BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN RAPIDS SCHOOL DISTRICT
OFFICE AND PROFESSIONAL EMPLOYEES
UNION, LOCAL NO. 95, AFL-CIO
(Sick Leave Allocation/Health Insurance Contributions Grievances)
Shneidman, Hawks & Ehlke, S.C., by Attorney Bruce F. Ehlke,
217 South Hamilton, P.O. Box 2155, Madison, WI 53701-2155, appearing on behalf of
OPEIU, Local 95.
Ruder Ware, by Attorney Jeffrey T. Jones, 500 Third Street,
P.O. Box 8050, Wausau, WI 54402-8050, appearing on behalf of the District.
The Board of Education of the Wisconsin Rapids Public Schools (hereafter District)
Office and Professional Employees International Union, AFL-CIO, Local 95 (hereafter
parties to a collective bargaining agreement coving the years 1998-2001, which provides for
binding arbitration of grievances. Pursuant to a joint request of the parties to the Wisconsin
Employment Relations Commission, Sharon A. Gallagher, was requested to hear and decide
disputes between the parties regarding the District's method of calculating sick leave
health insurance contributions for bargaining unit employees. The hearing was originally
for November 28, 2001, but was postponed to January 15, 2002, and continued on February
2002. A stenographic transcript of the proceedings was made and received by the
March 5, 2002. The parties submitted initial and reply briefs, the last of which was received
22, 2002, whereupon the record herein was closed.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties were unable to stipulate to an issue or issues before the Arbitrator. The
suggested the following issues:
1. Did the Employer breach the collective bargaining
agreement when, in calculating the
employees' actual hours of normally scheduled work per day for purposes of sick leave, it
the employees' hours using a five-day work week regardless of the actual work week of the
employee? If so, what is the appropriate remedy?
2. Did the Employer breach the
collective bargaining agreement when, in calculating whether
the employees work six or more hours per day for purposes of health insurance, it averaged
employees' hours using a five-day work week regardless of the actual work week of the
If so, what is the appropriate remedy?
The District suggested the following issues for determination:
Did the School District violate the collective bargaining
agreement by the method it used to
compute the School District's health insurance contribution toward the cost of the employees'
coverage and sick leave accrual? If so, what is the appropriate remedy?
The parties stipulated that the Arbitrator could frame the issues in this case based
suggested issues of the parties as well as the relevant evidence and argument in the case.
a consideration of the parties' issues and the relevant evidence and argument in this case, the
undersigned finds that the District's issue reasonably states the controversy between the
it shall be determined herein.
DEFINITIONS OF EMPLOYEES
Section 201 Regular Full-time
Employees in this category shall include
those employees who are assigned to a position on a full-time basis (seven or more hours per
day) for the full calendar year.
Section 202 Regular
Employees in this category shall include
those employees who are assigned to a position for less
than a full schedule of hours (less than seven (7) hours per day) for the full calendar year.
Section 203 School Year
Employees in this category shall include
those employees who are assigned to a position on a full-time basis (six (6) hours or more
per day), for a duration that ranges from approximately thirty-six
(36) to forty-five (45) weeks of work per academic year.
Section 204 School Year
Employees in this category shall include
those employees who are assigned to a position for less
than the full schedule of hours (less than six (6) hours per day) for a duration that ranges
approximately thirty-six (36) to forty-five (45) weeks of work per academic year.
Section 205 Temporary
A temporary employee is defined as a
non-bargaining unit employee who is hired for a period of
not more than ninety (90) days unless by joint agreement between the Board and the union.
The Board shall notify the union whenever
temporary employees are hired.
The Board agrees that no temporary
employees will be utilized to eliminate any bargaining unit
Section 301 General
Except as otherwise specifically provided in
this Agreement, the Board retains all rights and
functions of management and administration that it has by law and the exercise of any such
functions shall not be subject to the grievance procedure.
Section 302 Management Rights
Without limiting the generality of the
foregoing Section 301, the Board's prerogatives shall
302.1 The management and
operation of the school and the direction and arrangement of all
the working forces in the system, including the right to hire, suspend, discharge, discipline
302.2 The right to relieve
employees from duty for poor or unacceptable work for other
302.3 The right to determine
location of the schools and other facilities of the school system,
including the right to establish new facilities and to relocate or close old facilities.
302.4 The determination of the
layout and the equipment to be used and the right to plan, direct
and control school activities.
302.5 The determination of the
management, supervisory or administrative organization of each
school or facility in the system and the selection of employees for promotion to supervisory,
management or administrative positions.
302.6 The determination of the size
of the working force, the allocation and assignment of
work to employees, the determination of policies affecting the selection of employees, the
establishment of quality standards, and the judgement of employee performance.
302.7 The maintenance of discipline
and control and use of the Board's property and facilities.
302.8 The determination of safety,
health and property protection measures where legal
responsibility of the Board or other governmental unit is involved.
302.9 The right to enforce the rules
and regulations now in effect to establish new rules and
regulations from time to time not in conflict with the Agreement.
WORKWEEK, WORKDAY AND DUTIES
501.1 Work Year All
employees who are not employed on a twelve month basis, who have
not been discharged or laid off, shall be employed the subsequent school year; however, it is
understood that employees may be subject to layoff at any time.
501.2 Workweek The
Board reserves the right to identify the workweek for each of the
employee groups. The length of the workweek may vary with the positions.
. . .
A sick leave day for the purposes of this
contract is hereby defined as being equivalent to the
employee's actual hours of normally scheduled work per day excluding overtime. Sick leave
be credited to the employee upon completion of the individual's initial day of work in each
year. This section includes new employees.
701.1 Regular, full-time,
twelve-month employees working seven (7) hours or more per day
shall accrue twelve (12) days of sick leave per year worked, cumulative to one
Regular part-time, twelve-month employees
working more than three (3) hours per day but less
than seven (7) hours per day shall accrue twelve (12) days of sick leave per year worked,
to eighty (80) days.
Full-time, school-year employees working
six (6) or more hours per day shall accrue ten (10)
days of sick leave per year worked, cumulative to one hundred (100) days.
Part-time, school-year employees working
more than three (3) but less than six (6) hours per day
shall accrue ten (10) days of sick leave per year worked, cumulative to fifty (50) days.
Part-time school-year employees working
three (3) hours or less per day shall accrue five (5)
days of sick leave per year worked, cumulative to twenty-five (25) days.
701.2 It is understood that sick leave will be paid for
scheduled hours of work time lost by
reason of illness or injury of the employee himself. Up to two (2) days of sick leave can be
employee per year for the care of an ill minor child(ren).
. . .
HOLIDAYS AND VACATIONS
Section 801 Holidays
801.1 Regular full-time,
twelve-month employees shall be eligible for ten (10 paid holidays.
When a holiday falls on an employee's
regularly scheduled work day, or on a non-scheduled day,
their normal daily average for the week will be paid as Holiday pay.
802.2 Regular, full-time,
school-year; regular part-time, school-year employees working more
than three (3) hours per day and regular part-time, twelve-month employees working more
(3) hours per day and less than seven (7) hours shall be eligible for six (6) paid holidays.
holidays include: Labor Day, Thanksgiving Day, Christmas Day, New Year's Day, Good
Memorial Day. When a Holiday falls on an employee's regularly scheduled work day, or on
a non-scheduled day, their normal daily average for the week will be paid as Holiday pay.
Section 1001 Health
The Board agrees to pay toward a health
insurance plan adopted by the Board as follows:
For regular, full-time, full-year employees
working seven (7) hours per day the Board will pay
97% per month toward the single health plan premium, 85% per month toward the family
premium, with the employee paying the balance of the cost of such coverage.
For regular, part-time, full-year employees working less than
seven (7) hours but more than three
(3) hours per day the Board will pay 75% per month toward the single health plan premium,
month toward the family health plan premium, with the employee paying the balance of the
For regular, full-time, school-year
employees working six (6) or more hours per day the Board
will pay 97% per month toward the single health plan premium, 85% per month toward the
health plan premium, with the employee paying the balance of the cost of such coverage.
For regular, part-time, school-year
employees working less than six (6) but more than three (3)
hours per day the Board will pay 75% per month toward the single health plan premium,
month toward the family health plan premium, with the employee paying the balance of the
The Union organized the bargaining unit in 1980. The parties' first contract covered
1981-82. At this time, all unit employees worked a set number of hours per day, five days
Therefore, there was no discussion between the parties at negotiations over the first contract
regarding prorating benefits for employees working less than five days per week. Rather,
agreement was negotiated to include references to the number of hours of work "per day" of
employees as a basis for benefits eligibility and accrual, without any definition therein of the
"per day." Both Sue Akey and Shirley Frank were on the Union's bargaining team which
the parties' first contract. Akey was also Unit Chair from 1993-97. 1/ Shirley Frank was
from 1980 through 1992-93.
1/ The local union unit chair is the functional
equivalent of a local union president.
In approximately 1982-83, Akey was employed as a special education aide. She and
eight other special education aides were then threatened with the loss of work hours such that
were to go from working five days per week, the same number of hours per day, to a
week. At this time, Akey met with her department head as well as Human Resources
Wasson; Akey agreed with management that the total number of hours worked per week
divided by five days in the work week in order to find the number of "hours per day" for
education aides' entitlement to sick leave and health insurance. No grievance was filed by
regarding this matter.
Union witness Shirley Frank stated that in the mid-1980s, the District needed to cut
education aides' hours, so that they would work less than five days per week. At this time,
Union Representative Steve Hartmann and HR Director Wasson met and resolved this
the District's offering special education aides extra hours of work in the library. By this
special education aides could work up to two or three days per week in the library, for a
total of five
days of work per week with "enough hours in each day or in in the average of their
days, so they
came up over 6 (hours per day)" so that these aides could thereby "continue with their
78). Frank stated herein that this is how she learned that the District had been calculating
for unit employees by using the number of hours worked in a week and dividing by five days
to get an average of hours. Frank also stated that "it was agreed upon to average hours" for
employees at this time (Tr. 86-87). 2/
2/ Frank was unaware of Akey's arrangement
with management in 1982-83. It is unclear whether Akey's
1982-83 situation was in fact the same incident Frank described as having occurred in the
mid-1980s. It does not
appear so to this Arbitrator.
In approximately 1987, the School District created Early Childhood Aide positions, to
four days per week. At this time, Akey was a union official and was aware that the District
early childhood aide employees' work hours for eligibility for health insurance and sick leave
-- dividing their hours worked per week by five days per week as the District had done in the
(Tr. 153-155; 179-180). The Union did not challenge the District's averaging method at this
Akey stated that she shared information regarding early childhood aide hours being averaged
members of the Union's bargaining committee, including Elaine Fisa and Helen Zimmerman.
3/ Neither Fisa nor Zimmerman was called as
a witness herein.
In the early 1990s, two unit employees, VanAsten and Ziegler, desired to share one
this time, VanAsten and Ziegler agreed to share a position which worked seven hours per
days per week. Frank stated she was aware that as part of the job-share agreement, the
averaged the hours of VanAsten and Zielgler in figuring health insurance and fringe benefits.
also stated herein that she knew that the District used the same calculation method for
Ziegler it had used with special education aides in the mid-1980s. The Union did not object
treatment of VanAsten and Ziegler, neither of whom received full benefits or full health
during their job-share. (Tr. 81, 91-92, 157-159, 168, 186)
In the early 1990s, unit employee Sue Breese approached Union official Sue Akey
Breese's fringe benefits. At this time, Breese worked less than five days per week and her
averaged to determine her benefit levels. Akey advised Breese to seek more hours of work
wanted greater benefits (Tr. 159-162, 180-182 and Tr. Vol. 2, 15). Akey stated that she
Unit Chair Shirley Frank 4/ and to Union Business Agent Sam Froiland and advised them of
conversation with Breese. 5/
4/ Frank does not recall this
5/ Neither Breese nor
Froiland was called as a witness herein.
The Union Business Agent for the years 1993-98 was Gary Nuber. Akey told Nuber
preparations for contract negotiations in either 1993 or 1995 about the District's method of
employee work hours for purposes of determining benefit levels. (Tr. 162-163, 183 and Tr.
15-16, 23, 30) 6/
6/ Nuber stated herein that he did not recall
having such a conversation or conversations with Akey but that
such could have occurred (Tr. Vol. 2, 5-6, 9-11). Therefore, I have credited Akey on this
Akey also stated that each year, she and Nuber examined fringe benefits of
employees were reclassed by the District (typically, one-third of all unit positions reclassed
(Tr. Vol. 2, 15-16, 30). Finally, Akey stated that she transmitted all of her union documents
Maureen Hodgeson when she (Akey) left the Unit Chair position. Maureen Hodgeson was
Chair after Akey was defeated in an election in January, 1998. Hodgeson did not testify
none of the union documents Akey referred to was placed in the record. Akey stated that the
documents she transmitted included documents showing when employees were hired and
which often listed their work hours as "day average" (Tr. 164-166, 190-192).
By letter dated July 6, 1998, District Superintendent Ryerson explained the District's
concerning a grievance field by Sue Breese concerning her allegation she was entitled to
leave, as follows:
. . .
On Monday, June 29, 1998, at 7:30 a.m. a
meeting was held in my office to hear a grievance at
Step 2 of the grievance procedure as per Section 1205 of the Collective Bargaining
Present were Wayne Pankratz, Susan Breese, and me.
. . .
I have reviewed the information you
presented to me during our meeting. I have also reviewed
the nature of the grievance as filed on the June 5, 1998 form.
Prior to the 1994-95 school year, Sue
Breese worked 7 hours per day, 4 days per week. At that
time, personal leave time was not available to her. Beginning with the 1994-95 school year
continuing through the 1995-96 school year, the hours of Sue Breese were increased by 3
week. Due to that increase and due to the fact that the grievant thus worked on an average
6 hours per day, personal time was made available to Sue Breese and such time was
Beginning with the 1996-97 school year, the
hours again returned to 7 hours per day, 4 days per
weeks. [sic] Consistent with past practice and contract language, personal leave was not
available at that time. It is our practice that personal leave not be made available to a person
works less than 6 hours per day as per the negotiated agreement. The Human Resources
correctly applied the contract language in denying the grievance request for May 8,
the grievance is denied.
. . .
As a result of its investigation of Breese's personal leave
grievance, the District discovered that
Breese had underpaid her portion of health insurance premiums by more than $2,000 due to
that the District failed to recognize the decrease in her hours from 31 hours per week (4
days, 7 hours
per day and one day, 3 hours) to 28 hours per week (4 days, 7 hours per day) effective the
school year. The District thereafter insisted that Breese reimburse the District for health
premium payments it overpaid for Breese, the difference between 97% and 85% District paid
premiums for that year. Ultimately, the parties were able to resolve Breese's insurance
underpayment by her agreement to re-pay the District in accord with the following settlement
agreement executed December 23, 1998:
. . .
The Parties to the Collective Bargaining Agreement namely the
Wisconsin Rapids School District
"Employer" and the Office and Professional Employees International Union Local 95
addition to Ms. Sue Breese a member of the Union, enter into the following Agreement as a
complete and final resolution of an insurance re-payment. This situation developed over at
two (2) year period, wherein Ms. Breese's hours of work dropped, yet the District
same level of insurance contribution on her behalf as if her hours were the same. This
been reached based upon
discussions between the Union, School Administration Officials
and Ms. Breese. The Parties
agree that this is a non-precedent setting resolution with respect to re-payment of monies
the Employer and that the following conditions shall apply:
A) The total amount
overpaid during the aforementioned two (2) year period by the District
on behalf of Ms. Breese was $2482.46.
B) Ms. Breese will
re-pay to the District 75% or $1861.65 over a three (3) year period
commencing in January, 1999, with the final payment to be made December, 2001.
C) During the three (3) year re-payment
period, Ms. Breese will have equal deductions made
from her paychecks and will not have double deductions made during the paycheck
immediately preceding her summer breaks.
D) In the event Ms. Breese severs her
employment with the Employer she agrees to pay the
total outstanding amount within thirty (30) days.
E) Ms. Breese will have the aforementioned
insurance re-payment deductions made prior to
. . .
The Board's Minutes of its July 22, 1998 closed session described, inter
alia, the parties'
agreement to changes in Section 801 for the effective labor agreement, as follows:
. . .
Section 801.1 would change the holiday pay to the normal
scheduled hours if the holiday fell on
a regular work day, or to the employee's normal daily average if the holiday fell on a
day. Mr. Pankratz noted that with the current system, employees would lose pay if the
happened to have fewer hours due to things such as early release or a snow day.
Section 801.2 would be the same language
for employees that work less than 7 hours per day.
Section 801.5 would change the language so
that employees would receive holiday pay if they
were on a approved unpaid leave or Workers' Compensation the day before and after the
. . .
Two District witnesses (Bailey and Heinz) stated that the District had, since at least
1990s, averaged unit employees hours for purposes of determining eligibility for health
leave and holiday. Bailey and Heinz have regularly counseled new employees at the time of
regarding their hours and benefits and they have answered questions from time to time posed
employees and managers regarding health insurance and benefits of unit employees. This
was corroborated by District Managers Kauth and Jorgenson.
The District also submitted voluminous documents which showed that between the
and 2001, 23 employees who worked less than five days per week, had their health insurance
fringe benefits averaged based on dividing their total regular work hours by a five-day work
Bailey also stated that she has computed fringe benefits using the District's averaging method
she began employment in 1992 and that she was advised to do so by her predecessor who
for the District for 30 years prior thereto.
Union witness Mary Weaver stated herein that she has been Unit Chair from June,
forward and that she has been on the union bargaining team since 1994-95. Weaver stated
became aware that the District was employing employees less than five days per week when
of Karen Hiti, an outside hire, arose in 1999. Weaver stated that after Hiti was hired and
failed to prevail on its posting grievance regarding her position, the District cut Hiti's work
four days per week and then began averaging her fringe benefits by dividing by five days in
(District Exhibit 1E)
District Exhibit 1A showed that from 1993 through the school year 1995, employees
and VanAsten shared a job in which they worked 7 to 7 ½ hours per day but each
received only 3.75
hours of holiday time and sick leave accrual. District Exhibits 1C showed that in August,
Cindy Milkey and Sue Reinke, the District routed a copy of their employment documents
salary changes as well as their "average hours per day" to the "clerical union representative."
District Exhibit 1C, Tamara Rippier was shown to have worked 5.6 hours per day in the
years 1995-1997. 7/ Also in District Exhibit 1E, the "clerical union representative"
was copied on a November,
1999 employment document for Bonnie Grundman showing her hours and benefits. This was
true of a District Exhibit 1E document concerning Karen Hiti dated December, 1999.
1F and 1G, also contained documents which were given to the "clerical union representative"
concerning employees Linda Dougherty and Christina Johnston in the years 2000 and 2001.
District Exhibit 1B showed that hours were averaged according to the District's calculation
for the period 1993-2000. Finally, it is undisputed that every year, unit employees receive a
a document which lists their hours and benefits. No grievances have been filed regarding the
averaging method the District has used in arriving at fringe benefits for employees working
five days per week.
7/ No District employees were then or are
now assigned to work 5.6 hours per day. This must have been the
average of Rippier's hours.
On May 1, 2001, the Union filed the instant grievances regarding the District's
improper calculation of sick leave and health insurance benefits. The parties processed the
up to the arbitration step and then jointly requested that the WERC assign the undersigned to
and resolve the cases.
POSITIONS OF THE PARTIES
The District argued that applying relevant contract interpretation principles to the
the collective bargaining agreement would require a conclusion that no contract violations
occurred in these cases. In this regard, the District noted that the evidence herein showed
hours had been cut in 1982-83 and that her benefits were averaged; that early childhood aides
special education department had their work days cut to less than five days per week in
1987 and that their fringe benefits would have been averaged using the District's calculation
had the District and Union not agreed to a resolution thereof; and that 23 employees whose
documents were placed in the record had had their benefits averaged using the District's
method from the early 1990s through 2001. This evidence demonstrated that the District has
past practice of averaging employee hours by totaling the number of hours worked per week
dividing by five days in the week, to equal the number of average daily hours of employees
purposes of benefits eligibility and accrual.
As the language of Section 701.1 and 1001 is ambiguous, this past practice, which
consistently applied since at least the early 1980s, should be used by the Arbitrator to "fill in
blanks" of the contract, which fails to define the phrase "per day" in specific terms. In
record evidence supports a conclusion that the District has provided the Union with various
documents over time regarding job reclasses, job descriptions, hours, fringe benefits of new
of employees whose job positions have changed. The District pointed out that all of its
affirmed that the District has explained to all newly hired employees how their benefits will
averaged if they work less than six hours per day, five days per week. The District noted
Union submitted no evidence to contradict its consistent application of this averaging method
employees. In addition, the District observed that Union Official Akey specifically stated
that she told
Union Business Agent Gary Nuber either in 1993 or 1995 about the District's method of
work hours. Nuber was unable to specifically deny herein that he had had any such
The District urged that the Arbitrator should construe the terms of the collective
agreement in order to avoid absurd results or an unwarranted windfall to the Union that is
on specific contract language. Here, if the Union prevails in this case, an employee who
six-hour day per week could receive the highest District contribution to health insurance
contract, essentially the same benefits that an employee who works five days per week, six
day is entitled to. The District urged that this result would be patently unfair and one that
In addition, an employee working four hours per day, five days per week would
sick leave and health insurance (based on four hours) even though the four-hour employee
working fourteen hours more per week than the employee who worked one day per week, six
per day. In all of these circumstances, the District urged that no contract violation had
that the relevant contract provisions of Section 701.1 and 1001 contain a gap which must be
in with the practice of averaging work hours which the parties have found to be an
of computing the employees benefits over many years. Therefore, the District urged that the
grievances be denied and dismissed in their entirety.
The Union argued that the Sue Akey was the only Union Offical who was aware of
averaging method employed by the District and that she never discussed what she knew with
various Union representatives in charge of the labor agreement. Indeed, the Union urged
learned of the District's averaging method when it was processing the case of Sue Breese in
2000, an unrelated grievance. Akey also failed to reveal what she knew regarding the
averaging procedures during the processing of the instant grievances.
The Union argued that the contract language clearing and unequivocally requires that
District pay any employee who works six hours in a day, the full amount of sick leave and
amount of health insurance premiums. In addition, the Union noted that the District reserved
right to identify the work week for each employee group under the contract, as well as
right to vary the length of the work week for various positions (Section 501.2 of the labor
agreement). Thus, the District has retained control of employee work hours. The Union
that although most employees normally work five days per week in the unit, some work six
week 8/ and others work only four days per week. As the contract differentiates school year
from school year part-time only on the basis of hours worked "per day" not hours worked
the Union urged that its grievances must be sustained.
8/ No evidence was placed into the record to
support this assertion.
The Union argued that the rule, expressio unius est exclusio alterius
should apply here. Here,
the parties knew how to express the method of averaging as demonstrated by their agreement
average hours in the most recent labor agreement, Section 801.2
Holidays. The Union urged that
the phrase "normal daily average for the week" showed that the parties could express
they chose to do so.
Even if the contract language at issue herein is determined to be ambiguous, the
that it should be given a construction that is reasonable and equitable. Here, equity would
a conclusion that the District violated the contract by application of its averaging calculation
leave and health insurance. Although the Union admitted that it was aware that averaging
done in the mid-1980s when aides were reduced below six hours per day, "it was agreed that
affected employees, who were assigned to work a five-day work week, would have their
day averaged, by dividing the total hours that they worked each week, by the number of days
they were assigned to work." (Union Initial Brief, page 9) However, this agreement was
to protect employees and not to reduce their benefits. In this regard, the Union urged that
noted that since the mid-1980s, the District has many times stated to the Union that it wished
interpret the labor agreement in order to help employees, not to hurt them.
In the instant case, the Union contended that as the contract violations affect only five
employees (working four days per week, seven hours per day) the Arbitrator should make
employees whole and the District should be ordered in the future to cease and desist from
properly calculate and pay health insurance and sick leave benefits to employees.
The District argued that no contract violation has occurred in this case and that a
practice has arisen over many years which must be used to fill in the gaps in
Sections 701.1 and 1001.
The District noted that the primary goal of arbitration is to give effect to the parties' intent
doing violence to the general spirit of the express language of the agreement. As the past
proved by the District was not at variance with any written provisions of the Agreement, had
long-standing and had not been changed during negotiations, the past practice should now
attained the status of a contract right. In addition, the parties have acted consistently under
practice over a long period of time and the Union has failed to repudiate it or in any other
the practice through negotiations or grievance filing. Thus, the Union's failure to object to
District's use of the calculation method should provide the mutuality or acquiescence
the practice to become a part of the contract.
The District noted that in approximately 1990, Sue Breese complained to Akey who
either Frank or Froiland about Breese's questions regarding the averaging of her benefits,
demonstrating full Union prior knowledge of the practice. Thus, the District noted that the
claim that it was unaware of the averaging practice is contrary to the evidence. Here, Akey
that she also revealed the averaging practice to Union Committee members Fisa and
that she told Nuber about the practice on several occasions,
including prior to bargaining in 1993 or 1995, as well as during discussions of
over the period of years that Akey was Unit Chairman. Akey further stated that she handed
her successor Union Chairs, Maureen Hodgeson and Barb Shannon, her Unit Chair
which showed averaging had been on-going at the District. The District noted that the Union
to ask Nuber about the job reclassifications and failed to put Hodgeson, Breese, Froiland,
or any other supportive witnesses on the stand. Therefore, in the District's view, Akey's
stood unrefuted and undisputed on this record and must be credited.
The District noted that the Union knew and agreed, or at least acquiesced in the
of the calculation method for almost 20 years and that the settlement of the Sue Breese health
insurance and sick leave accrual grievance in or about 1996-97, showed that Union
Pankratz knew or should have known about the practice: Pankratz should have known that
would not have had to pay a higher amount of health insurance premiums had her daily hours
been credited in full and not averaged.
The Union's arguments that other parts of the contract support its theories are without
In this regard, the District noted that the parties' recent change in the 1998-2001 labor
average daily hours for purposes of holiday pay entitlement cannot be used as an example of
parties' understanding how to average work hours, as it is undisputed that there were no
working less than five days per week when the initial labor agreement was entered into. The
pay language change occurred long after the initial contract was agreed upon.
In regard to Section 501.2, the District urged that the determination of the work week
employees does not relate to averaging or to the computation of fringe benefits.
Sections 201, 203
and 204, which contain the phrase "per day" do not address fringe benefit entitlement or
Therefore, to adopt the Union's view would result in an absurd scenario as described in the
initial brief and it urged the Arbitrator to deny both grievances.
The Union argued that there was no mutually agreed upon, well-established past
proven by the District in this case. In this regard, the Union noted that the District failed to
that the Union was aware and knowingly acquiesced in the benefits calculation past practice.
the Union urged that it did not know or understand and never tacitly agreed to the past
The Union argued that the District's documents, on their face, revealed nothing about
the employer calculated the hours that employees worked vis a vis their
fringe benefits. In addition,
the facts of this case showed that District representatives did not discuss the basis
of their calculations with any union representatives until the instant grievances arose.
Thus, only Sue
Akey knew of the employer's calculation "practice" and Akey never discussed her knowledge
employees or with union representatives. Finally, the Union argued that Akey was not a
witness, that she had been voted out of office and that it was probable that her recollection
"colored by her recent, unsuccessful election experience."
Giving affect to the plain meaning of the language contained in the agreement does
in any absurdity. Here, the employer controls and identifies the length of the work week for
employees and therefore the assignment of an employee or employees to one six-hour day is
the District's complete control. In addition, it would not be absurd to treat the five or six
actually affected by this case (who work four days per week, seven hours per day during the
year) as regular full-time employees for purposes of sick leave and health insurance.
The collective bargaining agreement, in the Union's view, does not provide for the
past practice of differentiating regular full-time employees and school year full-time
part-time employees. In this regard, the Union noted that that contract only differentiates
by hours worked per day. The Union then reiterated arguments contained in its initial brief
the recent holiday pay provision averaging, the length of the work week and the variation of
week contained in the labor agreement and its argument that the District has tried to interpret
contract to help employees, all as support for its argument that both grievances should be
in their entirety and affected employees should be made whole.
Certain facts in this case are not disputed. For example, there is no dispute between
parties that in the early 1980s when the initial contract was reached between the parties, all
worked a set number of hours per day, five days per week and that during initial contract
negotiations, the parties never discussed what level of benefits employees working less than
per week might be eligible for. It is also clear that the parties failed to define the phrase
day" and that the contract does not otherwise define this term nor does it define the work
Thus, it appears from this record that the parties never considered the appropriate level of
if any, for employees who worked less than five days per week for the District.
It is axiomatic in labor arbitration that unless the contract clearly addresses an issue,
practice can be used to fill in an ambiguity contained in the language of the agreement. In
absent a clear definition of "hours per day" 9/ or of the work week and given the fact that
never discussed how benefits would be computed for employees working less than five days
when they entered into the initial agreement, the relevant contract
language is certainly ambiguous. Therefore, evidence of past practice and bargaining
relevant to fill in the ambiguities contained in Articles 701 and 1001.
9/ The use of the phrase "per day" strongly
implies that the parties expected employees to work more than one
day to be eligible for benefits. Had the parties intended otherwise, they would have simply
placed a number of
hours in the contract for benefits eligibility and accrual without using the phrase "per day"
after that number.
A great deal of evidence was proffered by the District that since the early 1980s the
was aware of the District's practice of calculating an average number of daily work hours for
employees by adding their hours worked across the period of one week and dividing the total
by five days. However, the Union argued that it was unaware of the District's calculation
An analysis of the evidence regarding the alleged practice indicates that the practice did in
and was consistently applied across a period of approximately 20 years, but that the Union
became aware of the practice in approximately the mid-1980s, when special education aides
hours were cut dramatically by the District.
As Shirley Frank testified, these special education aides had their daily hours of work
below six hours per day and their work days were cut below five at this time. The Union
Agent, Steve Hartmann and then-Unit Chair Shirley Frank as well as Human Resources
Wasson (who later became Superintendent of the District), negotiated a resolution of the
allowing the affected special education aides to pick up a couple of days of work per week in
elementary school library. As Ms. Frank stated herein,
. . . we could average out their work week,
which was a 5-day work week and they would come
up with over six hours a day continued with their 5-day work week. They had enough hours
day, or in the average of their days, so that they came up over 6. They continued
benefits." (Tr. 77-78)
Frank also stated that at this time, when the District and the Union agreed to allow
education aides to work extra hours in the elementary school library, "it was agreed upon to
employee work hours across a five-day work week in order to determine whether they had at
six hours of work per day for purposes of eligibility to health insurance and other benefits.
Ms. Frank stated that prior to this time, she had been under the impression that all unit
worked five days per week.
Frank stated that it was during the early 1990s (Tr. 80-1), that she again became
the District was calculating hours worked per day by adding all hours worked by the
employee in a
five-day work week and dividing by five days, when VanAsten and Ziegler decided to share
full-time job. (Tr. 81-83) At this time, Frank stated that she
discussed the job-share with the Union Business Agent 10/ and they decided together
needed to know how the employees were going to divide up or decide upon benefits with the
job-share. At this time, the District informed Frank and the Union Business Agent that they
calculating VanAsten and Ziegler's benefits by adding their hours worked each day and
by a total of five days in the work week, the same method that had been used in the
the special education aides.
10/ The Union Business Agent in the early
1990s may have been Gary Nuber (1993-1999) or Sam Froiland
or Chris Bishofberger. Only Nuber testified herein.
A great deal of controversy surrounded Sue Akey's testimony in this case. The
that Akey was either an unreliable witness because she had been ousted from her Unit Chair
in 1998 as a result of an internal Union election, or that she was simply mistaken in her
this case. I disagree. The record evidence showed that Akey testified without contradiction
Union witness or the documentary evidence regarding the Union's awareness of the District's
calculations past practice. I find that the situation that Akey described as having occurred in
when six to eight special education aides, including herself, were threatened with the loss of
was not known to the Union by Akey's own account. However, Shirley Frank admitted that
aware of a situation which occurred in the mid-1980s when the District needed to cut special
education aide hours; and that Frank, Union Agent Hartmann and HR Director Wasson
a resolution of the situation whereby the District allowed special education aides to pick up
work hours in the elementary library on additional days of the week when they were not
working at least six hours per day, in order avoid losing their benefits was known to the
evidence also showed that the Union was aware of the District's calculation method.
Akey also stated that in approximately 1987, when the School District hired early
aide employees to work less than five days per week, the subject of the average daily hours
employees arose again. Akey stated that she spoke to at least two members of the Union's
committee, Elaine Fisa and Helen Zimmerman, about the fact that the District was going to
early childhood aide employees' daily work hours in order to arrive at their benefits
evidence remained uncontradicted.
In the early 1990s, employees VanAsten and Ziegler chose to share a job at the
Akey and Frank were aware of this arrangement, and Frank stated that the District used the
calculation method for VanAsten and Ziegler that it had used with the special education aides
mid-1980s. Neither VanAsten nor Ziegler received full benefits or full health insurance
job share, and the Union did not object to the District's treatment of these employees. This
also submitted documents to support its assertions regarding this job share.
Also, in the early 1990s, unit employee Sue Breese approached Akey regarding her
benefits. Akey stated that at this time, Breese worked less than five days per week and her
were being averaged by the District to determine her benefit levels. Akey advised her to
work hours from the District. Akey stated with assurance and without contradiction, that she
to Union Business Agent Froiland about this situation. 11/
11/ Akey also asserted that she spoke to Unit
Chair Shirley Frank regarding this situation, but Frank could
not recall their conversation having occurred. I have credited Akey.
Finally, Akey stated that she spoke to Union Agent Nuber several times regarding the
District's benefits calculation practice. Akey stated firmly that she told Nuber about the
calculation practice in either 1993 or 1995, prior to the beginning of labor negations for a
contract; that she also discussed the District's benefits calculation practice with Nuber when
employees were reclassed annually by the District and she went over reclass documents each
Nuber testified herein but had no recollection of any particular conversations with
the issue of averaging hours, although Nuber agreed such conversations could have taken
Vol.2, 5-6). As Nuber did not clearly deny having had conversations with Akey regarding
of averaging and because Akey's testimony was corroborated on several different points by
witnesses as well as by documentation placed in the record, I must credit Akey in light of
on these points.
Additional evidence of record, both testimonial and documentary, also tends to
District's arguments herein. In this regard, I note that Debra Bailey, Payroll Manager for
and Cindy Heinz, who is employed in the benefits area by the District, both stated that the
regularly and consistently counsels new employees at the time of their hire that their hours
averaged to determine their benefit levels and that Bailey and Heinz have personally
questions from time to time, either posed by new employees or by current employees and
regarding hours averaging visa vis health insurance and other benefits of unit
employees. 12/ The
District also offered documents to show that at least 23 employees who worked less than five
per week had their health insurance and fringe benefits averaged based on dividing the total
of regular work hours of these employees by five days per week, between the years
Several of these documents indicated that the "clerical union representative" had been sent
these documents and at least two documents (District Exhibit 1C, Milkey and Reinke,
indicated that employees had received salary change information with their hours of work
"average hours per day."
12/ This evidence was corroborated by
managers Kauth and Jorgenson.
In addition, current Unit Chair Mary Weaver stated herein that she became aware, in
approximately 1999, that the District was employing employees less than five days per week
a new outside hire, Karen Hiti, received a full-time (30 hours per week) job from the District
of a senior unit member who had posted for the position. After Hiti was hired and the
grievance failed regarding the rights of the senior unit employee, the District cut Hiti's hours
days per week, seven hours per day, and her benefits were cut along with that, based upon
application of the District's averaging method to Hiti's case. Significantly, across these
the Union failed to object to or file a grievance regarding the District's calculation method.
In addition, circumstances arose in 1998 regarding Sue Breese's benefits which
Breese had underpaid her health insurance premium portion when her hours of work fell
hours per week in 1994-96 to 28 hours per week effective the 1996-97 school year.
decrease in Breese's hours, the District failed to recalculate Breese's health insurance
payments at 85% District paid. Rather, the District continued to erroneously pay Breese's
At this time, Breese had a question regarding her personal leave, which also had been
erroneously maintained at a higher level following the decease in her hours. The District
Union a letter dated July 6, 1998 which clearly stated that District had been averaging
since at least 1994. In this letter, the District indicated that because Breese's hours increased
in 1996-97 (to 31 hours per week), that Breese "worked on an average more than 6 hours per
day" and that
she was therefore entitled to personal leave; and that "consistent with past practice and
language, personal leave was not made available" when Breese's hours were cut in 1996-97
hours per week). The letter also stated, "it is our practice that personal leave not be made
to a person who works less than 6 hours per day as per the negotiated agreement." At the
in light of this July 6th letter, the Union should have sought further
information regarding the content
and meaning of the District's July 6, 1998 letter.
It is also significant, that the Union entered into a December 23, 1998 settlement
whereby Breese agreed to repay insurance premium payments she should have made after her
were cut by the District in 1996-97. This settlement agreement stated:
. . . This situation developed over at least a
two (2) year period, wherein Ms. Breese's hours of
work dropped, yet the District maintained the same level of insurance contribution on her
if her hours were the same. . . .
Again, further questions should have occurred to Union representatives regarding the
which Breese was expected to and agreed to repay over $1,800 to the District in insurance
given the fact that had Breese's daily hours been credited to her (without averaging), Breese
not have owed the District any repayment.
The Union has argued that its case is supported by the fact that the parties amended
801 of the agreement in the effective agreement, indicating that the parties knew or should
known how to express averaging of work hours for unit employees. As this change in the
occurred in 1998, long after the initial agreement, the Union's argument on this point is
substantially. In addition, I note that the parties never attempted to change the language
in Articles 701 or 1001 and that there was no direct evidence that the parties ever discussed
District's calculation past practice during labor negotiations for the current agreement,
13/ The only evidence that there were any
discussions regarding averaging during negotiations for the 1998-2001 labor agreement was a
statement by current Union Agent Wayne Pankratz that it was possible that there had
been discussions during negotiations regarding the averaging of work hours for fringe benefit
eligibility and that
the Union proposed to change the holiday pay provision for the 1998-2001 contract. This
evidence was not
The Union asserted that the District's reservation of a right to identify the work week
employees and the right to vary the length of the work week for various positions as well as
District's statements that it intended to administer the contract for the benefit not deterrent of
employees, should support a conclusion on behalf of the Union in these cases. In this
regard, I note
that the Union failed to draw any connection between these contract provisions and the
original contractual intent or the development of the calculation past practice in this case.
I find this evidence lacks demonstrated weight and relevance to this case.
The District argued that it would be patently absurd for the Arbitrator to construe the
"hours per day" such that an employee who works one six to seven hour day per week will
the same amount of District-paid health insurance premiums and sick leave and holiday credit
employee who works six hours per day, five days per week. In addition, the District urged
employee who works one six to seven hour day, would receive greater benefits than an
works five hours per day, five days per week. The District's arguments in this area are
Although the Union pointed out that approximately five or six employees who work four
week, seven hours per day would be involved in receiving a remedy in these cases, this
not detract from the District's argument that a ruling in favor of the Union would create
Finally, I note that Akey asserted without contradiction that she transferred her Unit
files to Maureen Hodgeson and/or Barb Shannon after she left her Unit Chair position.
Shannon nor Hodgeson testified herein, requiring the inference to be drawn that Akey
stated the facts on this point as well.
In all of the circumstances of this case, I find that this District proved a past practice
appropriately fills in the blanks in Sections 701 and 1001. As no contract violation has
these cases, I issue the following
The District did not violate the collective bargaining agreement by the method it used
compute the School District's health insurance contribution toward the cost of the employees'
coverage and sick leave accrual. Therefore, both grievances are denied and dismissed in
Dated at Oshkosh, Wisconsin, this 19th day of August, 2002.
Sharon A. Gallagher, Arbitrator