BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN FEDERATION OF TEACHERS
WISCONSIN INDIANHEAD TECHNICAL
(John Syck Grievance)
Mr. William Kalin, WFT Staff Representative, on behalf of the
Weld, Riley, Prenn & Ricci, S.C., by Mr. Christopher R.
Bloom, on behalf of the College.
The above-captioned parties, herein "Union" and "College", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Rice Lake, Wisconsin, on December 19, 2001. The hearing was not transcribed and the
there agreed that I should retain jurisdiction if the grievance is sustained. The parties
filed briefs that were received by January 28, 2002.
Based upon the entire record and arguments of the parties, I issue the following
Did the College violate Article IV, Section T, of the contract
when it determined that grievant
John Syck was a probationary employee and when it laid him off in June, 2001, and, if so,
what is the
Grievant Syck was hired as an Electronics/Computer Instructor at the College's
Wisconsin, campus on December 22, 1996, and he began working in January, 1997. He
a full-time instructor for five full semesters, or two and a half years, until June, 1999, when
laid-off. (Joint Exhibit 1). He was hired again via a July 5, 2000, letter (Joint Exhibit 3) to
retiring teacher Tim Beecher. The letter also stated: "Your seniority date is effective on the
you sign your contract." Syck at that time never expressed any objection to having his
calculated in that fashion. Syck subsequently worked as the only Electronics instructor from
2000, to June, 2001, when he again was laid-off because his program was cancelled due to
student enrollment (Joint Exhibit 4).
Instructor Mark Kearns, who has served as the Union's chief negotiator in contract
negotiations with the College, testified that the parties' 1991-1992 collective bargaining
stated that seniority had to be "continuous" and that the word "continuous" was subsequently
in the negotiations for the 1996-1998 contract (Union Exhibit 3), thereby enabling the
eliminate a Supplemental Agreement covering certain employees. He said that the word
was dropped to accommodate the College's need to better integrate certain instructors into
College's curriculum, and that "both parties were aware of the ramifications. . ." of
word "continuous". He added that the College every year sends out a seniority list to four
that he assumes each campus receives the lists; that it is "difficult to have much oversight"
whether all four lists are correct; and that it is up to the Union's vice-presidents at each
make sure the lists are accurate.
On cross-examination, Kearns acknowledged that the parties in the 1996 negotiations
expressly addressed dropping the word "continuous" for the non-supplemental instructors and
the "predominant focus" and "major intent" were on the parties' then-Supplemental
Grievant Syck testified that he at the beginning of the 2000-2001 school year saw the
October, 2000, seniority roster for the Superior campus which stated that he had a seniority
July 1, 2000 (Joint Exhibit 7); that, "I didn't feel I needed to do anything about it" because
terribly concerned"; and that he does not recall whether he then discussed it with a Union
representative. On cross-examination, he said he was well aware by February, 2001, that his
program could be eliminated.
Perry Palin, Vice-President of Human Resources, testified that Syck was considered
to be a
new teacher when he was rehired in August, 2000; that Syck's prior employment was not
because of the one-year break in his service, which is why his prior 203 hours of
unused sick leave were "left behind" (College Exhibit 1); that the College in October,
2000, sent a
seniority list to the Union stating that Syck had a seniority date of July 1, 2000; and that
Union challenged some other seniority dates at other campuses, it never told the College that
seniority date was wrong. He also said that Syck was notified of his layoff via an April 19,
letter (Joint Exhibit 4); that Article IV, Section T, of the contract only refers to
instructors; that Article IV, Section E, of the contract differentiates between teachers who
before 1998 and those hired after that; and that Union Representative William Kalin told him
Syck had completed his probationary period. Palin also said that Syck was not more
evaluated during the 2000-2001 school year because he was still on probation and that, "We
have been much more attentive. . ." if Syck had only one more semester to serve in his
On cross-examination, Palin testified that he does not know what happened before
relating to the need for continuous service and that the College is not claiming Syck is not a
Jann E. Brill, the Superior Campus Administrator, testified that because of declining
enrollment, "There is no electronics program in Superior." She denied ever telling Syck that
promised two years of employment when he was rehired in 2000.
On cross-examination, Brill testified that Syck is a "good teacher"; that when he was
again for the 2000-2001 school year, "all intentions" were that the electronics program would
continue; and that as a part-time employee that year, Syck did not receive any benefits. She
that she does not know whether the College gained more flexibility when the word
dropped from the contract in the 1996 negotiations.
POSITIONS OF THE PARTIES
The Union claims that the College violated Article IV, Section T, of the contract
contract does not require continuous service for the purpose of accumulating seniority;
parties in their 1996 contract negotiations dropped the word "continuous" as it related to
and that the "list of reasons for nullifying the seniority date is specific and does not include
The Union also argues that the District laid-off Syck in June, 1999, rather than non-renewing
under Sec. 118.22, Wis. Stats., and that the College's repeated "hires" of Syck show that he
good teacher. As a remedy, the Union requests that Syck be accorded "those rights that
normally have been offered to a non-probationary employee when he received his layoff
notice. . ."
at the end of the 2000-2001 school year.
The College contends that the "grievant was separated from employment during his
probationary period"; that it relied upon the grievant's August, 2000 "initial date of
stated in the seniority list"; that neither Syck nor the Union at the time ever questioned
2000, seniority date; and that "The proper forum for this dispute is the bargaining table."
This case largely turns on the application of Article II, Section E, entitled
states in pertinent part:
1. Effective July 1, 1996, seniority shall commence with
date of signing of the initial full-time
contract or the date of initial "full time" employment, whichever occurs first. Employees
employed prior to July 1, 1996, shall maintain their prior seniority date. Any
continuous service due to resignation, failure to return to work from approved leave of
absence, failure to return after the recall period for layoff, or from extended disability
three (3) years nullifies the initial date of seniority. (Emphasis added).
2. A list shall be maintained by the administration
showing the seniority of each member of the
bargaining unit by campus. Such lists shall be made available to the Union before October
15 of each year. Four copies of such list shall be sent to the Union. When the list is
submitted to the Union, it shall have 30 days for acceptance or rejection. The Board shall
be held liable for any error in seniority.
The Union correctly points out that seniority under this language can only be broken
"resignation, failure to return to work from approved leave of absence, failure to return after
recall period for layoff, or from extended disability. . ." Noticeably absent in this proviso is
reference to losing seniority because of layoff. Hence, it must be concluded that seniority is
when an employee is laid off.
Article IV, Section T, of the contract, entitled "Staff Reduction", states in pertinent
1. Whenever it becomes necessary to decrease the
number of employed teachers who have
completed a probationary period by reason of a decrease in pupil population within a specific
campus, or any other reason, employees shall be laid off in the inverse order of seniority by
program (i.e., machine shop, accounting, etc.), or major instructional area, and by campus.
Notice of such layoff shall be sent prior to the July 1 preceding the school year in question
by registered mail, return receipt requested, to the last known address of the employee.
A teacher who has the least seniority in
program or in a major instructional area to be
reduced may transfer to another program or major instructional area in which they are
certified and there is a less senior employee in that program or instructional area.
Such teachers who have completed the
probationary period shall be reinstated in that campus
in inverse order of their being laid off, if qualified to fill the vacancies.
. . .
Under this language, it is necessary to determine whether Syck was a probationary
at the time of his 2001 layoff. If he was, the College did not violate this proviso. If he was
College did violate it.
As related above, the District did not follow the non-renewal procedures of
Sec. 118.22., Wis.
Stats., when it laid him off in 1999. Hence, Syck was never non-renewed.
Because of his prior layoff, however, Syck did not have "continuous" seniority when
rehired at the beginning of the 2000-2001 school year. Contracts before 1996 stated that an
employee needed "continuous" service for purposes of layoff and recall. But, the word
was dropped in the 1996 negotiations for a successor contract, which is why Article IV,
does not contain that term. While the parties disagree over exactly what was agreed to in the
contract negotiations, it suffices to say here that the contract must be interpreted as written
as a result, the word "continuous" cannot be read into it.
Syck therefore should not have been treated as a new employee when he was recalled
in July, 2000, but rather, as an employee who had been recalled from layoff.
No grievance was then filed, however, even though both Syck and the Union saw the
College's October, 2000, seniority list for the Superior campus (Joint Exhibit 7) which stated
had a seniority date of July 1, 2000. Syck also either knew or should have known that
he was returning to work as a new employee since he was not allowed to carry over
the 203 hours
of accumulated sick leave he had at the time of his initial layoff at the end of the 1999 school
Syck also was told via Palin's July 5, 2000, letter: "Your seniority date is effective on the
you sign your contract." (Joint Exhibit 3). That was the clearest possible notice that the
treating Syck as a new employee.
This case thus boils down to who is to bear the burden of mistakenly treating Syck as
employee at the start of the 2000-2001 school year. Ordinarily, it would be the College
erred in claiming that Syck did not have "continuous" service for the purposes of seniority
and lay-off. But, Syck perpetuated that error by not immediately grieving the College's
actions. Had he done
so, the College may have reconsidered its position. By not doing so, he led the College into
that all was well and that he did not object to the July 1, 2000, seniority date assigned to
In balancing these competing interests, I find that the equities favor the College
acted in good faith and because Syck did not immediately inform the College that it was
acting at its
peril by assigning him the July, 2000, seniority date. In such circumstances, Article II,
Section E, 2,
of the contract governs this dispute by stating: "The Board will not be held liable for any
seniority" if the Union does not object to the seniority list within thirty days.
In light of the above, it is my
1.The College did not violate Article IV, Section T, of the contract
when it determined that
grievant John Syck was a probationary employee when it laid him off in June, 2001.
2.That the grievance is therefore denied.
Dated at Madison, Wisconsin this 15th day of February, 2002.