BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
NORTHERN EDUCATIONAL SUPPORT
LAC DU FLAMBEAU SCHOOL DISTRICT
Mr. Gene Degner, Director, Northern Tier UniServ Central,
on behalf of the Northern Educational Support Team.
O Brien, Anderson, Burgy, Garbowicz & Brown, LLP, Attorneys at Law, by
Mr. Steven C. Garbowicz, on behalf of the Lac du
Flambeau School District.
Northern Educational Support Team, hereinafter the Union, requested the Wisconsin
Employment Relations Commission appoint a staff arbitrator to hear and decide the instant
between the Union and the Lac du Flambeau School District, hereinafter the District, in
with the grievance and arbitration procedures contained in the parties' labor agreement. The
subsequently concurred in the request and the undersigned, David E. Shaw, of the
staff, was designated to arbitrate in the dispute. A hearing was held before the undersigned
August 26, 1999, in Lac du Flambeau, Wisconsin. A stenographic transcript was made of
and the parties submitted post-hearing briefs in the matter by November 3, 1999. Based
evidence and the arguments of the parties, the undersigned makes and issues the following
The parties stipulated there are no procedural issues and to the following statement of
5991 Page 2
Has the District violated the contract and the rights of Mr. Albany
Potts when it changed his
work day back to 3:00 p.m. to 11:00 p.m.? If so, what is the appropriate remedy?
The following provisions of the parties' 1998-2000 Agreement are cited:
ARTICLE II MANAGEMENT RIGHTS
A. The Board, on its own behalf and on behalf of the Jt.
School District No. 1, Town of Lac du
Flambeau, retains and reserves unto itself, without limitations, all powers, rights, authority,
responsibilities conferred upon and vested in it by the laws and constitution of the State of
and of the United States, including, but without limiting the generality of the foregoing, the
1. The executive management and administrative control of
the school system and its
property and facilities and the work related activities of its employes.
2. The determination of the financial policies of the district,
including the general
accounting procedures, inventory of supplies and equipment procedures, and the District's
public relations program.
3. The determination of the management, supervisory or
administrative organization of
the school or facility in the system and the selection of employes for promotions to
supervisory, management or administrative positions.
4. The maintenance of discipline of students and employe
control and use of the school
system and facilities.
5. The determination of safety, health and property
6. The determination of safety, health and property
protection measures where legal
responsibility of the Board is involved.
7. The enforcement of reasonable rules and regulations now
in effect and to establish
reasonable new rules and regulations, not inconsistent with the terms of this agreement.
8. The direction, supervision, evaluation, arrangement,
assignment and allocation of all
the working forces in the system, including the hiring of all employes, determination of their
qualifications and the conditions for their continued employment, the right to discipline or
discharge, for just cause, and transfer employes, not inconsistent with the terms of this
9. The creation, combination or modification of any
position deemed advisable by the
Board, not inconsistent with the terms of this agreement.
10. The determination of the size of the working force and
the determination of policies
affecting the selection of employes.
11. The determination of the layout, the equipment to be
used, and the right to plan, direct
and control school activities.
12. The scheduling and assignment of all work activities and
workloads, not inconsistent
with the terms of this agreement.
B. The Board shall not be required to bargain on subjects
reserved to management and direction
of the school district insofar as the manner of exercise of such functions affects wages, hours
conditions of employment of the employes. When the latter occurs, the Board will be
bargain only to the extent the Union has not waived any such requirement. Any dispute over
interpretation or application of this provision shall be determined by the Wisconsin
Relations Commission only.
C. The foregoing enumerations of the functions of the Board
shall not be considered to exclude
other functions of the Board not specifically set forth; the Board retaining all functions and
act not specifically nullified by this agreement.
. . .
ARTICLE VI GRIEVANCE PROCEDURE
A. Definitions: For the purposes of this
Agreement, a grievance is defined as any complaint, a
controversy or dispute between the School District and the Union or between the School
any of its employes covered by this Agreement involving the meaning, interpretation or
of specific provisions of this Agreement.
B. Initiation and Processing: The grievance
procedure shall be the method by which said
disputes or complaints shall be resolved, and grievances shall be handled as follows:
Step 1: The grievance shall first be presented in
writing, within fifteen (15) working
days of the event or knowledge of the event became known, within the current fiscal year,
upon which the grievance is based first occurred, by the aggrieved employe or a steward on
his/her behalf to the immediate supervisor who will attempt to adjust it. The written
grievance must include a statement of the nature of the grievance, including the provisions
of the Agreement involved, the remedy requested, and the employe's signature. The
immediate supervisor shall give a written answer to the grievance within five (5) working
after it is raised.
Step 2: If no adjustment is reached within ten
days of Step 1, above, the grievant or the
union may submit a written appeal of the matter to the District Administrator. The
Administrator shall meet with the grievant and/or the union within ten (10) working days
the written appeal has been filed and render a written decision within ten (10) working days
after the meeting.
Step 3: If no adjustment is reached under Step
the grievant or the Union may submit a
written appeal of the matter to the School Board. The Board shall meet with the grievant
and/or the Union within thirty (30) working days after the written appeal has been filed, and
render a written decision within ten (10) working days after the meeting.
Step 4: If no adjustment is reached under Step
may be appealed to arbitration. In order
to appeal a grievance to arbitration, the Union shall, within twenty (20) working days after
receipt of the Board's decision, give written notice of its desire to arbitrate. The grievance
must have been processed according to the above prescribed time limits or the grievance is
Step 5: Either party may request the Wisconsin
Employment Relations Commission to
appoint a member of their staff to act as an arbitrator. The decision of the arbitrator shall be
final and binding. The arbitrator shall have no right to amend, modify, nullify, ignore or
to the provisions of this Agreement. His/her decision and award shall be based solely upon
his/her interpretation of the meaning or application of the terms of this Agreement to the
of the grievance presented.
C. Employe Right: Any employe shall have
the right to present, process and settle grievances
without the assistance of the Union, provided the Union shall have the right to be present at
. . .
ARTICLE XVI DISCIPLINE PROCEDURE
A. All new employes shall serve a six (6) month
probationary period. During such period, they
shall not be entitled to just cause for discharge.
B. After serving a six (6) month probationary period, no
employe shall be discharged, suspended,
disciplined, or reprimanded, or reduced in rank or compensation without just cause.
forming the basis for disciplinary action shall be made available to the employe and the
C. All employes shall at times be entitled to have present a
representative of the union when
being discipline for any infraction of the rules or delinquency in job performance.
. . .
ARTICLE XVIII ASSSIGNMENT, WORKLOAD, AND HOURS
A. The work day/week for employees covered by this
agreement shall continue as currently in
effect. In the event the Board changes the working schedule for any employe, the union
notified of such change in writing two (2) weeks prior to the implementation date, except in
emergencies, and the parties agree to bargain the impact prior to implementation. All
receive the appropriate breaks and a duty free paid one-half-hour lunch break near the middle
B. All work over forty (40) hours a week or hours worked
beyond the fifth day in a week shall
be at time and one-half, except Sundays and holidays shall be at double time.
C. All employes called in on off-hours shall receive a
mimimum of two (2) hours of pay at the
applicable rate. For weekend building checks, the custodian shall receive two (2) hours of
pay for each visitation.
D. Employes asked to assume the responsibilities for a
regular teacher shall receive double time
for all such hours worked only after working four (4) hours.
E. Compensatory Time. (1)
Compensatory time may be granted at the superintendent's
discretion. If an employe works less than forty (40) hours per week but over his/her regular
scheduled hours, he/she shall be granted one (1) hour compensatory time for each hour
beyond his/her regularly scheduled hours. If an employe works over forty (40) hours per
compensatory time shall be granted at time and one half for those hours worked beyond forty
hours per week.
F. Custodians called in on off hours, to perform routine
duties such as boiler and/or building
checks, shall be asked on a rotating basis.
G. Custodians and food service workers substituting in
higher pay levels, including supervision
shall be paid at 90% of the higher rate for all time worked at that level after ten (10)
and shall be asked on a rotating basis.
H. The interpreter paraprofessional position as currently
defined shall receive additional
compensation equivalent to five percent (5%) of the teacher base pay.
The Grievant is currently employed by the District as a Custodian. He began
with Head Start as a bus driver/custodian in 1993 and was under the supervision of Head
Start is housed in one area in the District's facility. By the 1997-98 school year, the
a District custodian in the primary wing of the building which housed the first, second and
grades. He only drove a bus for Head Start when a work order was approved in that regard
Director of Buildings and Grounds, William Cross. Except during the summer, custodians
p.m. to 11 p.m. Monday through Friday (i.e. when students are not present.) During the
may work 10 a.m. to 6 p.m. by agreement of the custodians and Cross.
The Grievant began the 1998-99 school year working in the primary area of the
Sometime in the fall of 1998 personnel in the Head Start area complained that the custodian
to that area of the building, C, was not doing his job properly and they asked the Grievant if
return to that area to clean. Thereafter, the Grievant and C traded work areas with Cross'
and both continued to work from 3 p.m. to 11 p.m., Monday through Friday.
There is no Head Start on Fridays, and there is only a kindergarten class in that area
Fridays. There is a factual dispute as to whether the Grievant sought and received
at some point in 1998 the Grievant began working 10:00 a.m. to 6:00 p.m. on Fridays. The
testified that he asked Cross if he could change his hours to 10 a.m. to 6 p.m. on Fridays,
were no students in the area except the kindergarten class on those days and that Cross
agreed to the
change the same day that Cross agreed to the Grievant and C exchanging work areas. He
that he also approached another administrator, Mr. Rogers, and the District Administrator,
Vought, individually, and sought and received their approval for his hours change on
Grievant further testified that no one said anything to him about his Friday hours until he
to Cross on behalf of another custodian who felt she should have received certain weekend
that it was after his complaint that Cross told him he had received complaints from other
about the Grievant's coming and leaving early on Fridays, and that he (the Grievant) would
change his hours back to 3 p.m. to 11 p.m. on Fridays.
Cross testified that he did not give the Grievant permission, verbally or otherwise, to
his hours on Fridays and that his only discussion with the Grievant was when he and C came
to ask about exchanging areas. Vought testified that he did not recall the Grievant ever
him to ask about changing his hours and that if the Grievant had, he would have told him to
Cross about it. Cross also testified that he initially did not take any action when he
the Grievant was working different hours on Fridays after another custodian had complained
it, but waited until he received additional complaints from other custodians before telling the
he had to return to working 3 p.m. to 11 p.m. on Fridays. Four of the six custodians
complaints with Cross about the Grievant's Friday hours after Cross told them he needed
them to put
their verbal complaints in writing; however, the written complaints were submitted after
informed the Grievant that he had to revert back to the 3 p.m. to 11 p.m. hours on Fridays.
Cross and Vought testified that the primary reason they would not permit the Grievant to
a.m. to 6 p.m. on Fridays was to avoid dissention among the custodians. Vought testified
Cross had approved the change, he would not have objected.
After being directed by Cross to revert to the 3 p.m. to 11 p.m. schedule on Fridays,
Grievant filed the instant grievance. The matter was processed through the parties'
grievance procedure and, being unable to resolve their dispute, the parties proceeded to
grievance before the undersigned.
POSITIONS OF THE PARTIES
The Union takes the position that the Grievant did the District a favor by agreeing to
to the Head Start area and there is no valid reason that he cannot work a 10:00 a.m. to 6:00
schedule on Fridays in that area. There are no students, except the kindergarten class on
that area, and he can clean the kindergarten area after the class is over and before 6 p.m.
While management has the right to direct staff, it may not single out one staff person
discipline him because of jealousy on the part of other staff. The only method management
dealing with that jealousy was to discipline the Grievant and change his schedule, even
though he had
sought approval for working the 10:00 a.m. to 6:00 p.m. schedule on Fridays. By doing so,
District engaged in unequal treatment and discipline against the Grievant.
Because there were no students in that area on Friday, the Grievant requested to
Friday hours and it was approved. This is totally consistent with the philosophy followed in
summer when students are not in school and custodians are allowed to adjust their schedules
working evenings. Clearly, the custodian work schedule is designed around the students'
in the building.
Beyond the jealousy of the other custodians, the Grievant believes that Cross' change
about his Friday hours had more to do with his advocating on behalf of a fellow custodian
than it did
with complaints from other custodians. It is the Union's position that management erred in
by using its management rights to take the easy way out, i.e., satisfy the jealous co-workers
of dealing with the problem. If faced with a substantive reason for changing his schedule
back to 3
p.m. to 11 p.m., the Grievant would have gladly complied. However, both Cross and
conceded there was no such reason, only the jealousy of the other custodians. Thus, the
being punished and unfairly treated in an arbitrary fashion. The Grievant deserves better
done the District a favor.
The Union concludes that the Grievant should have been permitted to continue to
a.m. to 6 p.m. on Fridays absent complaints from Head Start, and that his schedule was
disciplinary reasons and without just cause. The Union requests that the Arbitrator return the
Grievant to his rightful 10 a.m. to 6 p.m. Friday schedule.
The District takes the position that there has not been a violation of the Agreement.
allegation that the District violated Article XVI Discipline Procedure, is not
supported by any
evidence. There has been no showing that the Grievant has been disciplined and/or reduced
compensation in any fashion. The Grievant has not lost any wages as a result of his being
to his normal hours, nor have his duties increased. He was simply returned to the hours he
worked for the District.
The allegation that the District violated Article XVIII Assignment, Workload
also has not been established. Section A of that provision requires that if the Board changes
employe's work schedule, it must notify the Union prior to the implementation date. Since
District did not change the Grievant's hours, no prior notice was required. There are no
that the Grievant did not receive his appropriate breaks, or that he was not paid in accord
provisions of Article XVIII.
If no provision of the Agreement has been violated, the only argument the Grievant
make was that he had established a past practice of working 10 a.m. to 6 p.m. on Fridays in
Start area. The facts would not support such an argument. At best, he worked those hours
a few months before it was discovered and he was returned to the normal schedule. The
hours, like the rest of the custodians, have been posted and are 3 p.m. to 11 p.m. The
not give his supervisors notice sufficient to find they impliedly consented to the change.
Cross had time to verify the complaints he had received from other custodians, he
returned the Grievant to his normal hours.
While the Grievant's recollection is that he received permission from both Cross and
for the change, he could not recall when or where that occurred. Both Cross and Vought
they did not have such a conversation with the Grievant and would not have granted the
it been made to them. Cross' letter of April 27, 1999 to the Grievant and the steward
states there was no such request made and that the only request was to exchange work areas.
letter also states Cross would not permit his staff to set their own hours. The letter is
Cross' testimony. Given the complete lack of supporting data, the Grievant's testimony he
permission from both Cross and Vought is not credible. Further, it would have been
poor management practice to grant such permission, as it would only have given rise to even
conflict among the custodians.
Article II Management Rights, specifically provides that the District has the
direct, supervise, arrange, assign and allocate work forces and to schedule and assign work
load. Article XVIII does not give employes any right to set their own hours and does not
provide what the work hours are to be. Those matters are within the District's authority and
exercised its authority appropriately.
As to the allegation that the District changed the Grievant's hours as a result of his
complaining about overtime from outside organizations using school facilities, there is
evidence to support that allegation and a plausible explanation about how custodians are
paid in those situations was given by both Cross and Vought.
The District concludes that the Union has not proved any violation of the Agreement
therefore, the grievance must be denied.
The Union essentially alleges that the Grievant was punished without just cause and
in an arbitrary fashion when he was directed to return to the regular work hours of
3:00 p.m. to 11:00
p.m. on Fridays. Other than Cross' letter of April 27, 1999 to the Grievant and Don Smith
threatening "further action" if he does not follow Cross' memorandum to return to regular
Fridays, there is simply no evidence as to any discipline in this case, and there is no
evidence that any
disciplinary action of any sort was taken. Other than the Grievant's testimony as to his
there is also no evidence that the directive to the Grievant to return to normal hours on
in retaliation for his complaint about weekend work opportunities on behalf of another
The allegation that the District exercised its management rights in an arbitrary manner in this
however, presents a thornier issue. There is conflicting testimony as to whether the Grievant
requested, and received, permission to change his hours on Fridays. There are also
opinions on whether avoiding jealousy and disharmony among the custodial staff is sufficient
to require the Grievant to return to normal hours on Fridays.
While it might well be reasonable to permit the Grievant to work earlier hours on
to the unique circumstances in the Head Start area, the fact that he would be the only
could do so and the disharmony that would cause, and apparently did cause, or at least
is a reasonable basis for not permitting the Grievant to continue to work hours different than
worked by the rest of the custodians. For that reason, and because it treated the Grievant no
differently than the rest of the custodians and placed no greater hardship on him, the
in returning the Grievant to normal hours on Fridays was not arbitrary or unreasonable.
reached that conclusion, it is not necessary to determine whether the Grievant had initially
permission to change his hours on Fridays, as, even if he had, there is nothing in the
would require the District to maintain that change once it had a reasonable basis for changing
hours back to the normal 3 p.m. to 11 p.m. The only contractual requirement would be to
to the Union prior to implementing the change; however, as no notice was given when the
initially changed his hours and the Union made no complaint in that regard, it would seem to
superfluous to require it at this point.
Based upon the foregoing, the evidence and the arguments of the parties, the
makes and issues the following
The grievance is denied.
Dated at Madison, Wisconsin this 20th day of December, 1999.