BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SOUTHERN DOOR EDUCATION
SOUTHERN DOOR SCHOOL DISTRICT
Mr. David Brooks Kundin, Executive Director, Bayland
UniServ, on behalf of the Association.
Davis & Kuelthau, S.C., by Mr. William G. Bracken,
Employment Relations Services Coordinator, on behalf of the District.
The above-captioned parties, herein "Association" and "District", are signatories to a
collective bargaining agreement providing for final and binding arbitration. Pursuant thereto,
was held in Brussels, Wisconsin, on January 14, 2000. There, the parties agreed I should
jurisdiction if the grievance is sustained. The hearing was transcribed and both parties filed
were received by March 15, 2000.
Based upon the entire record and arguments of the parties, I issue the following
The parties have agreed to the following issue:
Did the District violate Article VII, Section F, of the contract
when it denied the grievants'
requests for approval of a three-credit course entitled "Health and Nutrition" and, if so, what
Pursuant to Article VII, Section F, of the contract entitled "Professional
(reproduced below), grievants Wendy Day, Karen Derenne, Michelle Van Lieshout and
Schmitz (a fifth grievant, Tricia Claflin, withdrew her grievance at the hearing), submitted
requests in September and December, 1998, which sought approval for a graduate course
"Health and Nutrition" to be taught at Viterbo College in the summer of 1999. Van
request was accompanied by a two-page description of the course that included course topics
objectives. The other four requests explained on a District-supplied form how the course
improve the grievants' teaching and/or impact student learning. District Administrator
had previously approved the identical course in 1995 when it was taken by teacher Duane
(It is unclear whether he also granted similar approval to teacher Glen Van Vander.)
In response to their requests for course approval, Innis by memo dated December 11,
(unless otherwise stated, all dates herein refer to 1998) informed the grievants:
. . .
I received your request for approval of Health
Our district priorities at this time center
around Standards, Assessment, and Technology with
the idea of raising the expertise of all staff in those areas.
Attached is information regarding a course
through UW-Superior that centers on the above
that I would like you to consider in place of your request. I am sure there are others.
Please give me a call so we can discuss
. . .
Innis at that time did not deny or approve the course. The UW-Superior course he
cost $549 and exceeded the $160 maximum cost the District is required to reimburse under
contract for a three-credit course ($60 a credit). The requested Health and Nutrition course
$480, thereby saving each teacher $69 if they took the latter course rather than the former.
By memo dated December 15, grievant Schmitz informed Innis:
Thank you for your quick response to my request. I received
your information on the course
offered through UW-Superior. The scheduling of the course is not workable with my
Another consideration is that the course fee is considerably higher than the course I
I am also working towards a Master's
Degree in Education through Viterbo College so I want
to take a class that I'm sure will apply to the program. The course has been approved and
several other teachers who spoke quite highly of the class.
According to our contract, Article 7.F.1
The credit must be graduate credits earned from
an accredited college which offers a graduate degree program, and Article 7.F.4 the
credit must be
earned in the teaching field or allied area or applicable courses in the field of education or
so I feel this course is appropriate for my professional development.
Innis by memo dated December 18 informed the grievants that
he was denying approval for
the Health and Nutrition course. The grievants then filed the instant grievances and their
were all denied at the first step of the grievance procedure on December 22.
After the Association appealed the denial of the grievances, Innis by memo dated
1999, informed grievance chair Laurie Connell:
I would like to meet with you on Thursday, January 14,
@ 3:15 p.m. in the district
office to discuss the grievance request submitted on January 6, 1999.
When the credit requests were submitted, I
asked each person to contact me so I could get
additional information. I received a written note from one.
Please bring the following information
1. How the material presented
in this course would be used in the classroom. Be specific in
terms of the curriculum areas taught by these teachers, any Standards and Benchmarks it
would apply to and examples of how lesson plans and assessments would be changed or
developed to incorporate this material.
2. Are the teachers currently
taking the course?
If you have questions prior to the January 14, 1999, meeting, please contact me.
Grievant Day spoke to Innis about the course between December 11-18 and grievant
unsuccessfully tried to telephone Innis to tell him about the course and left a message for him
telephone answering machine. Innis never returned her call. The other grievants stated they
respond to Innis' inquiry because he had already denied the course, because they were too
and/or because the Association did not believe such information had to be supplied.
Asked why he had approved the very same course in 1995 but
not in 1998, Innis replied:
"times have changed. We have more focused District goals. We definitely have
standards to meet. We have better-defined standards and benchmarks. I think we have
curriculum." Innis added that he denied the course in part because the grievants had failed
the course with him after he asked them to do so.
Teacher Richard Engel, the Association's chief negotiator, testified about the
history surrounding Article VII, Section F. He said the parties last negotiated over that
1986 when, in Engel's words: "We decided it had to be there because somebody has to sign
certificate so Mr. Hansen [the then-superintendent] said: 'Somebody has to sign it. I'll sign
long as they take a course from a university that offers a graduate degree program, it will be
approved, as long as it's submitted in advance." Engel said he was unaware of any instances
teachers were denied approval to take graduate courses and that he was unaware of any
ever being filed over that issue.
Dr. Thomas F. McEvilly, III, taught the Health and Nutrition course in issue. Called
Association witness, he testified that the course was very important to a K-12 environment
a lot of the issues we have with students right now are health-related." He explained:
If you take a look at my syllabus, we talk about AIDS awareness,
talk about food additives and
how they affect children, we talk about attention deficit disorder and how food and nutrition
exercise can relate to that. We talk about exercise and behavior, stress, how to read food
what's in foods. We talk about dieting, the issues that relate to students in a K-12
have many students that have anorexia nervosa, as well as bulimia, in the education system.
about how to identify this. We talk about the biochemistry of fat. We talk about women's
how advertising affects women. We talk about disease transmission, not only AIDS, but we
about cancer, hepatitis, everything from colds and viral transmission. We talk about whether
a vegetarian is safe, because we have many young people in
schools that are vegetarians without understanding how that
works. We go into the full
biochemistry of food. We talk about fats and oils, sodium, sugar and how sugar affects
do exercises that have activities that talk about the amount of teaspoons of sugar in Mountain
the caffeine, the other stimulants that affect children. We talk about carbohydrates and the
between complex and simple carbohydrates. We talk about the benefits of calcium. We talk
vitamins and minerals and how they affect students. We talk about and compare the food
to the four food groups. We pretty much talk about everything as it relates to students and
behavior. We talk about the percentage of students that come to school without eating
how that affects their behavior, their attention span, their ability to do well on tests. We talk
how it affects them as far as headaches and stomach aches and absenteeism. Everything we
do in this
class talks directly on how students can survive in a K-12 environment and what teachers can
help them survive and benefit their stay through health and nutrition. We talk about the
exercise, how that can focus on students. We talk about concentration exercises. It's a
Inside this class we talk about study skills and how to prepare
students to best to do their best
on a test, what foods to eat, what foods not to eat. So we talk about sleep, sleep
talk about water intake. We talk about foods that can actually benefit brain absorption,
skills. We talk about all the things that benefit students to take in taking tests as it
relates to health
Asked why a health teacher could not provide this kind of information, he replied:
Because teachers don't always have access to a health teacher.
Not all school districts teach
health directly in their classes, and every teacher is dealing with issues relating to health with
students. More and more teachers are being used to distribute medications to students,
giving Ritalin to a student to doing a tracheotomy and a cleanout. We've had teachers do
Teachers are being asked to do all kinds of medical procedures as well as observational
understand what food does to students really makes a difference. Teachers have found that
changing what snacks are allowed in the classroom, what snacks are given during
really affect behaviors with students. And this affects all teachers. It also affects the
teacher's health too. If teachers eat well, they miss less school,
their attitude stays stronger.
Same for students. So it benefits both, teachers as well as students.
Grievants Day (a seventh-grade language arts teacher and coach), Derenne (a
teacher), Schmitz (a fourth-grade teacher and coach), and Van Lieshout (a first-grade
gave detailed testimony as to how the course helped them and said they were unaware of any
instances where such graduate courses had been denied in the past.
POSITIONS OF THE PARTIES
The Association contends that the District violated Article VII, Section F, of the
because the "superintendent exceeded his authority" when he refused to approve the Health
Nutrition course; because the "canons of statutory construction support the Association's
interpretation"; and because the Health and Nutrition course was "clearly relevant" to the
classroom. As a remedy, the Association asks that grievants Day, Derenne and Schmitz be
reimbursed $160 each and that they and grievant VanLieshout be given full credit on the
schedule for taking that course.
. . .
The District, in turn, asserts that the grievances must be denied because the "clear
unambiguous language gives the District Administrator the authority to approve or deny
reimbursement"; because the superintendent's "past history" in denying approval for other
supports its interpretation; because "Arbitrators have supported the District's ability to
disapprove credit reimbursement"; because the Association has not met its burden of proving
District's superintendent "acted in an arbitrary, capricious or discriminatory manner";
Association has not met its burden of proving "clear, discernable and recognized past
because the grievants and Association's failure to provide requested information "was
and should not be condoned by the Arbitrator."
This case involves the interplay between the Preface to the contract and Article V,
"Board Functions", on the one hand and Article VII, Section F. on the other hand. The
provisions in essence provide that the District retains all of its rights and functions to manage
school system and that the exercise of such rights is "limited only by the specific and express
of the agreement."
The Association maintains that Article VII, Section F, expressly limits the District's
prerogatives because it provides:
Improvement. Payment for graduate credit including payment for summer
school. For qualifying credits above basic degrees, the payment shall be as follows:
1. The credit must be
graduate credits earned from an accredited college/university
which offers a graduate degree program.
2. The credits must be approved in
advance by the Superintendent.
3. The college must verify as to the number
of graduate credits, date earned, course
number, and descriptive name.
4. The credit must be earned in the teaching
field or allied area or applicable courses in
the fields of education or psychology and including courses accepted toward the
earning of the next degree in the teaching field.
5. The responsibility for filing application
shall rest with the teacher.
6. Teachers originally hired to work under
provisional certification shall not be
reimbursed for the costs of coursework to become fully certified. Except when the
district requests or requires an employee to obtain provisional certification, the district
will not pay the fee for certification, but will reimburse for required coursework at the
rate specified in number 7 below.
7. Summer school graduate credits earned or
credits earned during the regular school
year shall be allowed at the rate of $60 for each approved graduate credit to a
maximum of nine (9) credits during the summer and three (3) credits during each
semester of the regular year.
8. To receive payment, the teacher must be
under contract and on duty in the Southern
Door Schools. To receive payment for summer school, the teacher must have taught
in the Southern Door Schools the preceding year.
9. Payment will be made with the September,
February or June payroll checks following
presentation of transcript. (Emphasis added).
The key proviso here is paragraph 2 which states: "The credits must be approved in
by the Superintendent."
The District argues that this sentence in effect should be read as stating: "The credits
be approved in advance by the Superintendent who has complete discretion to either
approve or deny
the credits, provided only that he/she does not act in an arbitrary fashion." The
problem with this
claim is that paragraph 2 does not state what the District claims it states.
For its part, the Association asserts that the proviso in effect should be read as
"The credits must be approved in advance by the Superintendent who must approve the
credits if they
meet all of the other requirements set forth in paragraphs 1, 3, 4, 5, 6, 7, 8 and 9
herein." But again,
paragraph 2 does not state this.
Since this part of the contract does not expressly spell out what discretion, if any, the
Superintendent has under this language, and since the contract does not elsewhere specifically
this issue, I find that Article VII, Section F, (2), is ambiguous on its face and that it is
consider parol evidence to ascertain its meaning.
Turning first to the practice that has been followed under this language, Innis stated
denied credit reimbursement to teachers Joann Boettcher, Becki Swanson, Tom Mueller,
Kanzenbach, Glen VanderVelden (twice), Ann Sonkowski and David LeBrun when they
approval for various courses. (District Exhibit 11). He said he denied one course because
VanderVelden could only receive reimbursement for nine credits rather than the 12 credits he
requested; that he denied LeBrun's course, called "Tweeners", which dealt with
issues because it "wasn't relevant" to his work as a technology education teacher; that he
technology and education teacher VanderVelden's request for a course on storytelling
because it was
not relevant; that he denied Sonkowski's request to take a Methods Labs course because it
relevant; that he denied Kanzenbach's request to take a High Level Wellness course because
not mention anything about children"; that he denied music teacher Mueller's request for a
course because "I just didn't see the fit . . ."; that he denied language arts teacher Swanson's
for the Health and Nutrition course because there was "No match, you know"; that he denied
elementary teacher Baumgarten's request to take a weight reduction course because "it was
individual, not about how it's going to apply to the classroom. . ."; that he did not recall
denied Boettcher's request to take a business workshop; and that all were denied pursuant to
discretion he has under Article VII, Section F(2).
If the Association were aware of these denials, there would be merit to the District's
that Innis' "past history regarding credit reimbursement supports the District's interpretation
Article VII, Section F." But to find a binding past practice, it is necessary for there to be
between the parties i.e., that the practice be so well-known and open that it
represents a tacit
recognition and acceptance of whatever is being done. That is why "past practice" has been
as "a pattern of prior conduct consistently undertaken in recurring situations so as to evolve
understanding of the parties that the conduct is the appropriate course of action."
(The Common Law
of the Workplace: The Views of Arbitrators, St. Antoine, Ed. (BNA, 1998),
pp. 81-82. Here, there
was never any such "understanding of the parties" or mutuality because chief negotiator
the grievants testified without contradiction that they were unaware of any courses ever being
previously denied. Absent that "understanding of the parties", there was no mutuality or past
practice. See too, How Arbitration Works, Elkouri and
Elkouri, pp. 632-633 (BNA, 5th Ed., 1997),
where the need for mutuality is addressed.
That leaves bargaining history as the other parol evidence tool. Since the District did
rebut chief negotiator Engle's testimony that then-District Superintendent Hansen agreed in
negotiations that all courses had to be approved if they met the other contractual criteria, and
what is said across the bargaining table often represents the best way of interpreting
contract language and what the parties meant when they agreed to it, Article VII, Section F,
be interpreted pursuant to the understanding reached between the parties in 1986 - i.e., that
District's superintendent must automatically approve all requests for graduate
credits if they
otherwise meet the requirements of Article VII, Section F, (1), (3), (4), (5), (6), (7), (8) and
(That is true not only here, but also for all other requests that might be made in the future
current contract language.) By failing to do so here, Innis violated the contract when he
approval for the Health and Nutrition course and when he denied reimbursement to those
who were entitled to the $60 a credit provided under the contract.
In so ruling, I find no merit to Innis' claim that he denied approval in part because
grievants did not supply him with enough information. Thus, the record establishes that: (1),
approved the identical course in about 1995, thereby showing that he already must have had
knowledge about the course and how it could be used in the classroom; (2), he never
grievant Van Lieshout's telephone message, thereby showing that he was not really interested
talking to her about the course; (3), he had the opportunity to learn more about the course
spoke to grievant Day; (4), he denied the grievant's requests for course approval
before he asked for
additional information; and (5), he still insisted at the hearing -- even after the grievants gave
detailed testimony and even after Dr. McEvilly gave his detailed explanation as to how his
could be integrated into the classroom (which I find highly credible) -- that he
still did not have
enough information to determine whether the course should be approved.
Lastly, the District claims that arbitral law supports its position because other cases
a school district retains the discretion to either approve or disapprove credit reimbursement.
Norway-Raymond Jt. School District No. 7, MA-5791 (Gallagher, 7/90); Coleman School
District, MA-6299 (Schiavoni, 4/91); Joint School District of New Holstein, MA-2529
(Schiavoni, 12/82); Horicon School District, MA-7850 (McGilligan, 7/94).
None of these cases, however, contained the undisputed bargaining history found here
showing that former District Superintendent Hansen expressly agreed in the 1986 negotiations
there would be automatic approval for all courses that otherwise met the criteria set forth in
VII, Section F. Moreover, this case stands in contrast to School District of New Holstein,
where the school district asserted that the union's negotiators acknowledged in contract
that the superintendent had the explicit right to deny credit reimbursement expenses. Here,
opposite is true. This case also differs from Coleman, supra, which centered on
whether an "out-of-field" course should have been approved by the superintendent.
"In-field" courses were automatically
In light of the above, it is my
1. That the District violated Article VII, Section F, of the contract when it denied
grievants' requests for approval and/or reimbursement for the three (3) credit course entitled
2. That to rectify that violation of the contract, the District shall immediately
the grievants who took the "Health and Nutrition" course by approving that course and/or by
reimbursing those grievants who are entitled to the $60 a credit to which they are entitled
3. That in order to resolve any questions that may arise over application of this
I shall retain my jurisdiction for at least sixty (60) days.
Dated at Madison, Wisconsin this 20th day of June, 2000.