BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
JOHNSON CREEK EDUCATIONAL SUPPORT
JOHNSON CREEK SCHOOL DISTRICT
Mr. A. Phillip Borkenhagen, Executive Director, Capital Area
UniServ-North, WEAC, 4800 Ivywood Trail, McFarland, WI 53558, appearing on behalf of
Mr. Larry Steen, Attorney at Law, Larry Steen Law Office, 116
North Washington Street, Elkhorn, WI 53121-1338, appearing on behalf of the District.
The Association and the District named above are parties to a 1997-2000 collective
agreement that provides for final and binding arbitration of certain disputes. The parties
requested that the Wisconsin Employment Relations Commission appoint the undersigned
to hear a dispute regarding bus drivers. The undersigned was appointed and held a hearing
18, 2000, in Johnson Creek, at which time the parties were given the opportunity to present
evidence and arguments. The parties filed briefs by May 16, 2000.
The issue in this case is:
Did the District violate the collective bargaining agreement,
specifically Section 12.4, when
a supervisor took an extra-curricular bus trip that had not
been offered to bargaining unit employees first, or by allowing a
supervisor to be included in the
rotation schedule of bus drivers available for extra-curricular bus trips? If so, what is the
12.4 Overtime and Extra-Curricular
Bus Trips. All overtime (including cook extra work for
banquets and pre & post school year) must have prior approval of the
assigned by the Principal/Supervisor, first rights of refusal shall be seniority based, on a
within each department. It will be paid at a rate of time and one-half for all work beyond 40
in a week. Time and one-half rate will be paid for all work on Sundays or holidays.
Extra-curricular bus trips shall be offered to Bus Driver
Bargaining Unit Employees by rotation
on a seniority basis. If a driver is not notified of his/her turn for such a trip at least 24
advance of said trip, his/her normal turn shall not be forfeited by his/her refusal.
This dispute arose under a first collective bargaining agreement. The facts are not in
The parties disagree on the interpretation of the above contract language.
The bargaining unit is a wall-to-wall educational support staff unit, including bus
There are a total of seven drivers, six of them in the bargaining unit, and one supervisor,
Degrandt. The Vice President of the Association, Charles Schick, filed the following
September 24, 1999:
At the September 1st bus driver's meeting,
Diane Degrandt, transportation supervisor, chose a
trip to Palmyra. This is in violation of the Agreement between JCESA and the Board of
Creek School District.
Article 12, Section 12.4 states,
"Extra-curricular bus trips shall be offered to Bus Driver
Bargaining Unit Employees by rotation on a seniority basis." There is no wording in this
that allows the transportation supervisor to take a trip on a rotation by seniority basis.
In Article 14, 14.9 titled
subcontracting intent, there is a variance granting faculty members to
drive a school bus for their activities, but not to be a distance of more than ten miles from
Creek High School building, and it is not to replace regular employees' normal hours or
within the bargaining unit.
To resolve this grievance, the transportation supervisor should not
be allowed to take these extra-curricular trips. Bargaining Unit employees should be
reimbursed for loss wages for the September
2nd trip to Palmyra.
Degrandt responded to the grievance on October 5, 1999, with the following statement:
On September 27, 1999, I received and read your written
grievance. After our discussion of this
issue on September 15, 1999, we both agreed that a written grievance was the next step in
Your grievance states that on September 1,
1999, when I chose an extra curricular field trip to
Palmyra for September 2, 1999, I violated the Agreement between JCESA & the Board
of the Johnson Creek School District. Your grievance is that Article 12, Section 12.4 was
You also state that "there is no wording in this Agreement that allows the transportation
to take a trip on a rotation by a seniority basis."
I have been in the position of transportation
director since 1987. In all the years since 1987 to the
present, it has always been the practice for the transportation director to be included in the
rotation of selection of trips and drive trips. The Classified Agreement has been effective
1, 1997. Since that time, the transportation director has been included in the seniority
has driven many extracurricular field trips.
Article 3 of the classified agreement
specifies management rights:
Article 3.1 states: The Board possesses the
sole right to operate the School District and all
management rights repose in it, subject only to the provisions of the contract and applicable
Article 3.1.10 states that these rights
include . . . "To determine methods, means, and personnel
by which school system operations are to be conducted and to determine the kinds and
services to be performed as pertains to District operations and to determine the numbers and
of classifications to perform such services."
The Board of Education has issued a
contract to the transportation director which states that
"throughout the term of this contract, the transportation director shall have no fewer benefits
other classified employees of the transportation department." It further provides for "extra
reimbursement for all extracurricular trips."
Therefore, since the Board of Education
possesses the sole right to operate the School District,
determine the personnel to perform services, and the Board has
given a contract to the transportation director which allows for
compensation for extracurricular
field trips, no violation of the Agreement has been made.
The contract that Degrandt referred to above is her individual or personal contract
District. The contract states that if her position were to be eliminated, she would be
classified as a
full-time driver and any seniority gained would be in effect. It further states: "Throughout
of this contract, the Transportation Director shall have no fewer benefits than other classified
employees of the Transportation Department."
Both Schick and Degrandt testified at the hearing. Also, School Board members
Bezoenik and Wayne Duris testified on behalf of the District. They were both on the
team for the District. A retired teacher, Robert Ketelhohn, testified on behalf of the Union.
employed by the Union to assist in contract negotiations. The parties had about 28
Degrandt's individual contract was signed April 14, 1999. The collective bargaining
agreement was ratified at the end of March, 1999, although it covered previous school years.
Bezoenik testified that if there had been anything in Degrandt's contract that was in direct
with the collective bargaining agreement, the Board would have addressed it.
Bezoenik further testified that Board negotiators were careful about using words such
"will" or "only" so as not to limit the operations or authority of the Board. She also testified
Board intended to include Degrandt in the rotation of extra-curricular bus trips but the Board
propose to specifically include her in the rotation by name in the bargaining agreement. It
members' understanding that Degrandt's contract, which called for no fewer benefits than
classified employees, included the opportunity to get paid extra for extra-curricular trips.
recalled that it was the Board's position to not damage the non-bargaining unit employees
contract talks. Duris recalled the Board's concern that if the parties used the word "only" to
bargaining unit employees taking trips, it could not have such a trip at all if no bargaining
employees were available.
Degrandt has been the Transportation Director since the 1987-88 school year. She is
an individual contract each year, with the language in it being essentially the same.
the collective bargaining agreement to see what pertained to bus drivers, and she interpreted
12.4 to offer trips on a seniority rotation as per past practice. Since 1987, trips were offered
drivers on a seniority rotation basis, and Degrandt was always a part of the seniority
The parties agreed to carve out an exception in Section 14.9 regarding subcontracting
allow faculty members to drive bus for class activities within ten miles.
THE PARTIES' POSITIONS
The Union asserts that the language of Section 12.4 is clear and unambiguous. Since
Degrandt is not a bargaining unit employee, bus trips may not be assigned to her as part of
rotation on a seniority basis. Because the language is clear and unambiguous, the Arbitrator
apply the plain meaning of the provision without recourse to bargaining history or evidence
Schick's testimony, confirmed by Ketelhohn, was that bus driving work was to be
exclusively bargaining unit work, except the Union allowed Degrandt to take bus runs when
were not enough drivers to cover the necessary routes. The rotation by seniority was
reserved to the
six bargaining unit members.
The Union points out that the language of Section 12.4 states that extra-curricular bus
shall be offered to bargaining unit employees. According to Elkouri
& Elkouri, to expressly include
one or more of a class must be taken as an exclusion of all others. The collective bargaining
agreement does not include the supervisor in the rotation system. Any agreement between
District and Degrandt which contravenes the bargaining agreement is null and void in terms
application of the collective bargaining agreement. The Union notes that the District claimed
work "only" is missing from Section 12.4, thereby allowing Degrandt to insert herself into
rotation. The language can stand on its own, and the phrase "bus driver bargaining unit
Management negotiators did not specifically assert their desire to include Degrandt in
rotation of driving extra-curricular trips at the bargaining table, the Union states. Both
District witnesses agreed that her inclusion into the rotational system for such trips was never
discussed during negotiations. While the District relied on its alleged intent that Degrandt
was to be
in the rotation cycle at her discretion, no documents relating to this intent were exchanged
the parties. The District failed to gain specific language in the bargaining agreement to
intent. There is no nexus between the District's notes and the parties' proposals. Bezoenik
not associate the Board's intent based on her own handwritten notes with either parties'
at Tab 24, which dealt with overtime work in general for all employees. The
concept which Duris raised was not about the extra-curricular trips but was a reference to
driver, Remmel, keeping her old regular day routes. The clear exception to allowing
unit employees to regular perform bargaining unit work was the "Spieker clause," which is
for teachers to drive a limited distance of ten miles for their class activities.
The labor contract clearly supersedes any handbook, rule, regulation or policy as
Section 1.2.3. The Board ratified the agreement in late March of 1999, and misled Degrandt
believe that she could enter the rotation cycle through her individual contract which was
in April of 1999. The Board is trying to gain benefits for Degrandt
through arbitration instead of at the bargaining table. Moreover, Degrandt defined
benefits as related
to insurance and retirement benefits, not opportunities to drive extra-curricular trips.
During negotiations, Degrandt published a bus drivers' handbook, which stated that
were open to all school bus drivers. However, when the bargaining agreement
was negotiated, the
word "all" was omitted and the agreement stated: "Extra-curricular bus trips shall be offered
Driver Bargaining Unit Employees by rotation on a seniority basis." That change in
eliminates Degrandt from the rotation.
In conclusion, the Union believes that a remedy can be fashioned by the Arbitrator,
what was originally requested on the grievance. The amount of pay earned by Degrandt for
to Palmyra was about $50 and it is not an issue. The paramount concern is whether the
may insert herself into the regular rotation system for extra-curricular trips. The Union
the supervisor is allowed to take an extra trip as a substitute or overload driver, when regular
The District asserts that the language of Section 12.4 is clear and unambiguous, and
is no language prohibiting the Transportation Director, Degrandt, from driving
trips within the seniority rotation schedule. Degrandt's contract, signed April 14, 1999,
she shall have no fewer benefits than other classified employees of the Transportation
Driving extra-curricular bus trips is a benefit, as Degrandt testified at the hearing. Her
that she will receive extra reimbursement for all extracurricular trips.
The District notes that Degrandt testified that since 1987, she has driven
trips on a seniority rotation basis together with the other bus drivers. Board members Duris
Bezoenik testified that throughout negotiations, it was the District's position not to give away
benefits presently enjoyed by non-union employees. Duris and Bezoenik testified that the
language in Section 12.4 was drafted so as to not exclude Degrandt from driving
trips on a seniority rotation basis.
The District asserts that during bargaining, the Union proposed language that would
stated: "Only Bus Driver Bargaining Unit Employees will be used for all extra-curricular
route subbing unless all Bus Driver Bargaining Unit Employees are being utilized." The
proposed by the Union stated: "Extra-curricular trips shall be offered to Bus Driver
Employees on a seniority basis." Significantly, the first sentences noted above were not
the collective bargaining agreement. The word "only" is notably absent from the language
The District would agree with the Union's position in this grievance if the word "only" were
into Section 12.4, to say: "Extra-curricular bus trips shall (only) be offered to Bus Driver
Unit Employees by rotation on a seniority basis."
The District further points out that Section 1.4 of the bargaining agreement, the
Clause, allows the Board to prepare the terms of the contract signed by Degrandt which
to drive the extra-curricular trips. Article 3, Management Rights, allows the Board to
performs what services, and its rights are limited only to the extent of the agreement. The
incorrect to assert that the agreement states that "only" bargaining unit employees are
allowed to drive extra-curricular bus trips on a seniority rotation basis. Moreover, nothing
agreement provides that Degrandt may drive extra-curricular trips in overflow situations
bargaining unit employees are not available to drive. If the Arbitrator were to agree with the
position, Degrandt would be prohibited from driving any extra-curricular bus trips.
The District asks that the grievance be denied and dismissed.
This is a straightforward case with very clear and unambiguous language. When
the term "shall" in a collective bargaining agreement, it means they "will" do something.
this is a first collective bargaining agreement for the support staff, the parties were or should
been aware that the term "shall be offered" meant that the bus trips "will be offered" or
offered" to the bargaining unit employees. It is not necessary for the language to further
extra-curricular trips shall be offered only to bargaining unit employees. The
word "shall" provides
the mandate to offer those trips to bargaining unit employees.
The collective bargaining agreement states very clearly that: "Extra-curricular bus
be offered to Bus Driver Bargaining Unit Employees by rotation on a seniority basis." The
agree that an extra-curricular bus trip to Palmyra was not offered to a bargaining unit
supervisor chose to take that trip. The supervisor is not a bargaining unit employee.
District violated the collective bargaining agreement.
Because the language is clear and unambiguous, it is unnecessary to consider past
or bargaining history.
The collective bargaining agreement prevails over Degrandt's personal contract to the
that there is a conflict between them. Board negotiators were aware that if there were a
should have been addressed.
It should be noted that this Award does not prohibit Degrandt from driving
trips after they have been offered to bargaining unit employees who have
turned them down. The
labor contract merely requires that such trips be offered to bargaining unit employees. The
agrees that that Degrandt may take trips after bargaining unit employees have been offered
but have turned them down.
The Union does not ask for a monetary award and it will not be ordered.
The grievance is granted.
The District violated the collective bargaining agreement,
specifically Section 12.4, when a
supervisor took an extra-curricular bus trip that had not been offered to bargaining unit
and by allowing a supervisor to be included in the rotation schedule of bus drivers available
for extra-curricular bus trips. The District is ordered to offer extra-curricular bus trips to
employees before a supervisor may drive such a trip, consistent with the terms of Section
Dated at Elkhorn, Wisconsin this 12th day of July, 2000.