BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
EAU CLAIRE ASSOCIATION OF EDUCATORS
EAU CLAIRE AREA SCHOOL DISTRICT
Mr. Michael J. Burke, Executive Director, Northwest United
Educators, 16 West John Street, Rice Lake, Wisconsin 54868, appearing on behalf of the
Eau Claire Association of Educators.
Weld, Riley, Prenn & Ricci, S.C., by Attorney Brian K.
Attorney Stephen L. Weld, 4330 Golf Terrace, Suite 205, P.O. Box
1030, Eau Claire, Wisconsin 54702-1030, appearing on behalf of the Eau Claire Area
Eau Claire Association of Educators and Eau Claire Board of Education are parties to
collective bargaining agreement that was in effect at all times relevant to this proceeding and
provides for final and binding arbitration of certain disputes. The Association, by request to
grievance arbitration received by the Commission on April 23, 1999, requested the
appoint either a Commissioner or a member of its staff to serve as Arbitrator. The
appointed Paul A. Hahn as Arbitrator on April 30, 1999. Hearing in this matter was held on
1999 at the Board of Education offices in Eau Claire, Wisconsin. The hearing was not
The parties filed post-hearing briefs which were received by the Arbitrator on June 17, 1999
(Association) and June 18, 1999 (District). The record was closed on June 18, 1999.
The parties stipulated to the following issue:
Did the District violate Article V, Section I, Subsection 11 of the collective
agreement, when it involuntarily transferred the Grievant to North High School? If so, what
ARTICLE I. RECOGNITION OF THE ASSOCIATION
Section A. The Board recognizes the
Association as the exclusive bargaining
representative of the eligible employees, consisting of all certified personnel under contract
Board including classroom teachers, and other special teachers, but excluding the
Schools, assistant superintendents, administrative assistants, and supervisory personnel.
. . .
Section B. Management
1. The Board hereby retains and
reserves unto itself all powers, rights, authority, duties
and responsibilities conferred upon and vested in it by the laws and the Constitution of the
Wisconsin and of the United States.
a. The Board shall have the
right to the executive management and administrative
control of the school system and its properties and facilities.
b. The Board shall have the
right to direct all teachers in the performance of
necessary work functions. This power shall not be exercised in a manner which will defeat
specific provisions or basic purposes of this Agreement. The powers or authority which the
has not officially abridged, delegated, or modified by this Agreement are retained by the
c. It is understood by the
parties that every incidental duty and detail connected
with each position or operation in any assignment or job description is not specifically set
that the assignment of new responsibilities shall be subject to the formation of reasonable
2. In the exercise of the powers,
rights, authority, duties and responsibilities by the
Board, the use of judgment and discretion in connection therewith shall not be exercised in
arbitrary or capricious manner nor in violation of the terms of this Agreement, Section
111.70 of the
Wisconsin Statutes nor in violation of the laws of the Constitution of the State of Wisconsin
the United States.
. . .
ARTICLE IV. GRIEVANCE
Section A. Definitions
1. A grievance is defined as a
question(s) regarding the roper interpretation or application
of a specific provision of this Agreement.
. . .
Section C. Procedures for
Adjustment of Grievances
Grievances shall be presented and
adjusted in accordance with the procedures that
follow. If both parties agree, any or all of Steps 1-4 can be waived.
. . .
Step 5. If the decision
rendered is unacceptable, within ten (10) school days after receiving the
decision of the Board of Education, the Association may appeal the decision of the Board
the Wisconsin Employment Relations Commission for arbitration.
a. The decision of the arbitrator shall
be in writing and shall set forth his/her opinions and
conclusion on the issues submitted to him/her at the hearing or in writing.
b. The decision of the arbitrator shall
be binding upon both parties and shall be final
except for a decision which would reduce or eliminate aids provided for school operation
or Federal government or other sources, or change or abridge a mandatory school law and is
to terms and conditions set forth in this Agreement.
c. Nothing in the foregoing shall be
construed to empower the arbitrator to make any
decision amending, changing, subtracting from, or adding to the provisions of this
ARTICLE V. WORKING CONDITIONS
. . .
Section I. Other Working
. . .
11. Involuntary Transfer
Should an involuntary transfer be
necessary due to reduction of staff within a school or
department, the following procedures shall be followed:
a. Teachers within a building will be
notified of the need to reduce the number of staff,
and volunteers will be solicited.
b. In the event there are no
volunteers, a teacher or teachers will be considered by the
principal for involuntary transfer.
c. In considering teachers for
involuntary transfer, the principal shall consider the
following criteria in the order they are listed: (1) certification,
(2) programmatic need, (3) district
seniority, and (4) building seniority.
d. All proposed involuntary transfer
will be reviewed by the Assistant Superintendent for
Personnel before implementation.
e. Any teacher affected by the
proposed involuntary transfer will be informed in writing
by the principal of the rationale used to make the decision.
f. Decisions felt to be arbitrary by the
affected party may be appealed through the
g. Middle school
teachers with grade 1-8 certification will not be involuntarily reassigned
to a different grade level/subject area more than two (2) times in a four year period.
STATEMENT OF THE
This grievance involves the Eau Claire Public School District (District) and the
Association of Educators (Association) representing the employes set forth in Article I,
(Jt. 1) The Association alleges a contractual violation by the District for the involuntary
the Grievant to North High School. This transfer was effected by a memorandum to the
from Memorial High School Principal Tim Leibham dated November 6, 1998. (Jt. 4) The
alleged a violation of Article V, Section I, Subsection 11, c., by notice of a written
November 20, 1998 to Principal Leibham. (Jt. 2) The grievance was denied by the District
memorandum to Association President Thomas Blount dated February 16, 1999 from Donald
Lillrose, Assistant Superintendent. (Jt. 3)
The Grievant is a full-time teacher of cognitively disabled borderline (CDB) students
Claire Memorial High School. The Grievant has been employed by the District as a Special
Education teacher for the past 19 years. During the past several years the District has
its program for cognitively disabled borderline students. Three years ago, for the first time,
students at the Middle School level were taught at their neighborhood school rather than at a
centralized district location. For the 1999-2000 school year, the first CDB students who
taught at their neighborhood Middle School will begin high school. Rather than being taught
centralized high school location (Memorial High School), the students will attend their
high school. The District anticipated that between four to six CDB students would be
freshmen at Eau Claire North High School; the Memorial High School program would be
from 40 students to approximately 35.
During the 1998-1999 school year, the District's administration discussed the staffing
North High School and Memorial High School CDB programs. The District concluded that
Memorial's four CDB teachers would be transferred to North High School for the 1999-2000
year. The Grievant was one of the four CDB teachers at Memorial, the others being
Zweifelhofer and Slupe. In the fall of 1998, Memorial High School Principal Leibham gave
teachers, including Grievant, several opportunities to volunteer to transfer to North High
Article V, Section I, Subsection 11 requires that in an involuntary transfer situation under
11, a., "Teachers within a building will be notified of the need to reduce the number of staff,
volunteers will be solicited." None of the four teachers volunteered.
On November 2, 1998 Leibham met with North High School Principal Downen,
High School Assistant Principal Morley, Special Education Director Weisenberger and
Special Education Director Teske to determine which teacher from Memorial would be
transferred. The five Administrators applied the criteria set forth in Article V, Section I,
11, c: (1) certification (2) programmatic need (3) district seniority and (4) building seniority.
four teachers were properly certified, the Administrators first considered programmatic need.
analyzing the programmatic needs at both Memorial and North High Schools, the
unanimously agreed that Grievant should be transferred to North High School to start the
CDB program there. The Administrators did not consider (3) district seniority, nor did they
(4) building seniority. The Grievant is the most senior of the four CDB teachers at
At a meeting later on November 2, 1998, Leibham again requested volunteers, none
four, including Grievant, volunteered. On November 5, 1998 Leibham informed the four
that Grievant had been selected to transfer and gave them his reasons orally. On November
Leibham, as required by Article V, Section I, Subsection 11, e., wrote Grievant a
summarizing his rationale for Grievant's selection. (Jt. 4)
On November 20, 1998, the Grievant and Association filed a grievance alleging a
of Article V, Section I, Subsection 11, subparagraph c. The Union alleged that Grievant, as
senior of the four teachers at Memorial, should not have been selected for the involuntary
and that the District failed to take seniority into consideration. (Jt. 2) At the January
4, 1999 step
three grievance meeting, the Grievant alleged a concern for her safety at North High School
of prior personal involvement with a janitor employed at North. The safety issue claimed by
was investigated by the District, and Assistant Superintendent Donald J. Lillrose responded
February 16, 1999, assuring the Grievant that steps would be taken to assure her safety, but
denying the grievance. (Jt. 3) The grievance was appealed to the District School Board at a
on April 5, 1999. By letter of April 10, 1999, from the District's counsel, the grievance
denied. (Jt. 5)
Having processed the grievance through the contractual grievance procedure and
to settle the grievance, the grievance was appealed to arbitration. No issue was raised as to
arbitrability of the grievance. Hearing in this matter was held by the Arbitrator on May 25,
the City of Eau Claire, Wisconsin at the District's offices.
POSITIONS OF THE PARTIES
It is the position of the Association that the District violated the collective bargaining
agreement when it involuntarily transferred the Grievant to North High School. The
takes the position that in negotiating the 1993-1995 contract between the parties the
attempted to include meaningful standards into the parties' labor agreement regarding
transfers. (Assn. 2 & 3) The Association submits that contract negotiation evidence and
subsequent language confronting the Arbitrator in this matter require a consideration of all of
factors in Article V, Section I, Subsection 11, c. In this case, the Association argues,
violated the contract by not considering all four factors and by specifically admitting on the
that it excluded consideration of the factors related to district and building seniority.
The Association takes the position that seniority should have been included in the
consideration in this case specifically because the case made by the District for programmatic
is weak, citing examples where programmatic need is more justifiable, such as the need for
female physical education teachers at the middle school level. The Association argues that
District did not make the case for programmatic need which would justify transferring a
teacher to North High School.
The Association avers that the Grievant and the remaining teachers at Memorial High
possess similar skills. All of the four CBD teachers have the skills necessary to start
the program at North High School for incoming CDB middle schoolers. The
Association argues that
the Grievant has performed many, if not all, of the functions cited for retaining the three
teachers at Memorial High School.
To further bolster its position, the Association argues that the District's admission
would have been willing to accept any of the four teachers if they had volunteered, supports
Association's position that a subsequent claim of programmatic need overriding any
of seniority cannot be supported. Further, the Association states that while it might question
the safety issue raised by the Grievant should have been included in the analysis of
need, the safety issue should have caused the District to consider the seniority factors.
The Association, lastly, argues that if the District's action is upheld by the Arbitrator,
the involuntary transfer language will be rendered meaningless. The Association requests
Arbitrator find the involuntary transfer decision as applied to Grievant to be arbitrary and
that the Arbitrator require the District to return the Grievant to Memorial High School and
the least senior CDB Memorial teacher to North High School.
The District generally argues that management has the right to transfer employes and
absent a specific restriction that right cannot be abridged. The District argues that pursuant
V, Section I, Subsection 11, subparagraph c, the District considered the four CDB teachers
for involuntary transfer pursuant to the required criteria, taking them in the order listed: (1)
certification; (2) programmatic need; (3) district seniority; and (4) building seniority.
teachers were certified and therefore the District moved to the next criteria, programmatic
District made its decision on programmatic need and therefore, the District argues, it did not
to consider district or building seniority. The District argues that its programmatic need
The District takes the position that Principal Leibham brought together the North
and representatives of the District's special education program into the decision-making
That committee determined that the North CDB teacher needed to be a strong advocate for
cognitively and physically limited students and that it was important for the North CDB
have an understanding of the processes at the Department of Human Services, Department of
Vocational Rehabilitation and community agencies. The District submits that Grievant was
to work in a classroom with several students, learning at different paces, at least for the first
of years" at North High School.
The administrative group gathered by Principal Leibham also considered the
needs at Memorial which would still have 36 CDB students. The CDB program
at Memorial had reached a situation where the other three teachers were actively
involved in out-of-school and after school activities which were crucial to Memorial's
program of integrating CDB
students into the community by teaching the students work and social skills. To continue that
program the Memorial teachers had to be willing to maintain and develop those after school
While the Grievant may have been involved in those after school activities in the past, the
points out that the Grievant testified that her personal life has changed where she consciously
to limit her after school activities. The District submits that North's program for the first
years will not require out-of-school activities as the current program at Memorial. The
summarizes its programmatic need argument by concluding that the Grievant was best suited
North's programmatic needs and that the decision of special education personnel and
The District then confronts the bargaining history testimony and argument of the
and defines it as irrelevant stating that the language is clear on its face. The District points
the Association, not the District, brought the issue of involuntary transfer to the table. (Assn.
District notes that the Association sought seniority-based involuntary transfers. (Assn. 2)
the testimony of Association President Blount the District notes the Association did not
seniority-based involuntary transfer and that the language "programmatic needs" was added
Association's proposal. The District submits that Association President Blount only
the language in Article V, Section I, Subsection 11, subparagraph c required consideration of
The District addresses the Association's argument regarding volunteers by stating that
Article V, Section I, Subsection 11, paragraph b, the District is required to seek volunteers
involuntary transfer situation. (Jt. 1) Since all four of the potential candidates for the North
were unwilling to transfer, the District as a result had the right to get the "best fit" for its
programmatic needs, not transfer the least senior teacher.
The District takes the position that the decision by the District can only be overruled
if it is
found that under Article V, Section I, Subsection 11, paragraph f, the decision of the District
"arbitrary." (Jt. 1) The District discusses standards for arbitrariness, citing applicable case
District concludes its argument on arbitrariness by stating that although the Association may
with the decision of Principal Leibham and the administrative committee, it cannot accurately
that the decision was without a rational basis or the result of ". . . unconsidered, willful and
choice of conduct."
Finally the District argues that the safety issue raised by the Grievant and her
irrelevant and not before the Arbitrator as safety is not one of the criteria in the collective
agreement that the District must consider. The District points out that it has taken steps to
Grievant's safety at North through its policy on non-discrimination/ sexual
facilities. (Assn. 4)
The District submits that the only issue before the Arbitrator is whether the District's
application of Article V, Section I, Subsection 11, paragraph c was arbitrary. If the
District did not
arbitrarily apply the contractual provisions on involuntary transfer, the District argues that
must be upheld. The District concludes by stating that there are program-related, rational
for the District's decision and therefore that decision should not be overturned. The District
violate the labor agreement and the grievance should be denied.
The grievance in this matter presents a straightforward contract interpretation case
the interpretation of Article V, Section I and Subsection 11, a through g. The key sections
must consider for this decision are paragraphs c and f. Unfortunately, the parties do not
agree on the
interpretation of paragraph c and in particular, the role of seniority. 1/ The District argues
it justified its position to transfer the Grievant under the programmatic need criteria it did not
to consider Grievant's seniority. The Association argues that seniority must be considered,
all four factors under c must be considered in an involuntary transfer situation.
1/ 11. Involuntary
. . .
c. In considering teachers for
involuntary transfer, the principal shall consider the following criteria in the
order they are listed: (1) certification, (2) programmatic need, (3) district
seniority, and (4) building seniority.
. . .
f. Decisions felt to be arbitrary by the
affected party may be appealed through the grievance procedure.
It might be tempting for me to discuss at length contract ambiguity in this case. I
based on the positions of the parties and my own interpretation, that the contract language in
paragraph 11.c. is susceptible to more than one meaning, but I decline to do so. I will
decision in this case assuming that seniority should be considered without making a decision
is the correct interpretation of paragraph 11.c. While the Association offered testimony and
(Assn. 1, 2 & 3) regarding the bargaining history behind Subsection 11, this evidence
conclusive as to the role of seniority. The District did not offer any evidence of
and neither party offered evidence of past
practice. 2/ Therefore, I believe it is best left to the parties to agree to the
2/ Arbitral authority is rooted in the parties'
agreement. First and foremost, this agreement is the written
contract executed by them. To the extent the contract is unclear, the most persuasive guides
to the resolution of
ambiguity are past practice and bargaining history. Each derives its persuasive force from
manifested by the conduct of the parties whose intent is the source and the goal of the
Green Bay Board of Education, Case 185 No. 53595 MA-9395 McLaughlin
The critical factor for me to address is
whether the decision by the District to involuntarily
transfer the Grievant was arbitrary. 3/ I do not decide whether I would have transferred the
Grievant; I only decide was that decision, based on the record, arbitrary. To answer that
I do need to consider the facts surrounding the District's decision.
Memorial Principal Leibham presented creditable testimony as
to the reasons why
Grievant was transferred. Those reasons are amply summarized in Joint Exhibit 4. In
Leibham testified as to the need to maintain the cohesiveness of the after-school programs
by the three less senior teachers at Memorial which integrate these students into the
and the world of work. Grievant did not contradict Leibham's testimony that she has not, by
own choice, taken part in these programs for several years, even though she has in the past
is capable of doing so. Grievant was considered by the District to be the best qualified of
CDB teachers at Memorial to start the program at North because of her overall understanding
of how the CDB program works and to set up the program at North based on the Memorial
model. At the start of the program at North High School, Grievant would not have to set up
school programs with the vocational technical school, the Department of Health and Family
Services and other outside agencies with which she was not as familiar as the other three
teachers at Memorial.
3/ 11. Involuntary
. . .
f. Decisions felt to be arbitrary by the
affected party may be appealed through the grievance procedure.
Based on the testimony and exhibits in the record, I find that the
District did establish a
programmatic need for the involuntary transfer of Grievant to North High School; the
now to be answered was that decision arbitrary assuming arguendo that seniority
should be taken
To find an action as being arbitrary is a justifiably high standard
to meet. Essentially for the
Association to prevail in this matter, I must find that the actions of the District were
without reason, or as the Wisconsin Supreme Court has described it, action by the District
is ". . . either so unreasonable as to be without a rational basis . . ." 4/ While the Grievant
have been the senior employe, I do not on this record and facts find the District's decision to
4/ Arbitrary has been defined by the
Wisconsin Supreme Court as follows:
"Arbitrary action is the
result of an unconditional, willful and irrational choice of conduct and not the result
of the 'winnowing' and 'sifting' process." Olson v. Rothwell 28 Wis.2d 233, 239
"An arbitrary or
capricious decision is one which is either so unreasonable as to be without a rational basis or
the result of an unconsidered, willful and irrational choice of conduct." Pleasant Prairie v.
Johnson, 34 Wis.2d
8, 12 (1967).
The Olson case has
continued to be cited and quoted for the appropriate definition of arbitrary. School
District of Waukesha v. School District Boundary Appeal Board 201 Wis.2d 109 (1996).
WPPA v. Public
Service Commission 205 Wis.2d 60 (1996).
A review of
arbitration case law in general, including Arbitrator Engmann's decision [West Allis-West
Milwaukee WERC Case 64, No. 42958, MA-5859 (1990)] cited by the District in its post
hearing brief, generally
finds the use of the words irrational, unreasonable and not based in fact to describe actions
by an employer that
In a labor context
"arbitrator" has been defined as follows:
". . . it is clear that
unintentional acts or omissions by union officials may be arbitrary if they reflect reckless
disregard for the rights of the individual employee. . . . They severely prejudice the injured
employee. . . ."
Coleman v. Outboard
Marine corporation, 92 Wis.2d 565, 580 (1979) citing Robesky v. Quantis Empire
Airways, Ltd., 573 F.2d 1082, 1090 (9th Cir. 1978).
"In administering the
grievance and arbitration machinery as statutory agent of the employees, a union must,
in good faith and in a non-arbitrary manner, make decisions as to the merits of the
Vaca v. Sipes 386 U.S.
171, 64 LRRM 2369, 2378 (1967).
Labor arbitrators have
found an employer's actions to be arbitrary when the employer acts on speculation
without meaningful supporting evidence: And have not found an employer's action arbitrary
where the employer
acted in good faith for reasonable and justifiable reasons.
East Ohio Gas Company,
91 LA 366, 374 Dworkin (1988).
James B. Beam Distilling
Co., 96 LA 844, 848 Florman (1990).
The Association never questioned the District's right to transfer
a teacher to North, a right
which the District has under the contractual management rights clause. 5/ The District first
asked for volunteers among the four CDB teachers at Memorial; none were forthcoming.
District then gathered appropriate administrative and special education staff to consider the
of the CDB programs at Memorial and North and how best to staff them with certified and
qualified teachers. The Association argues that the fact that the District would have accepted
volunteer from the CDB staff shows that they were all equally qualified. However, the
requires that volunteers be sought. Once there were no volunteers, the District could start
the beginning, as it were, to select the most qualified staff to transfer.
The Association argues that the examples that Association
President Blount testified to
were "real" programmatic needs far greater than the programmatic needs in this case. But
is argument not fact, and I am bound to consider the programmatic needs of the CDB
not the needs of some other program. It should go without saying that in these types of
there is some subjectivity to the decision making; there are no exact measurements possible.
is why the word "arbitrary" is used to set a standard in similar contractual situations.
5/ Joint Exhibit 1. Article I Recognition of the
. . .
Section B. Management
1. . .
b. The Board shall have
the right to direct all teachers in the performance of necessary work functions. This
power shall not be exercised in a manner which will defeat the specific provisions or basic
purposes of this
Agreement. The powers or authority which the Board has not officially abridged, delegated,
or modified by this
Agreement are retained by the Board.
I have carefully considered the testimony of the Grievant. I
believe the record is clear that the
main reason that Grievant did not want to transfer to North is as she testified "I think the
reason I do not want to transfer is the safety issue." The Association admits that it is on
ground in adding a safety issue to the involuntary transfer criteria since no such
or required consideration is found in the collective bargaining agreement. The
Association argues only that it should have been considered as part
of the District's programmatic
need decision making. I do not agree; no such requirement is found in the parties'
and specifically none is found in the section on involuntary transfers.
I have empathy with the Grievant's concerns about teaching at
North where a former male
friend works as a janitor who caused her personal grief after the relationship ended.
I am bound by the terms of the parties' labor agreement, and I cannot require the District to
consider adding safety concerns to the criteria to be considered to support an involuntary
decision. Even assuming the District were required to consider Grievant's personal safety, I
believe the District has in good faith addressed Grievant's concerns. It is apparent that the
District has investigated the situation with the former friend, who works at North, and has
assured the Grievant and the Association that it will be concerned for Grievant's personal
(Jt. 3 and Er. 1 and 2) The District also has a policy against harassment which Grievant and
Association can use to assure her personal safety. (Assn. 4)
I again reiterate that I do not have to agree with the District's
decision; I merely have to decide
whether it was arbitrary. Taking into account the record and the briefs of the parties I find
the decision was not arbitrary and the District did not violate the collective bargaining
when it transferred the Grievant to North High School.
Based on the foregoing and the record as a whole, I enter the
The District did not violate Article V, Section I, Subsection 11
of the Collective Bargaining
Agreement when it involuntarily transferred the Grievant to North High School. The
Dated at Madison, Wisconsin this 1st day of July,
Paul A. Hahn, Arbitrator