BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
FOND DU LAC EDUCATION
FOND DU LAC SCHOOL DISTRICT
Davis & Kuelthau, S.C., Attorneys at Law, by Attorney Mary
Gerbig and Attorney Mark Vetter,
appearing on behalf of the Fond du Lac School District.
Wisconsin Education Association Council, by Ms. Laura
Amundson, and Winnebagoland UniServ,
by Mr. Armin Blaufuss, Executive Director, appearing on behalf of
the Fond du Lac Education
The Fond du Lac Education Association (hereinafter referred to as the Association)
Fond du Lac School District (hereinafter referred to as the District) requested that the
Employment Relations Commission designate the undersigned as arbitrator to hear and decide
dispute concerning the District's decision not to assign bargaining unit member Joe Cismoski
AODA coordinator in the 1999-2000 school year. The undersigned was so designated. A
was held in Fond du Lac on April 11 and 12, 2000, at which time the parties were afforded
opportunity to present such testimony, exhibits, stipulations, other evidence and argument as
relevant to the case. The parties submitted post-hearing briefs and reply briefs, the last of
exchanged through the undersigned on August 2, 2000, whereupon the record was closed.
parties requested that the undersigned issue an expedited Award, setting forth the result of
grievance, in order that the result might be known before the commencement of the school
Now, having considered the evidence, the arguments of the parties, the contract
language 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.
CITED CONTRACT PROVISIONS
. . .
The Board of Education (referred to
hereafter as "Board") of the Fond du Lac School District,
recognizes the Fond du Lac Education Association (referred to hereafter as "F.E.A.") as the
bargaining representative as defined in Wisconsin Statutes 111.70 and as determined by a
election on January 19, 1967, for all professional personnel including full or part-time
classroom teachers, librarians, guidance counselors, speech therapists, extended education
teachers, and special subject teachers, but excluding substitutes, supervisors, attendance
executives, full-time administrators, office clerical, custodial and other non-certified
. . .
C. BARGAINING UNIT WORK
Subject to the conditions of this
provision, bargaining unit work shall only be performed by persons
who are members of the bargaining unit and who are certified under state law to perform
a. Incidental bargaining unit
work may be assigned to non-bargaining unit personnel. Incidental
bargaining unit work may not exceed .2 of a full-time position in any certification area.
2. Bargaining unit members shall be entitled to all
benefits of this Agreement except as follows:
a. Determinate Leaves of
Article VIII, A. 1, 2, 3, 4, B, D, E, F, G, H, M and N shall be
inapplicable to teachers hired to
fill the position of a regular bargaining unit employee on a determinate leave of absence.
The non-renewal procedures in Section 118.22 of the Wisconsin Statutes shall only be
applicable to those
teachers who are hired to fill the position of a regular bargaining unit employee on a
of absence for more than a semester if such teachers are covered by the definition of a
that statute. Letters of temporary substitute employment shall be given to such employees
will automatically be terminated or non-renewed, if applicable, at the end of the employment
expressed in the letter of temporary substitute employment.
b. Indeterminate Leaves of Absence
1) The District shall have the
right to use a substitute teacher for indeterminate leaves of absence
for a period of time up to and including 90 contract days.
2) After this period of time the
District shall issue a letter of temporary substitute employment
to whichever teacher it chooses to fill this position pursuant to Article II(C)(2)(a) of the
collective bargaining agreement. It is understood by the parties that the person receiving the
letter of temporary substitute employment may not be the same person who was substituting
during the 90-day period.
This letter of temporary substitute
employment shall be terminable at the end of the semester or upon
the return of the regular teacher, whichever occurs earlier.
With respect to indeterminate leaves of
absence, it is understood by the parties that letters of
temporary employment shall be issued only to qualified, certified teachers.
c. Teachers employed under a
Letter of Temporary Substitute Employment for an entire
semester or more, who are employed in a regular bargaining unit position during the next
school year, shall be provided all benefits under this Agreement, including seniority. In
addition, if the teacher is employed in the same position during the next school year, the
teacher shall also receive credit for one year's service toward the probationary period. The
term "same position" shall mean K-6 at the elementary level and the same area of
at grades 7-12 except in subject specific areas such as tech ed. and family and consumer
education (FACE) where the specific area shall constitute the "same position."
3. Bargaining unit work is
defined as work which may only be performed by a person under a
teaching certificate or license issued by the Department of
Public Instruction and/or is work that is regularly assigned to
bargaining unit members during
the regular work day.
. . .
The grievance procedure shall be carried forth in the following manner.
. . .
The arbitrator shall be limited to the
interpretation of the express terms of the Agreement. The
arbitrator shall in no way add to, subtract from, modify or delete the revision of the
decision of the arbitrator will be final and binding upon the parties.
. . .
. . .
G. REDUCTION IN STAFF POLICY
a. The Board shall provide the F.E.A. with notice of
positions it is considering eliminating or
reducing on or before May 15 of the current school year. The F.E.A. is entitled to a
conference with the Board prior to the final layoff notice. Teachers to be laid off for the
ensuing school year shall be notified in writing of such layoff no later than June 1 of the
current school year.
1) The individual contracts of regular part time
teachers may be adjusted in writing by the Board
no later than the last day of the school year.
b. If it becomes necessary, in
the Board's discretion, to reduce the number of employee positions
or the number of hours in any position, the Board may
lay off the necessary number of teachers. Layoffs shall not
made to circumvent the other
job security or discipline provisions of this Agreement. In the event that reduction of
personnel shall become necessary, the provisions set forth shall apply.
The Board shall accomplish the
reductions through normal attrition.
2) At its discretion, the Board
may utilize volunteers to accomplish the reductions required.
3) Should further reduction be necessary, the Board
shall first retain those teachers possessing
current teaching certificates with the greatest amount of seniority in the District, who are
qualified by virtue of their certification to teach in those areas of discipline to be preserved.
4) Full time personnel selected for a reduction in
hours may choose to be fully laid off, without
loss of any rights or benefits as set forth below. Part-time teachers reduced more than 25%
of a full-time position and/or suffering a loss of fringe benefits as a result of the reduction
choose to be fully laid off, without loss of any rights or benefits as set forth below.
Teachers who are laid off shall be offered recall in reverse order
of layoff to vacant positions
which they are certified to fill.
3. Full-time and part-time
Full-time teachers shall be recalled only to full-time positions provided that such teachers
have the option of accepting a part-time position without jeopardizing their recall to a
b. Part-time Teachers
Part-time teachers who were on
non-probationary status for the 1989-90 school year shall have the
option of choosing to remain only part-time or the option of filling full-time positions as the
District's staffing needs dictate. Those electing the first option shall have no right to assume
full-time positions. Those electing the second option will have the obligation to assume
full-time positions as they become available.
2) Part-time teachers who were
on probationary status for the 1989-90 school year and all
subsequent new teachers employed on a part-time basis shall have the option of electing to
be employed on a Letter of Temporary
Substitute Employment or the option of a regular teaching
contract. Those teachers electing
the first option shall be subject to the conditions expressed in Article IIC2a. Those teachers
electing the second option shall be subject to all provisions of the agreement except that they
shall serve a three-year probationary period. Those teachers electing the second option will
also have the obligation to assume full-time positions as they become available.
4. Recall Notice
The District shall give written notice of recall from layoff by
sending a registered or certified
letter to the F.E.A. and to said teachers, at their last known addresses. It shall be the
of such teachers to notify the Board of any change in address.
Any teachers so notified shall respond within seven (7) calendar
days from receipt of said notice
whether they accept or reject the position. If teachers reject positions for which they are
teach and such position is offered consistent with the aforementioned provisions of this
teachers shall be considered to have resigned from the employ of the District and all of their
Teachers who have been laid off will have
recall rights for a period of three (3) years from the
effective date of layoff.
Teachers who have been laid off will have
recall rights for a period of three (3) years from the
effective date of layoff.
5. Miscellaneous Provisions
a. No new or substitute
appointments shall be made by the District while there are laid off
teachers available who are qualified to fill the vacancies.
b. Teachers will not lose their
recall rights if they secure other employment during the layoff.
c. The F.E.A. shall have the
right to file a grievance for teachers who are not recalled if it
appears that their re-employment rights have been violated.
d. While on layoff and with
recall rights, the individual shall continue to participate in the Group
Medical, Dental, and Life Insurance benefits under the group provided the premiums are
by the individual as long as they are unemployed. Unemployed is working less than 30
e. The teacher's sick leave accumulation and
seniority shall remain in force and be a part of the
record while on layoff status. The period of time on layoff will not be counted as time for
accumulated additional sick leave or counted in the total number of years of seniority.
a. Seniority is defined as the
length of service, as a full- or part-time bargaining unit member,
within the District as of the date of most recent employment within the District. An
employee's length of service will be broken if the employee resigns, is discharged or
1) Administrative personnel
who have accumulated bargaining unit seniority and who resume
employment within the bargaining unit shall not be able to exercise any seniority rights under
subsection 1.a. and c. of this Article until the expiration of one (1) calendar year after which
they resumed bargaining unit employment.
b. In the event of more than one teacher having the
same length of service in the District,
seniority ranking will be determined in the following sequence:
1) The date of signing the
continuing individual teacher contract.
2) Teaching experience in this
District which occurred prior to their current employment period.
3) Teaching experience in other
districts including elementary and/or secondary public and/or
private schools, colleges or universities, and technical schools, but excluding teaching
officially defined as substitute teaching.
4) Drawing by lot. The
F.E.A. and all teachers so affected shall be notified in writing of the
date, place and time of the drawing. The drawing shall be conducted at a time and place that
will allow affected teachers and the F.E.A. to be in attendance.
By November 1 of each school
year, the Board will publish and distribute to all teachers and the
F.E.A. a seniority list ranking all certificated employees from the time of their most recent
employment. This list shall also itemize after each name, such employee's area(s) of
certification. A finalized list shall be provided the F.E.A. by February 15 of each year
list shall include all corrections, deletions, and additions of employees for the school year.
7. Teachers whose positions are being eliminated or
reduced shall be able to "bump" only less
senior teachers in any area in which the affected teacher holds certification as long as the
concept of reaching the lease [sic] senior person is maintained. They may also affect
involuntary transfers or involuntary reassignments of less senior teachers for the purpose of
"bumping" as long as the end result is to lay off the least senior person.
. . .
111.70 Municipal employment. (1)
. . .
(b) "Collective bargaining
unit" means a unit consisting of municipal employes who are
school district professional employes or of municipal employes who are not school district
professional employes that is determined by the commission to be appropriate for the purpose
of collective bargaining.
. . .
(i) "Municipal employe"
means any individual employed by a municipal employer other
than an independent contractor supervisor, or confidential, managerial or executive
(j) "Municipal employer"
means any city, county, village, town, metropolitan sewerage
district, school district, or any other political subdivision of the state which engages the
services of an employe and includes any person acting on behalf a municipal employer within
the scope of the person's authority, express or implied.
The parties were unable to stipulate to an issue and agreed that the
determine the issue in his Award. The Association proposed that the issue be stated as
1. Did the Fond du Lac
Board of Education and/or its agents violate the Master
Agreement when it/they failed to assign Joe Cismoski to the AODA work for the 1999-2000
school year? If so,
2. What is the appropriate
The District believes that the issues
1. Did the District
violate the Agreement when it removed the AODA position from
the bargaining unit? If so,
Did the District violate the
collective bargaining agreement when it laid off the Grievant
for the 1999-2000 school year? If so,
What is the appropriate
The District's formulation of the issue treats as a distinct question the
propriety of the layoff
procedures used in this case and suggests that that issue is only presented if the Arbitrator
concludes that the removal of the AODA position was a violation of the contract. However,
if the removal of the position was a contract violation, the propriety of the layoff procedures
is, in and of itself, irrelevant. The Grievant would not have been laid off but for the
of the position. If there was a violation in removing the position from the unit, the issue
concerning the layoff procedures is whether the Grievant failed to mitigate his damages when
he refused to bump. That is part and parcel of the appropriate remedy for the violation. If
there was no violation in reassigning the AODA Coordinator duties to someone outside the
bargaining unit, the layoff issue is whether the Grievant, having refused to bump, still had to
be offered the vacancy that subsequently developed. Accordingly, the issues may be fairly
stated as follows:
1. Did the District violate the Agreement
when it assigned the AODA position to
someone outside of the bargaining unit?
If not, did the District
violate the Collective Bargaining Agreement when it laid off the
Grievant for the 1999-2000 school year?
If either questions 1 or 2 are
answered in the affirmative, what is the appropriate
The parties stipulated to the following relevant facts:
1. The AODA (Alcohol and Other Drug Abuse) position was created
20 Standards initiative by the Wisconsin Department of Public Instruction (DPI) and has been
supported by District, State and Federal funds. The District is the fiscal agent for all funds
by DPI. A portion of the funding for the Coordinator position salary was from District
was separate from DPI dispersed funds.
2. In 1989-90, Joe Cismoski held the Fond du Lac School District
position. Lowell Sahlstrom, Director of Pupil Services, supervised Mr. Cismoski in the
Coordinator position. Mr. Cismoski held the AODA position from the point that funding
available for the position.
3. In 1989-90, Dr. Sahlstrom became ill. Mr. James Gryzwa acted as the
Director of Pupil Services until August, 1990.
4. In July, 1990, Mr. Gryzwa became the Pupil Service Director.
5. In 1991, Mr. Gryzwa developed the AODA Coordinator job description in
to a request from DPI. DPI provided funding for the AODA position and required
verification in the
form of a job description.
6. Prior to the 1990-91 school year, two certified teaching positions were reduced
fifty (50%) percent at Thiesen High School.
7. The individuals who held the reduced positions exercised their bumping rights
the collective bargaining agreement and, because they had seniority to Mr. Cismoski,
the AODA Coordinator position and shared the position equally for the 1990-91 school year.
8. The individuals who "bumped" Mr. Cismoski had no previous experience in
AODA Coordinator position, but did have AODA core training. Because the individuals did
as much training and experience as Mr. Cismoski, Mr. Gryzwa exercised a higher degree of
and control with the individuals who held the AODA Coordinator position in 1990-91 school
than he exercised with Mr. Cismoski in the same position.
9. Mr. Cismoski held a teaching position in the area of science for the 1990-91
year, as a result of the actions described in paragraphs 6, 7 and 8 above.
10. The positions of the two teachers filling the AODA position in 1990-91 were
to 100% for the 1991-92 school year. Mr. Cismoski returned to the AODA Coordinator
the 1991-92 school year.
11. Mr. Cismoski held the AODA Coordinator position continuously from the
school year through to the end of the 1998-99 school year.
12. From August 1, 1991, to January, 1995, Mr. Gryzwa was the Director of
13. During the time period from August, 1990, to January, 1995, Mr. Cismoski
to and advised Mr. Gryzwa as to the grant monies available for the AODA program. Based
principal, teacher, other District personnel and community need, Mr. Cismoski made
recommendations and prepared grant and entitlement proposals.
14. Jon Cousins was hired as the Director of Pupil Services in January of the
school year. Mr. Cousins has held that position continuously to the present date.
15. During the time period from the 1995-96 school year through the 1998-99
year, Mr. Cismoski reported to and advised Mr. Cousins as to the grant monies available.
upon principal, teacher, other District personnel and community need, Mr. Cismoski
recommendations and prepared grant and entitlement proposals.
16. Beginning in the 1995-96 school year, Mr. Gryzwa returned to an
position focusing on Early Childhood programs and became Supervisor of the Title I and At
programs and assisted the Director of Pupil Services. From January, 1995, to the present,
Gryzwa has been the Building Administrator at Fahey Elementary School.
17. On or about June 4, 1998, the District advised Mr. Cismoski via written
correspondence that the continuation of the AODA program in its present form was under
to budgetary constraints.
18. On or about April 27, 1999, James Freeman, Director of Personnel, requested
written correspondence that the Fond du Lac Education Association Executive Committee
agree to remove the AODA Coordinator position from the bargaining unit. The District
Association of its belief that the duties of the AODA Coordinator position were primarily
and administrative in nature.
19. On or about May 21, 1999, the District advised Mr. Cismoski via written
correspondence that at the
end of the 1998-1999 contract year he would no longer be the District's AODA Coordinator.
Due to budgetary
constraints, the District advised Mr. Cismoski that the AODA Coordinator position
was being eliminated for the
following contract year and gave him notice of the District's intent to lay off, consistent with
the June 1 collective
bargaining agreement requirement.
20. On or about May 21, 1999, the District advised via written correspondence
Mr. Cismoski and Mr.
Blaufuss that the District would be reassigning the duties and responsibilities the discontinued
AODA Coordinator to
an existing administrator.
23. On June 4, 1999, the Association informed the District that it was not mutually
agreeable to removing the position from the bargaining unit and filed a grievance on behalf
24. For the 1999-2000 school year, the District assigned the AODA
duties to Mr. Gryzwa, which began in August.
25. On or about July 9, 1999, the District filed a Petition for Unit Clarification,
related to the AODA
In August or September, 1999, Mr. Gryzwa was named Supervisor of ATODA
programs (Alcohol Tobacco
and Other Drug Abuse).
27. On September 13, 1999, the Board of Education heard the appeal
filed by the
Association on behalf
of Mr. Cismoski and denied the grievance.
28. On September 20, 1999, the Board of Education issued its written response
29. On December 4, 1999, the parties began testimony in the Unit Clarification
The hearing examiner held the hearing in abeyance pending the arbitration hearing.
The parties mutually agreed, via letters by WEAC Counsel Steve Pieroni and Mark
Vetter, subsequent to a
discussion with WERC Counsel Peter Davis, regarding the admissibility of case law
concerning the bargaining unit
status of similar ATODA positions. The parties have agreed to stipulate to said letters. The
letter from Pieroni to
This letter will confirm our previous
telephone conversations concerning the grievance arbitration hearing and
the unit clarification hearing involving the position previously held Joe Cismoski. We
discussed holding the unit
clarification hearing in abeyance pending the decision of Arbitrator Nielsen.
The parties agreed not to object to the
admissibility of case law concerning the bargaining unit status of similar
ATODA positions which have been issued by the Wisconsin Employment Relations
Commission. The parties reserved
the right to argue the weight be given said decisions and/or to assert the appropriate remedy
to be awarded in the
If this comports with your understanding,
please let me know.
Vetter sent a reply confirming Pieroni's summary of the arrangements.
Additional Background Managerial Dispute
The Grievant, Joseph Cismoski, was the District's Coordinator for Alcohol and Other
Abuse programs (AODA). He held the position from its inception in 1989 until he was laid
off at the
end of the 1998-99 school year, with the exception of one year when he was bumped from
by two more senior teachers, each of whom claimed half of the job during a layoff. The
of the AODA Coordinator's job were spelled out in a 1991 job description provided by the
to the Department of Public Instruction:
The following job description for the Fond du Lac School
District's AODA Program Coordinator should be
included in the 1991--92 Youth AODA Grant.
The district--wide Alcohol and Other Drug (AOD) Program
Coordinator will function within the Pupil Services
Department and have direct responsibility to the Director of Pupil Services. The individual
will coordinate all aspects
of the district's AOD program functioning. Responsibilities include:
1. Assist in the development, monitoring, and
implementation of a K--12 developmental AODA prevention
curriculum, Student Assistance Program (SAP) and other AOD programs for district students
2. Implementation and monitoring of
district-wide AOD policies and procedures.
3. Provide direction and meet
regularly with the AOD Program Advisory Committee (building level AOD or
4. Provide input to the budgetary
process including the procurement of monies from grants.
5. Maintain effective working relationships with local
service providers and meet on a regular basis with
community prevention, intervention, and treatment personnel to assist in community--wide
6. Monitor the function of support
groups and identify training need of district personnel.
7. Act as a district resource person for
AOD information and consultation.
The Grievant was laid off in response to budget problems. At essentially the same
time, the District
advised the Association that based upon its reading WERC case decisions, it believed that the
of AODA Coordinator was a managerial position and should not be included in the
Thus, it transferred the AODA duties performed by the Grievant to Administrator James
named him AODA Supervisor for the 1999-2000 school year, effective August 1, 1999.
The Association did not agree that the AODA position was managerial and asserted
duties could not, in any event, be transferred outside of the bargaining unit due to the
Work provision of the contract. The District responded with a unit clarification petition,
exclude the AODA Supervisor's job from the bargaining unit as a managerial position. The
assigned the case to a hearing examiner, who began taking evidence on December 4, 1999.
the Examiner advised the parties, after hearing a portion of the evidence, that the question of
the work at issue was bargaining unit work was more appropriately an issue for a grievance
The hearing was adjourned and the unit clarification case was held in abeyance pending this
Additional Background Layoff of Cismoski
When Cismoski was advised that he would be laid off, Personnel Director James
offered him the opportunity to bump a less senior teacher in his area of certification.
advised Freeman that he could not bump because of a side agreement reached between the
Association and a prior personnel director, Woody Bilse. According to the Grievant, the
agreement was reached after he was bumped in the 1990-91 school year and it prevented the
Coordinator from being bumped or conversely, from bumping another bargaining unit
Grievant did not have a copy of the side agreement and Freeman could not find a copy of
agreement in the District's files. While the Association's representatives also said that there
an agreement, they could not produce a written copy. Freeman had the Grievant sign a
Memorandum, waiving his bumping rights.
Under the contract, a laid off teacher who declines an offered position is deemed to
resigned. After the Grievant declined to bump, Freeman classified him as a resignation.
a teacher resigned in late summer, opening a position for which the Grievant was largely
Freeman did not contact him to offer him the position. Neither did the Grievant seek the
nor apply for any position with the District. Instead, he held a series of jobs in the field of
health, none of which provided full-time employment between the date of his layoff and the
the arbitration hearing.
At the arbitration hearing, the Association produced a copy of the side agreement:
I.S.S. teachers may exercise their bumping rights within the
I.S.S. Program. A.O.D.A. teachers
may exercise their bumping rights within the A.O.D.A. program.
Currently employed A.O.D.A. and I.S.S.
teachers may exercise their bumping rights into
bargaining unit positions other than A.O.D.A. and I.S.S. positions. If a full-time or
A.O.D.A. and I.S.S. teacher is assigned to a position entirely outside of A.O.D.A. and
teacher may not bump back into an A.O.D.A. and I.S.S. position.
New employes hired solely for an A.O.D.A. and I.S.S. position
shall not be able to bump into
other bargaining unit positions. Similarly, effective for the 1991-1992 school year, other
unit members may not bump into A.O.D.A. and I.S.S. positions.
The copy was unsigned and undated and was discovered in Association files only four
the arbitration hearing. Association Executive Director Armin Blaufuss testified that he
negotiating such an agreement with Woody Bilse in response to the Grievant's complaints at
been bumped in 1990-91. Association President Dick Mand also testified that the agreement
reached. Former Personnel Director Woody Bilse testified that he had no recollection of any
negotiations or any such agreement and that he would not have entered into such an
without advice of legal counsel and the consent of the School Board.
Additional facts, as necessary, will be set forth below.
POSITIONS OF THE PARTIES
The Association Initial Brief
The Association takes the position that the contract is absolutely clear. Bargaining
"shall only be performed" by members of the bargaining "who are certified
under state law to perform
such work." Bargaining unit work is defined as work which (1) may only be performed by a
under a teaching certificate or license issued by DPI "and/or" (2) work regularly assigned to
bargaining unit members. There are only two exceptions to this clear rule. They are
and narrow: Incidental work which is less than .2 of an FTE, and temporary assignments of
or less to cover for leaves of absence.
The AODA work has been regularly performed by a bargaining unit member for over
decade. Yet the Board transferred it from a bargaining unit member, Joe Cismoski, to an
administrator, Jim Gryzwa. The Board admits that this was not incidental work and there
leave of absence involved, the only two circumstances in which the contract permits
work outside of the bargaining unit. Instead, the Board's justification is that it believed that
was managerial based on Personnel Director Jim Freeman's reading of a WERC decision in
District. That is not an exception recognized by the contract. Even if an argument could be
that managerial work was somehow an implicit exception, the Board only had an opinion
personnel director. It did not even file a unit clarification over the position until after this
was filed. Giving the contract its plain meaning, the Arbitrator must find that the transfer of
from Joe Cismoski to a non-unit member was a clear violation and must order it returned to
The remedy for an illegal transfer of work must be the return of the work, and in this
that means returning the work to Cismoski. The Association notes that there is a specific
isolating the AODA and In School Suspension positions from bumping that is the
not exposed to bumping from without and they do not have the right to bump classroom
Thus, if Cismoski is removed from the AODA position, he had no right to claim another
the District questions the history of this agreement, the Association negotiator who bargained
the UniServ Director involved both had clear recollections of the discussions and produced
written version of the agreement. Furthermore, Cismoski knew of the agreement and based
knowledge, properly declined an offer to bump a less senior classroom teacher when he was
would be laid off. The District took this to be a waiver of all recall rights, which it plainly
Thus, when a vacancy occurred in Cismoski's certification area, the District never offered
the job to
him. Assuming solely for the sake of argument that the District had some ability to remove
the AODA position, it clearly violated the contract by not offering him the subsequent
possibility that he would have turned down this job is merely that a
possibility. No one can know, because the offer was never extended. Thus, the
this as resignation or a factor in reducing the back pay that must accompany the Arbitrator's
As noted, the District claims that the AODA Coordinator's job is managerial. The
Association disputes that characterization, but even if it were true, the contract governs this
its term. There has been no ruling on the issue by the Commission or other competent body
parties have not negotiated any specific exceptions to the contract's reservation of bargaining
work to bargaining unit members. Thus, the Arbitrator must limit himself to the four
corners of the
collective bargaining agreement, must conclude that the transfer of the work violates the
bargaining agreement and must provide a reinstatement and make whole remedy to Joe
The District Initial Brief
The District takes the position that the AODA job in issue here is a managerial
that the contract only applies to persons appropriately included in the bargaining unit. As a
managerial position cannot, as a matter of law, be appropriately included in the bargaining
follows that the AODA position is not subject to regulation by the contract. A managerial
is one who (1) participates in the formulation, determination and implementation of public
a relatively high level of responsibility and/or (2) has the authority to commit the employer's
resources. Comparing this job with the similar position found managerial in the WERC's
Northwest United Educators decision (Dec. No. 22530-A (12/21/98)), the evidence
overwhelmingly establishes that these characteristics are integral parts of the AODA
position. The Coordinator necessarily oversees the assessment, planning, development and
implementation of prevention programs. That is the essential purpose of the position.
Coordinator develops and manages the budget for the program, contracts with and supervises
consultants and researches and pursues outside funding sources. Thus, the incumbent clearly
authority to commit the employer's resources including the ability to obtain resources from
units of government. On each critical point relied upon by the Commission to determine the
managerial status of the AODA Coordinator in Northwest United Educators, the answer is
same in the Fond du Lac School District.
It is the duties of the job, not the characteristics of the individual holding the job, that
govern the question of bargaining unit status. The AODA Coordinator's job, whether filled
Gryzwa or filled by Cismoski, fundamentally involves the performance of managerial work
exercise of managerial discretion. Thus, it is not in the bargaining unit and is not subject to
agreement. As a matter of law, the District has the right to ask the Commission to clarify
bargaining unit so as to exclude managerial positions. This may be done at any time and the
cannot foreclose that statutory right.
The District asserts that it acted reasonably throughout and made every effort to
impact that its legitimate decision to reassign the AODA duties would have on Cismoski.
decision to reassign the duties was driven by budgetary considerations and the need to close a
$625,000 gap between anticipated revenue and anticipated expenditures. One obvious step
reassign the managerial duties of the AODA Coordinator to an existing managerial employe.
this unfortunately impacted on Mr. Cismoski, the District offered him an opportunity to
bump a less
senior teacher in his area of certification. Mr. Cismoski, having been given a year's worth
that this move was likely, waived his bumping rights. He candidly admits that he does not
be a classroom teacher. That is his right. But by declining a job for which he was certified,
Cismoski is deemed to have resigned. That is not the District's doing -- it is the result of his
choice and the clear language of Article VIII of the collective bargaining agreement.
In every respect,
the District followed the collective bargaining agreement's procedures for layoff of teachers.
Cismoski need not have been out of work at any point. That he has from time to time been
work is the result of his preference not to teach and is not the result of any District action.
The District strongly questions the Association's reliance on an alleged side
changing the rules of bumping for the AODA Coordinator job. The Association claims that
were discussions in 1990 over the AODA and ISS jobs and that those discussions led to an
to isolate those jobs from the bumping procedures of the contract. A three-paragraph
presented containing the terms of that alleged agreement. However, there was no
with the District indicating agreement, no signature of a District representative, no review of
agreement by legal counsel for the District, no record of the agreement being presented to
of Education, no record of the agreement being presented to the Association's Executive
fact no evidence of any kind indicating that such an agreement was actually reached other
suspect testimony of Association officials. Former Personnel Director Woody Bilse testified
had no recollection of such an agreement. The supervisors over the AODA Coordinator
informed of such an agreement. Indeed, the copy of the alleged agreement was never
four days before this hearing.
Even if the Arbitrator concludes that the Grievant did have some sort of limitation on
bumping rights and even if the Arbitrator concludes that the District erred in removing the
from his job, it remains the case that he had a duty to mitigate his damages. By refusing the
bumping when it was extended to him in good faith, he clearly failed in that duty.
the time of his layoff, the Grievant has limited his job search to public health positions. This
the fact that he is a certified science teacher, with a Master's Degree. His preference not to
a classroom teacher is just that -- his preference. It cannot be held against the District. He
seek employment in his most obvious area of opportunity and the Arbitrator must weigh this
deciding whether any damages can be awarded to him.
The Association's Reply Brief
In reply to the District's arguments, the Association takes the position that the
makes a fundamental mistake in arguing that the Arbitrator has some type of authority to
bargaining unit. The Arbitrator's job is limited to interpreting and applying the terms of the
bargaining agreement and the parties have not agreed to extend his jurisdiction to statutory
The contract clearly defines the meaning of "bargaining unit work" and that definition
includes the AODA Coordinator's position. Cismoski did the job, as a member of the
for ten years. He was never treated as a managerial employe. He followed the guidelines
by DPI, the Board of Education and other entities that regulated the AODA function. His
most accurately be described as providing services to the managerial employes of the
District, at their
direction. Either Jim Gryzwa or John Cousins, as his supervisors, had to sign off on any
decision and on many minor decisions. Certainly his supervisors relied on his technical
the Grievant never had the type of decision making authority accorded a manager. His
minimal and his policy involvement scant. He basically followed the existing procedures,
renew the existing grant and abided by the guidelines set by DPI and other governmental
These are not the hallmarks of a managerial employe. Nor has the District identified any
which Cismoski's membership in the bargaining unit somehow compromised or conflicted
faithful performance of the AODA Coordinator's job. If the Arbitrator chooses to rely on
precedent, this position is much more akin to the Student Assistant Coordinator job addressed
Northland Pines, Dec. No. 27154 (2/7/92). There, as here, the position had many outreach
ministerial duties, as well as some limited discretion to administer program money. There,
the degree of involvement in policy and resource allocation was "not a sufficiently high level
establish that [the incumbent] is a managerial employee."
The basic fact remains that the AODA Coordinator's job constitutes bargaining unit
within the meaning of the contract. Whether these duties might also be characterized as
is a matter for another forum. The agreement is what it is and the District cannot simply
Thus, the Arbitrator should order the Grievant reinstated. Along with that order, the
should make the Grievant whole, notwithstanding the District's claim that he somehow failed
mitigate his damages.
In connection with the mitigation issue, the Association disputes the District's claim
1990 agreement isolating the AODA Coordinator's job from bumping is somehow suspect.
that the document was not located until shortly before the hearing, the agreement itself was
almost immediately after the layoff notice. Personnel Director Freeman was told of it by
in May of 1999, and by UniServ Director Blaufuss in May or June of 1999. The agreement
in the grievance procedure, including at the Board level. Yet the District never even thought
Woody Bilse about it until the arbitration hearing was under way. The District cannot
criticize the Association for laxity in seeking information about the 1990 agreement.
The 1990 agreement makes perfect sense in the context of the earlier bumping of
from his position. The District wished to avoid having this position filled by persons with no
expertise in prevention programs. Cismoski wished to be protected from bumping, but had
to bump anyone else. The Association was willing to accommodate both desires, and thus,
agreement to isolate this specialized position. The fact that the District did not keep track of
agreement is not the Grievant's fault. He immediately advised them of the no bumping side
agreement and he cannot be penalized for the District's failure to know what agreements
between it and the Association.
The District's Reply Brief
The District asserts that the Association's arguments are flawed. In arguing solely
of the bargaining unit work provision, the Association fails to take into account the fact that
position here is not a bargaining unit position. It may have been included in the bargaining
some time, but it is not in some fashion permanently reserved to the unit. The statutes give
District the right to raise the question of unit placement at any time. Here, the District
the Commission's conclusion in Northwest United Educators and determined to have its
managerial work performed by its managers. As part of that decision, the District decided to
Gryzwa take on new and expanded authority to supervise the staff, allocate the moneys and
their usage. The job filled by Gryzwa is not appropriately included in the bargaining unit
Association cannot compel the District to have its managers subject to the contract.
Bargaining unit work preservation has been the topic of many arbitration awards and
stream of opinion is that there must be absolutely clear contract language to defeat an
right to make reasonable decisions as to the allocation of work. Any review of such
balance the interests of the parties. Here, some of the work has been performed by
some of it has been performed by Gryzwa. There has never been an exclusive reservation of
work to the bargaining unit. The Board decided to consolidate all of the duties in one
that position was necessarily a managerial position. The decision was driven by legitimate
concerns and not by any desire to undermine the Association. It was made known to the
and to Cismoski well in advance of the being finalized and the District made every effort to
Cismoski from job loss. In every respect the District has acted reasonably, in good faith and
pursuit of its legal rights under the Board Rights clause and Section 111.70.
The District dismisses the Association's claim that it somehow failed to comply with
and recall provisions of the contract. Cismoski was given proper notice of layoff and was
opportunity to bump. He declined that opportunity and signed a memorandum waiving his
rights. Article VIII provides in the clearest possible terms that refusing a position constitutes
resignation. Once he had resigned, there was no further obligation to offer him available
The claimed side agreement restricting his bumping rights, which the Association offers to
his refusal was not a resignation, was never
produced until the eve of the arbitration hearing and is simply not credible. No one on
side had any recollection of such an agreement and there is nothing in the record that the
could possibly rely upon to infer that such an agreement actually existed.
Even if there was a contract violation involved in his removal from the AODA
Grievant had a duty to mitigate his damages. He had a duty to seek comparable
is a certified teacher, but he refused the opportunity to bump into a teaching position basing
refusal on an agreement that no one could produce and no one in the District had any
Thereafter, he never sought employment as a teacher, in the District or elsewhere. He
limited his job
search to public health positions. That was a matter of preference and the District cannot be
to pay for his choice not to be gainfully employed in his licensed field. Thus, the Grievant
entitled to back pay from the District and any remedy must be limited to, at most, a
The parties, somewhat understandably, approach this case from starkly different
perspectives. The Association asserts that this is purely a matter of applying the language of
II to the undisputed facts and making a declaration of what is and what is not bargaining unit
The District asserts that Article II does not come into play, since the contract only applies to
bargaining unit positions and the AODA Coordinator, and its successor, the AODA
managerial positions are a matter of law.
Article II, C, addresses bargaining unit work and it says, in pertinent part:
Subject to the conditions of this provision, bargaining unit work
shall only be performed by
persons who are members of the bargaining unit and who are certified under state law to
. . .
3. Bargaining unit work is defined as work which may only
be performed by a person under a
teaching certificate or license issued by the Department of Public Instruction and/or is work
regularly assigned to bargaining unit members during the regular work day.
The first portion of the cited language reserves bargaining unit work to unit members.
portion defines what constitutes bargaining unit work. The latter half of the definition speaks
"work that is regularly assigned to bargaining unit members during the regular work day."
of the AODA Coordinator position was regularly assigned to Cismoski, a member of the
unit, on a regular basis for ten years. It constituted his entire job. On its face, this meets
definition of bargaining unit work contained in Article II.
The District's premise is that the contract language cannot be read as including work
by its nature, renders the person performing the job a managerial employe within the
Section 111.70. There are two fallacies underlying that argument. First, while it is true that
bargaining unit may not compel the inclusion of a managerial position within its ranks over
objections of the employer, there is no prohibition on a voluntary agreement between the
which has the same effect. Certainly this application of the language may be a permissive
bargaining, but it is the nature of permissive subjects that bargaining over them and
them are permitted. 1/ Indeed the language here does not go that far. It says nothing of the
reservation of positions. It speaks to the reservation of "work" that has, through the
choice, been regularly assigned to bargaining unit members. This portion of the contract
distinguish between types of work, only between work which has and has not been regularly
1/ The Arbitrator would stress that he draws a
distinction between the statutory right of each municipal employe
to engage in concerted activity and thus, to be included in a collective bargaining unit and the
right of an Employer
to exclude its managerial employes from bargaining units.
The second problem with the District's theory is that there has never been a
the job held by Cismoski rendered him a managerial employe. The person holding the
AODA Coordinator in the Northwest United Educators case was found by the WERC to be a
managerial employe, and there are many similarities between that person's duties and the
previously performed by Cismoski. However, the determination of managerial status is not
by job titles and the mix of duties in each case may yield differing results. Despite the
earnest exhortation that the Arbitrator should determine whether Cismoski was a managerial
or Gryzwa is a managerial employe, those are not issues of contract interpretation and have
placed before the Arbitrator. The parties did agree that they would not object to one
citation of WERC case law on managerial status, but they did not agree that the legal
managerial status could be answered by the Arbitrator. The Arbitrator's jurisdiction is
limited to "the
interpretation of the express terms of the Agreement." 2/ The Commissioners of the WERC
no way bound to any determination that an arbitrator makes as to inclusion or exclusion from
bargaining unit on statutory bases. By the same token, the Commissioners cannot define
parties meant in their contract when they agreed that bargaining unit work should only be
by members of the bargaining unit and gave a broad definition of bargaining unit work.
separate questions for separate forums.
2/ The District's citation of the Recognition
Clause does not cloak the Arbitrator with the authority of a WERC
hearing examiner. The Association is not purporting to define the rights of managerial
employes to be protected
in their work. It is purporting to apply the language defining bargaining unit work and
reserving it to the members
of the bargaining unit.
The District clearly has the right to seek a determination by the WERC that the work
performed by Cismoski renders him a managerial employe. If it is determined that the duties
AODA Coordinator are such that the incumbent is a managerial employe, it may be that the
would have the right to take action on the expiration of the contract. At least for the term of
contract, however, it has agreed not to have that work, whatever its character, performed by
outside of the bargaining unit. The District had the right to make such an agreement and
it, it does not have the right to unilaterally withdraw from it.
Based on the foregoing, I conclude that the District did violate the collective
agreement by having the work of the AODA Coordinator performed by a person outside of
collective bargaining unit. As the transfer of that work to Gryzwa was the direct cause of
of Cismoski and the work continued to be performed during the course of the 1999-2000
the appropriate remedy is to reinstate Cismoski and to make him whole for his losses, subject
duty to mitigate his damages. At the request of the parties, the Arbitrator will retain
the question of damages. This includes the questions of whether Cismoski, in declining the
opportunity to bump into a teaching position, waived his right to monetary damages, whether
made adequate efforts to find equivalent employment and all other questions related to the
the make whole remedy. Given the truncated format of the Award, the Arbitrator also
jurisdiction, at the request of the parties, to provide a more fully developed statement of the
for the Award.
On the basis of the foregoing and the record as a whole, I have made the following
1. The District violated the Agreement when it assigned the AODA position to
outside of the bargaining unit;
The appropriate remedy is to reinstate the Grievant to the AODA Coordinator
retroactive to the time of his layoff and to make him whole for his losses, subject to his duty
mitigate his damages;
The Arbitrator will retain jurisdiction over this matter for the purpose of resolving
disputes over the remedy and to provide a more fully developed statement of the reasons for
Award, if requested by the parties.
Dated at Racine, Wisconsin, this 28th day of August, 2000.
Daniel Nielsen, Arbitrator