BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MERRILL TEACHERS ASSOCIATION
MERRILL AREA PUBLIC SCHOOLS
(Washington School Mural Grievance)
Mr. Thomas S. Ivey, Jr., Executive Director, Central Wisconsin
UniServ Council-North, 2805
Emery Drive, P.O. Box 1606, Wausau, WI 54402-1606, appearing on behalf of the
Mr. Dean R. Dietrich with Mr. Bryan
Kleinmaier on the brief, Ruder, Ware & Michler, S.C., 500
Third Street, P.O. Box 8050, Wausau, WI 54402-8050, appearing on behalf of the District.
At the joint request of the parties, the Wisconsin Employment Relations Commission
designated the undersigned Marshall L. Gratz as arbitrator to hear and decide a dispute
the above-noted grievance under the parties' July 1, 1999 - June 30, 2001 collective
The dispute was heard at the District Administration Building in Merrill, Wisconsin,
August 7, 2001. The proceeding was not transcribed, but the parties authorized the
maintain an audio tape recording of the evidence and arguments for the Arbitrator's exclusive
Exchanges of the parties' post-hearing briefs and reply briefs were completed on
20, 2001, marking the close of the hearing.
The parties authorized the Arbitrator to formulate a statement of the issues for
based on the evidence and arguments presented. In their briefs, the parties proposed the
The Association proposes that the issues be:
Did the District violate the Agreement
when they didn't pay for work and materials done
August 8-15, 2000? If so, what should the remedy be?
The District proposes that the issues be:
Whether the District violated the Agreement by refusing to
the four teachers who
removed the paint covering the mural at Washington Elementary School during August of
so what is the appropriate remedy?
The Arbitrator frames the issues as follows:
1. Did the District violate the Agreement by refusing to pay
Grievants (Vicky Van
Straten, Jessica Pelka, Lynn Schroeder and Ardis Marquis) for the time and materials
involved in their
removal of paint covering the mural at Washington Elementary School during August of
2. If so, what is the appropriate remedy?
PORTIONS OF THE
Article 3.0: Board Function
The Board of Education of the Merrill Area
Public Schools hereby retains and reserves unto itself
all powers, rights, authority, duties and responsibilities conferred upon and vested in it by
and the Constitution of the State of Wisconsin, of the United States, and all applicable court
Article 14.0: Grievance Procedure
For the purposes of this agreement, a
grievance is defined as any problem involving the meaning,
interpretation, and application of the provisions of this agreement.
. . .
. . .
STEP V. . . . The arbitrator will be without
power or authority to make any decision which
requires the commission of an act prohibited by law or which is violative of the terms of this
Article 18.0: Teaching Assignment
Teaching periods, preparation periods, and
other assignments are determined by the building
principal based on professional preparation and program needs.
. . .
District staff may be required to participate
in two paid events per year. All non-paid events are
considered voluntary and teachers may leave anytime after the student day ends on the school
following the unpaid event.
Article 20.0: Payroll Deduction
Required deductions are federal and state
income tax, STRS and FICA. Staff members may elect
U.S. Bond payments, tax-sheltered annuities, or additional
insurance protection upon application to the Business Office.
Tax-sheltered annuities are
available through the following companies: [list omitted].
Article 25.0: Summer Assignments
Assignments such as curricular
development, in-service activities, short term administrative
assignments, outside the 38 week contract to be at the rate of $300 per week for the
school years on a half-time basis (20 hours) or equivalent thereof.
The professional staff members assigned to
teach summer school shall be compensated at the
Summer school pay schedule
1st year $15.50 per hour
2nd year $16.00 per hour
3rd year $15.50 per hour
4th year $17.00 per hour
5th year $17.50 per hour
If a professional staff member does not
teach summer school at least once during a five (5) year
period, they will return to the first year step where compensated
All teachers will start at the first year level
beginning in the summer of the year 2000.
Section 30.0: Teacher Discipline
Alleged breaches of discipline shall be
promptly reported to the offending employee. In the event
said breach of discipline may or could result in termination of employment, written
such a breach has occurred shall be promptly forwarded to the employee and the MTA.
. . .
No teacher, except those serving their
probationary period, will be non-renewed except for cause.
. . .
No teacher shall be suspended except for
All information forming the basis of
disciplinary action shall be made available to the employee.
When in the judgment of the superintendent,
a condition or situation warrants, the superintendent
may suspend a staff member with pay pending action by the Board.
Because such action could only follow a
serious problem, the superintendent shall file written
charges with the board of Education and shall forward copies of said charges to the
The Board shall schedule a hearing, if
desired by the employee, to act on the charges. The
employee may be accompanied by counsel, if so desired.
Extra Pay Schedule
Teachers (K-12) will be compensated for
work performed after the regular school day at the rate
per assignment as listed below.
Ticket Sellers $17
Ticket Takers $17
Supervisors of Events $17
Track timers $17
Dance/Party chaperones $17
Supervisors for plays $17
Super. For Concerts K-12 $17
Super. for Musicals K-12 $17
Bus chaperones will be compensated at the
rate of $21 per trip if the trip is less than 100 miles
and $26 per trip if the round trip exceeds 100 miles.
Appendix B -- 2000-2001 Salary Schedule
[a conventional salary grid containing annual salaries
with 14 steps and 12 columns of increasing educational attainment]
The District is a K-12 public school district serving the Merrill, Wisconsin area in
central Wisconsin. The Association represents a bargaining unit of professional teaching
of the District. The District and Association have been parties to a series of collective
agreements, including the Agreement.
Four members of the Association bargaining unit are the subject of the grievance
case by the Association. They are Vicky Van Straten, Jessica Pelka, Lynn Schroeder and
Marquis (Grievants). Each of the Grievants was employed by the District at Washington
School throughout at least the two school years preceding and the school year following the
of 2000. Except for Pelka, who had worked for the District just two years as of the summer
the Grievants had all worked for many additional years at Washington School, as well.
The instant dispute concerns actions of the Grievants and the District during the
2000 in relation to a mural that was painted on the wall of the Washington School library in
The mural was created under an "Artist in Residence" program, with help from students and
In May of 1999, Washington Head Custodian Bob Pike surveyed the Washington
whether the employees favored painting over the mural, not painting over the mural or had
preference. Pike delivered the survey results to Washington Principal Garth Swanson.
When the rest
of the library walls were subsequently repainted by the District's paint crew at Swanson's
during the summer of 1999, the mural was not painted over.
In July of 2000, Grievants Schroeder, Van Straten and Pelka attended a two-day
workshop on "Phonemic Awareness" at Washington that was presented during the
morning hours of July 11 and 12. Grievant Marquis was in the building on those days
painting a closet being converted to a "book room" in preparation for the upcoming school
which Marquis was being paid under a grant. Grievant Pelka remained in the building after
morning workshop sessions to assist Grievant Marquis with the "book room" project.
Schroeder, Van Straten and Marquis along with teacher Carol Wegner remained in the
the July 11 workshop to work on a damaged bulletin board in the library and a trophy case
During the course of their activities on July 11, the Grievants and Wegner discussed
they could do to improve the appearance and functionality of the building. They discussed
that the May, 1999 survey had shown a substantial majority of Washington staff in favor of
the mural painted over and that the mural was too "busy" to permit Wegner to hang her
work in the library. On the counter of the Library, they discovered a paintbrush and a can
paint that matched the color of paint used to paint the other sections of the library in the
1999 and decided to paint over the mural. They then and there decided that the mural should
painted over. Grievants Schroeder and Van Straten proceeded to paint over the mural with a
coat on July 11 and with a second coat on July 12. Grievant Pelka applied a third coat over
on July 13 and added a contrasting plum-color stripe to match the stripe painted on the other
walls. Neither Wegner nor Grievant Marquis painted over the mural.
The workshop was a paid activity, but except for Marquis' being compensated for her
on the "book room," none of the employees requested or received pay for their above-noted
after-workshop activities on July 11 and 12 or for their activities on July 13.
After the Grievants began the paint-over of the mural, Custodians Pike and Mark
assisted the Grievants with the paint-over in various ways by obtaining and providing
when requested by the Grievants and by moving ladders and offering painting tips.
Swanson was out of town on vacation when the mural was painted over. It is
neither he nor any other District supervisor or administrator expressly authorized anyone to
the mural. It is also undisputed that in the Spring of 2000, Grievant Schroeder and other
had "informal conversations" with Swanson about improving the appearance of the school in
anticipation of the initiation of the SAGE program there the following fall; that Swanson
all of Schroeder's specific suggestions for spruce-up projects; but that neither Schroeder nor
else suggested to Swanson or received Swanson's approval for painting over the mural.
it is also undisputed that following his return from vacation, Swanson told Marquis that he
the paint-over of the mural looked nice and brightened up the area and that he liked what the
On July 26, 2000, District Superintendent Frank Harrington received a letter from a
Washington teacher who expressed her sadness and regrets that the Washington mural had
painted over. That teacher later supplied Harrington with newspaper articles describing the
of the mural.
On July 30, 2000, Harrington spoke with Association President Jeff Hetfeld in the
of the High School. At that time, Harrington told Hetfeld that the mural at Washington
had been painted over without authorization by the Grievants and that the District was
three options regarding the District's response to the situation: having the overpaint removed
the mural by the Grievants; having the overpaint removed by the District and billing the
the cost of the removal; and having the overpaint removed by the District and docking the
of the Grievants for the cost of the removal. Hetfeld replied that he could not believe that
Grievants would do something like that without permission and recommended that Harrington
to the Grievants about the matter before taking any action. Hetfeld also expressed his belief
Agreement would prohibit the District from docking the Grievants' pay because their pay
was for the
190 days of work that they had already completed.
Without any communications with the Grievants, the District issued letters dated
2000, to the Grievants at their home addresses from District Director of Administrative
Gregory L. Kautza. Kautza's letters read as follows:
Dear Washington Teachers:
I received a letter last week that was
addressed to the superintendent, school board president and
myself. The letter stated that the historical mural in the Washington library had been painted
After checking with my paint crew to see why they had done such a thing, I was informed
did not paint over the mural. Through conversations with Garth Swanson and the summer
staff it was
determined that you four ladies painted over the mural.
I understand there was a survey done last
year to determine the staff's feelings about the mural.
I further understand that the survey results were such that Garth made a decision that
the mural was
to stay. [Emphasis in original.] With Garth on vacation this week it is hard to
determine whether or
not he informed all staff that the mural was to stay, but it was general knowledge in the
Garth, however, did tell the district paint crew, who are the people authorized to paint the
to leave the mural when they painted the rest of the library last year. The proper channel for
for painting is through Bryan Plautz or me. Neither of us recall any requests to have the
After conversation with Garth and Frank
Harrington it has been decided that the mural needs to
be restored. I acquired a product from Mautz paint called "Goof Off." This product
paint, but not oil based paint. I experimented with this product and with a great deal of
rags and brushes, the latex you applied can be removed.
Frank and I talked about two options: 1) You could remove the
latex yourself, or 2) we will have
it removed and equally bill the four of you for the process. We would like the four of you
together and determine how you want to handle the restoration of the mural and inform us
In either case it needs to be done before the beginning of the school year -- consequently we
to know your decision no later than Wednesday, August 9th.
Kautza's letter shows copies were sent to District Superintendent Frank Harrington,
President Joe Fink and Swanson. Kautza testified that Pike told him that the mural had been
over by the four Grievants.
The Grievants each learned of the contents of those letters on August 3. They
letter and authorized Grievant Schroeder to call Kautza and inform him that they had chosen
remove the paint from the mural themselves and that they would begin doing so. When
called Kautza on August 4, he was not available, so she left a message to those effects on his
From August 3 until August 15, 2000, non-Grievant Wegner and the four Grievants
Marquis), worked on removal of the latex paint using "Goof Off." The label on the "Goof
states that "[v]apor is harmful and eye irritant." It also cautions that
". . . dizziness, headaches,
nausea or eye watering" can result from its use and that "[i]ntentional inhalation can be
Despite those warnings and advice from paint store personnel that the product is intended
small scale spot removals in well-ventilated areas, the Grievants and Wegner used 29 quarts
product and the Grievants worked a combined 126.25 hours. (Wegner worked an additional
hours, but no claim has been advanced on her behalf in this case.) The Grievants testified
did their paint removal at night to avoid daytime heat and humidity. They set up fans to
effect of the product fumes, and they found that they needed to wear multiple layers of
to avoid contacting the product with their hands while performing the paint removal. Despite
precautions, Grievant Schroeder experienced headaches and chemical burns on her face and
After a small amount of the product splattered off a wall and into her eye, Schroeder also
a temporary problem with kaleidoscopic vision for which she sought and received medical
Kautza visited the Library on various days to see how the Grievants were
he never encountered the Grievants because they did their paint removal work only at night.
occasion, Swanson told Marquis that he wanted to help the Grievants with the paint removal,
Marquis told him "[n]o the stuff will kill you," referring to "Goof Off" and the fragile state
Swanson's health. The District took no other steps to determine whether or assure that the
were performing the paint removal work in safe and healthy manner.
By August 15, the Grievants had successfully removed the paint covering all but one
several segments of the mural. The Grievants stopped their paint removal efforts at that
following an Association Executive Committee meeting during which Hetfeld learned for the
first time what the Grievants were doing and called on them to cease their paint
because use of the "Goof Off" product threatened their health and safety. The next day,
contacted Harrington and told him that he had asked the Grievants to stop work on the
because their use of the "Goof Off" was hazardous to their health.
Following that contact from Hetfeld the Superintendent conducted an investigation
matter resulting in his issuance of a letter report dated September 19, 2000, which set forth
In the fall of 1983, an "Artist in Residence"
was contracted to work with students and staff at the
Washington elementary School. This effort resulted in a mural being painted on portions of
in the Library area of that building. This event was publicized in the local press.
In the spring of 1999 (likely May) a "vote"
or "survey" was directed to be taken by the custodian
regarding whether the mural should remain as it was or be painted over. It appears from the
testimony that not all staff members were surveyed. The principal (Garth Swanson) recalls
being such that he made a determination that the mural would not be painted over. The
further recalls making a statement to that effect at a staff meeting in May of 1999. Members
staff who gave testimony do not recall such a statement being made.
During the summer of 1999 all of the
Library walls were painted except those portions with
mural depictions. The painting of the walls was authorized and directed by the
In the spring of 2000 primary grade level
members of the Washington elementary staff were
involved in preparing for a new program (Student Achievement Guarantee in Education -
evolve in the fall of the 2000-2001 school year. The focus of this program is to reduce class
the primary levels. Several of the staff determined that certain areas of the building needed
"spruced-up" related to the SAGE initiative. The discussions with the Principal regarding
"spruce-up" did not include the murals.
During the summer, apparently in concert
with the "spruce-up" effort by some of the teaching
staff, Vicky Van Straten, Lynn Schroeder, and Jessica Pelka did paint over the mural
portions of the
Library wall. It was determined that Ardis Marquis, who had previously been identified as
staff member who painted over the murals, actually did not do any painting related to the
Additionally, two custodians (Bob Pike and Mark Voight) had only incidental
involvement related to the paint-over. Their actions included
obtaining some additional painting
material and/or moving cardboard for the teachers. They had no involvement in the actual
It is at this point that a primary question
evolves. That question is: "Did anyone who did the
painting receive affirmative authority or permission from the building principal or any other
administrator to actually paint-over the murals?" With the testimony I received, no staff
stated that they had received permission to paint over the murals. The general testimony
members justifying why they felt they had the authority or did not need the permission for
the paint-over was 1) because they believed they had been able to do other renovations in the
request/permission; 2) because they had not been told that they could not paint-over the
3) because their intentions were not malicious, rather were to assist in the spruce-up of the
With the aforementioned, they appeared to believe that it would be permissible to do the
covering the murals.
The teachers involved in the paint-over
received a letter, dated August 2, 2000, from Greg
Kautza (Director of Administrative Services) which gave them two options regarding the
of the latex paint used to cover the mural. One option was to remove the paint themselves;
option was to have the district remove the paint and be billed for the work.
In the August 2nd letter, Mr. Kautza also
stated that he had contacted a Mautz paint dealer to
determine if there was any product which would remove latex paint. He was told, and he
in his August 2nd letter, that a product by the name of "Goof Off" would work with great
of the teachers also contacted the Mautz dealer and was told that this product was not
other than small scale spot removal.
At the close of the August 2nd letter, the
teachers were asked to get together, determine their
choice of options, and "inform us (Kautza or Harrington) ASAP". Lynn Schroeder, on
behalf of the
other teachers involved, left a voice mail on Greg Kautza's telephone stating that they were
option one (removing the paint themselves). There was no other first-hand discussion
parties until after the removal process had been started. After leaving the voice mail
did begin the process of removing the paint using the "Goof Off" product.
After many hours of work in removing the
latex paint from one of the wall panels (this work
being done by Vicky Van Straten, Lynn Schroeder, Jessica Pelka, Ardis Marquis, and Carol
the removal work was stopped due to
a concern regarding the potentially harmful nature of the "Goof
Off" product being used in large
quantities. Each of the individuals has contacted a physician to determine if any negative
impact could be determined. The issue related to any medical concerns will be addressed to
individuals impacted in a separate document.
As Superintendent, it is my belief, based on
the testimony and information which I have received,
that none of the individuals involved in the paint-over of the mural had received "affirmative
permission" to involve themselves in this project. An undertaking of this magnitude should
warranted, at a minimum, a collective discussion with the building Principal to review such a
consideration and request specific permission to do a paint-over of the mural segments on the
wall. Some of the individuals had spoken with the Principal about cleaning up a trophy case,
removing some coat racks, and painting a closet. In these cases the considerations/requests
affirmed by the Principal. In the future, staff members must receive affirmative
involve themselves in similar such activities and are herein directed to do so.
I have also noted a greater than desirable
degree of what I refer to as "free flowing action" -
meaning there is at least an appearance of an atmosphere in the building which allows
believe they can "do" almost anything without discussion and/or permission from the
Principal needs to establish boundaries and criteria within which decisions can be made
relative to the operation of the building and is herein directed to do so.
[Emphasis in original.]
Such boundaries/criteria must be communicated to the members of the staff so that there is
misunderstanding as to the useful parameters for "free flowing action" versus those actions
require prior approval.
Whatever disciplinary matters that may be
considered relative to the mural paint-over incident
will be handled on a personal and individual basis.
Copies of this report are to be distributed to
the members of the Washington elementary School
staff and those individuals attending the September 7, 2000 hearing.
On September 15, 2000, shortly before the issuance of the Superintendent's report,
grievance giving rise to this arbitration was filed by the Association. The grievance read, in
part, as follows:
Statement of Grievance:
The rights of Bargaining Unit Members
Vicky Van Straten, Jessica Pelka, Ardis Marquis, [and]
Lynn Schroeder were violated by the District when the Director of Administrative Services,
Kautza, gave these teachers an order, contained in his letter of, August 2, 2000, requiring
of paint from walls in the Library of Washington Elementary School. We consider such
order to be:
1. outside the scope of any duty for
the district contracted with the teacher
2. a possible violation of the safe
workplace statute, 101.11, and
3. a demand to collect monies, without
consent of the employees, for their work time or
Further the Association asserts that Mr.
Kautza's letter of August 2, 2000, and related actions
by the District, constitute discipline without just cause. It is clear that Mr. Kautza failed to
a thorough investigation into facts of the situation prior to taking disciplinary action against
teachers. Mr. Kautza also violated the provisions of the Master Agreement when he failed to
the letter of August 2, 2000, to the [Association].
Additionally, the District failed to pay the
teachers for their time and materials involved, as a
result of Mr. Kautza's letter of August 2, 2000, in removing latex paint from the mural at
Relevant Contract Provisions:
Article 3.0 - Board Function - Sections 3.1
Article 30.0 Teacher Discipline -- Sections
30.1, 30.3, 30.5, 30.6
Appendix B -- 2000-2001 Salary Schedule
and Appendix D - Teacher Contract
And any other relevant Article or Section
which may be found to apply.
1. Pay the teachers for the cleaning of the
mural at Washington Elementary School at an
hourly rate based upon each teacher's per diem for the 2000-2001 school year.
2. Reimburse the teachers involved for any expenses incurred
in carrying out the District's
orders contained in, or related to, Mr. Kautza's letter of August 2, 2000.
3. Cease and desist any pending
disciplinary action against the teachers involved.
4. Rescind any disciplinary action, if any,
taken against the teachers involved.
5. Remove all materials related to any
action taken against the teachers from any and all files.
After the grievance was denied at the Principal step, it was
appealed to the Superintendent.
In his letter denying the grievance, the Superintendent concluded that Grievants Pelka,
Van Straten painted over the mural without having solicited or received permission to do so
their building principal; that it was "appropriate and common to other similar situations
property has been defaced or destroyed . . . [to give] the individuals . . . the choice of fixing
damage or paying for its repair. I believe this is referred to as restitution." He further
"[a]s of this date no formal disciplinary action has taken place, none of the three teachers are
jeopardy of losing their positions, and there have been no violations of the contract."
The grievance was then appealed to the Board of Education step. The Board
in pertinent part, as follows:
This letter shall constitute the response of the School Board to the
grievance filed by the Merrill
Education Association over the mural painting dispute. Since the Association indicated that
items in its grievance have been resolved, this response shall only address the portion of the
relating to the letter sent by Mr. Greg Kautza and the request by the Association that
compensation be paid to those teachers who worked to remove paint from the mural.
The School Board has determined that the
teachers working at the Washington Elementary
School were volunteers and not employees of the School District at the time. The School
also determined that the actions of the teachers in painting over the mural without obtaining
affirmative permission or even discussing such action with the Administration was not a duly
authorized work activity. As a result, the School Board has determined that the actions taken
Kautza were reasonable and appropriate under the circumstances as these same steps would
been taken with any other individual committing a
similar act on school property. The School Board, therefore,
does not authorize any payment
of compensation to the teachers involved as requested by the Association.
In order to resolve this matter, the School
Board has directed the following steps to be taken by
The Administration is to restore the
remaining portion of the mural as part of the
upcoming, annual summer maintenance work.
The Administration is to reaffirm to
the Board of Education that there is no
disciplinary action reflected of this issue in personnel files of the teachers involved.
If you should have any questions regarding
this, please contact Mr. Frank Harrington directly.
The dispute was ultimately submitted for arbitration as noted
above. At the hearing, the
Association presented testimony by the four Grievants and rested. The District presented
by Kautza and rested. The Association presented rebuttal testimony by Harrington and
POSITIONS OF THE PARTIES
The Grievants were employees of the District for purposes of this case. The District
them as employees by providing them access to the building, equipment and materials, and
as well as by giving them permission to "spruce up" the school in preparation for the
year. The Grievants painted over the mural in good faith, without malice, and within the
latitude set forth by their principal, Garth Swanson.
The District did not have just cause to issue the letter of August 2, 2000, demanding
teachers pay for removal of the paint over the mural or remove that paint themselves. The
knowingly put the Grievants in an unsafe situation while providing no training or protections.
District also disciplined the Grievants without talking to them and without otherwise
fair and impartial investigation before reaching its conclusions.
Although the Grievants acted in good faith, the District did not. The Grievants made
improvements for no other reason than to benefit the students and the District. In return, the
seeks to deny that the Grievants were employees and treats them like vandals, presumably in
to shield itself from the consequences of its serious error in judgment in ordering the teachers
without pay using a toxic substance.
The August 2 letter placed the Grievants under considerable time pressure to
mural restoration. They believed that they were being disciplined when they removed the
later did the District inform them it had not intended the August 2 letter to constitute
the circumstances, now that the "dust has settled" and the Grievants have been informed of
rights by the Association, they have every right to pursue compensation as they have in this
By way of remedy, the District should be required to pay the teachers for the
used in removing the paint and for the time they spent doing so at an hourly rate based on
regular teaching salary. The District should be required to pay the Grievants at that higher
part, because the District acted without regard to the Grievants' health and safety and without
the Grievants an opportunity to explain their conduct before being ordered to remove the
District should also be required to make sure that the Grievants' files are free of any
references to the painting over of the mural and should be ordered not to take any
against the Grievants.
The fact that the District has not taken any disciplinary action beyond the letter of
does not mean there is no dispute as to whether the District had the right to impose the
demanded by the District of the Grievants in that letter. That dispute still exists and is
Arbitrator. Citing, City of Richland Center (Police), WERC MA-8539 (Shaw, 4/24/95).
The Grievants, acting as non-employee volunteers, spontaneously decided on their
paint over the mural. They did not receive explicit or implicit District authorization to do
conduct equates to defacement of District property.
The District responded as it does with all individuals who deface District property. It
the Grievants to cure the problem themselves or to pay to have the District cure the problem.
District response is dictated by common sense and was clearly reasonable, citing, Nicolet
Technical College, WERC MA-10428 (Greco, 5/12/99), and the Grievants chose to remove
Now the Grievants request compensation for curing the defacement that they caused.
However, just as private citizens would not receive compensation for curing a problem that
caused, the Grievants should not receive compensation for removing the paint over the
A variety of additional considerations lend support to the District's position. One of
options stated in the August 2 letter was that the District could bill the Grievants for the cost
District restoration of the mural; however, neither that option nor the letter as a whole
contains any threat of or reference to docking the Grievants' pay for those costs. The
August 2 letter
did not inform the Grievants that the two options it listed were the only two options
Neither in Schroeder's voice mail message agreeing to remove the paint nor in any other way
Grievants ask whether they would be paid for doing so or ask to meet with Kautza or
discuss pay or other possible options. The Grievants also did not fill out the form
by teachers to get paid under Article 25 for work performed during the summer, and they
obtain any employment contract to perform the paint removal work. Although Kautza's
indicated that "Goof Off" could be used to remove latex paint, he did not recommend or
Grievants to use this product. The District denies that its conduct illustrated a lack of concern
Grievants and asserts that that issue is irrelevant when determining whether the Grievants
compensated for curing the defacement of District property that their conduct created.
For those reasons, the Union's requests for arbitral remedies should be denied in all
Central to the resolution of the ISSUES framed above is the question of whether the
August 20, 2000 letter violated the Agreement.
If that letter impacted solely a matter between the District and non-employee
volunteers, then neither the Agreement nor its grievance and arbitration procedure would
the dispute under Agreement Secs. 14.1 and 14.3, Step V. The Arbitrator finds, however,
Grievants' involvement in the Washington School mural paint-over was as District employees
Association bargaining unit, not as non-employee community volunteers.
The Grievants' various efforts at sprucing up the building during the summer of
paid or unpaid, were extensions of their work as teachers rather than projects independent of
employment relationship with the District. Those spruce-up efforts were intended to enhance
working environment for the Grievants as employees as well as to improve the educational
environment for students and their parents. Those efforts were akin to other work commonly
performed by bargaining unit teachers on a voluntary basis, some of which is specially
and some of which is performed without special compensation over and above the
salary. See, Agreement 18.4, Article 25, and Extra Duty Pay Schedule.
Kautza's August 2 letter, itself, shows that he understood that he was dealing with the
Grievants as bargaining unit teachers. The salutation of the letter alone establishes that, to
Washington Teachers." The letter also refers to the Grievants' relationship to the District as
employees by its references to "a survey . . . to determine the staff's feelings about the
mural" and to
the "general knowledge in the building" regarding the future of the mural. While Kautza
was not a
supervisor with authority over the Grievants, his letter refers to his
having conferred with the Superintendent regarding the Grievants' options outlined in
conveying that the letter was being issued under the Superintendent's supervisory authority.
The issuance of the August 2 letter to the Grievants was, therefore, an action taken
District with respect to the Grievants as Association bargaining unit employees and subject to
challenge through the Agreement grievance procedure.
Whether viewed as discipline or some other form of exercise of the District's
rights under the Agreement, the August 2 letter violated the Agreement because it was
capricious both procedurally and substantively. The management rights reserved to the
Education in Art. 3 are subject to the implied obligation that those rights may not be
exercised in a
manner that is arbitrary, capricious or in bad faith. See, e.g., Barron County, WERC
(Jones, 8/19/98) at 7; City of Racine, WERC MA-10580 (Crowley, 12/29/99) at 6; Vernon
County, WERC MA-7210 (Schiavoni, 9/16/92) at 4; Kewaunee Engineering Corp., WERC
A-4762 (Gratz, 12/3/91) at 10; and Muskego-Norway School District, WERC MA-7065
8/13/92) at 13.
The August 2 letter -- as the Grievants reasonably understood it -- required them to
between exposing themselves to being billed by the District for unspecified and unknown
mural restoration by the District and exposing themselves to the hazards of removing the
themselves along with the associated costs of materials and expenditure of their time. It
required them to select an option and act quickly by calling for them to choose and
choice of option "ASAP," and in no event later than August 9, and by requiring that the
work on the
project be completed "before the beginning of the school year" which would have been less
weeks later on April 21.
Procedurally, the letter was arbitrary and capricious because it was issued without
communication with the Grievants. While the District's election to issue the August 2 letter
giving the Grievants an opportunity to explain their conduct was apparently influenced by a
to return the mural to its original condition before the beginning of the following school
election prevented the District from asking the Grievants whether they had in fact "painted
mural," and it caused the District to erroneously determine that Grievant Marquis had done
in fact she had not. As a further result, the District determined the alternative penalties to be
on the Grievants without asking the Grievants why they had painted over the mural. Giving
Grievants an opportunity to explain their conduct would not have fully exonerated Van
Schroeder and Pelka from fault in the circumstances, because none of them had asked for or
express authorization to paint over the mural and they should have known that Swanson
mural to remain uncovered when all but the mural was painted over during the summer of
following the completion of Pike's survey. However, hearing from the Grievants before
the August 2 letter would have revealed, as found in the Superintendent's perceptive
report, that the mural was painted over "apparently in concert with the 'spruce-up' effort
at Washington and that the Grievants "appeared to be believe that it would be permissible to
painting covering the murals" at least in part because "there is at least an appearance of an
in the building which allows individuals to believe they can 'do' almost anything
and/or permission from the Principal." While those factors would not have fully exonerated
Grievants for painting over the mural without permission, they are nonetheless significant
factors as regards the penalty, if any, that could properly be imposed on Van Straten,
Pelka for the paint-over.
Substantively, the letter was arbitrary and capricious because it imposed a penalty on
for painting over the mural when, in fact, she did not do so. It was also arbitrary and
because it applied the restore-or-pay-for-restoration approach which the Superintendent
in his grievance response as "common to other similar situations where property was defaced
destroyed." In the Arbitrator's opinion, it was arbitrary and capricious to treat the
as defacing or destroying property. The arbitration record confirms that the three Grievants
painted over the mural did so in concert with on-going efforts to spruce up and improve the
and not with any intention to harm or detract from its appearance or functionality. The
decision to paint over the mural was made on the spur of the moment, rather than as a result
long-planned deliberate effort to defy management's authority or to undercut the preferences
staff members who favored retention of the mural. The paint-over in this case is more aptly
characterized as making a mistake regarding the extent to which they were authorized to
the building, rather than as defacing or destroying District property. For those reasons, the
finds unpersuasive the District's assertion that it was "reasonable" for the District to apply to
Grievants its common response "where property was defaced or destroyed."
In the absence of an Agreement provision or published work rule putting employees
notice that they are subject to being billed for the cost of mistakes that they make as
choose not to fix on their own time and at their own expense, it is neither common sense nor
reasonable for the District to impose those choices on the Grievants in response to their
The Grievants' conduct in this case is clearly distinguishable from the spray painting
of a the
Spanish word, "OMELAS" in 12-inch high letters on the back of two large bookcases
wall of the grievant's office in the Nicolet Area Technical College award cited by the
In that case, Arbitrator Amedeo Greco found that the grievant's "gross misconduct when she
school property" was "inexplicable," prompting him to rule consistent with the Faculty
claim "that the College 'could have ordered her to buy new bookcases.'" Id. at 8. Unlike
in that case, the Grievants' conduct in this case was not inexplicable. They acted -- albeit
requisite permission -- for purposes of improving the appearance and functionality of the
The August 2 letter was also arbitrary and capricious because one of the two
which it required the Grievants to choose was inherently dangerous to their health and safety.
option was stated in the letter as, "[y]ou could remove the latex yourself." It followed a
in which Kautza states, "I acquired a product from Mautz paint called 'Goof Off.' This
removes latex paint, but not oil based paint. I experimented with this product and with a
of effort with rags and brushes, the latex you applied can be removed." The letter thereby
one and only one product,
identified where the Grievants could obtain that product, and identified how the
Grievants could use
the product to remove the latex. It thereby effectively authorized the Grievants to use that
and that method without offering any qualifications or references to the need for any
clothing, equipment or methods. The letter thereby exposed the Grievants to a serious threat
health and safety.
For those reasons, the Arbitrator concludes that the District's rights under the
not entitle the District either to require the Grievants to restore the mural themselves, or to
the Grievants in the alternative to be billed for the cost of District restoration of the mural.
District's issuance of the August 2 letter to the Grievants therefore violated the Agreement.
There remain the questions of whether the District is obligated in the circumstances
the Grievants for the time and materials they spent in removing paint from the mural, and if
what hourly rate.
The Grievants were effectively compelled to perform the paint removal task without
compensation in order to avoid being billed an unspecified and unknown amount for District
restoration of the mural. The Arbitrator has concluded that the District had no right under
Agreement either to require the Grievants to remove the paint or to bill them for that
these circumstances, it is conventional and appropriate that the District be required to
the Grievants for the work the District improperly compelled them to perform.
The Grievants did not volunteer to remove the paint. Rather, they were compelled to
by the August 2 letter or, alternatively, to be billed for the unspecified and unknown cost of
restoration. The letter did not invite the Grievants to confer with Kautza or other
about what should be done. The letter did not ask the Grievants if they had alternative
propose. It effectively directed them to choose one of the two alternatives and to do so
in no event later than Wednesday, August 9. That is what the Grievants reasonably
letter was requiring of them; that is what the Superintendent's October 16 report describes
2 letter as requiring of the Grievants; and that is what the Arbitrator finds the August 2 letter
The fact that the Grievants complied promptly and without question or qualification to
District directive that has been found above to have violated the Agreement does not make it
inappropriate that the District be ordered to pay the Grievants for the time and materials
It is true that the Grievants could have conferred with the Association before responding or
have refused to comply on health and safety grounds after learning from the paint store that
Off" was suitable only for small spot removals, or could have put the District on notice that
reserved the right to later seek compensation through the grievance procedure for removing
However, in the circumstances of this case, the Grievants' failure to do any of those things is
persuasive basis on which to deny the Association's request for an order that the District pay
Grievants' paint removal time and materials.
The Arbitrator, therefore, concludes that, by way of remedy for issuance of its
August 2 letter
in violation of the Agreement, it is appropriate that the District be required to pay the
their paint removal time and materials.
The Arbitrator finds that the rate at which the Grievants shall be paid is the first year
$15.50 per hour "Summer school pay schedule" rate that Sec. 25.2 makes applicable to
staff members assigned to teach summer school . . . beginning in the summer of the year
than the higher hourly rates based on their annual teaching salary requested by the
paint removal work performed by the Grievants, while arduous and dangerous and effectively
compelled by the District, is at least somewhat similar to the cleaning up of a laboratory
Hetfeld testified that he had previously performed at the Summer School rate. The
identified no instances in which similar work was compensated at the sort of rates the
requesting for the Grievants in this case. The arbitral relief available in a case of this kind is
make-whole relief intended to be compensatory in nature, rather than punitive. Accordingly,
Association's assertion that the higher salary-based rate be imposed as a punitive measure to
discourage future such violations by the District is not a persuasive basis on which to impose
The materials costs incurred by the Grievants were identified at the hearing and not
by the District. Those costs have therefore been ordered reimbursed by the District to the
The Association has also requested that the Arbitrator order the District to take no
disciplinary action against the Grievants regarding the paint-over and to remove all
references to the painting over of the mural from the Grievants' personnel files. In that
District correctly points out that, in its January 15, 2001 grievance response, the Board of
unconditionally directed the Administration to assure "that there is no disciplinary action
this issue in personnel files of the teachers involved" in an effort to "resolve this matter."
has also unequivocally stated in its reply brief (at p.4) that "[t]he District has openly
issue of discipline and concluded that no discipline is warranted."
It is, therefore, clear from the record and the positions taken by the parties in this
the District has enforceably agreed that no disciplinary action has been taken and that no
disciplinary action will be taken against the Grievants as regards the painting over of the
School mural. A remedial order to that effect would therefore be redundant and
However, because it has been disputed whether the August 2 letter was disciplinary
it is not clear that the Board's directive above has assured that the August 2 letter has been
from the Grievants' personnel files. The Arbitrator has, therefore, ordered that the August 2
be removed from the Grievant's personnel files along with any other documents or references
concerning the painting over of the Washington School mural.
DECISION AND AWARD
For the foregoing reasons and based on the record as a whole, it is the decision and
the Arbitrator on the ISSUES above that:
1. The District did violate the Agreement by
refusing to pay the Grievants (Vicky Van
Straten, Jessica Pelka, Lynn Schroeder and Ardis Marquis) for the time and materials
involved in their
removal of paint covering the mural at Washington Elementary School during August of
2. As the remedy for the violation noted
in 1, above, the District shall promptly:
a. pay the Grievants
at the $15.50
level of the Agreement Summer School pay
schedule rate, without interest, and subject to customary payroll deductions, for the following
amounts of time worked by them on paint removal during August of 2000:
Ardis Marquis -- 30.5 hours
Lynn Schroeder -- 37.0 hours
Jessica Pelka -- 26.25 hours
Vicky Van Straten -- 16.25 hours;
b. reimburse the Grievants,
without interest, in a total amount of $381.18, divided
among the Grievants in a manner to be specified by the Association, for materials used
Grievants' paint removal during August of 2000; and
c. remove from the Grievants'
personnel files the District's August 2, 2000 letter and
any other documents or references concerning the painting over of the Washington School
3. The Arbitrator
reserves jurisdiction for
a period of 30 days following the date of issuance
of this Award, to resolve, at the request of either party, disputes as to the meaning and
of the remedy ordered in 2, above.
Dated at Shorewood, Wisconsin, this 14th day of March, 2002.
Marshall L. Gratz, Arbitrator