BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute
MUSKEGO AREA PUBLIC EMPLOYEES UNION,
LOCAL 2414, AFSCME, AFL-CIO
MUSKEGO-NORWAY SCHOOL DISTRICT
(10-Month Secretaries Grievance dated 6-24-99)
Mr. John P. Maglio, Staff Representative,
Wisconsin Council 40, P.O. Box 624, Racine,
WI 53401-0624, appearing on behalf of the Union.
Quarles & Brady LLP, by Mr. Robert H.
Mr. Michael J. Fischer, 411 East Wisconsin
Avenue, Milwaukee, WI 53202, appearing on behalf of the District.
At the joint request of the parties, the Wisconsin
Employment Relations Commission
designated the undersigned, Marshall L. Gratz, as Arbitrator to
hear and decide a dispute
the above-noted grievance under the parties' July 1997-June 2000
Pursuant to notice, the grievance dispute was heard at the
District's office in
Wisconsin, on December 7, 1999. After a transcript was produced,
the parties' post-hearing
were exchanged on February 1, 2000, marking the close of the
At the hearing, the parties authorized the Arbitrator to
frame a statement of the issues
dispute. The Union proposed framing the issues as follows:
Did the District violate the collective
when it issued its directive
(Exhibit 7) dated June 9, 1999? If so, what is the appropriate
The District proposed framing the issues as
Did the District violate the collective
when it scheduled 10-month
secretaries for 211 paid days in school year 1999-2000? If so,
what is the appropriate
The Arbitrator finds it appropriate to frame the
determination as follows:
Are contractual paid holidays to be counted
toward the "210
days per school calendar year"
that Agreement Sec. 7.02 defines 10-month employes as "hired to
PORTIONS OF THE
ARTICLE V. GRIEVANCE
5.03 Steps in Procedure
Grievances shall be processed in
with the following procedure:
5.031 Step 1. An earnest
effort shall first be made to settle the matter informally
employee and the administrator within thirty (30) calendar days
after the facts upon which
grievance is based first occur or first become known.
5.0311 If the matter is not
resolved, the grievance shall be presented in writing to the
administrator within thirty (30) calendar days after the facts
upon which the grievance is
occur or first become known, or within five (5) work days after
the conference in 5.031.
administrator shall meet with the aggrieved employee, accompanied
by a representative of the
if the employee so chooses, within five (5) work days of the
submission of the written
shall respond in writing to the aggrieved employee and the Union
within five (5) work days
5.032 Step 2. If not
5.0311 above, the grievance may, within five (5) work days,
be appealed in writing by the employee to the Superintendent of
meet with the aggrieved employee, accompanied by a representative
of the Union if the
chooses, within five (5) work days of the submission of the
appeal and shall respond in
writing to the
aggrieved employee and the Union within five (5) work days of
5.033 Step 3. If not settled in 5.032
grievance may, within ten (10) work days,
be appealed in writing by the employee to the School Board. The
Board shall meet with the
aggrieved employee, accompanied by a representative of the Union
if the employee so
fifteen (15) work days of the appeal and shall respond in writing
to the aggrieved employee
Union within five (5) work days of such meeting.
. . .
5.11 Extension of Time Limits
Time limits contained in this Article
be extended for an additional time up to ten (10) work
days to accommodate reasonable handling in the event one or more
of the parties to the
is absent because of sick leave, vacation or approved leave of
ARTICLE VI. BINDING
In order to process a grievance to
Arbitration, the following must be complied with:
6.011 Written notice of a request
arbitration shall be given to the Board within ten
(10) work days of the receipt of the Board's last answer.
. . .
6.03 Selection of Arbitrator
If the parties are unable to agree
Arbitrator within ten (10) work days, after such written
notice of submission to arbitration, either party may request the
Commission to appoint a member of its staff to serve as impartial
. . .
DEFINITION OF EMPLOYEES
7.01 12 Month Full-Time
A 12 Month Full-time Employee is
defined as an employee hired to fill a full-time (thirty-seven
and one-half [37-1/2] hours per
week) position on a twelve (12) month basis.
7.02 10 Month Full-Time
A 10 Month Full-time Employee is
defined as an employee hired to work (thirty-seven
and one-half [37-1/2] hours per week) for 210 days per school
7.03 School Year Employees
A school year employee is hereby
as an employee hired to work seven and one-half (7-1/2) hours per
day for 180 days per
. . .
ARTICLE XII. HOURS OF WORK
. . .
12.05 Notification of Report to Work
All ten (10) month and school year
employees shall be given written notice at the time their final
pay check of the current school year is issued concerning the
date that said employees are to
to work for the following school year, if such information is
known. In any event, all
receive written notification of the date on which they are to
return to work no later than
12.06 Work Year
Elementary secretaries will have a
of five days after the last teacher day for clerical
tasks relating to the closing of the school year.
. . .
ARTICLE XIII. OVERTIME AND
. . .
For the purposes of computing
hours paid shall be considered hours worked.
13.03 Holiday Premium
One and one-half (1-1/2) times the
employee's regular rate of pay shall be paid for all work
performed on a holiday, in addition to holiday pay.
. . .
ARTICLE XX. HOLIDAYS
20.02 Days Granted: 10 Month
Full-Time & 10 Month Part-Time
All ten (10) month full-time and ten
month part-time employees covered by this Agreement
shall be granted the following paid holidays each year. Holiday
pay for ten (10) month part-time employees shall
be pro-rated as
compared to those hours paid
to a ten (10) month full-time employee.
1. New Year's Day 6. The day
2. Good Friday 7. December
3. Memorial Day 8. Christmas
4. Labor Day 9.
5. Thanksgiving Day
. . .
In order to qualify for holiday pay,
employee must work the workday previous and the
workday following such holiday. If a personal day is used before
or after a holiday, the
shall forfeit that holiday pay.
20.08 School offices will be closed
the Christmas Holidays. The exceptions will be the
District Office, the High School Administrative Office, and the
Middle School Office where
month, full-time secretaries are employed. Ten month full-time
employees may request to
holiday period; and if work is available, they will be assigned
by the Director of Human
to one of the offices which will be open. The available
secretaries will be assigned on a
basis from a list comprised of those ten month employees who
desire work during the
Holiday vacation period.
. . .
ARTICLE XXII. SICK LEAVE
All twelve (12) month full-time, ten
full-time, school year and regular part-time employees
covered by this Agreement shall be entitled to use earned sick
leave without loss of pay when
from work is required because of personal illness or injury or
diagnostic services, including
emergency medical and emergency dental appointments during
working hours. So long as it
authorized by the Wisconsin and/or Federal Family and Medical
Leave Act, sick leave may
for a serious illness of any member of the employee's immediate
Serious illness of family members in
immediate household will be considered a valid use of
22.02 Accumulation - Full Time Employees
Sick leave for twelve (12) month
ten (10) month full-time and school year employees
shall accumulate at the rate of one (1) day per month of
employment . . . .
. . .
22.04 Holiday During Sick Leave
In the event that a paid holiday
a period when an employee is on sick leave, it shall
be charged as a paid holiday and not be deducted from the
employee's earned sick leave.
. . .
23.02 Period of Full Pay
Any employee who is absent due to
or illness caused during the course of his/her duties
will receive a maximum of three (3) months full pay on condition
that compensation checks
period be endorsed and turned over to the Business Office in lieu
of full pay. Any
insurance received after the above three (3) months will be
retained by the employee until
as he/she returns to work. There shall be no deductions from the
employee's sick leave
when an employee is absent due to a compensable injury or
All employees covered by this
shall be eligible for Bereavement Leave, with pay,
under the following conditions:
23.011 [24.011??] Purpose and
Such leave will be granted only for
attendance at the funeral of immediate family . . .
All secretaries and teacher aides
granted bereavement leave for such time as they are
unable to perform their normal duties. Said days over and above
the time set forth in the
be deducted from the employee's accumulated sick leave.
. . .
The District operates a K-12 public school system serving
Milwaukee, Wisconsin. The Union represents the District's
non-supervisory clerical and
employes. The District and Union have been parties to a series
of collective bargaining
including a 1994-97 agreement nominally expiring on June 30,
1997, and the
covering July 1, 1997 through June 30, 2000. It is undisputed
that the Agreement was
signed by the
District on September 8, 1998, and by the Union on October 15,
In pertinent part, the June 14, 1999 class action grievance
giving rise to this
asserts that the District violated Sec. 7.02 of the Agreement by
issuing a memorandum dated
9, 1999, scheduling 10-month secretaries for a school year
1999-2000 work year consisting
paid days inclusive of 9 paid holidays, i.e., 202 days not
inclusive of paid holidays. The
asserts that work year thereby established by the District is "8
work days" short of the "210
school calendar year" required by the Sec. 7.02 definition of a
10-month employe. By way
remedy, the grievance requests that the schedule be revised to
include eight additional days,
alternatively, that the District pay the affected employes eight
days of backpay if the
grievance is not
settled in a timely manner.
In its grievance procedure responses to the grievance, the
District denied the
asserting that Sec. 7.02 requires only that the employes involved
be scheduled for 210 paid
inclusive of the 9 contractual paid holidays, and that they were,
in fact, scheduled for one
The parties ultimately agreed, on a non-precedential basis
for the 1999-2000 school
schedule 10-month secretaries for 210 paid days in addition to
the 9 contractual paid
The underlying dispute remained unresolved in the grievance
procedure and was
submitted for arbitration as noted above.
At the hearing, the Union presented testimony by bargaining
unit member Margaret
Koopmeiners. The District presented testimony by its Director of
Human Services, Jean
and by its Director of Business Services, A. George Haynes.
Additional factual background is set forth in the positions
of the parties and in the
POSITIONS OF THE
The newly revised language of Agreement Sec. 7.02 clearly
10-month full-time employes are hired to work 210 days per school
year, not inclusive of
The Union has, in recent years, attempted to obtain a
clearer contractual definition of
work year for 10-month secretarial employes. The District's work
year schedules for
employes have varied over the years, prompting a May 6, 1996
grievance asserting that the
violated a past practice by scheduling 10-month elementary
secretaries for only six work days
to the return of school term employes rather than the customary
ten. That grievance was
a non-precedential basis by adding work days for the elementary
secretaries, returning their
to what had become a pattern of about 219 days per year
consisting of 210 days of work plus
In the next round of bargaining, that leading up to the
Agreement, the Union sought
that settlement into the Agreement. The 1994-97 agreement
language on the subject was
ambiguous and incomplete. It consisted of then Sec. 7.02, which
defined a 10-month
employe "as an employee hired to fill a full-time (thirty seven
and one-half [37 - 1/2]
hours per week)
position on a school year basis," and of Sec. 12.06 which
provided then as now,
secretaries will have a minimum of five days after the last
teacher day for clerical tasks
relating to the
closing of the school year." That 1994-97 language failed to
identify how many days of
year the employes were entitled to and extended the five day
assurance in Sec. 12.06 only to
elementary secretaries while remaining silent regarding 10-month
staff working in the high
middle schools and central office.
The Union, therefore, proposed modifying the Agreement in
parties agreed to the District's proposal to modify Sec. 7.02 to
define a 10-month full-time
as "an employe hired to work (thirty seven and one-half
[37 - 1/2] hours per
week) for 210 days per
school calendar year." (Union's emphasis.) Nowhere does that
language state that the 210
includes paid holidays. Elsewhere in the Agreement, the
grievance procedure in Article V
time limits measured in numbers of "work days." The District
admits that "work days" as
used in that
context would not include paid holidays. The Union, therefore,
had every reason to
District's proposal to redefine 10-month employes in Sec. 7.02 by
reference to "work . . .
as similarly not including paid holidays.
The Union would never have agreed to changing Sec. 7.02 if
the end result would be
reduction in work days for 10-month staff. Throughout the
bargaining leading to the
Union made it clear that it was seeking to increase the work year
of its 10-month members.
Exhibit 12 -- which the Union contends understates actual paid
days worked by the 10-month
secretaries over the years -- shows that in all school years from
1993-94 through 1998-99,
for the first year, the average number of paid days for 10-month
secretaries always exceeded
paid days including holidays that the District would have the
Arbitrator believe constituted
quo. The number of paid days that the District's exhibit
claims it granted to the
219.1 in 1997-98 and 218.8 in 1996-97, confirming the Union
bargainers' reasonable belief
District's proposal basically maintained the status quo of
210 work days plus 9
The Union, nonetheless, viewed the District's proposal as an
improvement over the
because it established a clearly defined number of days rather
than requiring the Union to
another grievance based on Union assertions about what the
practice had been.
No weight should be given in this dispute to District work
year memorandums issued
to the one concerning the 1999-2000 school year. The Agreement
Sec. 7.02 was not
signed until after the District's 1998-99 work year memorandum
had already been issued.
June 9, 1999 memorandum regarding the 1999-2000 work year was the
issued after the Agreement was signed. In any event, District
Exhibit 12 shows that
the days actually
paid to 10-month employes exceeded those indicated on the
corresponding District work year
Nor should any weight be given to the contents of the
District's costing sheets. The
shows that the Union and District never jointly costed the
proposals made by either party,
actual paid days granted to 10-month secretaries often exceeded
the number of days budgeted
administration and approved by the School Board.
The District's reliance on the Agreement provisions
regarding bereavement pay, sick
and Worker's Compensation is misplaced. Unlike the Agreement
holidays Article language
7.02, each of those three provisions expressly defines the
benefit as a substitution for paid
Therefore, if the District intended to include paid holidays
in the 210 work days
Sec. 7.02, it was incumbent on the District to have done so. Had
the District done so, the
would have rejected the proposal as regressive. Instead, the
Union analyzed the District's
on its face and appropriately concluded that it granted 10-month
secretaries 210 work days
Only in Sec. 13.02 does the Agreement provide that holidays
(along with all other
would be treated as hours worked. However, Sec. 13.02 expressly
so provides only "[f]or
of computing overtime." The District did not propose, and the
parties did not agree in Sec.
include a similar provision for purposes of computing the
10-month employes' work year.
For the foregoing reasons, the District violated Agreement
Sec. 7.02 when it issued
9, 1999 memo. The grievance should be granted and the Arbitrator
should require the
schedule 10-month secretaries to work 210 days per year, not
inclusive of holidays.
Relying on new Agreement language in the definition of
ten-month employes, the
incorrectly contends that the District must pay its 10-month
secretaries for 219 days
rather than the 210 paid days actually prescribed by the new
language. The Union
figure of 219 by adding the ten-month secretaries' 9 paid
holidays to the 210 paid days
in Sec. 7.02 of the Agreement.
The record shows that the District's proposed changes in
Sec. 7.02 -- which were
as part of the District's initial proposals -- were intended only
to clarify and quantify the
of 10 month employes to substitute a specific "210 days" for a
circular "ten months"; to
practice whereby individual District building administrators were
secretaries to work on days falling outside of the "ten months"
period; and to enable the
continue to budget for 10-month secretaries in the future as it
had in the past, i.e., at a total
paid days including holidays and all other contractual paid time
In contrast, the Union's efforts in the 1997 negotiations as
it had been in 1994, were
expand the 10-month secretaries total number of paid work days.
In 1994, the Union
sought to transform 10-month employes into 12-month secretaries.
In 1997, the Union tried
elementary secretaries into 11-month secretaries by proposing to
change Sec. 12.06 so
secretaries would begin working on August 1, rather than the
usual Monday closest to
The Union also proposed changes in Sec. 20.08 that would
officially close District offices
Spring Break while providing all 10-month secretaries with
requisite seniority an opportunity
during Spring Break on an as-needed basis and requiring that all
elementary secretaries work
In the parties' second and third bargaining sessions, the
District told the Union it was
interested in adding days but rather in restructuring when
10-month secretaries could work.
the third session (held in November of 1997 and the first with
WERC Mediator Dan Nielsen
the Union's chief negotiator acknowledged in the opening joint
session that 10-month
were currently paid for the 210 days reflected in the District's
Sec. 7.02 proposal, but he
those secretaries needed more days. That acknowledgement was
reflected in Henneberry's
note which read, "hours of wk - add days to elem secs -- start
8/1 now get 210 days --
start mid Aug. off at [xmas] & 5 days after [teachers
complete their work for the
elem secy's need more days." Later in that meeting, the District
told Mediator Nielsen that
not willing to expand those secretaries' number of paid days.
The Union counterproposed
to the District's Sec. 7.02 proposal the words, "except that
a 10-month elementary
shall work on a 215 days per school calendar year basis" and by
offering to drop a vacation
if the District accepted the Union 7.02 counter, but the District
did not agree.
In March of 1998, the parties reached an overall tentative
the District's proposed Sec. 7.02 revisions. The Union abandoned
both its indirect effort to
10-month secretaries' number of paid working days by guaranteeing
some of them work
Spring Break and its more direct efforts to expand 10-month
secretaries paid working days
its proposed changes in Secs. 7.02 and 12.06.
The District's intention that its Sec. 7.02 proposal would
clarify that 10-month
would be paid for 210 days inclusive of contractual holidays is
reflected in other Agreement
as well as in the District's efforts to cost the new agreement
and in District scheduling
Union might have a point if Sec. 7.02 defined a 10-month employe
as "hired to work . . .
days per school calendar year." But that is not what it says.
Rather, as written, it stands in
contrast to the "work days" language in Sec. 5.03. The
Union acknowledges that sick
Worker's Compensation leave and funeral leave benefits were
included within the 210 paid
contemplated by Sec. 7.02, but it is inexplicably unwilling to
make a parallel
regarding paid holidays. Furthermore, the District's costing
data, which it showed to the
was consistently based on 10-month secretaries being paid for 210
days, inclusive of paid
Also, the District's 1998-99 school calendar distributed to
secretaries in early July, 1998,
10-month secretaries with the notation concerning 10-month
secretaries: "(201 + 9h) August
June 15 (213 days)," reflecting the fact that they were budgeted
for 210 days (201 work days
9 holidays), but were scheduled for 213 days inclusive of
holidays. Similarly, the 1999-2000
sent to all 10-month secretaries by the District was accompanied
by a cover letter in which
Henneberry indicated that 10-month secretaries had been budgeted
at 210 paid days. While
District, in fact scheduled the employes for more than the 210
days inclusive of holidays that
budgeted for (213 paid days in 1997-98 and 1998-99 and 211 for
1999-2000), and while the
employes often wound up being assigned additional days so that
they were paid for even
than they were scheduled for, the District's budget provided a
cushion to accommodate those
developments. Notably, the Union did not grieve the District's
1998-99 calendar and
memorandum which, like the disputed one in 1999-2000, was
expressly premised on
inclusion of 10-month secretaries' paid holidays within the 210
days for which they were
The Union's interpretation of the Agreement cannot overcome
demonstrating that it is incorrect. The Union cannot be
permitted to obtain in arbitration
what it was
unable to obtain at the bargaining table.
For the foregoing reasons the Arbitrator should deny the
grievance in all respects.
Either of the parties' proposed statements of the issues
would permit the necessary
of the ultimate contract interpretation issue in this case:
whether paid contractual holidays
are to be
counted toward the "210 days per school calendar year" that the
Sec. 7.02 defines
10-month employes as "hired to work." The Arbitrator has merely
framed the issue to
address the only aspect of the June 9, 1999 memorandum that is in
dispute in this case.
Both parties have appropriately argued that Agreement Sec.
7.02 should be
context of the Agreement as a whole.
The Union would have the Arbitrator interpret the words
"hired to work . . . 210
days" in Sec.
7.02 to have the same meaning as would the words "hired to work .
. . 210 work
days" with "work
days" given its undisputed Article V meaning of not including
The District would have the Arbitrator avoid the Union's
interpretation because the
used the term "days" rather than "work days" in their revision of
A review of the balance of the Agreement raises serious
doubts about the propriety of
For, in Sec. 20.07, the parties agreed that "to qualify for
holiday pay, an employe
the workday previous and the workday following such
(Arbitrator's Emphasis.) The
Arbitrator interprets "work day" in Article V and "workday" in
Sec. 20.07 as being
Thus, the parties referred to employe "work" in relation to
a "workday" in
Sec. 20.07, but
they referred to employe "work" in relation to "days" in Sec.
7.02. The parties' use of that
terminology strongly suggests that the parties intended "days" in
Sec. 7.02 to mean
different than "workday" in Sec. 20.02 and "work days" in Article
V. Otherwise, the parties
presumably have defined 10-month employes as "hired to work
. . . 210 workdays" or
as "hired to
work . . . 210 work days."
Therefore, unless the record evidence beyond the Agreement
that the parties mutually intended those different sets of words
to have the same meaning, the
interpretation ought not be adopted.
Apart from what the Union has unpersuasively argued were its
language of District's Sec. 7.02 proposal in the context of the
Agreement as a whole, there is
contention or showing that the District's conduct during
bargaining indicated to the Union
District intended its Sec. 7.02 proposal to have the same meaning
as if it read "work . . .
days." Similarly, nothing in the Union's bargaining table
conduct would have put the
notice that the Union, by agreeing to that proposal, nevertheless
intended "work . . . 210
have the same meaning as if it read "work . . . 210 work days."
While the Union had
expressed and demonstrated its interest in a longer work year,
especially for elementary
it wound up settling without those of its proposals that would
have achieved that objective.
the Union ultimately accepted the District's Sec. 7.02
initial proposal on the subject
stating that it understood that proposal to mean that 10-month
secretaries would "work . . .
days" or would continue to be assigned at least as many work days
as the employes had been
averaging in recent years. The District, on the other hand,
resisted those various Union
and obtained Union agreement to the District's initial Sec. 7.02
proposal which, when read
context of the Agreement as a whole, strongly suggests that it
does not mean "work . . . 210
Therefore, whatever the Union's uncommunicated intentions or
been, the record evidence does not indicate that the Union
communicated in bargaining that it
understood either that "work . . . 210 days" would mean "work . .
. 210 work days," or that
days" referred to in Sec. 7.02 would be in addition to the
contractual paid holidays.
In sum, to redefine the number of days for which 10-month
employes were being
work, the District proposed and the Union ultimately agreed to
language which used "days"
terminology materially different than the "workday" and "work
day" terms used elsewhere in
Agreement. The District's use of that different terminology in
its proposal was an indication
District did not intend its proposal to mean that 10-month
employes would "work . . . 210
days." The Union has not persuasively shown that the parties
nevertheless mutually intended
that "work . . . 210 days" would mean "work . . . 210 work days,"
or that the "210 days"
to in Sec. 7.02 would be in addition to the contractual paid
The Arbitrator, therefore, rejects the Union's proposed
interpretation of Sec. 7.02
instead, the District's which is more consistent with the
Agreement read as a whole.
On that basis, the grievance is denied.
DECISION AND AWARD
For the foregoing reasons and based on the record as a
whole, it is the decision and
the Arbitrator on the issue submitted that:
1. Yes. Paid contractual holidays are to be counted
toward the "210 days per
school calendar year" that Agreement Sec. 7.02 defines 10-month
employes as "hired to
2. Accordingly, the grievance is denied.
Dated at Shorewood, Wisconsin, this 18th day of
Marshall L. Gratz, Arbitrator