BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
BOARD OF EDUCATION OF THE
CLINTONVILLE PUBLIC SCHOOL
Mr. David A. Campshure, UniServ Director, United Northeast
Educators, 1136 North Military
Avenue, Green Bay, Wisconsin 54303-4414, appearing on behalf of Clintonville Education
Association, referred to below as the Association.
Mr. Robert W. Burns, Davis & Kuelthau, S.C., Attorneys
at Law, 200 South Washington Street,
Suite 401, P.O. 1534, Green Bay, Wisconsin 54305-1534, appearing on behalf of the Board
Education of the Clintonville Public School District, referred to below as the Board or as the
The Association and the Board are parties to a collective bargaining agreement which
effect at all times relevant to this proceeding and which provides for the final and binding
of certain disputes. The Association and the Board jointly requested that the Wisconsin
Relations Commission appoint Richard B. McLaughlin, a member of its staff, to serve as
for two grievances filed on behalf of Gerald Smith. The parties agreed to combine the two
for arbitration. Hearing was held on May 9, 2002, in Clintonville, Wisconsin. Deborah
prepared a transcript of the hearing and filed it with the Commission on June 4, 2002. The
filed briefs and reply briefs by October 1, 2002.
The parties did not stipulate the issues for decision. I have determined the record
Did the District violate the collective bargaining agreement by
assigning the Grievant a weekly
schedule of roughly 1,280 minutes in the 2000-01 school year and 1,300 minutes in the
If so, what is the appropriate remedy?
ARTICLE II MANAGEMENT RIGHTS
2.1 Management Recognition
The Association recognizes the Board of Education, on its own behalf, and on behalf
the electors of the District, hereby retains and reserves unto itself, authority, duties and
responsibilities conferred upon and vested in it by the laws and the Constitution of the
State of Wisconsin, and of the United States, including, but without limiting the generality
of the foregoing, the right:
. . .
E. To determine class
schedules, hours of instruction, assignments of teachers, and use
of paraprofessionals after consideration is given to any recommendation which may
be volunteered by a teacher or teachers involved.
F. To designate duties,
responsibilities and extra and/or cocurricular assignments with
the total program.
. . .
2.2 Limitation of Rights
The exercise of the foregoing powers,
rights, authority, duties and responsibilities by the
Board, the adoption of policies, rules, regulations, and practices in furtherance thereof, and
the use of judgment and discretion in connection therewith shall be limited only by the
and express terms of this Agreement, and then only to the extent such specific
and express terms hereof are in
conformance with the Constitution and laws of the State of
Wisconsin, and the Constitution and laws of the United States.
. . .
ARTICLE V - GRIEVANCE PROCEDURE
. . .
E. LEVEL FIVE - Binding Arbitration:
. . .
4. It is understood that the function of this
arbitrator shall be to provide a decision as to
the interpretation and application of specific terms of this Agreement. This arbitrator
shall have no power to advise on salary adjustments, except the improper application
thereof, nor to issue any decisions advising the parties to add to, subtract from,
modify or amend any terms of this Agreement.
. . .
ARTICLE VII COMPENSATION
. . .
7.3 Extended Contracts
Teachers offered extended contracts
(contracts in addition to the 188-day contract), shall
received the following compensation:
A. 100% of prorated
daily salary if working with students
B. 75% of prorated
daily salary if not working with students
C. Band directors, when
leading a marching band for a Memorial Day parade and/or
Christmas parade, shall be compensated as provided in 7.3A; however, each are
limited to a maximum of five (5) hours. . . .
7.11 Sixth Class Reimbursement
. . .
B. The acceptance of a
6th instructional assignment position on the part of a teacher is
voluntary; however, if no staff member has agreed to accept it, the District may then
assign the least senior person certified to teach the vacancy.
. . .
E. If more than one
teacher in the District, who is certified for the position, desires to
accept the 6th instructional assignment, the teacher with the most seniority
given the first opportunity for the 6th instructional assignment.
F. The District will
initiate requests for teachers to accept a 6th instructional assignment
G. The District shall
seek revisions in teaching schedules to accommodate a teacher who
is accepting the 6th instructional assignment, if all parties affected by the
and, if in the District's opinion, the changes do not disrupt student schedules.
H. The teacher
accepting the 6th instructional assignment with no supervision assignment
shall be compensated at a rate of 16% of his or her current placement on the salary
schedule (20% if a 6th class and supervision are assigned). The teacher
the supervision assignment. The salary rate will be prorated depending on length of
assignment. . . .
ARTICLE XIV - EMPLOYMENT
. . .
14.3 Teacher Day
The normal teaching day for a full-time
equivalent teacher is to consist of approximately an
eight- (8-) hour period. . . .
14.5 Elementary Part-time
A. Part-time teachers
who have teaching assignments in elementary (PK-5), music, art,
and physical education may be assigned classes based on a weekly schedule of 1300
minutes of instructional time. This 1300-minute standard does not apply and will not
be applied to any elementary teacher who is currently on a full-time continuing teacher
contract under Sec. 118.22.
B. The parties also
agree that the 1300 minutes of instructional time shall be used as the
base for determining the percentage of a teaching contract that a part-time teacher
referenced in #1 will receive and be compensated for when rounded to the nearest
. . .
ARTICLE XXII - TERM OF AGREEMENT
. . .
22.3 Complete Agreement
This Agreement represents the full and
complete agreement as a result of negotiations
between the parties. It is agreed that any matters relating to the current contract terms,
whether or not referred to in this Agreement, shall not be open for negotiations except as the
parties may specifically agree thereto.
The combined grievances concern the Grievant's teaching schedules for the 2000-01
2001-02 school years. The Grievant is a full-time elementary school art teacher, who has
employed by the District for twenty-four years. Lynne Kessler, the Association's Teacher
Chair, summarized the first grievance in a letter to Building Principal Sigrid Shaw, dated
2001, which states:
. . . It has been established through past practice that elementary
specials teachers work 1200
minutes weekly. Mr. Smith's current load is 1280 minutes per week, 80 minutes over his
limit as a
full time elementary specials teacher. . . . Our resolution would be to change the breakfast
minutes so that Mr. Smith's total minutes would equal 1200 rather than 1280. . . .
Kessler summarized the second grievance and the appropriate remedy in a Level IV
dated October 10, 2001, which states:
. . .
The District has based Jerry Smith's elementary teaching contract
for the 2001-02 school year
on a 1300-minute standard. The collective bargaining agreement and longstanding past
provide that elementary "specials" contracts are based on a 1200-minute standard. It appears
the administration has chosen to assign a teaching schedule based on 1300 weekly minute
instructional schedule. It should be noted that all other elementary "special" contracts are
the 1200-minute standard.
. . .
Modify Mr. Smith's teaching contract to comply with the contract
and past practice which bases
a full-time elementary contract on the 1200-minute weekly standard . . . (or) Mr. Smith
compensated using either the extended contract provision (7.3) or the sixth class provision
and any other just and proper relief.
The parties refer to the subjects of art, music and physical
education, at the elementary level, as
"specials." The evidence adduced at hearing covered past practice and bargaining history,
and is best
set forth as an overview of witness testimony.
Primmer has served the District as an elementary teacher since the 1972-73 school
roughly three years, when Reed Newton was an elementary principal, Primmer, with the
of the affected teachers, prepared work schedules for specials. He submitted the schedules to
Newton for approval. While doing so, Primmer used 1200 minutes per week as the
standard for a
full-time schedule. There was no contractual provision or Board policy stating this standard,
was the standard that Primmer understood to be that used by Newton and other
Primmer has served as the Association's President, and on its grievance committee. He
the settlement of a grievance filed on behalf of David Eichhorn, an art instructor. During
processing of that matter, Milo Fossen, the Junior High School Principal, issued a letter,
October 3, 1983, that denied Eichhorn's grievance and stated:
. . . a full time teacher in our school district teaches a minimum
of 1200 minutes a week (five
classes per day of instruction, 48 minutes in length, five days per week). . . .
The grievance, processed in 1983, concerned seniority rights in a
Kessler has served the District for twelve years, as a K-8 music teacher. In that
has always split her time between elementary and middle schools. She noted that the middle
schools construct schedules based on class periods. Five classes per day five days per week
a full-time position. At the start of the 1997-98 school year, the middle school principal,
King, informed her that she had a "10% deficit of instructional time" which King stated as
minute shortage per week." To address this, King assigned her to two first grade classes.
with those classes thirty minutes per day, two times per week. She noted this totaled
twenty minutes or 10% of a 1200-minute weekly schedule.
Kessler processed the grievances posed here, and surveyed the schedules of specials
instructors from the 1989-90 school year through the 2001-02 school year. She stated that
did not discover teaching loads, not including volunteered for duties, exceeding 1300 minutes
week. She did not include travel time in her tabulation of teaching minutes. She stated her
interpretation of her survey thus during cross-examination:
Q Now . . . you are not asserting that there is a
hard-and-fast rule of 1,200; am I correct in that?
A Only to the extent I know
that over the years there's been a lot of talk. We have nothing that
is in writing. That's the unfortunate thing, but I have heard the 1,200 minute standard since
I started here.
. . .
A I believe our standard at this point as far as
starting a grievance is when we got to 1,280 last
year. That's the first time that we started a grievance on this issue. (Transcript, [Tr.] at
. . .
Q So what this grievance amounts to is that there's a
line between 1,200 and 1,300 that the
association feels the district crossed, but you can't really tell us exactly where that line is;
A As far as an absolute
A -- where the line was
A No. (Tr. At 45).
Smith noted that during the 1999-00 school year, he taught a 1350-minute weekly
He believed the schedule included a breakfast duty that he volunteered for, and for which he
comp time. He believed the building principal at the time was Bob Spence. Kristine
replaced Spence, and did not extend comp time for this duty. In the 2000-01 school year,
weekly schedule was originally set at 1,155 minutes. Strauman added a breakfast duty that
his weekly schedule to 1280 minutes.
Petermann has served the District as a physical education teacher since 1987. At the
the arbitration hearing Petermann served in a job-share position with Tracy Sternweis.
teaches 55% of the position, which she calculated as 650 minutes. In the 1992-93 school
Petermann taught in a part-time position, set at 40% of a full-time-equivalent position.
then a principal, and asked her to accept a 500 minute schedule so that the District did not
split the instruction of a kindergarten class. Spence succeeded Newton, and raised her
minutes to 510, then increased it again the following year. This prompted a grievance that
eventually resolved through the creation of a memorandum of understanding that expired by
on June 30, 1997. The parties extended the memorandum through the 1998-99 school year,
incorporated it in the labor agreement as Section 14.5.
Johnson has served as an elementary instructor for the District for twenty-five years.
held a variety of positions for the Association, and has processed a number of grievances,
that of a music teacher, Adrienne Davis, during the 1994-95 school year. That grievance
the following settlement agreement, dated February 28, 1995:
. . .
Let this go on record, that this agreement sets no precedent and
that completion of other
unresolved grievances pertaining to staff minutes, may/may not alter or impact the agreement
A revised schedule from Miss Davis will
again be necessary for instructional information and
should be based on 1200 minutes. Being that Miss Davis is contracted 65% at the middle
scheduled contact time will be 780 minutes. The administration would request that continued
lessons with St. Mary's and St. Rose be scheduled 30 minutes each as they currently are, full
band rehearsal three times per week be
continued and three lunch supervision's per week remain
in her schedule. The aforementioned garners 294 contact minutes leaving 486 un-scheduled
which Miss Davis needs to fulfill.
. . .
Johnson also serves as a member of the Association's bargaining team. He noted that
for the 2001-03 agreement, the Board proposed to alter Section 14.5 to include a provision
1610 minutes per week of instructional time as a full-time load. The proposal stated seven
forty-six-minute periods on five days per week was the basis for the weekly standard. The
Board later revised
the proposal to set a weekly standard of 1450 minutes. The Board's proposal altered Section
to address full and part-time elementary contracts.
Johnson viewed Newton's scheduling practices as the reflection of a clear
which teaching contracts would come as close to 1200 minutes as possible. Some variance
and below this standard was possible to address scheduling needs, but did not affect the
status of a teacher if it fell below 1,200 minutes, nor demand overload compensation if it
that standard. This understanding traces back into the 1980's, and was discussed as a
practice at that
time, when the Association proposed to incorporate the understanding into the terms of the
agreement. Johnson stated that the District acknowledged the practice, and stated it was
to add verbiage to the labor agreement that would do no more than codify an existing
Strauman has served the District as an elementary principal since July of 1997.
filling that position on an interim basis when the District hired her. Newton left her a packet
material to assist her in preparing work schedules. She understood Newton's practice to be
specials schedules should fall into a range of from 1200 to 1400 minutes per week. She
understood that this was an administrative practice, rather than a contractual requirement.
and Shaw surveyed the schedules of regular full-time elementary (K-5) teachers, not
specials. They found schedules exceeding 1200 minutes, including schedules that range from
to 1595 minutes per week. The variance, in Strauman's view, reflects that she structures
schedules to assure six hours of instructional time, but permits the individual teacher latitude
up the actual schedule.
Strauman noted that she includes travel time in preparing work schedules for specials
instructors. She understood that to be Newton's practice. She added that travel time has
to bring a specials instructor to full-time status. When preparing work schedules for teachers
perform duties at the elementary and at the high school, she treats the work at the
elementary level at part-time and pro-rates the number of elementary minutes using the
standard set in Section 14.5.
Strauman completed a survey comparable to that undertaken by Kessler. She did not
the data showed a consistent pattern, but schedules ranging from 1100 to 1465 minutes per
When Strauman assigned the Grievant's 2000-01 schedule, he originally had roughly
minutes. She approached him and he agreed to assume a breakfast duty to bring his schedule
less than 1,200 minutes per week.
Shaw has been an elementary principal for three years. She taught for the District
becoming a principal, and has been a District employee for more than thirty years. While a
she served the Association in a variety of positions, including president and chief negotiator.
schedules specials for a work schedule between 1200 and 1400 minutes per week. She based
practice on advice from Strauman.
O'Toole has served as the District's Superintendent since July of 2001. The Board
informed him of any policy that governs the establishment of the weekly schedules of
instructors of elementary specials.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Association's Initial Brief
The Association states the issues for decision thus:
Did the District violate the parties' collective bargaining
agreement, Article 14.5 in particular,
when it assigned Jerry Smith a weekly instructional schedule of 1280 minutes for the 2000-01
year and 1300 minutes for the 2001-02 school year?
If so, what is the appropriate remedy?
The Association contends that Section 14.5 of the labor agreement unambiguously
"states that a
1300-minute standard does not apply, and will not be applied, to any full-time elementary
and physical education teacher." The Board essentially contends that "1200 minutes is
minimum for full-time status" and that it is "free to assign elementary teachers any schedule
1200-minutes, without additional compensation."
The Board's contention, however, is not well supported by the evidence. Even if
have assigned schedules ranging anywhere from 1200 to 1400 minutes, this reflects no more
accommodation of "the needs of the District and students." To conclude this permits the
use a 1,300 minute standard and deny additional compensation is "irrational." That the
proposed to create a specific standard during bargaining underscores the weakness of its
position. That it did not assign schedules greater than 1200 minutes during the two school
covered by the grievance underscores the weakness of its arbitration position. Since that
renders Section 14.5 meaningless, it should not be accepted.
The evidence establishes that "weekly teaching schedules of 1200 minutes for
Specials has been the practice in the District." A review of the evidence establishes that "it
the recognized practice in the District has been that 1200 minutes the equivalent of
is the relative threshold for full-time elementary teachers." Assignments above that threshold
additional compensation, and the Board should not be permitted to make any assignment
affording some type of overload compensation.
The Board's attempt to use 1200 minutes as an assignment minimum "is illogical and
incongruous with Article 7.11 of the Agreement." That section is not limited to middle and
school teachers, and there is no agreement provision "that prohibits elementary teachers from
receiving such compensation." Against this background, elementary teachers "should receive
for each class they are assigned over five, or for each 48 minutes they are assigned over
a prorated amount based on those figures." Smith, under this standard, should have received
than a 16% increase for the 2000-01 school year, and no less than a 32% increase for the
school year. The Board's attempt to afford no compensation "is not only inequitable and
The Union concludes by requesting that the grievance be sustained; that the Board be
to cease and desist from assigning "weekly teaching schedules in excess of 1200 minutes"
Smith be compensated "for assigned minutes in excess of 1200 in accordance with Article
7.11 of the
The Board's Initial Brief
The Board states the issues for decision thus:
Did the District violate the collective bargaining agreement by
assigning the Grievant, a full-time
elementary specials teacher, 1,280 minutes of instructional time per week in 2000-01 and
minutes of instructional time per week in 2001-02? If so, is Grievant entitled to
Article 7.11 of the collective bargaining agreement for instructional time exceeding 1,200
After a review of the evidence, the Board asserts that the labor agreement "has no
the District in assigning full-time elementary specials teachers to 1,200 minutes of
each week." Beyond this, the agreement "has no express provision . . . requiring the
provide extra compensation to full-time specials teachers" assigned to more than 1200
instructional time. Articles II and V reserve management rights to the Board, and demand
rights be limited only by express contractual language. Arbitration precedent underscores the
significance of these provisions and demands that the grievance be denied.
Section 14.5 establishes that "(w)here the parties have established a standard number
instructional minutes for elementary specials teachers, the Agreement expressly reflects this."
14.3 sets the normal teaching day at roughly eight hours. Arbitration precedent underscores
agreement's silence on "a standard number of instructional minutes for full-time teachers"
given meaning in arbitration. The 1300-minute standard of Section 14.5 is not designed as a
to determine extra compensation, but as a protection to prevent certain full-time teachers
becoming part-time. To accept the Association's view would produce the absurd result that
"part-time teachers would have a higher standard of instructional minutes than full-time
Since the labor agreement clearly and unambiguously governs the grievance, past
not applicable. Even if it was, the Association "has failed to establish the existence of any
practice." Arbitration precedent makes it the Association's burden to establish an
clearly acted upon and readily ascertainable pattern of conduct that was fixed over a
period of time and is accepted by both parties. Testimony establishes that the Board has, for
time, scheduled specials teachers at between 1200 and 1400 minutes per week. Association
conceded that the 1200 minute standard is no more than "a bench mark minimum." The
scheduled a number of specials teachers for more than 1200 minutes without generating any
grievances. There is no binding practice, and the Association has waived any right to claim
remedy it seeks here.
Nor has the Association been able to produce evidence of a past practice providing
compensation to full-time elementary specials teachers who are assigned more than 1200
The Board produced testimony that no such compensation has been paid in the past. Section
is, in any event, "inapplicable on its face." Arbitration precedent confirms the persuasive
force of the
Board's position. The Board concludes "that the grievance (should) be denied in all
The Association's Reply Brief
Contrary to the Board's contention, the agreement does provide extra compensation
additional teaching assignments. That provision is Section 7.11, and no agreement provision
it to middle and high school teachers. Thus, the Association seeks no remedy that demands
alteration of the labor agreement. To ignore that provision flies in the face of arbitration
including that cited by the Board.
The agreement demands that full-time teachers teach five forty-eight minute classes
per week. Section 7.11 provides the basis of compensation for addressing loads beyond five
per day. Nor does the Association seek an absurd remedy. Section 14.5 does no more than
1300 minutes per week the base "for calculating a part-time teacher's percentage for their
contract, compensation and benefits." That standard was reached as a means to settle a
and it is not inconceivable that the parties would agree to pro-rate part-time teachers using a
higher than the standard used for full-time teachers. Agreements like that are reached all the
It is not unusual for labor agreements to use 35 or 37.5 hours as a full time schedule, but use
per week as the base for pro-rating benefits for part-time employees.
The Association's evidence meets arbitration criteria for establishing a past practice.
few exceptions, "all of the full-time elementary specials teachers had schedules of less than
1200 minutes, or 1248 minutes." Testimony from Board and Association witnesses
the 1200-minute standard was clearly enunciated over a considerable period of time and
both parties. Nor will the evidence support a conclusion that the Association waived any
challenge Board scheduling of specials teachers. Arbitration precedent demands that the
relinquishment of a contractual right be clearly made by someone empowered to act on a
behalf. The evidence in this matter falls far short of that standard.
The Association concludes that the grievance should be sustained and the Grievant
made whole by compensation for "assigned minutes in excess of 1200 in accordance with
of the Agreement." The Association adds that "the Arbitrator (should) retain jurisdiction for
specified period of time to ensure compliance with the ordered remedy."
The Board's Reply Brief
The Board and Association agree that Section 14.5 "does not establish 1,300 minutes
standard for full-time elementary specials teachers." Unlike the Association, however, the
recognizes that the labor agreement stops there. That the agreement does not establish a
for full-time specials teachers thus does not sustain the grievance. Rather, it establishes the
grievance's lack of merit.
A careful review of current bargaining fails to support any assertion that the Board
in a manner inconsistent with the result it seeks here. Rather, the Board has acted to clarify
codify its scheduling procedures. Beyond this, neither bargaining history nor past practice is
unless an agreement is unclear. Here, Article II "affirms the District's inherent right to
assignments and schedules of full-time elementary specials teachers."
Detailed examination of the testimony will not support finding the past practice the
Association asserts. Beyond this, Association documentation of the asserted practice
fails to account for travel time. The Board has used travel time to permit specials teachers to
full-time status. The evidence establishes that a number of teachers other than the Grievant
been assigned more and less than 1,200 minutes." There is "no evidence of the Grievant
to disparate treatment."
Section 7.11 has no bearing on the grievance. It applies only "to teachers assigned to
a sixth class" and the Grievant has no such assignment. Nor does the provision provide an
payment such as that sought by the Association, which seeks a result unfounded in the
the agreement. Nor can a sixth class assignment be analogized to an assigned duty that does
demand preparation. Examination of the Association's position establishes its inconsistency
salary schedule set by Section 14.3. To provide compensation beyond 1200 minutes in a
"effectively reduces the workweek to 2.5 days." This absurd result cannot be achieved in
The Board concludes that the grievance must "be denied in all respects."
The parties did not stipulate the issue for decision, and I have phrased the issue
enough to incorporate the arguments of each. The "roughly" reference reflects that one
the Grievant's 2000-01 schedule at 1275 minutes. The difference is of no significance to the
stated below, but the parties' disagreement over calculating minutes is a point worthy of at
The grievance poses an amalgam of contract language and past practice. The
contends that Section 14.5 will not permit a 1300-minute standard to define the full-time load
specials teacher. Past practice sets the standard at 1200 minutes. The Grievant's schedules
2000-01 and 2001-02 school years stray beyond that standard and thus demand overload
guided by the principles of Section 7.11. The Board asserts its authority to schedule under
2.1, and contends that the Sections 2.2 and 22.3 preclude giving the force to past practice
the Association. Beyond this, the Board contends that the evidence fails to establish any past
The evidence establishes a rough understanding of the parties regarding the
specials instructors. To grant the grievance, however, demands more clarity regarding that
understanding than the evidence will bear.
As preface, it is appropriate to highlight what is not in dispute. Section 14.5 applies
terms to part-time teachers and has no direct bearing on the grievance. The evidence, as
by the parties' arguments, underscores this. That a 1200-minute standard roughly sets a
for full-time status for a specials instructor is established by the evidence. Each testifying
acknowledged this. The Fossen letter of October 3, 1983 highlights this understanding, as
King letters of February 28, 1995 and September 5, 1997.
The understanding this reflects, however, is rough. The parties' arguments
difficulty of precisely limiting the creation of an instructional schedule for specials at 1200
By the Association's calculation, the Grievant instructed the following schedules: 1235
the 1993-94 school year; 1260 minutes in 1994-95; 1260 in 1995-96; 1170 in 1996-97; 1200
in 1999-00; 1280 minutes in 2000-01 and 1300 minutes in 2001-02. The Association
the roughness of this understanding reflects no more than that the parties understand that
be a 4% variance from the 1200-minute standard. Under its view, there has been only one
occurrence of a specials instructor working outside of that 4% variance.
The evidence is, however, rougher on this point than the Association acknowledges.
variance noted by the Association looks only at schedules exceeding 1200 minutes. Under
Association's calculation, there are schedules that fall below a 1200-minute standard by more
4%: Jungwirth and Huber in 2001-02; Huber in 1999-00; Kessler and Huber in 1998-99;
1996-97; Kessler in 1995-96; and Kessler in 1989-90. The parties acknowledge that each of
assignments was full-time. Beyond this, the 4% variance presumes the accuracy of the
calculations. The District's calculation of the same assignments varies from the
includes, at a minimum, a difference regarding the inclusion of travel time, as well as the
minutes or percentage weights for non-elementary class assignments. Neither the contract
evidence affords clear guidance on how to resolve these differences.
Arbitrators have stated in varying ways what constitutes evidence sufficient to
binding practice. At root, the evidence must be sufficient to warrant inferring agreement,
binding force of past practice is traceable to the agreement manifested by the parties'
Arbitrator Jules Justin stated the appropriate standard of proof thus:
In the absence of a written agreement, 'past practice,' to be
binding on both parties, must be (1)
unequivocal; (2) clearly enunciated and acted upon; (3) readily ascertainable over a
of time as a fixed, and established practice accepted by both parties." Celanese Corp. of
24 LA 168, 172 (Justin, 1954).
This standard highlights the difficulty posed by the grievance. The parties' rough
the use of a 1200-minute standard to define a full-time assignment is established, but the
to provide sufficient clarity to find a practice binding overload payment for the Grievant in
years at issue.
At root, the Association urges that an assignment somewhere between 1200 and 1300
should trigger overload payment. In its closing argument, the Association asserts a standard
4% above 1200 minutes. As noted above, there is no demonstrated understanding on how to
minutes within the assignment. Nor is it clear that the parties' conduct supports such a
the Association's calculation, the Grievant taught a 1260-minute schedule in the 1994-95 and
school years, yet did not seek compensation. Nor is it evident that the parties ever
agreement on the logical implications of the purported practice. If minutes taught above
1248 warrant an overload, are minutes below 1200 or 1152 an underload? Do such
demand a conclusion that the instructor should be considered less than full-time?
At a minimum, the evidence underlying the asserted practice is equivocal. It is not
what level of minutes triggers an overload. Beyond this, the evidence underlying the
is neither clearly enunciated nor acted upon. Prior to this grievance, there has been no
of, and no Association demand for, overload payment for schedules exceeding 1200 or 1248
Board scheduling practices are as readily explained by Strauman's assertion of a standard
between 1200 and 1400 minutes as by the Association's assertion of a clearly understood
of 1200 minutes, plus or minus 4%.
In sum, the evidence will not support finding the binding past practice the Association
This conclusion makes it impossible to grant the grievance. The Association's contention
7.11 affords the basis for a remedy presumes the existence of an overload that presumes the
force of the past practice the Association asserts. There is no dispute that specials schedules
by minutes, not classes. Section 7.11 addresses class assignments. Even if Section 7.11 is
to by analogy, there is no established
equivalence between five classes and 1200 minutes. The asserted 4% variance
highlights the difficulty
of using Section 7.11 even by analogy. The conclusion that the evidence will not support a
past practice demands the denial of the grievance. Before closing, however, it is appropriate
this conclusion more closely to the parties' arguments.
Section 14.5 B specifies a 1300-minute standard to define the "base for determining
percentage of a teaching contract," and the Association argues this sets a limit to a full-time
Section 14.5 A, however, affords less than compelling support for this argument, since it
applying the "1300-minute standard" to "any elementary teacher who is currently on a
teaching contract." Subsection A makes it possible for a specials teacher with an assignment
than 1300 minutes to be considered full-time. For it to set a maximum load, however,
language of the subsection. Whether the language should be stretched that far is not posed
facts of the grievances. The Association's view of the Grievant's teaching load over the
in question does not place him over 1,300 minutes. In the absence of a binding practice,
fails to establish a clear definition of a full-time maximum assignment for specials instructors
would correspond to the provisions of Section 7.11.
It does not follow from this that the Board has proven that there is a range of 1200 to
minutes to define a full-time assignment. The agreement sets no such standard. Strauman's
of the standard rests on the validity of her understanding of Newton's scheduling practices.
testimony presumes the accuracy of Strauman's view. Without regard to the accuracy of
view, the evidence shows no Association agreement to this range, and thus no evident basis
a binding practice including such a wide range. The teaching schedules submitted by both
afford little, if any, support for a conclusion that the Board sets specials assignments at the
of that range. Those schedules, even given the disagreement on how to precisely calculate
load, cluster in the 1200 to 1300 minute range.
It is theoretically possible, under the Association's view, for a part-time teacher to
minutes than a full-time teacher. This possibility affords no persuasive basis to draw any
regarding this grievance. The facts posed here do not pose the issue, which appears
best. In the same vein, it is theoretically possible, under the Board's view, for a full-time
be assigned a schedule exceeding the total minutes in a day or a week. This consideration
persuasive guidance for resolving the grievance. The testimony of Board witnesses presumes
upper limit to the authority to assign.
That the Board proposed in the current round of collective bargaining to alter
to extend to all elementary teachers and to set a higher minute-standard has no bearing on
grievance. The evidence shows that there is a gap in the parties' agreement on the issues
the grievance. An attempt to clarify through collective bargaining how to
address the gap affords no persuasive guidance in the resolution of this grievance. It is
parties have a rough understanding on the outer limits of the assignments for specials
That rough understanding must be further specified through collective bargaining to become
enforceable through grievance arbitration. The weakness of the grievance is that it seeks a
specificity that has yet to be reached in collective bargaining.
The evidence establishes that the parties have a rough understanding that specials
will teach a full-time load with a minimum of 1200 minutes, and will not exceed an
limit. The minimum is not inflexible, and there is no reliable evidence that the parties have
understanding on the precise limit to a full-time assignment, or of how to compensate a
exceeds that limit. The authority of a grievance arbitrator presumes that the parties have
enforceable agreement. Here, the rough understanding noted above is insufficient to create
enforceable obligation to afford the Grievant overload compensation for his weekly
assignment in the
2000-01 or 2001-02 school years. The evidence fails to support the practice asserted by the
Association, and does not pose an issue regarding the abuse of the Board's authority to
The District did not violate the collective bargaining agreement by assigning the
weekly schedule of roughly 1,280 minutes in the 2000-01 school year and 1,300 minutes in
the 2001-02 school year.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 14th day of
Richard B. McLaughlin, Arbitrator