BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SCHOOL DISTRICT OF FLORENCE
FLORENCE EDUCATION ASSOCIATION
(Vocational Certification Grievances)
Ms. Carol J. Nelson, Director, and Ms. Demetrice
Davis, Staff, Northern Tier UniServ-East, P.O.
Box 9, Crandon, WI 54520, appearing on behalf of the Florence Education Association,
herein as the "Association".
Davis & Kuelthau, S.C., by Attorney Robert W. Burns,
200 South Washington Street, Suite 401,
P.O. Box 1534, Green Bay, WI 54305-1534, appearing on behalf of the School District of
County, referred to herein as the "District".
The Association and the District are parties to a collective bargaining agreement
in effect at all times relevant to this proceeding. This agreement provides for the final and
arbitration of certain disputes. The Association requested, and the District agreed, that the
Employment Relations Commission appoint an arbitrator to hear and decide the instant
between the parties. The undersigned, Steve Morrison, was designated as the Arbitrator by
Commission. Hearing was held in, Florence, Wisconsin, on September 6, 2001. The
transcribed. Post hearing briefs were exchanged by November 7, 2001, marking the close of
The parties were not able to agree on a statement of the issues to be decided leaving
Arbitrator to frame the substantive issues in the award.
The Association would frame the issues as follows:
Did the Florence School District violate the Collective
Bargaining Agreement when the
District unilaterally removed the vocational certification compensation? If so, what shall be
The District would frame the issue as follows:
Whether the School District of Florence County violated the
Collective Bargaining Agreement
when it non-renewed or laid-off the extra-duty assignment of vocational certification under
Duties Schedule of said Collective Bargaining Agreement with the Florence Education
The Arbitrator states the issues as follows:
Did the School District of Florence County violate the
Agreement when it failed to renew the extra duty assignments of Lynn Wahlstrom, Jan
Beck and Kay McLain for the 2001-2002 school year?
If so, what is the proper remedy?
A. The Board, on its own behalf and on behalf of the
electors of the District hereby retains and reserves
unto itself, all powers, rights, authority, duties and responsibilities conferred upon and vested
in it by the laws and the constitution of the State of Wisconsin and of the United States.
B. The Board retains the right to
make, [sic] grade, subject and activity assignments.
EXTRA PAY FOR EXTRA
A. Vacancies in extra duties available shall be posted by
C. No teacher shall be dismissed or non-renewed from an
extra duty except for good and sufficient
D. Each teacher may be assigned up to
two (2) involuntary extra-duty [sic] assignments. After
accepting these assignments, all extra duties shall be strictly voluntary on the part of the
teacher. If this position, after being posted, cannot be filled by a bargaining unit member,
Board may fill this extra-duty [sic] assignment with a non-bargaining unit member for said
E. Appendix B shall set forth the
amounts for extra duties.
F. If anyone receives an involuntary
extra-duty [sic] assignment, he/she must notify the building
principle in writing within five (5) days after the assignment has been issued. This will
provide a written record of the teacher's notice of the involuntary assignment.
A. Appendix A containing the salary schedule is hereby
made a part of this agreement.
. . .
C. Appendix B containing the
extra-duty [sic] schedule is hereby made a part of this agreement.
. . .
G. Placement on the salary schedule shall be in accordance
with the teacher's years of experience,
highest degree and the number of credits earned beyond said degree.
. . .
A. This agreement may be altered, changed, added
to, deleted from or modified only through the
voluntary, mutual consent of the parties in written and signed amendment to this
. . .
1997-99 EXTRA DUTIES
. . .
. . .
Ms. Lynn Whalstrom, Ms. Jan Dooley, Mr. Tom Beck and Ms. Kay McLain are all
certified teachers employed by the School District of Florence County as teachers and were
employed at the time of the events giving rise to this grievance. In addition to their teaching
certificates, each held a vocational certification from the Department of Public Instruction in
specific area of endeavor. Dooley held vocational certification in business and office
McLain in a business and industry related area; Wahlstrom in food service; and the record
reflect the subject of Beck's vocational certification.
The Master Agreement (hereinafter referred to as the "Contract" or the "Agreement")
between the District and the Association provides for teacher compensation under Appendix
standard "Lane" and "Step" salary schedule. Compensation under this schedule is based
type of university degree earned by the employee (Bachelors or Masters) with increases in
based upon years of experience and university or college course work completed in addition
Teachers may earn additional compensation by performing "extra duties." The
contains a list of these extra duties in Appendix B and this list includes "vocationally
certified" as one
of the extra duties for which a teacher may receive additional compensation. Each extra duty
compensated either by an hourly wage or by a percentage of the base salary. The hourly
percentage of the base compensation for each extra duty is set forth in Appendix B. The
compensation for "vocationally certified" teachers is 5.0% of the base salary.
Mr. Gerald Gerard is the District's Superintendent. Sometime prior to February 27,
the Florence County School Board, to which Gerard reports, asked that he review potential
by which the District might reduce expenses without eliminating teachers or student
a result of his review of the matter, he recommended that the Board not renew the extra duty
assignments of the four teachers mentioned above for the 2001-2002 school year. On
2001, Gerard notified each of the affected teachers of the fact that the Board was considering
non-renewal and a meeting with the Board and the teachers was arranged for March 12,
discuss the matter.
On March 13, 2001, the teachers were notified by letter of the Board's decision to
Gerard's proposal pursuant to Article XIV of the Contract. The Board action was taken,
to the letter, due to "Budgetary Considerations." This grievance followed in due course.
POSITIONS OF THE PARTIES
The Association argues that vocational certification enhances the teacher's skills and
knowledge and thus their performance as teachers. It says that vocational certification should
treated differently than "extra duty" beyond the school normal day work hours despite the
vocational certification is listed on the extra duty schedule and that the compensation for such
certification is set forth therein.
The Association takes the position that the payment of additional compensation for
certification, which was negotiated in the 1977-78 bargaining process, is a long standing and
established practice which may not be eliminated by the District other than through the
process. The Association equates the vocational certification to a Masters degree and argues
teachers who have such certification are entitled to the additional compensation by virtue of
been certified and not because they perform any "extra duties."
The Association admits that the District may non-renew extra duties set forth in
but argues that vocational certification is not an extra duty because the teachers do not
services beyond their normal work day and may not, therefore, be non-renewed.
The Association points to the bargaining history of the parties as evidence that the
the parties has always been to provide extra compensation to vocationally certified teachers
though they did not provide extra duty services. Also, says the Association, the past practice
paying the additional compensation for vocational certification proves that "vocational
has never been an inherent part of an extra-duty notion" and that the benefit of the
certification to the
District is to improve the teacher's skills and knowledge in the classroom.
The Association argues that compensation for increased education is a common
the education industry and that the Agreement recognizes this "conventionalism" in Appendix
"Article XIX." (The Arbitrator believes the Association is actually referring to Article XX.)
Article XX provides for advancement in classification as the employee completes
toward a higher professional level and that placement on the salary schedule
(Appendix A) is to be
determined by the teacher's years of experience, the highest degree received and the number
credits earned beyond the degree held. The Association
urges the Arbitrator to view vocational certification in the same light as a degree and to
additional compensation "for the teacher's enhanced knowledge" in the same way that
is provided for under Appendix A and Article XX.
Finally, the Association maintains that the District is unable to lay-off or non-renew a
certification because it was awarded by the State, not by the District. It also says that the
"layoff" does not apply to these Grievants because they are all still fully employed by the
The sum and substance of this argument seems to be that by complying with
the substantive due
process portions of Sec. 118.22, Wis. Stats., (relating to the notice and opportunity to be
provisions regarding the dismissal of teachers) in the process of non-renewing the
compensation here, the District somehow erred sufficiently so as to cause this grievance to
The District argues that it has, and had, the contractual authority to non-renew the
extra duty compensation for three reasons: first, because Wis. Stats., Sec. 120.12, gives the
the authority over the "possession, care, control and management of the property and affairs
School District;" second, because of the language found in Article II Board
Functions of the Master
Agreement; and third, because of the language found in Article XIV Extra Pay For
This authority, says the District, is tempered only by the provision in Article XIV which
the non-renewal be for "good and sufficient reason." The District reminds the Arbitrator of
established doctrine that the clear meaning of an agreement will not be supplanted by
to it by an arbitrator.
The District argues that the Board had "good and sufficient reason," as contemplated
Article XIV, for non-renewing these Grievants' extra duty assignments. It says that the
under fiscal pressures, undertook to eliminate expenses in a way that would not adversely
student programs or result in the layoff of teachers. It conducted a "thorough and
evaluation of its expenses following which evaluation it concluded that the elimination of the
vocational certification extra duty compensation would most efficiently meet its goals. Once
established this "good and sufficient reason," the District argues that it had the right to
In further support of its action, the District points to other extra duty assignments
heretofore not been renewed or left vacant. The Association's failure to grieve these actions
past, argues the District, evidences the fact that the Association's understanding of this issue
consistent with the District's and that this failure can be considered by the Arbitrator in
the intent of the parties regarding certain language. In this regard, the District further argues
Association's failure to object in the past amounts to an acquiescence in the actions of the
and constitutes a waiver of the right to object now.
The District maintains that the Arbitrator may not substitute his judgment for that of
District. Referring to Article XXV, which provides that the contract "may be altered,
to, deleted from or modified only through the voluntary, mutual consent of the parties in
signed amendment," and recognizing that the "responsibility for evaluating the District's
condition and capabilities must be left to the Board" the District asserts that this Arbitrator
alter the contract by substituting his judgment for that of the District.
The District does not agree that vocational certification should be treated like, or
a Master's degree. It argues that the contract is clear on the point that the two are to be
differently and that the parties intended that to be so. The Master's degree is specifically
in Appendix A, the salary schedule, and the vocational certification is specifically referenced
Appendix B, the extra duty schedule. As further evidence of this disparate treatment, the
schedule is subject to Article XIV whereas Appendix A is not. This is a substantive
the District, because it results in two different manners in which Association members are
compensated for having a Master's degree and being vocationally certified.
Finally, the District argues that if the Association is to prevail, the Arbitrator must
vocational certification a status it had not achieved at the bargaining table. This result would
the rule against securing something through grievance arbitration which a party was unable to
through bargaining as well as the provisions of Article XXV of the contract.
In its reply, the Association says that the vocational certification was placed on the
Duties Schedule, Appendix B, "as a matter of convenience" (presumably referring to the
of the parties as they drafted the agreement). It argues that vocational certification is not an
duty" at all, but simply "helped the Grievants meet their obligation" (presumably referring to
obligation to teach). The Association points out that "extra duties concerning vocational
compensation do not exist" and that because there are no extra duties coupled with vocational
certification the compensation must have been intended by the parties as compensation
strictly for the
status of having attained vocational certification.
The Association also argues that the District's failure to object to the payment of
compensation for vocational certification is "incontestable evidence" of the parties' meeting
minds on the issue that compensation was paid for the certification itself,
notfor extra duties. It
concludes by observing that "this case is about the agreed upon compensation for vocational
certification" not about extra duty assignments.
The District argues in reply that the Association failed to demonstrate that the
contract provisions relating to vocational certification compensation were ambiguous and,
consequently, the Association's arguments based upon past practice, industry practice and
history are irrelevant. In support of this argument, it points to this arbitrator's ruling barring
introduction of bargaining history relative to Appendix B in light of the Arbitrator's view
that, at that
point in the hearing, there was no evidence that the relevant contract provisions were
The District argues that vocational certification is an extra duty under the terms of
contract and that the inclusion of it in Appendix B shows the clear intent of the parties that it
treated as such. Because it is included in Appendix B, says the District, it is subject to the
Article XIV Extra Pay For Extra Duties which give the District the right to
The District poses the question that if one assumes, without deciding, that vocational
certification is not an extra duty, then what is it? It argues that the
Arbitrator does not have the
authority to move it elsewhere in the contract, or to call it something else, because that
tantamount to re-writing the contract and contrary to the provisions contained in Article XXV
The District concludes with a brief reference to its argument that it had good and
reason for it's actions in this matter and asks the Arbitrator to deny the grievance.
The underlying facts are not in dispute. The controversy here surrounds the
compensation for vocational certification and an analysis of the contractual provisions
The contract contains an appendix, Appendix B, entitled "1997 99 EXTRA
SCHEDULE." This appendix appears in the contract for one purpose and one purpose only:
forth a listing of certain activities which constitute "extra duties" of the teaching staff and the
compensation to be paid for each. One of the items listed in Appendix B as an extra duty is
"Vocationally Certified." The compensation for this entry is set forth as "5%." This
been a part of this contract, in one form or another, since 1977 and has included the
certified" entry since that time. It is this document which sets forth the compensation for the
performance of each of the activities or entries appearing therein, including "vocationally
There are two references to Appendix B in the contract. Article XIV entitled
FOR EXTRA DUTIES, provides, inter alia, that Appendix B shall set
compensation for extra duty and that no teacher shall be dismissed or non-renewed
from extra duty
for other than good and sufficient reason. Article XX entitled
COMPENSATION, provides for the
inclusion of Appendix B in the contract.
The primary rule in construing a written instrument is to determine, not alone from a
word or phrase, but from the instrument as a whole, the true intent of the parties, and to
meaning of a questioned word, or part, with regard to the connection in which it is used, the
matter and its relation to all other parts or provisions. Riley Stoker Corp., 7 LA 764, 767
1947). To the greatest extent possible, the Arbitrator must ascertain and give effect to the
mutual intent. That intent is expressed in the contractual language, and the disputed portions
be read in light of the entire agreement. Hemlock Pub. Sch., 83 LA 474, 477 (Dobry,
The record in this case makes it quite clear to the undersigned that the parties' intent
regard to the compensation and treatment of vocational certification is now, and has always
least since 1977, to treat it as though it were an extra duty. The Association argues that
there are no
real extra duties, per se, attached to the certification and hence it should be considered to be
other category. That other category, argues the Association, is one akin to a Master's degree
whereby a vocationally certified teacher would be paid an additional compensation simply
he or she has attained it. The difficulty with this argument is twofold. First, the parties
not intend to treat vocational certification like a Master's degree. If they had, they would
a reference to the certification in Appendix A, that portion of the contract which specifically
the step and lane grid compensation schedule based upon years of experience and level of
degree held (i.e. Bachelor degree or Masters degree). In the alternative, the parties could
drafted language placing the vocational certification in a separate category altogether with
compensatory treatment set forth. They did not do either. They placed it in the list of extra
found in Appendix B thereby subjecting it to the same treatment as all other items found
Second, in order for me to accomplish the result the Association seeks it would be necessary
to move the vocational certification from the list in Appendix B and put it somewhere else.
course of action presents two problems. In the first instance, this would require me to
terms of the contract which I am not authorized to do, and, second, I have no idea where I
place it if I had the authority. As I have said, it is clear that the parties intended to treat
certification in the same way as all other extra duties and for me to unilaterally modify that
would render that part of the contract language meaningless. "It is axiomatic in contract
that an interpretation which tends to nullify or render meaningless any part of the contract
avoided because of the general presumption that the parties do not carefully write into a
negotiated agreement words intended to have no effect." John Deere Tractor Co., 5 LA
(Updegraff, 1946). Also see Russell, Burdsall and Ward Corp., 84 LA 373 (Duff, 1985);
Maritime Service Committee, Inc., 49 LA 557, 562-63 (Schreiber, 1967).
The Association's argument that because the payment of additional compensation for
vocational certification is a long standing and established practice and, hence, may not be
by the District, misses the mark in two respects. First, the contract provides not only for the
of this compensation, but also for the District's right to discontinue that
payment for good and
sufficient reason. Second, it presumes that past practice may alter the meaning of otherwise
unequivocal language of the contract in the absence of any evidence that the parties had
such a modification. To allow the past practices alleged herein to prevent the District from
the rights given to it by the clear and unambiguous language in the instant dispute, as the
suggests, would result in the de facto rewriting of the parties' contract and
that is not the job of the
Arbitrator. If the language of the agreement is clear and unequivocal, past practice will not
it unless there is mutual accord of the parties that they have intentionally modified their
that the practice reflects their new agreement. See Metro Transit Auth., 94 LA 349, 352
(Richard, 1990). This record does not contain any evidence that this was the case. "A
. . based on mutual agreement may be subject to change only by mutual agreement. Its
quality is due, however, not to the fact that it is a past practice but rather to the agreement in
it is based. . . . A contrary holding would place past practice on a par with written
create the anomaly that, while the parties expend great energy and time in negotiating the
the Agreement, they unknowingly and unintentionally commit themselves to unstated and
more important matters which in the future may be found to have been past practice." Ford
Corp., 19 LA 237, 241-242 (Schulman, 1952).
In the absence of ambiguous contract language evidence of bargaining history or
practice is likewise irrelevant. See Elkouri and Elkouri, How Arbitration
Works, 5th Edition, p. 508,
(citations omitted) and Universal Studio Tour, 93 LA 1, 3 (Gentile, 1989).
Regarding the Association's argument that the District is unable to "lay-off" or
the Grievants from extra duty assignments, the contract specifically and clearly provides for
right in Article XIV, Paragraph B. Its right to non-renew an extra duty assignment is
by the duty to do so with "good and sufficient reason." The Association does not deny that
District had such good and sufficient reason nor does the record reflect otherwise.
The Association references the District's compliance with the notice requirements of
Stats., Sec. 118.22, as relating to the dismissal of teachers but does not argue that the
actions in this regard tainted the non-renewal in this case. The Arbitrator simply notes that
reflects that the District complied with the notice requirements of the statute but does not
issue of whether or not it had a duty to do so.
The Arbitrator is not impressed with the Association's argument that the vocational
certification was placed on the extra duties schedule "as a matter of convenience" and that
vocational certification "helped the Grievants meet their obligation" to teach. As for
convenience, placing the vocational certification in Schedule A versus Schedule B
would have been
just as convenient if that had truly been the intent of the parties. As for helping the teachers
obligations, the District does not require teachers to obtain vocational
certification. The testimony
of Lynn Wahlstrom, and the documentary evidence associated with it, was not persuasive in
regard. The District does require that teachers be certified to teach. The
fact that some teachers are
willing to obtain industry experience through the vocational certification process is
should be encouraged and these teachers should be lauded for having done so. If the
the District are able to come to a meeting of the minds at the bargaining table as to a
for providing compensation for the certification then they can modify this contract to so
to provide for that modification through the grievance process is not appropriate.
Finally, the Association's argument that the District's failure to object to vocational
certification compensation payments in the past is "incontestable evidence" of the parties'
of the minds is curious. In the past, the District had a contractual obligation to make those
It had that obligation up until the moment in time that it exercised its contractual right to
for "good and sufficient reason." The contractual provisions, as I have stated above, are
clear in this
regard. It is the clear and unambiguous meaning of the contract provisions which establish
of the parties in this case, not the fact that one (or both) of the parties met its (or their)
In light of the above, it is my
The District did not violate the parties' collective bargaining agreement when it failed
renew the extra-duty assignments of Lynn Wahlstrom, Jan Dooley, Tom Beck and Kay
the 2001-2002 school year.
Dated at Wausau, Wisconsin, this 8th day of January, 2002.
Steve Morrison, Arbitrator