The White Lake Education Association, hereinafter referred to as the Association or
Union, and the White Lake School District, hereinafter referred to as the Employer or the
are parties to a collective bargaining agreement which provides for final and binding
certain disputes, which agreement was in full force and effect at all times mentioned herein.
parties asked the Wisconsin Employment Relations Commission to assign an arbitrator to
resolve the Union's grievance regarding the Employer's decision to deny retirement benefits
Alan Anderson, hereinafter referred to as the Grievant. The undersigned was appointed by
Commission as the Arbitrator and held a hearing in the matter in White Lake, Wisconsin, on
2002, at which time the parties were given the opportunity to present evidence and
hearing was transcribed. The parties filed post-hearing briefs by July 23, 2002, marking the
The Grievant began his teaching career in the White Lake School District in August
and taught there as a full-time employee until February 28, 1995. Shortly thereafter, he was
diagnosed with a disease known as Progressive Ataxia and consequently determined to be
totally disabled. Being unable to continue his work as a teacher, he went on total
disability payments and Social Security. The consensus of opinion regarding the nature of
was that he would never be able to return to teaching again. In January of 1996, the
Anderson and the Association entered into a agreement entitled "Memorandum of
hereinafter referred to as the MU or the agreement. The MU provided for Mr. Anderson to
his position as a teacher and for the District to accept his resignation. The District agreed
would retain "bumping rights" based upon his seniority in the event he were ever able to
teaching "with or without reasonable accommodation" and if he was otherwise qualified for
position. The agreement also allowed the District to hire another teacher to replace Mr.
Mr. Anderson was never able to return to teaching and on August 7, 2000, presented the
Board with a letter requesting "early retirement" from his "teaching position" pursuant to the
of the Master Agreement then in force. Mr. Anderson's letter asserted that he met the
for early retirement under the provisions of that agreement. The Board denied his request
following the District's refusal to go to grievance arbitration, the Association filed a
practice complaint with the WERC. White Lake School District, Dec. No. 30068-A
(Gallagher, 10/01). The Examiner in that case ordered the matter to grievance arbitration.
The parties were unable to stipulate to the issue and left it to the Arbitrator to frame
issue in the Award.
(a) If the
grievant is not
satisfied with the disposition of his/her grievance at Level Two,
or if no decision has been rendered within five (5) working days after s/he has first
met with the Superintendent, s/he may file the grievance in writing with the Clerk of
the Board. Within ten (10) working days after receiving the written grievance, the
Board will meet with the grievant and/or their representative for the purpose of
resolving the grievance.
4. Level Four
(a) If the grievant is not
satisfied with the
disposition of his/her grievance at Level Three,
or if no decision of his/her grievance at Level Three, or if no decision has been
rendered within ten (10) working days after s/he has first met with the Board, the
grievant may, within ten (10) working days request in writing that the Association
submit the grievance to binding arbitration. The Association shall within twenty (20)
days decide whether to arbitrate. It shall notify the Clerk of the Board in writing of
its decision within five (5) days.
(b) Within five (5)
working days after such written notice of submission to arbitration, the
Board and the Association will jointly file a written request with the Wisconsin
Employment Relations Commission to appoint an arbitrator from the Commission or
(c) Each individual
grievance shall be heard and arbitrated by a separate arbitrator, unless
the parties agree to combine more than one grievance to be arbitrated. The procedure
in this paragraph shall not apply to grievances concerning non-renewals or dismissals.
In such cases, the procedure in Paragraph E below shall
It is understood and agreed that the function
of the arbitrator shall be to interpret and apply
specific terms of this Agreement. The arbitrator shall have no power to add to, subtract
or amend any terms of this Agreement.
The decision of the arbitrator, if within the
scope of his/her authority, as defined in the preceding
paragraph, shall he binding on both parties. A court may modify or correct the award of an
or resubmit the matter to the arbitrator where the arbitrator has issued an award which
of law or fact.
(d) In the event there is
a charge for the services of an arbitrator, including per diem
expenses, or for a transcript of the proceedings, the parties shall share the expense
equally. Each party shall bear the expenses of presenting its own case, its witnesses and
E. Non-Renewal or Dismissal
1. This procedure shall
apply for grievances proceeding to arbitration concerning the
dismissal or non-renewal of a bargaining unit member. Within ten (10) working days
following appeal of the grievance to arbitration, the Board and the Association shall
request the Wisconsin Employment Relations Commission to submit a list of five (5)
impartial arbitrators. The Board and the Association shall then alternately strike
two parties on each slate, with the party
filing the grievance
exercising the first and third
strikes. The Board and the Association shall exercise their strikes within ten (10) days
following receipt of the slate from the WERC. The remaining arbitrator shall then be
of his/her appointment as arbitrator.
F. Initiation of Group
1. If grievance affects a
group or class of teachers, they may submit such grievance in
writing to the Superintendent directly and the processing of such grievance shall be
commenced at Level Two.
G. Rights of Teachers to
1. No reprisals of any
kind will be taken by the Board or by any member of the
administration against any party in interest, any Association representative, any member
of the Grievance Committee or any other participant in the grievance procedure by reason
of such participation.
1. Decisions rendered at
Levels Two and Three of the grievance procedure will be in writing
setting forth the decision and the reasons therefore and will be transmitted promptly to
all parties in interest and to the Chairperson of the Grievance Committee.
2. No documents,
communications or records dealing with the processing of a grievance will
be filed within the personnel files of the participants.
3. The Board and the
grievant agree to make available to each other and their
representatives, all pertinent information not privileged under law, in its possession or
control which is relevant to the issues raised by grievance.
4. When it is necessary
at Level Two, Level Three and Level Four for the grievant and at least one
representative to attend a meeting called by the Superintendent or his/her designee, during
the school day,
the Superintendent's office shall so notify the grievant and his/her representative(s), and they
released without loss of pay for such time as their attendance is required at such meeting.
concerning non-renewal or dismissal shall be initiated at Level Three. In the case of
grievances beyond the authority of a supervisor's authority to grant the relief requested, the
shall notify the grievant within two (2) working days of such fact.
THE PARTIES' POSITIONS
The Union argues that the Grievant did not really "resign" but continued to retain his
status as an employee.
The Union supports this argument by pointing to the fact that the District maintained him on
the seniority list from
1996 until the present and that by doing so it recognized him as an employee. The Union
believes that this conclusion
is supported by the language contained in that portion of Article XVI -
SENIORITY sub paragraph B., which reads
"in no event will personnel outside the bargaining unit be included on the seniority list nor
will the Board add such
personnel to the seniority list in the event of lay-off." By virtue of this passage, the Union
concludes that the Grievant
must be a member of the bargaining unit and, if a member of the bargaining unit, must also
surely be an employee.
The Union further argues that under Article VII VOLUNTARY
EARLY RETIREMENT (which covers early
retirement available to "teachers" between the ages of 55 and 65 who resign from their
"regular, full-time duties") only
the School Board has the authority to place names on the seniority list and because it did so
from 1996 to the present,
it must have, and must still, recognize the Grievant as an employee. Hence, says the Union,
it is appropriate that the
Grievant send a letter of resignation requesting early retirement benefits notwithstanding the
terms of the 1996 MU.
Consequently, urges the Union, the Grievant has met the requirements of the CBA for the
benefits of early retirement
and should receive same.
The Union does not address the issue of this Arbitrator's jurisdiction, or lack thereof,
this dispute in its initial brief.
The District argues that this Arbitrator does not have jurisdiction to rule on the
enforceability of the agreement
herein known as the MU. It cites Kimberly Area School Dist. v. Zdanovec, 222 Wis.2d 27,
586 N.W.2d 41 (Ct.
App. 1998) rev. denied, 224 Wis. 2d 265, 590 N.W.2d 490
(Wis. Feb. 25, 1999) as standing for the proposition that
a collective bargaining agreement's arbitration clause does not apply to a settlement
agreement between a school
district, a former teacher, and the teacher's former union where the settlement fails to
supplement the collective
bargaining agreement nor confers any authority upon the arbitrator, but rather creates
obligations among the parties
to the settlement wholly distinct from the collective bargaining agreement. Where a
settlement agreement is a
"dissimilar and separate document" which fails to make reference to the collective bargaining
supplements it and creates a set of obligations particular to the (Grievant) alone the arbitrator
may not exercise
jurisdiction. Citing Kimberly, Id. Where the settlement agreement fails to "explicitly or
implicitly confer authority
on the arbitrator to do anything," he/she lacks jurisdiction. Id.
The District also argues that the Grievant lacks standing to bring this grievance under
bargaining agreement because the CBA defines a "grievance" as "a claim based upon an
event or condition which
affects the wages, hours and conditions of employment of a teacher or group of
teachers as it pertains to the
interpretation, meaning or application of any of the provision of this
Agreement." (Referring to the collective
bargaining agreement.) (Joint Exhibit 1) (Emphasis added in original District brief.) Since
the Grievant had resigned
in 1996, he was no longer a teacher within the meaning of this definition. He
was a former teacher and, hence, without
The District further asserts that this grievance is not arbitrable because it is not within
terms of the collective bargaining agreement. The dispute falls outside the agreement
grievance procedure provides that a grievance must pertain to the "interpretation, meaning or
application of any of the provisions of the Collective Bargaining Agreement" and that an
interpretation of the MU goes beyond this authority. Further, Section D.4 of the grievance
provides that the arbitrator may not "add to, subtract from, modify or amend any terms of
Agreement" and any interpretation of the MU would amount to a modification or amendment
Agreement in contravention of this grant of narrow authority since no provision of the
relates to the MU. According to the District, even if the dispute is arbitrable, the MU is
and, thus, parol evidence would be inadmissible to establish an understanding at variance
terms of the written document. Consequently, the only conclusion one could draw from the
unambiguous language of the MU is that the Grievant resigned in 1996 and that the only
retained was the right to bump less senior employees in the event he ever was able to work
Since this was the only right expressly reserved to him in the MU, and because to express
is to exclude another, it follows that all other rights formerly due him under the CBA,
right to early retirement, were extinguished. Furthermore, if the parties had intended to
rights, they would have said so.
Finally, the District says that even if the dispute is arbitrable, the Grievant is not
early retirement because to be eligible one must be a "teacher," which the Grievant was not,
must "resign," which the Grievant had already done back in 1996. Since he had not been
since his resignation in 1996, he cannot now resign again. Lastly, the early retirement
available only to full-time employees and the Grievant had not been a full-time employee
The Union's Reply Brief
The Union argues that the MU is "subject to the arbitration clause" by virtue of
Gallagher's decision in White Lake School District, supra. In that case, Examiner Gallagher
found that the WERC lacked jurisdiction over the merits of this dispute and she ordered the
to process the grievance pursuant to the terms of the grievance procedure outlined in the
to and including arbitration.
The Union distinguishes the Kimberly case, relied upon by the District, from the
present case by pointing
out that in Kimberly, the settlement agreement contained language to the effect that it was
"final and binding" and
waived any rights to file a claim, suit or action concerning the dispute addressed by the
settlement. It argues that
because the MU provides that the Grievant "will continue to be placed on the Seniority List"
(Joint Exhibit 2) the MU
thus "refers" to the collective bargaining agreement and, is presumably, therefore, arbitrable.
The Union asserts that the Grievant and his wife were led to believe that he would be
for early retirement benefits.
Finally, the Union repeats its assertion that the Grievant did not resign and that he is
employee of the District who meets the provisions of early retirement and should be entitled
The District's Reply Brief
The District, without waiving its position that the Arbitrator does not have
this dispute, argues that the Arbitrator need look no further than the clear meaning of the
discern that the intent of the parties was that the Grievant resigned and that the District
on the seniority list not because it considered him to be an employee but because it wanted to
his seniority for the purpose of bumping less senior employees in the event he ever became
In response to the Union's assertion that the Grievant was led to believe that he
early retirement, the District points out that the record is entirely devoid of any such
support of this notion.
The District requests that the deal struck between the parties in 1996 not be undone
the grievance be denied.
The initial issue before the Arbitrator is narrow: Did the parties intend to use
the forum for resolving disputes over the "Memorandum of Understanding?" If they did, the
is arbitrable and the Arbitrator may move on to consider the merits of the dispute. If they
the dispute is not subject to the arbitration clause of the collective bargaining agreement and
Arbitrator may not exercise jurisdiction over the matter.
In this case, there are two potential sources of arbitral jurisdiction over the
enforcement of the MU. The first
is the collective bargaining agreement and the second is the MU itself. Upon careful review
of these two documents,
only the collective bargaining agreement could
potentially provide the Grievant with access to arbitration. The MU is silent as to the
manner by which the parties
intended to resolve disputes relating to the commitments created by it and fails to refer in
any way to the grievance
procedures contained in the CBA nor to any rights created therein. As such, it neither
explicitly nor implicitly confers
authority upon the Arbitrator to do anything. The MU creates obligations which are unique
to Anderson and his
dispute with the District arises solely therefrom. Consequently, the MU does not supplement
the CBA and does not,
on its own weight, embrace the grievance procedure set forth therein. It is a "contract set
apart" from the CBA and
is thus "collateral" to it. As such, the collective bargaining agreement's arbitration clause
does not apply to the MU.
See Kimberly, Id. See also, Pitta v. Hotel Ass'n, 806 F.2d 419 (2d Cir. 1986) and Cornell
Univ. v. UAW
Local 2300, 942 F.2d 138 (2d Cir. 1991). If the Grievant has a right to arbitrate this dispute
it must stem from his
status as a teacher covered by the CBA.
The collective bargaining agreement provides a procedure by which grievances may
advanced and provides for arbitration as the final step of that procedure. It defines a
"a claim based upon an event or condition which affects [sic] the wages, hours and
employment of a teacher or group of teachers as it pertains to the interpretation, meaning or
application of any of the provisions of this Agreement." Hence, not every dispute between a
or group of teachers, and the District constitutes a contractual grievance. To qualify, a
must, first, be "based upon an event or condition which (effects) the wages, hours and
employment of a teacher or group of teachers" and, second, it must pertain "to the
meaning or application of any of the provisions" contained in the agreement. Addressing the
qualification first, there is no provision in this collective bargaining agreement which relates
way to the MU between the Grievant and the District or to the circumstances under which it
executed. In order for the undersigned to consider the merits and enforceability of the MU it
be necessary for me to add it to the CBA in some form or fashion. This I am expressly
do under Article VI, D., 4.: "The arbitrator shall have no power to add to, subtract from,
amend any terms of this Agreement." The Arbitrator is mindful of the standard of
arbitrability," but in light of the CBA's narrow grant of arbitral authority, the Arbitrator is
to jurisdiction of disputes involving the interpretation or application of the collective
In light of the foregoing, it is not necessary for the undersigned to address the
issues raised by the District nor is it appropriate for me to address the merits of the
grievance. If the
Grievant has a remedy at all, it lies with the courts.
In light of the foregoing, it is my
The Arbitrator does not have jurisdiction to decide a dispute between the parties
the enforceability of the "Memorandum of Understanding." The grievance is denied.
Dated at Wausau, Wisconsin, this 3rd day of October,
Steve Morrison, Arbitrator