BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
FLORENCE EDUCATION ASSOCIATION
SCHOOL DISTRICT OF FLORENCE
Ms. Carol J. Nelson, Executive Director, Northern Tier
UniServ-East, appearing on behalf of the Association.
Davis & Kuelthau, S.C., by Attorney Robert W. Burns,
appearing on behalf of the District.
Florence Education Association, hereinafter referred to as the Association, and the
District of Florence County, hereinafter referred to as the District, are parties to a collective
bargaining agreement which provides for the final and binding arbitration of disputes arising
thereunder. The Association made a request, with the concurrence of the District, that the
Employment Relations Commission designate a member of its staff to act as an arbitrator to
decide a grievance over the meaning and application of the terms of the collective bargaining
agreement. The undersigned was so designated. Hearing was held in Florence, Wisconsin
February 23, 2000. The hearing was transcribed and the parties filed briefs and reply briefs,
of which were exchanged on May 23, 2000.
The parties' 1997-1999 collective bargaining agreement contained four salary
for 1997-98 and two for 1998-99. One schedule each year stated 2.1% Minimum QEO and
stated 3.8% Total Package. The District paid employes the amounts in the 3.8% Total
schedule each year for 1997-98 and 1998-1999. These schedules provided for the same
increase for all teachers with the step increase frozen.
At the commencement of the 1999-2000 school year, the District used the 1998-99
Minimum QEO schedule and granted step increases and lane changes as appropriate. The
Association filed a grievance alleging that the District was required to pay teachers the
total package amounts until a new contract was reached. The grievance was not resolved and
appealed to the instant arbitration.
The parties were unable to agree on a statement of the issue. The Association stated
Did the District violate the Collective Bargaining Agreement as
well as the Evergreen Clause,
specifically, when they did not maintain the status quo by paying
the teaching staff off the pay
schedule in existence for the 1998-99 school year until the successor Agreement has been
If so, what is the appropriate remedy?
The District states the issue as:
Did the District violate the Collective Bargaining Agreement in its
application of the salary
schedule for 1999-2000? If so, what is the appropriate remedy?
The undersigned frames the issue as follows:
Did the District violate the collective bargaining agreement,
specifically Article XXVI, when
it ceased paying teachers the same rate of pay as in the 1998-99 school year until a successor
agreement had been reached? If so, what is the appropriate remedy?
A. Appendix A containing the salary schedule is hereby
made a part of this agreement.
. . .
TERM OF AGREEMENT
This agreement shall be in effect July 1, 1997 and shall remain in
effect for two (2) years, or until
negotiations on a new contract are concluded.
[The 2.1% Minimum QEO Salary Schedule for 1998-99 provides
B + O . . . .
. M + 30
Step 1 $23,668
. . .
. . .
Step 13 $37,583
The 3.8% Total Package Salary Schedule
for 1998-99 provides as follows:
B + O . . . .
. M + 30
Step 1 $24,124
. . .
. . .
Step 13 $38,307
The Association contends that the contract language is clear, concise and explicit. It
that Article XXVI, the Evergreen Clause, requires the agreement remain in effect until a new
agreement is reached. It observes that the District has a history of honoring this provision
increments and lane changes have always been given. It notes that the parties reached a
agreement for 1997-98, 1998-99, which placed four Salary Schedules in the contract for the
period. It states that one was the minimum 2.1% and the second was a 3.8% total package.
agreement, according to the Association, was that if dollars were available, the 3.8%
be used for payments, and the money was available, so the 3.8% scheduled used for 1998-99
remain in place until a new agreement is reached. The Association points out that the
increments and lane changes for 1999-2000
but they were not based off the actual pay teachers received the previous year. The
insists that the notes from the informal discussions between the representatives referenced as
& 5 are irrelevant. It argues that it is difficult to understand that the District would
believe that an
experienced Negotiating Team would bargain a raise one year knowing that the raise would
away the next. It concludes that the District violated Article XXVI, by failing to pay off the
in existence for the 1998-99 school year until a successor agreement is concluded.
The District contends that the Union's interpretation of the agreement allows the
receive more than what was bargained. It submits that the 3.8% total package costing
included one-time only dollars so the base point for a successor agreement is the 2.1%
schedule. It submits that
the negotiating documents clearly state that any increase above the 2.1% schedule was a one
event, citing Ex. 5, the Sept. 15, 1997 proposal. It also refers to Ex. 4, dated
December 8, 1997
which references one time only dollars which would not be added to the QEO and the
indicating the method of funding is non-precedential. It insists that John Fuse's testimony
additional salary was not a one time payment is difficult to believe given that his signature
are on the proposals and his testimony conflicts with the clear writing of the proposals
the parties. It further notes that Mr. Paulson initialed the final version. It claims that the
establishes that it was the clear intent of the parties that the dollars were meant to be a one
bonus. It references the testimony of Superintendent Gerard, Principal Kriegl and School
Members Jochen and Miller that these were one time payments that would not be the basis
years and any future payments would be off the 2.1% schedule. The District maintains that
there are four schedules in the contract and all must be given effect in that the 3.8%
funds were allocated on the schedule and the 2.1% were for future costings. It submits that
should be given to both rather than ignoring one.
The District argues that a bonus is a bonus and not a stepping stone to future
observes that Fuse received a $750 bonus in 1995 and that payment was not repeated in the
year. It states that it has been consistent as the rationale for offering a bonus is to avoid
the cost into subsequent years of a contract.
The District claims the Union was unable to refute the District's testimony. It
nothing is being taken away from the teachers as the one-time dollars were not theirs in the
subsequent year. It insists that the Union failed to offer any evidence that the 3.8% schedule
the bonus amounts was to be continued in future years. In conclusion, the District submits
teachers received a "one-time bonus" and this bonus was not incorporated into the schedule
to grant the Association relief would give a windfall that was never bargained or
intended by the
parties. It seeks denial of the grievance.
The Association disputes the District's assertion that the settlement was a one-time
It refers to the testimony of its Chief Negotiator, John Fuse, who did not recall that the
dollars were one time dollars. It also refers to the Association President John Paulsen's
that a seasoned, experienced negotiating team would not intentionally bargain a contract that
give members a raise one year that would be taken away the next. The Association claims
informal discussions that took place between Superintendent Gerard and Principal Kriegl for
District and Fuse and Paulsen for the Association were exactly that, informal. The
relying of the testimony of Fuse and Paulson indicate that nothing written or spoken indicates
the money used in the settlement was a bonus. It does not deny that in the documents,
and #5, "one-time only" is clearly indicated and the money would be taken out of the Fund
("one-time only"). It maintains that this was not a "bonus" because a "bonus" as defined by
District in its brief is a one-time payment, and the Salary Schedule clearly indicates the
spread throughout the Salary Schedule. It states that experienced negotiators would request a
sum payment if it were a bonus but the money was spread throughout the schedule and it was
"one-time payment" titled a bonus.
The Association contends that the real issue is that the District violated the parties'
including the Purpose, Article XX, Compensation and Article XXVI, Term of Agreement
contains the Evergreen Clause. It submits the District violated the agreement when it did not
the Evergreen Clause to maintain the status quo by paying the
teaching staff off the 1998-99 pay
schedule until the successor agreement was reached. It asks that the grievance be sustained
The District contends that the so called Evergreen Clause does not resolve the issue.
District argues that the general language of this clause does not supercede the specific
the parties to have a one-time payment and just because something happened once does not
parties are obligated by the Evergreen Clause to repeat what has been agreed to the contrary.
labels the Association's argument oxymoronic as the dollars cannot be both "one-time" and
the status quo. It asserts that the Association's reliance on
Richland Center, Dec. No. 27856-C
(Greco, 1/95) aff'd by operation of law, Dec. No. 27856-D (WERC, 2/95) is
misplaced as the
facts are entirely different from the case at hand. It maintains that the formulation of salary
was done pursuant to a specific agreement and there are four salary schedules attached to the
contract. It claims that the 3.8% schedules were to illustrate how "one-time" bonus dollars
be allocated to teachers and those dollars were not to be carried over to future salary
District argues that the 2.1% schedules were attached to represent the actual
status quo going
forward after the
bonus payment period. It states that the District's representatives had legitimate
applying one-time dollars to future contracts and testified the cost of the bonus would not be
over into subsequent contracts. It states that is why teachers were paid off the 3.8%
the 2.1% schedules were to be used to generate future salary schedules, otherwise the 2.1%
would be rendered meaningless.
The District observes that the Association's interpretation of the salary schedule
the documentation and testimony of the witnesses. Contrary to the Association's contention
negotiating proposals are irrelevant, the District submits that evidence of pre-contract
are valuable to establish the intent of the parties with respect to the language of the contract.
points out that the parties discussed providing teachers with the dollar difference between a
minimum and a 3.8% total package. It notes that the District proposed to access money
sources including the District's fund balance which was accepted. It refers to Exs. 4 and 5
specifically indicate the dollars were one-time only dollars. It states that a party has a
to be reasonably alert to what it is accepting in negotiations and the Association's lack of
interpretation or understanding of Exs. 4 and 5 cannot be deemed a legitimate basis to gain
of this grievance what it did not get in negotiations. It insists that the District never agreed
traditional 3.8% permanent settlement as documented by the Union's own bargainer
writing to the terms stated in Exs. 4 and 5. It argues that these exhibits must be considered
outcome of this dispute otherwise the inclusion of the 2.1% schedules would be rendered
and the Association should not be permitted to pervert the bargain.
The District concludes that record establishes that the parties arrived at salary
provided on one time bonus in the form of increased compensation over the term of the
the 2.1% schedules were included so that future increase would be applied to those
states that acceptance of the Association's position would seriously chill the parties' ability to
creative settlements and it requests that the grievance be denied in all respects.
Article XX, Section A of the parties' collective bargaining agreement provides as
Appendix A containing the salary schedule is hereby made a part
of this agreement.
A review of Appendix A indicates two salary schedules for each year of the contract.
There is a 3.8%
Total Package schedule for 1997-98 and another for 1998-99. There is also a 2.1%
salary schedule for 1997-98 and another for 1998-99. The question is why did
the parties include two schedules, the 2.1% and the 3.8% for each year. It is
undisputed that the
teachers were paid off the 3.8% Total Package schedules in 1997-98 and 1998-99. Why are
schedules in the contract? It is generally accepted that parties do not include words or
a negotiated agreement which are intended to have no effect. In other words, all words or
used in an agreement should be given effect. There is no language in the collective
agreement which specifies the meaning of the two salary schedules for each year. In order
to find the
intent of the parties, it is necessary to look to past practice and/or negotiating history. There
evidence of past practice except that past contractual provisions have provided for one-time
payments but these were a function of the contractual language and not a general past
Turning to negotiating history, and in particular Ex. 4, which is signed by both
the District Administrator and Jerry Paulson, the Association president, and both initialed the
pages, it states "Proposal to FEA" and it states that $20,000 from the existing fund balance
be divided over the two years of the contract. Additionally, after examples are given, it
These dollars are not to be added to the QEO but are one-time only dollars."
In the general statements, it further states that money above 3.1% is not to be added to
QEO and/or salary schedule. The negotiating history indicates that the District would use
dollars to fund the 3.8% schedules, thus these 3.8% schedules were one time only schedules
payment in the 1997-98 and 1998-99 years and the 2.1% schedules were the permanent
which were used to report to the State and the Board for the pay. (Tr-15). It follows that
3.8 schedules were one-time-only, the 2.1% schedules were permanent and continuing.
It must be concluded that the reason there are four pay schedules is that the 3.8% are
schedules paid during the contract term which then evaporate and the 2.1% schedules remain
used for the status quo and the basis of costing any future
contracts. This interpretation gives effect
to all provisions of the contract, i.e., both wage schedules, otherwise the 2.1% schedules
mere surplusage and have no effect or meaning. As noted above, an interpretation that gives
to all provisions is preferred to one that renders a provision inoperative or meaningless.
the 3.8% schedules applied during the term of the contract off of which teachers were paid
with one-time-only dollars. Once the contract expired the salary schedules reverted to the
2.1% schedules and
these schedules became the basis for future contracts.
Based on the above and foregoing, the record as a whole and the arguments of
undersigned makes the following
The District did not violate the collective bargaining agreement, specifically
when it ceased paying teachers the same rate of pay as in the 1998-99 school year until a
agreement had been reached because the 3.8% schedules evaporated with the expiration of
contract and the salary schedule reverted to the 2.1% schedule, and therefore, the grievance
in all respects.
Dated at Madison, Wisconsin this 8th day of June, 2000.
Lionel L. Crowley /s/