BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MARKESAN DISTRICT EDUCATION
MARKESAN SCHOOL DISTRICT
Mr. John D. Horn, UniServ Director, Three Rivers United
Educators, 104 West Cook Street, Suite 103, P.O. Box 79, Portage, Wisconsin 53901-0079,
appeared on behalf of the Association.
Mr. Douglas E. Witte, Attorney at Law, Melli, Walker, Pease
& Ruhly, S.C., Attorneys at Law, P.O. Box 1664, Madison, Wisconsin 53703-1664,
appeared on behalf of the District.
On July 25, 2001, Markesan School District and Markesan District Education
filed a request with the Wisconsin Employment Relations Commission seeking to have the
Commission appoint William C. Houlihan, a member of its staff, to hear and decide the
matter. A hearing was conducted on October 16, 2001, in Markesan, Wisconsin. A
transcript of the
proceedings was made, and distributed on November 2, 2001. Post hearing briefs, and reply
were filed and exchanged by January 25, 2002.
This Award addresses a layoff in the Family and Consumer Education Staff.
BACKGROUND AND FACTS
The parties to this proceeding have been signatories to a series of collective
agreements, which address reductions in the work force. The current Layoff Clause, set
has evolved over the years. It features a committee to analyze layoffs. In 1995, the
representative on the Committee was afforded participant (as opposed to observer) status.
which is the subject of this proceeding is the first experienced by these parties.
In recent years the Markesan School District has experienced declining enrollment.
with State imposed revenue limits this has caused significant budget problems. Sue
began as District Administrator in the Fall of 2000, was confronted with the need to cut
approximately $250,000 from the budget. A number of measures were reviewed and certain
cutting steps were implemented. It became necessary to look to a reduction in teaching
complete the budget cuts. The Administration targeted four positions for elimination or
On March 7, 2001 Ms. Alexander convened a meeting involving herself, Louis
High School Principal, Jerry Chisnell, the Association president, and Connie Hynnek, the
Negotiations Chairperson. The purpose of the meeting was to review the measures deemed
to satisfy the budget. There were no materials provided prior to the meeting. Ms.
Alexander laid out
her plan to address reductions in force, proceeding Department by Department. Ms.
indicated that reductions in the High School English Department would be accomplished by
off a first year teacher who was junior. A needed reduction in the Technical Education
was to be accomplished by reducing the load of a relatively junior teacher, who lacked
certifications. A Social Studies reduction was to be accomplished by laying off a junior,
teacher. There was consensus as to the propriety of these moves.
The last proposed reductions, coming in the Family and Consumer Education
caused the Association representatives concern. The Family and Consumer Education
consists of two employees, Rosemary Kiehne, who has been with District for approximately
and Vivian Buchholz, who has been with the District for approximately 10 years. Ms.
in the area of foods and clothing. Ms. Buchholz taught in the area of family living and
During the 2000 01 school year Ms. Kiehne taught 10 sections of subject
matter, and had 2
supervisions. Ms. Buchholz had 11 sections of subject matter and 1 supervision. A full time
12 classes. Ms. Alexander proposed reducing Ms. Kiehne to a .5 FTE, and Ms. Buchholz to
FTE. Chisnell and Hynnek balked at giving the more senior teacher a greater reduction.
Students register to take courses for the coming year. The District tallies the
determines the courses and sections needed to accommodate the student preferences.
for Family and Consumer Education courses was down. Student registration indicated that
taught by Ms. Buchholz would decline from 11 to 8. Student registration indicated that
taught by Ms. Kiehne would decline from 10 to 6. These numbers form the basis for Ms.
reductions. In the Fall of 2000 the District contracted with a consultant, Judy McFarlane,
the District's Vocational course offerings. Ms. McFarlane made a series of
including measures which would strengthen links to Vocational Colleges. This area is of
concern to the administration in that approximately 72% of the District's graduates either
Vocational school or do not pursue further education. McFarlane's conclusion that the
program could be improved and expanded was shared by Ms. Alexander.
Alexander concluded that the contracts of Kiehne and Buchholz should be reduced to
the relative decline in enrollment each of their programs had experienced. She believed that
and Buchholz brought different strengths to the program, and that it would be easier to grow
program with the two working toward that goal. She also felt that Buccholz is among the
strongest teachers, and should be rewarded for holding her attendance in the face of decline.
she allowed each teacher to continue to teach the classes previously taught. It was her
had student registration produced the reverse result, the reduced contracts would have
student enrollment. Alexander never considered consolidating class loads in a single teacher,
laying the other off.
When Ms. Alexander indicated her decision relative to Kiehne and Buchholz,
Association participants expressed reservations about having the less senior teacher end up
larger contract. It was at this point in the meeting that Ms. Hynnek suggested that the
the layoff clause. The four then walked through the layoff clause, analyzing Kiehne and
against the various point allocations. The participants did not have the documents necessary
a precise assessment, and so they used estimates or made calculated guesses as to the precise
of points to assign. By the conclusion of the session, Ms. Buccholz appeared to have
points. However, the totals were close, lacked precision, and the Association representatives
not satisfied that the performance evaluations were sufficiently analytical to justify the
result. The Association representatives felt undermined by the fact that the Superintendent
initiated the meeting with a conclusion in mind, and believed that a purpose of the meeting
have been to allocate the division of work.
Chisnell and Hynnek left the session requesting more information so that decisions
made. It was their view that the session was not concluded. They believed that the
to work on a consensus basis, and that no consensus had been achieved.
Ms. Alexander left the
meeting with the understanding that the Committee had voted 2 1 in
support of her allocation of time. She and Mullen agreed. The Association dissented.
As a part of
the concluding discussion, Alexander pointed out the fact that the District was free to deviate
the point system at step four, where circumstances compel such a result.
On, or about March 14, the School Board was presented the "recommendations" of
Committee, as Ms. Alexander understood them. The reductions were approved. The
asked for a further meeting, which was held on March 20 21.
On March 20, continuing on the 21st, Alexander, Mullen, Chisnell,
and Hynnek met again, and
did a full review of the application of the point system to Kiehne and Buchholz. They had
evaluations, and actual information on length of service and other point criteria. Under the
Administrations point allocation, Ms. Kiehne and Ms. Buchholz had an equal number of
Association members regarded the points allocated to the Performance Qualification category
subjective and not "developed and synchronized with the district's evaluation system" This
session ended in the same disagreement as did the March 7 meeting.
The results of this session were taken back to the School Board for another review.
Board was provided with the results of the Committee meetings and again endorsed the
Administrations proposed reductions. The Association filed a grievance, and pursued the
The parties stipulated the following issue;
Did the District violate Section 5.5 of the collective bargaining
agreement when it partially laid
off Rose Kiehne for the 2001 2002 school year?
If so, what is the appropriate remedy?
RELEVANT PROVISIONS OF THE COLLECTIVE
Section 5.5 Layoff Clause
a. Standard. After the
determines to eliminate a teaching position or program, the Board
will meet with the MDEA to discuss the reasons for the layoff. After seeking the MDEA's
input, the Board or its representative will determine in comparison with other teachers and
on an individual basis, which teachers are to be laid off in accordance with the criteria and
procedures set forth in the succeeding paragraphs.
b. Criteria for Selection. In
implementation of necessary staff reductions under this Article,
individual teachers shall be selected for full or partial layoff in accordance with the following
Step One Attrition Normal attrition
resulting from employees retiring or resigning will be
relied upon to the extent it is administratively feasible in implementing necessary layoffs.
Pursuant to Article VI, teachers in an affected area may be transferred to a different area
within the district if they are certified for that area.
Step Two Committee
A layoff review committee (District Administrator, one principal, one
MDEA representative appointed by the MDEA) will formulate recommendation(s) as to
which teacher(s) is to be laid off. The committee will project the district's faculty needs,
determine the pool of teachers subject to layoff, and then utilize the point system in Step
Three in its deliberations (maximum 100 points). The committee will make its
recommendation to the Board based upon the foregoing procedures unless it recommends a
deviation therefrom in accordance with Step Four. The number of points awarded under part
six, miscellaneous, will be indicated and the Board may modify such assessment at its sole
Step Three Point System
1. Years of Service 35 Points
1 0, 2 -
3 - 6, 4 7.5, 5
9, 6 10.5, 7 12,
8 13.5, 9 15,
10 16.5, 11 18,
19.5, 13 21, 14 22.5,
15 24, 16 25,
17 26, 18 27,
19 28, 20 29,
21 30, 22
31, 23 31.5, 24 32,
25 32.5, 26 33,
27 33.5, 28 - 34,
29 34.5, 30 35.
Weighted within department 100%, within district
outside district 50%
2. Performance Qualifications 30
Outstanding - 17-21
Questionable 5 and below
Management & Control
Strong - 8 9
Acceptable - 4 7
Questionable - 2 and below
To be developed and synchronized with the district's
3. Areas of Certification Eligibility
One major area of preparation 7
One major area and one minor area
One major area and two minor areas OR
two major areas 9
Two major areas AND one or more minor
areas - 10
4. Formal Preparation and Advancement 10
BS Degree 7
BS Degree + 12-35 credits 8
MS Degree OR BS + 36 or more 9
MS Degree or 12 or more credits 10
5. Continuing Education and Development
Within 0-2 Years 10
Within 3-5 Years 7
Within 6-10 Years 5
Within 11-15 Years 2
Based on three credits or equivalent
district developed CEU's.
6. Miscellaneous Special
Circumstances 5 Points
Extracurricular activities (see Appendix B
Maximum Value 2) public and community
services, special recommended circumstances, separation of five points or less on above.
Board of Education evaluation and determination after
recommendation from Board
committee, administration, MDEA, other interested parties.
Step Four Deviation from
the results of the application of the point system Under Step Three
will be permitted where the Board determines, on recommendation of the Review
that the educational program needs or circumstances of the District compel such deviation.
. . .
h. Grievances Any layoff
this article shall not be subject to the
grievance procedure except that an allegation that the Board acted in Bad faith in
utilizing and applying the procedures in this article is grievable.
POSITIONS OF THE PARTIES
The Association contends that a clear contract violation is bad faith, within the
meaning of Section
5.5 h, of the collective bargaining agreement. It is the claim of the Association that the
attempted to ignore the requirement that the point system be substantiated by the District's
system. The Association notes that Ms. Kiehne was never denied salary schedule movement
characterized as unsatisfactory, nor was Ms. Buchholz ever granted an extra increment. Yet,
point of layoff Ms. Kiehne was characterized as unsatisfactory. The Association contends that
of her evaluations suggest an unsatisfactory level of performance. The contract requires that
system be synchronized with the evaluation system. The Association argues that did not
the two employees point totals been more reflective of their respective evaluations, Ms.
have graded out higher. The Association points out that if you throw the flawed evaluations
altogether, Ms. Kiehne grades out higher.
The Association contends that the District has manipulated the evaluation system to
desired outcome. This is alleged to be the bad faith required by par. h. The Association
Arbitration Award by Arbitrator Kerkman for the proposition that a clear contract violation is
inherently an exercise in bad faith (see School District of Wausau, no citation).
The Association contends that the contract requires a recommendation of the review
No such recommendation was ever forthcoming, since Association representatives never
The Association argues that the Committee operates on a consensual basis. Absent a
there can be no recommendation. Additionally, the step 4 deviation can only arise where
circumstances compel a deviation. There is no element of compulsion present here. It is the
of the Association that what occurred is that the Administration came up with a plan. When
Association resistance to the plan it became necessary to "cook
the books", skip step 3, and move immediately to step 4. This alone is alleged to
contractual standard of bad faith.
The Association traces the bargaining history of Section 5.5. The historic role of
has evolved from total employer discretion, to a point system, to the creation of a
an Association observer, to apply the point system, to the current language which makes the
Association member a full participant.
The Association contends that the lack of notice and opportunity to prepare for the
discussion is further evidence of bad faith. No documentation was provided before either
Documents provided at the second meeting were not provided in advance. By the time
participants were aware that the meetings involved layoffs, and the persons to be laid off, the
had already acted. The lack of information resulted in the inability of the Association to
In summary, the Association believes the District acted unilaterally, and then went
contractual motions. All of the foregoing is alleged to be in bad faith.
The District argues that the collective bargaining agreement specifically authorizes
District's layoff decision. According to the District, Section 5.5 (a) makes it clear that while
Association is to be consulted and kept informed, the layoff decision remains with the Board.
4 of the process provides as much. The Board's actions were an affirmation of the
The Board acknowledges that the suggestion to split the layoffs occurred before the
analyzed. However, once the Association objected, the parties turned to the point system,
reviewed it a second time. The Board contends that the Committee structure is established
contract, and that nowhere in the agreement is there a requirement of unanimity to proceed.
The Board argues that there is no evidence of bad faith in the record. Ms.
Alexander testified that
her decision was the product of her concern for the students and the program. It was
the use of an outside consultant, and the Association was involved in the process. The fact
Alexander arrived at the first meeting with a plan should reflect the fact that she and
put in a good deal of work in preparation for the meeting.
A substantial dispute between the parties is the point total to be derived from the
Qualifications section of the article. The District notes that even if the point system favors
by a large margin, the District is still free to make a different decision based on educational
need or other circumstance. The Association does not challenge Ms. Alexander's rationale
In order to prevail, the Association must demonstrate that a contract provision has
violated. To have standing to make that claim, the Association must establish that the Board
acted in bad faith.
The Association is correct in its assertion that the District initially ignored the point
At the March 7 meeting the discussion relative to the first three positions impacted ignored
system. It was the testimony of all witnesses that the first three decisions were regarded as
and, under the circumstances, agreeable. There was little, if any, disagreement and no
advanced. It appears that in preparation for the meeting the Administration did not apply the
system. However, all witnesses testified that this was a new experience in the District, and
quite sure how to proceed. Ms. Alexander had only been District Administrator for a few
and was not familiar with the elaborate contractual point system. Initially the Association did
think to subject the decisional process to contractual analysis. It was only when the parties
that the Association turned the discussion toward an analysis of the contract.
I find no evidence of bad faith in the initial lack of attention to the contractual point
This was a new experience for all participants. There was no impetus toward the contract
discussion was well under way, and a disagreement arose. The initial absence of data was a
product of the universal lack of familiarity of operating under the layoff clause.
The Association contends that there was no synchronization of the evaluation and
systems. Again, I think the Association is correct. The evaluations had been performed
prior to the
initiation of the layoff process. It does not appear that there was any attempt to assign points
respective evaluations prior to the initiation of the layoff discussions. It appears that it was
7 meeting that led to the realization that such an application would be necessary. The parties
to assemble points at the March 7 meeting, but were hampered by the lack of necessary
On all items to which the parties could stipulate, Ms. Kiehne had 49 points, and Ms.
31. The parties left the meeting with a belief that there was about a three point spread in
uncertain as to their numbers.
Ms. Kiehne was subsequently given 7 points in the General Performance category,
points in the Management and Control category. These are the minimum possible scores that
accompany an "acceptable" performance appraisal. Ms. Kiehne was evaluated as
Buchholz was given 20 points in the General Performance category, and 9 points in the
and Control category. These constitute one point less than the highest possible scores. Ms.
was given very good performance ratings. When the newly determined point totals were
the stipulated point totals, the two women fell into a tie in the point system.
The assignment of points fell within the range applicable to the evaluations received
and Buchholz. However, those points were assigned after the parties disagreed over the
Under the circumstances surrounding the layoff discussions I find it suspect that the
points would result in a tie. It suggests that the points were assigned as a counterweight to
factors over which there was no dispute. Principal Mullen testified as to the assignment of
His testimony was general and conclusory. He explained that Ms. Buchholz was a
classroom manager. Beyond that he was unable to provide an analytical explanation of how
allocation of points were drawn from the evaluations. The point totals appear to have been
to support the decision already made. As such, I believe the tally of points was done in bad
This bad faith is sufficient to allow the Association to grieve the matter.
The Association contends that there was no committee recommendation, for lack of a
consensus. Section 5.5, b. Step Two Committee, is silent as to the procedure to be
used to come
to a recommendation. These parties have no history of decision making in this area, in that
clause has never been administered. The Association introduced the history of the clause,
showed that the Associations involvement has grown from observer status to full participant.
this is so, it does not comment upon the decisional process to be used by the Committee.
Association would have a consensus model inferred into the contract. The result of this
that the Association would have gone from observer status to having its sole representative
participate with the authority to block any recommendation, and potentially frustrate the
am reluctant to imply such a role into the Agreement.
Section 5.5 reserves to the School Board the final decision. That decision is to
recommendation of the Committee. Nothing in the contract precludes a recommendation
dissent. Such a result would give each Committee member a meaningful role. It appears
purpose of the recommendation is to inform and guide the School Board. The Committee is
analyze the various factors, apply the point system, and recommend to the Board that it
under the point system or recommend a deviation from that system. The existence of a
serve to put the School Board on notice that there is a difference of opinion on how to
Board would benefit from the competing perspectives, provided each was laid out and
Board decision should be enhanced.
The Association claims that nothing "compels" a deviation from the point system.
contention requires me to review the Family and Consumer Education Department, the
District needs, and the Layoff process to determine if a deviation is "compelled". Such an
is inherently value laden and subjective. Step 4 of the Section allows for such deviation
the Board determinescircumstancescompel such deviation". This preservation of authority is
consistent with, and reinforced by the Step 2 provision that the "the Board may modify such
assessment at its sole discretion." I believe the contract unambiguously reserves to the
the review of the Committee recommendation and determination of the circumstances which
The Association complains that the lack of advance notice and documentation
hindered it in
the representation of its members. This is certainly true, particularly with respect to the
meeting. However, the Association was subsequently provided with all relevant materials,
evaluations, that went into the analysis. I do not believe the lack of information ultimately
compromised the Association as to influence this Award.
Ms. Alexander advocated for, and ultimately recommended that both positions be
and both teachers retained, to promote the Department. The reductions were done to reflect
course selection. The rationale was that the two employees brought different skills to the
Department, and the Department would be stronger with both of them than with either. Each
was to retain her historic teaching assignment. The decision is logical and rational. It
Ms. Alexander's view as to what best serves the District. The point total was applied
in a bootstrap
manner, to support the desired decision. However, Ms. Buchholz performance evaluations
significantly better then are Ms. Kiehne's. Under the entirety of the circumstances I do not
the decision was exercised in bad faith. Neither do I believe that the District violated the
The grievance is denied.
Dated at Madison, Wisconsin, this 2nd day of May, 2002.