BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MENOMONEE FALLS EDUCATION
MENOMONEE FALLS SCHOOL DISTRICT
(5-9-02 grievance - non-selection as head high school wrestling coach)
Ms. Ellen MacFarlane, Executive Director, TriWauk UniServ
Council, 13805 West Burleigh Road,
Brookfield, WI 53005, appearing on behalf of the Association.
von Briesen & Roper, S.C., by Attorney James R. Korom,
P.O. Box 3262, 411 East Wisconsin
Avenue, Suite 700, Milwaukee, WI 53201-3262, appearing on behalf of the District.
At the joint request of the parties, the Wisconsin Employment Relations Commission
designated the undersigned, Marshall L. Gratz, as arbitrator to hear and decide a dispute
the above-noted grievance under the parties' 1999-2001 Professional Agreement (Agreement)
the parties stipulated was not changed in ways material to this dispute for the 2001-2003
The Arbitrator heard the dispute on September 5, 2002, at the District office in
Falls, Wisconsin. Following preparation and distribution of a transcript, the parties summed
positions in post-hearing briefs exchanged by the Arbitrator on October 4, 2002, marking the
of the hearing.
The parties requested award issuance on or before October 15, 2002, and agreed that
Arbitrator could issue the award in a shortened form.
The parties authorized the Arbitrator to frame the issues for determination. The
frames those issues as follows:
1. Did the District violate the Agreement by its selection of
James McMahon in May of 2002
as Head High School Wrestling Coach?
2. If so, what shall the remedy be?
PORTIONS OF THE
SECTION 1 - RECOGNITION
1.1 UNIT CLARIFICATION
Recognition: The District
recognizes the . . . Association as the exclusive collective bargaining
representative for all regular full time and regular part time teachers, all guidance
Directors of guidance, Assistant Athletic directors, and limited term teachers. The provision
contract shall be applicable to the employees noted above, but will be exclusive of substitute
teacher aides, office and clerical employees, psychologists, psychometricians, social workers,
consultants, Director of Reading, Area Coordinators, Administrators, Supervisors, and those
employees not holding a teacher's certificate.
All jobs described and paid for under this
contract are bargaining unit work. (Appendix B)
Bargaining unit work shall be performed only by individuals who are members of the
subject only to the exceptions described in this section and Section 11 (Transfers,
Vacancies.) . . . Summer school instruction and summer curriculum work will be paid at the
by the contract, but are not exclusively bargaining unit work.
. . . . All members of the bargaining unit
shall be issued an individual contract, the terms and
conditions of which shall be subject to the provisions of the Master Contract.
. . .
1.3 DEFINITION OF EMPLOYEES
Regular Full Time Teachers:
Regular full time teachers are defined as teachers who carry a
regular full time teaching load as defined by this Agreement. Regular full time teachers shall
entitled to all benefits under the terms of this Agreement.
. . .
SECTION 5 -- MANAGEMENT RIGHTS
The District . . . retains and reserves unto
itself without limitation all power, rights, authority,
duties and responsibilities conferred upon and vested in it by the laws and the Constitution of
State of Wisconsin, and of the United States, including, but without limiting the generality of
foregoing, the right:
. . .
To hire all employees, and subject to the
provision of law, to determine their qualifications and
the conditions for their continued employment or their dismissal or demotion subject to terms
negotiated agreement; . . .
. . .
The exercise of the foregoing powers,
rights, authority, and responsibility by the district, the
adoption of policies, rules, regulations and practices in furtherance thereof, and the use of
and discretion in connection therewith shall be limited only by the specific and express terms
Agreement . . . and then only to the extent such specific and express terms thereof are in
with the Constitution and laws of the State of Wisconsin and the Constitution and laws of the
. . .
SECTION 9 - GRIEVANCE PROCEDURE
The grievance procedure is designed to
insure adequate resolution of all questions concerning
the alleged violation of employment policies and/or this Agreement, . . . but not to prevent
continuation of rapport between employees, principals, the superintendent, his staff and
For the purpose of this Agreement a
"grievance" is defined as any complaint, controversy or
dispute concerning an alleged violation of this Agreement . . . .
The term "grievant" as used herein shall
include any employee or employees covered by this
Agreement and/or the association. The Association shall have the right to file and process
on its own behalf or on behalf of any
member(s) of the bargaining unit and the exercise of such right
shall not be dependent upon
obtaining approval or signature of any bargaining unit member affected by such grievances.
9.3 STEPS OF GRIEVANCE
Grievances shall be processed as follows:
Step 1 The grievant(s) shall
orally submit the grievance within ten (10) work days after the
grievant(s) knew or should have know of the occurrence giving rise to the grievance to the
immediate supervisor in an attempt to resolve the dispute. . . .
. . .
Section 11 - ASSIGNMENTS,
TRANSFERS, REASSIGNMENTS AND VACANCIES
. . .
The District encourages the participation of
both students and professional staff in co-curricular
activities. It is the intent of the District to maintain these programs and provide enriching
of the highest quality. To facilitate these goals the District is desirous of staffing the
programs with highly skilled volunteers.
In the event a vacancy exists in a
co-curricular position (as described in Section 13 of the
contract) identified as coaching, intramural or formula pay schedules, the Board may staff
positions using the following procedure:
1. The position will be posted
simultaneously for fifteen (15) school days in an appropriate
location in each school and throughout the community.
2. In the event there is more than one (1)
qualified volunteer from the bargaining unit for a co-curricular position, the District reserves
the right to select in its sole discretion the more qualified
bargaining unit member.
3. If there is only one (1) qualified
volunteer from the bargaining unit and there are volunteers
from outside the unit, the District may select an outside applicant it believes to be more
the unit volunteer. Such unit volunteer shall be given the reason(s) for his/her rejection and
grieve the rejection. The issue to be resolved in such a grievance is whether the unit
member is as
qualified as the non-unit member.
4. If there are no qualified unit members or non-unit volunteers,
the District may assign a
qualified unit member involuntarily to that co-curricular position for up to two (2) successive
in year-long activities or up to two (2) successive seasons for seasonal athletic activities.
employees who already have voluntarily assumed one (1) extra curricular assignment shall be
exempted, during that school year, from this provision. Unit members who are assigned
and believe a more qualified volunteer from the unit was rejected may grieve that rejection.
Following the completion of an
assignment to a co-curricular position covered
by this Section (11.4), the unit member will be exempt from any involuntary assignment to
positions (covered in 11.4) for two (2) years. No unit member will be required to assume
one (1) involuntary assignment at one time. In the event that a unit member is required to
a co-curricular position involuntarily, the performance in that position shall not affect the
professional teaching contract with the District.
5. If the District assigns a co-curricular
activity to a non-bargaining unit employee, it may
maintain that same non-bargaining unit employee in that same co-curricular position for a
up to three (3) years. It must then post the position and fill it under the other provisions of
section. This section shall apply only to co-curricular positions and not to instructional
SECTION 13 - PAY SCHEDULE
. . .
13.8 FAIR SHARE
A. All employees in the bargaining unit
shall be required to pay, as provided in this Article, their
fair share of the costs of representation by the Association. No employee shall be required
to join the
Association, but membership in the Association shall be available to all employees who
consistent with the constitution and by-laws of the Association.
B. The District shall deduct in equal
installments from the monthly earnings of all employees in
the collective bargaining unit, except exempt employees [Association members paying dues
deduction or some other manner authorized by the Association], shall pay their fair share of
of representation by the Association, as provided in Section 111.70(1)(f), Wis. Stats.,
and as certified
to the District by the Association. The District shall pay said amount to the treasurer of the
Association on or before the end of
the month in which such deduction was made. The date for
commencement of these deductions
shall be determined by the Association; however, all employees, except exempt employees,
required to pay their full fair share assessment regardless of the date on which their fair
deductions commence. The District will provide the Association with a list of employees
deductions are made with each monthly remittance to the association.
In March of 2002, Jeff Dillman informed the District that he would not continue in
position of Head High School Wrestling Coach in the 2002-03 school year. The District
announced a vacancy in that
position internally and externally. In response to that announcement, applications were
received from the following
five individuals on the following dates: James McMahon (3-14-02); John Ryan (4-7-02);
James Lubbad (4-10-02);
Steven LeBre (4-14-02); and Mark Filter (4-24-02).
It is undisputed that Lubbad and LeBre were members of the bargaining unit at all
material times and that
Filter and Ryan were not bargaining unit members at any material time. McMahon's status
in that regard is disputed.
During the 2001-02 school year, he was employed as a teacher and coach in the Whitnall
School District. On or about
May 1, 2002, after applying and interviewing, McMahon was offered and accepted an
individual teaching contract as
a District High School science teacher for the 2002-03 school year. McMahon's signature
accepting that teaching
contract is dated May 1, 2002. The signatures on that contract for the Board of Education
are dated May 2, 2002.
After reviewing the five Head High School Wrestling Coach applications, the District
application outright and invited the remaining four applicants to interview on a date identified
in the record as May
2 or shortly thereafter. The four applicants were interviewed by District Athletic Director
David Petroff, High School
Principal Richard Woosencraft, and Michael Burling an Assistant coach of both football and
track. A fourth
interviewer, parent Polly Lommel was also scheduled to participate in the interviews.
However, because she arrived
late, she missed the interviews of LeBre and Lubbad and participated only in the interviews
of McMahon and Filter.
After completion of the four interviews, Petroff discussed the four interviewees with
the three other
interviewers. Petroff testified that although LeBre and Lubbad were both capable and valued
assistant coaches, he
ultimately concluded that of those interviewed only McMahon was qualified to be the Head
High School Wrestling
Coach and that McMahon would be selected for the position. Shortly thereafter, Petroff
informed McMahon that he
had been selected. He also informed LeBre, Lubbad and Filter that they were not selected
for the position. Extra-curricular contracts for wrestling are customarily issued and signed in
mid-October, so no such contract had been
issued regarding the Head High School Wrestling Coach position as of the time of the
hearing in this case.
The grievance giving rise to this arbitration was filed on May 9, 2002 by Association
Marsha Denny. The grievance, as more fully stated in a May 20, 2002 appeal, asserts that:
Our position is that the individual chosen to be the Head
Wrestling Coach is not a member of the
bargaining unit. A person is either in the MFEA or not. All individuals mentioned in our
agreement are members of the MFEA. We do not represent future employees. Mr. Lubbad
denied the position as Head Wrestling coach. Our contract clearly states in Section 11.4,
that if more than one (1) person from the bargaining unit applies for the coaching position,
District reserves the right to select the more qualified bargaining unit member. There were 2
individuals that applied for this position from our bargaining unit. Therefore the more
these MFEA members should be selected.
According to the application submitted by
Mr. Lubbad, he has 11 years of experience with the wrestling team.
He has a vested interest in this program and comes highly recommended by both the current
coach and parents.
The grievance was variously denied at the pre-arbitral steps of
the parties' procedure. The May 15, 2002
response of the Principal and the Athletic Director asserts, in pertinent part, that
I am denying the grievance due to the fact that the high school
awarded the position to Mr.
McMahon after he had already signed a contract to teach in the Menomonee Falls School
This contract was signed before Mr. McMahon was interviewed for the head wrestling
position. We assumed, in good faith, that a signed contract meant that Mr. McMahon was
part of the bargaining unit. We felt Mr. McMahon was the strongest candidate and have
named him head wrestling coach. He will sign his wrestling contract when the school year
At the hearing, the Association presented testimony by LeBre
and Lubbad. The District presented testimony
by Denny, Petroff, Woosencraft and District Superintendent of Schools Keith Marty.
Additional factual background
is noted in the summaries of the parties' positions and in the discussion, below.
POSITIONS OF THE PARTIES
The District's selection of McMahon violated Agreement Sec. 11.4(2). McMahon
was not a member of the
bargaining unit in May of 2002 when the District selected him as Head High School
Wrestling Coach because he was
employed by a different school district at that time and because his individual teaching
contract with the District
provided only for employment by the District "commencing on or about the 27th day of
August, 2002." Treating
McMahon as a member of the bargaining unit before that date for purpose of
Sec. 11.4 would circumvent and defeat
the evident purpose of that section, which is to give a preference to bargaining unit members
over non-bargaining unit
members when extra-curricular selections are made.
In contrast, LeBre and Lubbad were both members of the bargaining unit in May of
2002. The evidence
establishes that both of them were excellent coaches who were qualified to be the Head High
School Wrestling Coach.
The District's judgment that LeBre and Lubbad were not qualified was arbitrary, capricious,
unreasonable and worthy
of no deference. The District's selection process was procedurally flawed and unprincipled
in various respects,
including the facts that one of the interviewers was not present for the interviews of LeBre
and Lubbad, that Petroff's
note taking was inconsistent candidate to candidate, and that the District did not check the
candidates' references. The
qualifications the District used in making the selection were not posted and were based on
preferences rather on anything contained in the District's published head coach job
description. The testimony of
Petroff and Woosencraft also revealed that they improperly confused "not being the most
qualified" with not being
qualified for the position. The District must have considered LeBre and Lubbad minimally
qualified for the position
or it would have chosen not to interview them, just as it chose not to interview Ryan.
Under Sec. 11.4(2), the District was therefore required to select one of those two
qualified bargaining unit
applicants and was precluded from selecting the non-bargaining unit member, McMahon. By
way of remedy, the
Arbitrator should order the District to select whichever of the two qualified bargaining unit
member candidates --
LeBre or Lubbad -- the District considers to be more qualified. The Association adds that,
in its opinion, Lubbad is
the more qualified of the two.
The grievance should be denied in all respects. It should be denied procedurally
because it is premature in
that the District has not yet issued anyone a contract for the coaching position in question for
the 2002-03 school year.
In any event, Sec. 11.4 provides only that "[i]n the event a vacancy exists in a
co-curricular position . . . the
Board may staff those positions using the following
procedure: . . ." The parties' use of the word "may" means that
the District is authorized but not required by the
Agreement to comply with the language of 11.4(2) relied on by the Association.
In any event, because 11.4(2) preserves bargaining unit work but not seniority-based
was a bargaining unit employee for Sec. 11.4(2) purposes once he and the District entered
into an individual teaching
contract on May 1 and 2, 2002. Section 11.4 refers only to "bargaining unit member," not
"current" bargaining unit
member. McMahon will unquestionably be a bargaining unit member at the time the
coaching position at issue is
"staffed" as provided in Sec. 11.4, i.e., the time in the fall when an individual
extra-curricular contract is issued for
the position of Head High School Wrestling Coach. Moreover, from the time he and the
District signed his individual
teaching contract, McMahon was covered by some of the provisions of the Agreement,
including the Sec. 1.1
requirement that "all members of the bargaining unit shall be issued an individual contract,
the terms and conditions
of which shall be subject to the provisions of the Master Contract." Section 11.4 is another
of the several Agreement
provisions applicable by their terms to McMahon once he and the District signed his
individual teaching contract.
Since McMahon was a bargaining unit member for purposes of Sec. 11.4 beginning on May
2, and since he was clearly
qualified for the position, his selection did not violate Sec. 11.4(2).
Even if McMahon was not a bargaining unit member when selected as Head High
School Wrestling Coach,
that selection did not violate the Agreement. The evidence supports Petroff's conclusions
that neither LeBre nor
Lubbad was qualified for the position. The Management Rights Clause in Sec. 5, preserves
the District's rights to
determine qualifications subject only to limits found in the Agreement and the law. Section
11.4 contains no such
limits; the District's judgments have not been shown to have been arbitrary, capricious or
unreasonable; and the
Arbitrator should, therefore, defer to the District's judgments as to the candidates'
qualifications and not substitute his
judgment for that of the District. The fact that neither LeBre nor Lubbad was qualified for
the position would make
Sec. 11.4(4) rather than 11.4(2) applicable, and the District's actions were entirely consistent
with 11.4(4). If LeBre
or Lubbad but not both are deemed qualified, the District's selection of McMahon would
comply with the Agreement
since in that case Sec. 11.4(3) would be applicable, and the evidence clearly establishes that
neither LeBre nor Lubbad
is as qualified as McMahon.
Finally, even if the Arbitrator finds that the District has violated 11.4(2), the
Arbitrator would be required by
the language of that provision to leave it to the District to select between LeBre and Lubbad.
The Arbitrator concludes that the grievance is not prematurely filed. The District
its selection of McMahon and its non-selections of LeBre and Lubbad when it informed each
of those individuals of
the results of their interview. That was an
exercise of the District's Sec. 11.4 functions to "staff" co-curricular positions and to
"select" from among applicants
for such positions. It was also an "occurrence" within the meaning of Sec. 9.3 (Step 1). To
deny the grievance as
premature would be inconsistent with the "adequate resolution" purpose of the grievance
procedure stated in Sec. 9.1
in that it would inappropriately prevent the Association from pursuing a grievance procedure
review of and remedy
for an alleged violation of the Agreement at a time when all of the facts concerning the
alleged violation have occurred
and are relatively fresh in the minds of the participants.
The Arbitrator also concludes that the procedure set forth in Sec. 11.4(1)-(5) is a
contractual mandate, and
not merely a provision that the District may comply with or not in its discretion. The term
"may" in the first sentence
of the second paragraph of Sec. 11.4 appears to have been chosen to reflect the fact that the
District is not required to
fill a vacancy if it does not choose to do so. However, where, as here, the District chooses
to fill a vacancy, the detailed
and precisely-crafted language of the procedure set forth in 11.4(2)-(5) must be complied
The Arbitrator also concludes that it is appropriate to treat McMahon as a bargaining
unit employee within
the meaning of Sec. 11.4 in May of 2002 when the District selected him as Head High
School Wrestling Coach for
2002-03. It is undisputed that McMahon's individual teacher contract was for employment
"beginning on or about the
27th day of August, 2002," such that in May of 2002 he was not subject to the Agreement
fair share provisions or
covered by the various insurance and other fringe benefits provided for in the Agreement.
However, the evidence also
establishes that once he and the District entered into his individual teaching contract on May
1 and May 2, 2002,
McMahon would have been: subject under Sec. 11.4(4) to being involuntarily assigned to
extra curricular assignments
for which no bargaining unit employee volunteered; protected by the requirement of Sec. 1.1
that the terms and
conditions of his individual teaching contract be subject to the provisions of the Agreement;
subject under the terms
of his individual teaching contract to being required by the District pay liquidated damages if
he breached his
commitment to be employed by the District for the next school year; and eligible to vote in a
among teacher staff members employed by the District if such an election had been
conducted after he entered into his
individual teaching contract but before his first day of work for the District under that
contract. See, e.g., Ashland
Schools, Dec. No. 7090-A (WERC, 5/65); Appleton Schools, Dec. No. 7151 (5/65); and
Joint School District, Dec. No. 14525-C (WERC, 8/75). Reading Sec. 11.4 as a
whole and together with the
parties' general objectives expressed in the second paragraph of Sec. 1.1, Sec. 11.4
persuasively appears intended to
balance the Association's interest in having co-curricular work "be performed only by
individuals who are members
of the bargaining unit . . ." with the District's interest in "staffing the co-curricular programs
with highly skilled
volunteers." Treating a person in McMahon's circumstances in this case as a bargaining unit
employee within the
meaning of Sec. 11.4 promotes both of those interests. While Sec. 11.4 gives preference to
teacher bargaining unit
personnel, it does not give preference to those with a greater length of bargaining unit
service. For those reasons, and
because the Association has not shown that the
District hired McMahon as a teacher at an abnormally early date for such a hiring, the
Arbitrator is not persuaded that
the District has improperly circumvented or defeated the purpose of Sec. 11.4 in this case.
There remains the question of whether there is any other basis on which to interfere
with the District's
selection of McMahon. The Arbitrator concludes that there is not. That is because the
Arbitrator is persuaded that
McMahon is more qualified for the position than either LeBre or Lubbad. McMahon has
experience as a head high
school wrestling coach -- one year as a tri-head coach and one year as a sole head coach,
both at Madison West High
School. Neither LeBre nor Lubbad have comparable high school wrestling head coaching
experience. So, assuming --
without deciding -- that LeBre, Lubbad or both were qualified to be Head High School
Wrestling Coach, the selection
of McMahon is nonetheless consistent with the requirements of Sec. 11.4(2).
Given that conclusion, the Arbitrator finds it unnecessary to decide whether LeBre or
Lubbad were qualified
to be Head High School Wrestling Coach or whether the District's interview and selection
process was sufficiently
flawed to eliminate any deference that might otherwise be given to District judgments
For all of the foregoing reasons, the Arbitrator finds it appropriate to deny the
grievance in all respects.
DECISION AND AWARD
For the foregoing reasons, and based on the record as a whole, it is the decision and
award of the Arbitrator
on the ISSUES noted above that
1. The District did not violate the Agreement by
selection of James McMahon in May of 2002 as Head High
School Wrestling Coach.
2. The subject grievance is denied in all
respects, and no consideration of a remedy is
necessary or appropriate.
Dated at Shorewood, Wisconsin, this 14th day
of October, 2002.
Marshall L. Gratz, Arbitrator