitrator. Instead, Ms. Mielke was transferred to a
8th grade special
education teaching assignment at the Middle School where she remained for 3 years. Mr.
has remained in the 6th grade-teaching slot (where he also coaches both
cross-country and Odyssey
of the Mind, an academic extra-curricular activity).
During the 1997-98 school year, members of the Tomahawk School District Middle
special education teaching staff were asked if anyone wished to transfer to the High School.
volunteered to make the move. Mr. Freude, the Middle School Principal, then advised Ms.
and Mike Houle, another Middle School special education teacher, that in the absence of any
volunteer for transfer to the high school either Ms. Mielke or Mr. Houle would be
transferred to the high school. Mr. Houle also serves as head basketball coach at the High
Mr. Houle reportedly reminded Mr. Freude of an earlier promise that Mr. Houle would not
same students for two consecutive years.
During her conference with Mr. Freude, Ms. Mielke questioned whether her
(learning disability) teaching licensure was legally sufficient for her to teach 14 LD high
students. She learned that due to a rule change by the Department of Public Instruction, her
elementary LD now permits her to be given high school LD assignments because she is also
to teach ED (emotionally disturbed students from grades 7-12.). However, it also appears
Mielke, Mr. Houle and Mr. Laskowski (and perhaps others, as well) all had sufficient
certifications for any one of them to have filled the high school special education teaching
which Ms. Mielke was ultimately assigned.
Ms. Mielke also asked why everyone who was certified was not also being
involuntary transfer. Ms. Mielke reports being told, "Well, we have to consider lunch duty
curriculars." Ms. Mielke also brought up the subject of coaching duties, noting that "We
District) have coaches all over." Ms. Mielke testified that the administrator's response was
best if they stay in the (building) area that (in which) they teach."
In a subsequent conversation with Mr. Freude and Mr. Pedersen, the District
Special Education, Ms. Mielke was advised that she was being transferred back to the High
According to Ms. Mielke, she was told she was being transferred because she knew the High
staff and the students.
Prior to his retirement on June 30, 1998, Curtis Powell had been the Tomahawk
Superintendent for nine years. As Superintendent, Mr. Powell had the authority to transfer
without Board of Education approval. He had exercised that authority when he transferred
Mielke back to the High School.
According to Mr. Powell, the certifications of both Mr. Houle and Ms. Mielke had
to him to be even in a lot of areas. Mr. Powell did not indicate whether he had considered
qualifications of Mr. Laskowski. However, Mr. Powell claimed to be particularly impressed
Mielke's personality, her eight years of experience in the High School, and her familiarity
High School staff as well as the students about to be promoted from the Middle School to the
School. Mr. Powell also noted that the students with whom Mr. Mielke had been working in
Middle School do not like change. Thus, if Ms. Mielke were transferred to the High School
would be able to move right along with her students.
Mr. Powell conceded that if Ms. Mielke had been assigned to the
grade special education
position (as the prior arbitration award had directed) instead of drawing the
8th grade special
education opening, moving her to the high school would have been a complete change for
Mr. Powell claimed his basis for initiating a transfer of a special education teacher to
School was his belief that the High School would have a higher number of special education
the following year. Mr. Powell said that at the time Ms. Mielke was transferred, District
anticipated a mixed class going into the High School because there were a large number of
going up through the system: "the fifth grade going into the sixth grade had some special
kids in the Middle School had some special needs." Mr. Powell used the analogy of a pig in
to demonstrate his theory as to the shifting needs of a special education program.
Mr. Powell went on to say that it appeared to Mr. Freude, Mr. Stahmer (Special
Director) and him that " . . .Ms. Mielke had a wealth of experience: she had been in the
for quite some time; she was familiar with the High School staff; she had been familiar with
coming up through the system; she knew them and they knew her." According to Mr.
Mielke's transfer back to the High School "best met our needs."
Mr. Powell also testified that at the time of the transfer District officials believed that
more year there would be no need for one of the special education teaching positions at the
School, and someone would have to be transferred to the High School. Although that view
consistent with his "pig in the python" theory, due to his retirement Mr. Powell does not
know if that
projection was realized. Based on that projection, however, Mr. Powell believed that it
would be less
disruptive for student-interns to fill what he believed would be only a temporary position at
Middle School. Moreover, unlike a bargaining unit member, an intern would not have to be
"non-renewed" for the following year.
An intern is a student majoring in education who is hired by a school district to give
student practical experience, offer low-cost assistance to the school district in any area of
possibly provide the intern with a full-time job following the intern's certification. An
be used, for instance, in situations where the District cannot find regular certified teachers to
Mr. Powell claimed that Ms. Mielke's transfer back to the High School was not
extra-curricular considerations. He asserted that if extra-curricular assignments had been
consideration, the District could have moved at least two other persons to the High School
Mr. Houle) because they each had head high school coaching responsibilities. Ms. Mielke
transferred solely because the high school position required someone of her caliber,
according to Mr.
Mr. Powell also contended that the District had attempted to obtain teaching interns
High School position, but none were available for high school duty. The District was,
to locate interns for the Middle School.
Thus, to fill what Mr. Powell believed would be a temporary (one-year) position left
in the Middle School by Ms. Mielke's reassignment to the High School, the School District
two interns. As matters turned out, Ms. Mielke taught about the same number of High
students as she had taught the previous year in the Middle School.
POSITIONS OF THE PARTIES
The Association views this as a case about the Tomahawk School District attempting
a Middle School EEN teacher to the High School by devious methods. The Association
any rights claimed by the District flowing to it under the Management Rights clause of the
bargaining agreement are secondary to the rights guaranteed the grievant under Article 16,
The Association argues that in transferring Ms. Mielke to the High School, the
necessarily created a vacancy in the Middle School position from which Ms. Mielke was
transferred. Article 16 of the collective bargaining agreement provides that a vacancy must
by a bargaining unit member who applies for it and is qualified.
The Association does not agree that either the Management Rights clause or the "Pig
Python" theory have any application in the instant matter.
The Association quotes the language found in Article 16, G of the collective
asserts it is clear and concise. It points out the vacancy in the Middle School caused by Ms.
transfer was not created by a leave for the duration of a semester or more. Furthermore,
to the Association, the language requires a vacancy be filled by a persons covered by the
bargaining agreement, and an intern does not fit that description.
The Association next moves back to Article 16, F, and contends that language
vacancy to be filled by a qualified bargaining unit member if that member can be made
applies for the position. According to the Association, the District did decide to fill the
(from which Ms. Mielke was transferred). Indeed, when the District decided to transfer Ms.
it knew the position had to be filled, says the District.
The Association does not see how the contract language could be more clear or on
to this issue. It cites arbitral and hornbook authority in support of the proposition that the
meaning of language must be enforced, even if the results are harsh or contrary to the
expectations of the parties.
Reading Article 16, F and G in conjunction with each other, the Association thinks it
that they give the grievant the right to the Middle School position from which she was
The Association also accuses the District of attempting to undo a previous arbitration
The Association points out that the position that the grievant was awarded in that proceeding
occupied by the same person (Steve Laskowski) who held it in March 1995. The Association
that Mr. Laskowski is fully qualified to fill the High School position.
Finally, the Association does not believe the District's rationale for the Mielke
credible. It finds the District's action capricious and arbitrary. It contends that the "Pig in
Python" theory is invalid because there are as many EEN students in the Middle School in
the 1998-99 school year as were there in the previous year; it suggests the "pig" appears to
The Association also notes that the original discussion concerning the High School
focused on an LD position and that is what the position has become. But, says the
Mielke's licensure does not include 9th grade LD.
The Association further notes that the District also initially supported the Mielke
the argument that it is best if coaching assignments are for the grade level being taught.
logic, says the Association, it would have made more sense to transfer Mr. Houle to
the High School
where he is the boy's varsity basketball coach.
The Association is not impressed by the District's reliance on its Management Rights
of the collective bargaining agreement. That clause, says the Association, is still subject to
balance of the agreement. Moreover, the Association claims that the District's Director
Special Education could have assigned the interns to the 9th grade position
instead of transferring Ms.
Mielke to it.
In summary, the Association argues that if the grievant's previous position in the
School not been filled by interns there would be no vacancy and Article 16 would not be
The contract is clear and concise, says the Association, and gives the Middle School position
bargaining unit member or to a person about to become a member. In other words, the
reiterates, a transfer that leaves a vacancy is different than a transfer that does not leave a
The District believes the facts demonstrate that for the 1998-99 school year, District
administrators anticipated a large number of EEN students moving from the Middle School to
high school level. Since there were insufficient staff at the High School to handled the large
and because it appeared the incoming EEN students had a variety of exceptional educational
the District attempted to locate a teacher who was certified in more than one special
The District notes that no District teacher volunteered to make the transfer. The
further notes that the District was unable to find any intern candidates for the High School
Thus, says the District, it was left with the alternative of transferring an existing staff
after assessing and comparing staff qualifications. Ms. Mielke was one of two candidates
District believed would be most suitable. Since she did not volunteer for the transfer, the
involuntarily transferred her to the high school position, claiming a right to act under the
Rights clause (Article 2) of the collective bargaining agreement.
The District believes three provisions of Section C of that clause offer it the
authority to make the involuntary transfer: 1) the right to direct and arrange the work force,
the right to transfer; 2) the creation, combination, modification or elimination of any
position; and 3) the determination of the size of the work force and allocation and assignment
The District argues that the District considered Ms. Mielke the most qualified
the transfer: 1) she possessed the necessary certifications; 2) she was familiar with the high
and its staff; 3) she was familiar with the students that would be in her class.
The District notes that when the decision for transfer of Ms. Mielke to the High
made, it believed that Ms. Mielke would have a mixture of both ED and LD students. Later,
District was able to restrict her class to only LD students.
The District believes it was totally within its contractual rights in making the transfer.
District would be hard pressed to meet the needs of its students if it could not move its staff
to meet student needs. The purpose of a school district is to educate children, and
to meet children's needs, the District asserts. Article 2 permits the District to meet these
otherwise the employees would have a veto right over any (involuntary) transfer the District
attempt, according to the District.
The District believes that former School District Superintendent Powell's "Pig in the
theory was a rational basis for the transfer. There were more EEN students coming into the
school than were entering the Middle School, argues the District, therefore it had to move a
to the High School to accommodate the growing population. The District continues to
Ms. Mielke was the best-qualified teacher to be reassigned.
The District rejects the Association's argument that the act of transferring Ms. Mielke
High School created a vacancy in the Middle School that Article 16 mandates be filled by
This, says the District, is a Catch-22 kind of argument under which no involuntary transfer
In the instant matter, the District asserts, once the transfer was made the vacancy
be filled with a bargaining unit member necessitating the hiring of two interns. Interns have
frequently used in the past, says the District. Therefore, it concludes, a past practice has
established contrary to Article 16,G.
The District finds no contract language dealing with its use of interns, and suggests
all of the circumstances (including the fact that the position vacated by Ms. Mielke was
exist for only one more year) the District made an appropriate decision.
The District also distinguished the prior grievance arbitration award involving
Ms. Mielke as
not relevant to the existing situation. The District denies that the transfer of Ms. Mielke was
retributive in nature as a result of the District's loss of that arbitration award.
The Association acknowledges that the collective bargaining agreement has very little
language as to transfers. But, says the Association, the language as to filling vacancies is
The Association suggests an easy contractual construction is that if a transfer causes a
vacancy, there was no reason for the transfer, except perhaps for disciplinary purposes (that
covered by other provisions). The position that needed filling was the one at the High
the Association, not the one at the Middle School. The Association accuses the District of
do its job in attempting to fill the High School position in that the District failed both to post
externally and, next, to assign interns to it instead of Ms. Mielke.
The Association points out that Mr. Houle and Mr. Laskowski were also certified to
high school position.
The Association disagrees that the District would have a serious problem if it lacked
unfettered right to transfer under Article 2. The Association argues that if the "Pig in the
theory were correct transfer would have been necessary only because there would have been
many positions at the Middle School (and thus no vacancy). The Association denies there
students in the Middle School EEN program, contrary to the District's assertion.
The Association describes the District's "Catch-22" argument as "oafish." First, says
Association, the District has no need to transfer a teacher if that transfer leaves a vacancy
disciplinary reasons. But if the District has a vacancy that needs filling the District can post
vacancy and fill it under the normal procedures of the collective bargaining agreement,
The Association continues to believe that the District has attempted to circumvent the
collective bargaining agreement by making the transfer of Ms. Mielke and then filling the
vacated with interns.
The District continues to rely on Article 2, C of the collective bargaining agreement
authority to transfer Ms. Mielke. That language specifically grants the District the right to
The District does not believe that any of the contract language cited by the
or restricts the right of the District to transfer an employee.
The District cites horn book and arbitral law in support of the proposition that
has the right to effect transfers as a necessary element in the operation of its business.
The District finds no language cited by the Association that limits the District's right
transfer Ms. Mielke. The District believes it has demonstrated a clear need to transfer
in this case. The District points out that it did the best planning of which it was capable.
is not omnipotent. The District based its planning for the future on events of the past year.
The District again denied that it was attempting to get even for the earlier arbitration
won by Ms. Mielke.
The District continues to assert that it regards Ms. Mielke as an extraordinarily
employee who is well qualified and does an excellent job.
Contrary to the assertions of the Association, the District believes the testimony of
School Superintendent Powell was consistent. Moreover, the District believes
testimony indicates that the Director of Special Education could not have assigned the interns
9th grade position to which Ms. Mielke was transferred.
The District reiterates that over the last 7 or 8 years the District had established what
now be regarded as a past practice of utilizing interns on a frequent basis and that the
never objected until the instant matter arose.
The record is very clear that Susan Mielke is an excellent special education teacher.
former Tomahawk School District Superintendent, Curtis Powell, is unstinting in his praise
Mielke's teaching ability, her personality, and her popularity with her fellow-teachers.
Not surprisingly, the record also reveals Ms. Mielke to be a loving, caring teacher.
in an earlier arbitration case gave her the option of an immediate transfer to the Middle
grade teaching position she had sought. But Ms. Mielke also knew that EEN students might
threatened by a change in their lives as profound as a new teacher in the midst of a school
Ms. Mielke postponed her move to the Middle School until the start of the next school year.
Given Ms. Mielke's earlier difficulties with a reassignment she sought and ultimately
through arbitration, her current frustration and suspicions as to her transfer back to
the High School are understandable. In this instance, however, it appears to me that
the District is
acting both in good faith and within its contractual parameters.
Article 2, C of the collective bargaining agreement is entitled "Management Rights
In actuality a good deal longer than a clause, the Article expressly enumerates certain
and managerial responsibilities" of the Tomahawk School Board. These responsibilities
right to transfer employees, the right to create, combine or eliminate any teaching position,
to assign work to employees, and the right to determine policies affecting the selection of
The Association contends that any transfer rights claimed by the District under the
Management Rights Clause are secondary to the rights guaranteed the grievant under
Specifically, the Association insists that Ms. Mielke's transfer to the High School not only
a vacancy in her previous Middle School position, but that such vacancy must be filled
the provisions of Article 16, F and G. Under this reasoning, the Association concludes that
Mielke is contractually entitled to the very position from which she was transferred.
But contrary to the labored interpretation of the Association, the right of the District
transfer employees does not evaporate when a transfer causes a vacancy in the position from
the employee is being transferred. I find no such contractual circumscription to the District's
to transfer employees. Indeed, as the District suggests, under the Association's proposed
interpretation no involuntary transfer could ever be made by the District. Nothing in the
remotely suggests that the parties ever intended this result.
The Association additionally argues that the District is attempting to undo a previous
arbitration award. I do not believe the record supports this view.
On the contrary, the record not only indicates that Ms. Mielke remained at the
post won in her arbitration award for three years, but that District administrators responsible
transfer back to the High School were influenced by a number of objective, legitimate
factors: 1) an
additional special education teacher was needed in the High School; 2) due to a declining
School EEN student base, a Middle School special education teaching position would have to
eliminated in one more year; 3) Ms. Mielke was familiar with the EEN students to whom
she was to
be assigned at the High School; 4) Ms. Mielke was familiar with operations and protocol at
School and was well-liked by other High School staff members; 5) although Ms. Mielke
remained as a special education teacher at the Middle School for one additional year, no
interns were available to fill the increased special education instruction need that had
the High School; 6) student interns were available to fill the special education teaching
created by Ms. Mielke's transfer; 7) Ms. Mielke had the necessary teaching
certifications for the
None of these considerations appears to have any contractual impediment. I find
soundly based, rational, and reflective of the best interests of the special education students
District is required to serve. Consideration of whether or not Mr. Powell's "Pig in a
theory was ultimately validated by subsequent events misses the point in this instance.
is not required to have a perfectly pellucid crystal ball. More impressive to me is that in
transfer action the District relied on the "Pig in the Python" theory in good faith.
A special education teacher of Ms. Mielke's experience and qualifications is an
valuable asset to any school district. Hopefully, her teaching assignment preferences can be
accommodated at some future time. In the instant matter, however, for the reasons discussed
her transfer to the High School does not violate the collective bargaining agreement of the
The grievance is dismissed.
Dated at Madison, Wisconsin this 1st day of April, 1999.
Henry Hempe, Arbitrator