BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
KETTLE MORAINE UNISERV, WEA
MANITOWOC SCHOOL DISTRICT
(Jan Maier Grievance)
Mr. James R. Carlson, UniServ Director, Kettle Moraine
UniServ Council, N7778 Rangeline Road,
Sheboygan, Wisconsin 53083, appearing on behalf of the Manitowoc Educational
Mr. Robert Huston, Director of Human Resources, Manitowoc
Public Schools, P.O. Box 1657,
Manitowoc, Wisconsin 54221-1657, appearing on behalf of the Manitowoc School District.
Pursuant to the provisions of the collective bargaining agreement between the parties,
Manitowoc Educational Paraprofessionals (hereinafter referred to as the Association) and the
Manitowoc Board of Education (hereinafter referred to as the Employer or the District)
that the Wisconsin Employment Relations Commission designate a member of its staff to
arbitrator of a dispute concerning the proper classification of Jan Maier during the 1999-2000
year. The undersigned was so designated. A hearing was held on July 10, 2000, in
Wisconsin, at which time the parties were afforded full opportunity to present such
exhibits, other evidence and arguments as were relevant to the dispute. The parties
case on oral arguments and requested the issuance of a truncated award on an expedited
Now, having considered the testimony, exhibits, other evidence, contract language,
of the parties and the record as a whole, the undersigned makes the following Award.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The issue before the Arbitrator is:
Did the District violate the collective
bargaining agreement when it failed to place the
Grievant, Jan Maier, in the Job Title Group III for all or part of the 1999-2000 school year?
. . .
. . .
5.2 Employees who move from one job
title to a new one, by posting procedure or otherwise
shall serve a sixty (60) work day trial period in that new position. During that trial period the
Employer may return the employee to the former or like position by notifying the employee
reasons, if the former or like position is vacant. The Employer's reason(s) for the return of
employee to the previous or like position shall not be unlawful or arbitrary or capricious. If
the trial period the employee wishes to return to the former position, the employee shall
Employer of the reasons and shall be granted that request, if the former or a like position is
Whether the return is initiated by the Employer or employee, if a former or like position is
the employee shall continue in the new position until such vacancy occurs.
. . .
LETTER OF UNDERSTANDING
PRESCHOOL ASSISTANT POSITION
The parties agree, via their signatures to
this Collective Bargaining Agreement, to the terms and
conditions outlined below relative to the newly created (1999-2000 school term) position of
Preschool Assistant as follows:
The Preschool Assistant Job description (attached) will replace the
CWD Early Childhood aide positions and Home
Visitor positions at Riverview School. Current employees in these positions will be moved to
the status of Preschool
Assistant and will not realize a loss of pay, hours, or benefits. Preschool Assistants will be in
job Title Group III for
pay purposes. If the District intends to transfer staff working in these positions with the child
being transitioned to the
next year's grade or education level, it will do so without the employee realizing a change in
job category unless the
District has sufficient reason not to effectuate the employee transfer.
EXPLANATION OF JOB TITLE GROUPS FOR
SALARY SCHEDULE ONLY:
Job Title Group I:
Bus Duty Supervisor
Noon Lunch Supervisor
Job Title Group II:
CWD Support Staff
In School Suspension/Detention Room Manager
Library Clerk (secondary)
Library Aide (elementary)
Title I Reading Aide and District Funded Reading Aides
Health Care Aide (secondary)
Job Title Group III:
Job Title Group IV:
Library Media Manager (elementary)
Children's Center Coordinator (currently not being filled)
* Newly hired Bilingual Interpreters will be
paid at $9.96 per hours (Job Title IV, Step 9) for the
1999-2000 school term. In the future, newly hired Bilingual
Interpreters will be paid at the rate reflected in Job Title IV, Step
9 unless otherwise mutually
determined by the Union and the Board.
(See Section 18.2 for more details)
This grievance involves the claim of Jan Maier, an aide working with autistic
Maier asserts that she should have been classified as a Preschool Assistant during the
school year. That job was created by the merger of two other positions -- CWD Early
Aide and Home Visitor -- at Riverview School, the District's center for special education.
merger was accomplished through collective bargaining over the 1999-2003 contract.
the Grievant, in the 1997-98 school year she was a half-time Home Visitor and half-time
at Riverview. Although she asked to remain at Riverview in the following year, she was
assigned to another school to aid in the transitioning of an autistic child from kindergarten to
elementary school. At the end of the year, she asked to be returned to Riverview as
Aide. On the "Staff Needs" form she submitted in late May, she wrote:
I would like to return to Riverview School and work with "special
need" students in the
preschool/kindergarten setting. I would like to help that student/students transition to first
Maier said she received a call in June from Jan Sinor, the Director of Special
Education, saying that
her request had been approved and the principal of Riverview would contact her. Later,
Flaherty did phone her and told her she would work half days in preschool and half days in
During this time, negotiations over the new contract were on-going and Maier was a
of the Association's bargaining team. She was concerned that personnel in the new
Assistant classification could be penalized if they followed a child who was being transitioned
higher grade level, since the new job was specific to the Riverview. As a result, the parties
that staff who followed a child to another school to assist in transitioning would not be
Maier testified that she reported in August on the in-service day to prepare for the
assignment. The Preschool teachers were not ready yet, so she went to the kindergarten
worked with those teachers on orientation for the coming year. Her meeting with the
faculty lasted four hours, after which she went to the in-service. Flaherty saw her there and
that a new autistic child was coming into the kindergarten in the afternoon and that the
person assigned to the child had declined the job. Flaherty said she needed someone to do
and asked what she thought. According to Maier, she replied that she had no problem
the child, but that the contract with the Preschool job was not yet ratified, and she didn't
want to be
moved out of Group III by not working in
the Preschool. Flaherty told her she would need Human Resources Director Robert
approval for an arrangement to keep her in the higher pay grade. Maier was assigned to
the second kindergarten autistic child and did not receive the level III pay. Instead, she was
the year at Level II as a CWD/Autistic Aide. Thus, she filed the instant grievance.
Flaherty testified that the Grievant was neither a CWD Early Childhood Aide nor a
Visitor in 1998-99, and thus, did not move into the Preschool Assistant position. Five
employes became Preschool Assistants and one new Preschool Aide job was posted for
but the Grievant did not post for it. In fact, Flaherty said the Grievant never mentioned
be a Preschool Assistant until the grievance was filed. The job she was hired for at
as a CDW Aide in level II. While she did consult with the CDW faculty and was originally
to work half-time as an autism aide in the preschool, she did not perform any preschool work
in 1999-2000. Her job was a one-on-one assignment with one autistic kindergartener in the
another in the afternoon. A Preschool Assistant, in contrast, worked with the entire
population at Riverview, generally in groups of five or more. The transitions referred to in
"J" were transitions of groups of students. On cross-examination, Flaherty agreed that the
job duties in 1998-99 included transition work with students and that this was a normal part
Autism Aide's job. However, she pointed out on redirect examination that the transitioning
in Appendix "J" referred to persons already holding Preschool Assistant jobs and was not
to grant an upgrade to all persons doing transition work. It merely protected the Preschool
from being downgraded if they followed students to another school.
Called adversely, the Grievant conceded that her "Staff Needs" form for 1999-2000
a CDW/Autism job, not a Preschool Assistant or its predecessor title, the EEN Early
She explained that while she knew the vacant EEN position was in line for an automatic
Preschool Assistant, she wanted to keep doing the same job she was already doing. She
she was not actually classified as a Home Visitor in 1997-98, but that she had performed
many of the
same duties. She also agreed that no one had actually ever told her that she would be
a Preschool Assistant at Riverview. However, she said she believed that when Sinor said she
honor her request on the "Staff Needs" form, that meant she would be doing the Preschool
Assistant's job, since the duties she described included transitioning.
Additional facts, as necessary, are set forth below.
ARGUMENTS OF THE PARTIES
The Position of the Association
The Association takes the position that the Grievant is entitled to occupy the
Assistant in Job title Group III for the 1999-2000 school year. The principal question is
actually filled the job. The distinguishing feature of the job is transitioning
students. This is work she had been doing. She specifically asked to do transitioning
1999-2000 school year and she was told her request would be honored. She reported for
work on the in-service day and began performing her duties. Management subsequently
reassigned her to a lower
rated job, but even in that job she continued to perform transitioning work. Even if she did
perform a sufficient amount of transitioning work in the course of the 1999-2000 school year
justify calling her a Preschool Assistant, the fact remains that she embarked on the job when
reported for the in-service. Thus, under Article 5 of the contract, she should have been
right to return to that position if it was, or if it became, vacant. For these reasons, the
should be classified as having been in Job Title Group III during the 1999-2000 school year.
The Position of the Employer
The District takes the position that the Grievant earnestly wishes she had been in Job
Group III during the 1999-2000 school year but was not entitled to that classification.
wishes that she had been an EEN Early Childhood Aide in the 1998-99 school year, but she
The Grievant's claim flies in the face of the entire purpose of Appendix "J" of the contract.
provision was designed to ensure that staff members who followed a child from one grade to
were not penalized for the move. The Grievant did no transitioning of students at Riverview
and thus, cannot claim that Appendix "J" in anyway applies to her. She was not a Preschool
Assistant, in part because she never asked to be a Preschool Assistant. She was on the
team and knew that the job was being created, yet she never indicated an interest in the job
submitted any request to be assigned to such a position. She simply was not assigned to the
this grievance cannot change that fact.
The District dismissed the Association's claim that the Grievant somehow has the
claim a Preschool Assistant job under Article 5 of the contract. Section 5.2 gives people
been moved from one job to another the right to return to the old job is they make a timely
Here, she never had a Preschool Assistant job, so she can hardly return to a job she never
Grievant is a good employe and she has every expectation that if she applies for a Pre-School
Assistant position, she will receive every consideration. However, she cannot claim it as a
right through this grievance.
The Grievant seeks to be classified as a Preschool Assistant for the 1999-2000 school
year, a higher level of
pay than she receives as a CDW Aide. In part, her claim is based on the fact that she
performed transitioning duties
with students and this is specifically mentioned in Appendix "J":
The Preschool Assistant Job description (attached) will replace the
CWD Early Childhood aide positions and Home
Visitor positions at Riverview School. Current employees in these positions will be moved
to the status of Preschool
Assistant and will not realize a loss of pay, hours, or benefits. Preschool Assistants will be
in job Title Group III for
pay purposes. If the District intends to transfer staff working in these positions with
the child being transitioned to
the next year's grade or education level, it will do so without the employee realizing a
change in job category unless
the District has sufficient reason not to effectuate the employee transfer. (Emphasis
The Appendix mentions transitioning in the context of protecting Preschool Assistants
a loss of pay or status as a result of performing transitioning work. However, it is clear
Appendix that transitioning students is not the basis on which one may initially claim the job
Preschool Assistant. Rather, it is a basis on which one may not lose the job. Before the
portion of Appendix "J" comes into play, an employe must already be classified as a
Assistant. Thus, the point on which this grievance turns is whether the Grievant was a
Assistant, or in one of its predecessor titles, as the 1999-2000 school year commenced.
The Preschool Assistant was created from the merger two other titles -- CWD Early
Childhood Aide and Home Visitor. While the Grievant described many duties of these
she believed she had performed in 1997-98 and 1998-99, in fact it appears that she never
title. If, however, she was assigned to one of these titles for the 1999-2000 school year, she
have become a Preschool Assistant for that year or, if the District's needs changed after the
assignment was undertaken and the assignment was changed, she should have had the right to
the first opening in that classification.
The Grievant testified that she sought to work in the Preschool and was told that she
It appears that she may have misinterpreted what Flaherty and Sinor said to her. Her request
return to Riverview School and work with 'special need' students in the
setting." She also asked to help transition students to a higher grade when they were ready.
she was told that her request would be honored, the record strongly indicates that the
were referring to the transfer back to Riverview, and an assignment in the general field she
The Preschool Assistant is not the only job that involves working with special needs children,
Flaherty and the Grievant agreed that transitioning work is part and parcel of an Autism
Thus, Sinor and Flaherty did give the Grievant the assignment she described, by assigning
her as an
Autism Aide. The Grievant acknowledges that she did not post for any job other than
Aide for the 1999-2000 school year, which would have been the surer way to secure a
Assistant's position. As it stands, while she may sincerely believe that she was destined to
the duties of a Preschool Assistant, the District did not share that belief, and the objective
indicates that she was simply wrong.
The Grievant had three possible routes to securing a Preschool Assistant's job. She
have held one of the predecessor titles; she could have posted into the job; or she could
she actually performed those duties and was effectively a Preschool Assistant, but was
The record shows that she did not hold either a CWD Early Childhood Aide or a Home
and she never posted for one of those jobs or made a formal bid to become a Preschool
As for her actual duties, the Grievant did not perform any work in the Preschool program in
1999-2000, and the District never intended or gave her any reason to think that it intended to
perform duties other than those of a CWD/Autism Aide. As there is no evidence that the
ever was a Preschool Assistant, it follows that she has no claim on that title. Accordingly,
grievance is denied.
On the basis of the foregoing, and the record as a whole, I have made the following
The District did not violate the collective bargaining agreement when it failed to
Grievant, Jan Maier, in the Job Title Group III for all or part of the 1999-2000 school year.
grievance is denied.
Dated at Racine, Wisconsin, this 22nd day of August, 2000.
Daniel Nielsen, Arbitrator