BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MENOMINEE TEACHERS EDUCATION
MENOMINEE INDIAN SCHOOL DISTRICT
Mr. David A. Campshure, UniServ Director, United Northeast
Educators, appearing on behalf of the Association.
Mr. Robert W. Burns, Davis & Kuelthau, S.C., Attorneys at
Law, appearing on behalf of the District.
The Association and Employer named above are parties to a 1999-2001 collective
agreement that provides for final and binding arbitration of certain disputes. The parties
requested the Wisconsin Employment Relations Commission to appoint the undersigned as an
arbitrator in a dispute involving the dates of pay. The undersigned was appointed and held a
on September 26, 2002, in Keshena, Wisconsin, at which time the parties were given the
to present their evidence and arguments. The parties filed briefs and reply briefs by
The parties did not agree on the framing of the issue. The Arbitrator frames the
Did the District violate the collective bargaining agreement
when it failed
to pay bargaining unit employees on August 30, 2002? If so, what is the
The facts are not in dispute. The District pays teachers every two weeks, pursuant to
X, Section D, which simply states: "Teachers will be paid every two (2) weeks." The
the 1999-2001 collective bargaining agreement and a successor was not in place at the time
hearing, but the 1999-2001 contract provides in Article XVIII, Section A, that the
provisions of that
agreement shall continue until a successor agreement is reached. Bargaining unit members
paychecks on August 2nd and August 16th of 2002 but did
not get a paycheck on August 30th. They
got their next paycheck on September 13th.
Anticipating a problem with a later date to start school, the District's Assistant
Esther Schutt, sent a letter on August 8, 2001, to the Unions to notify them about the
This state statute (referring to Sec. 118.045) currently reads as
follows: (1) Except as provided
in subs. (2) and (3), beginning in the year 2000, no public school may commence the school
September 1. Subsection (3) A school board may commence the school term before
September 1 in
any school year if it holds a public hearing on the issue and adopts a resolution to that effect
The state legislature is considering
eliminating Subsection (3). If this happens, our district would
be forced to start school no earlier than September 1, by the start of the 2002-2003 school
This will cause an issue to arise with
payroll for school year employees. For employees who
chose to be paid over 12 months, their normal pay scheduled for the upcoming school year
their first check on August 31, 2001 and their last check (of 26 checks) on August 16, 2002.
With school beginning September 3, 2002,
the first payday of the 2002-2003 school year would
be on September 13, 2002. This would mean there would be no pay check on August 30,
school year employees, unless action would be taken immediately to resolve this.
Our suggestion would be that with the
authorization of your union members, we would extend
the checks for the 2001-2002 school year by dividing the annual contract by 27 pay periods
than 26, to cover the August 30, 2002. This would mean that the bi-weekly amounts would
however there would be no lapse in the bi-weekly pay schedule.
Please forward this to your union members
and give a recommendation back to the Business
Office no later than August 21st so we have time to make adjustments for
the August 31st payroll.
Schutt stated that in the past, teachers had usually started around August
20th or so. With the
later start due to the State law change, they would start about seven days later than past
District was looking at work performed up to August 23rd for payroll
purposes, and teachers were
not reporting until August 28th. There was no work performed prior to the
cutoff period for the
payroll in order to make the late August paycheck. If a teacher left the District and resigned
the first in-service day, he or she would not be entitled to any pay which has
happened about two
or three times in the last eight years. The District was able to pay those who actually came
for the school year by skipping the August 30th paycheck and delaying it to
However, there were no teachers that started in-service and then quit. By going to the
pay date, the District handled the payroll in the same fashion as in previous years where
started service before the payroll was issued. The payroll was consistent with the way it had
handled in the past.
The Association voted down the proposal for 27 paychecks of lesser amounts than 26
paychecks and filed a grievance in October of 2001, to try to resolve the issue before it
The Association's grievance chair, Jennifer Szprejda, noted that the teachers are usually paid
paycheck for the year in the middle of August, and the first paycheck of the new year is
at the end of August.
For the school year of 2002-2003, the teachers had in-service on August 28, 29 and
2002. Students started school on the following Tuesday, September 3rd.
The first paycheck of 2002-2003 was made on Friday, September 13th.
The last paycheck for the school year of 2002-2003 will
be made on August 29, 2003.
School will start on September 2, 2003, and the District plans to pay the first
paycheck of the
2003-2004 year on September 12, 2003. Teachers who report for in-service will be working
they have received all of their pay for the previous school year.
THE PARTIES' POSITIONS
The Association asserts that the District was not required to deviate from the every
pay schedule, though it claimed it was forced to move the payroll because State law
the school term start after September 1 beginning in 2002. The statute,
§ 118.045, Wis. Stats., allows
employees to begin work before September 1st, and it does not address the
payroll practices of a
Teachers reported for in-service on August 28, 2002, for the 2002-2003 school year.
District's statement that it would be paying teachers before they performed any work is
inaccurate. And the teachers will complete their 188-day obligation in June but still have
paychecks remaining. Article XVIII, Section C, states that if any part of the
collective bargaining agreement is held to be invalid by law, the parties will enter into
negotiations for the purpose of arriving at a mutually satisfactory replacement for such article
Thus, even if the District were required to alter the pay school, it would have to bargain any
change with the Association. But no contract provision was invalidated by law.
The Association contends that it is irrelevant that it refused to have the salary spread
pay periods. There were 26 bi-weekly periods between August 31, 2001, and
August 16, 2002. This
was not one of the occasional instances in which there were 27 bi-weekly periods within a
The contract language is clear and unambiguous, the Association maintains. Article
Section D, states that teachers will be paid every two weeks. When the District did not pay
payroll on August 30, 2002, it violated the collective bargaining agreement. There is no
interpret the clear language of this contract. As a remedy, the Association asks that the
its members whole by issuing a paycheck to replace the one they should have received on
The District submits that management has the right to determine when the payroll
commences. The school calendar is tied directly with the payroll. In the past, the first
always been made on the first payday of the year after teachers have worked at least one full
For example, teachers attended in-service on August 21, 2001, for the 2001-02 school year.
started school on August 23, 2001. Teachers received their first paycheck on Friday, August
2002, over a week after they started teaching. Because the commencement of services was
by action of the State, the corresponding pay periods were adjusted to fit the school schedule.
In-service began for the 2002-03 school year on August 28, 2002, and ran through Friday,
Instruction for students started on September 3, 2002. The Association claims that teachers
have received their first paycheck on August 30, 2002, but it was impossible to pay teachers
30th. Friday payroll needs to be entered into the computer system and
completed by Wednesday of
that same week. The District could not possibly obtain new staff information or make
existing staff records by August 30th. As Schutt testified, they have
problems getting new employees
set up for deductions, withholding and changes for current employees that come in.
Also, the District argues that teachers have never been paid for services they have not
performed. The District was not obligated to resume payments until services commenced for
school year. There was no obligation for the District to issue paychecks on
August 30th when in fact
teachers did not perform any services before August 23rd. Paying for
services not rendered would
create problems, such as recouping wages paid to employee who decided to modify or
contract prior to the start of or during the first couple of
weeks of school. The Association also questioned why the District did not pay
teachers on the next
available Friday September 6th. The September
13th payroll correlates with the District's bi-weekly
pay schedule for all employees, and it is a sound business decision to process payroll for 102
at the same time as the payroll is administered for the remaining staff at the District.
The District asserts that the Association is estopped from seeking relief because it
the option of receiving a check on August 30th. The support staff
bargaining unit opted for the choice
of 27 paychecks rather than 26. Had the Association opted for their paychecks to be spread
weeks, they would have received a check on August 30th.
By contract, the District has the right to determine the methods, means and personnel
which school systems operations are to be conducted. The commencement of services was
by the State, and the District adjusted the pay periods to correspond to the change in the law.
District continues to pay teachers on a two-week basis, and there is no contract violation.
Management has the authority to make new or revise existing rules provided they are
and/or do not conflict with the contract language. There is nothing in the contract that
District to make bi-weekly payments on a specific date. Teachers have been and continue to
on a bi-weekly basis to the full extent of their contracted amount. Therefore, the grievance
In Reply, the Association
The Association replies to the District arguments by stating that there is nothing in
to support the District's statement that the initial payment for each new school year has
on the first payday after teachers worked at least one full week. The District provided no
that it ever deviated from the every two-week payroll schedule called for in the contract.
The Association objects to the District's argument that it has the right to determine
payroll period commences. The District is asking the Arbitrator to ignore plain contract
change Article X, Section D, to read: "Teachers will be paid ever two weeks, commencing
school year one week after the teachers have worked at least one full week." Moreover, it
impossible to have a payday on August 30th, it was merely inconvenient.
While the District contends that it cannot pay teachers prior to performing work,
a penalty if they sever employment with the District after July 1st of any
year. So teachers are
required to pay if they leave before performing work but the District is not required to pay
after they perform work. Further, teachers already would have worked three full days of
if the payroll had been issued on August 30th. As of September
13th, teachers worked 13 days or
6.91% of their contract. On that first payday,
they received 1/26th or 3.85% of their annual pay, or
1/22nd and 4.54% if they so elected. When
teachers completed their 188-day obligation in June, they still have about five paychecks
Therefore, the District's aversion to issuing a payroll until a full week of work has been
amounts to a double standard, asserts the Association.
The Association also takes issue with the District's argument that the Association was
estopped from grieving the matter because it rejected the District's proposal to pay
salaries in 27 pay periods. The calendar contained 26 two-week pay periods, and the
27th was entirely
a creation of the District. The rejection of the proposal did not constitute a waiver of the
contract language. Furthermore, the District had no obligation to alter the payroll scheduled
of the State's actions. The District states that there is nothing the contract which states
payroll is to
begin on a specific week, but once Article X, Section D, was included in the contract, the
a duty to issue payroll every two weeks until otherwise negotiated.
In Reply, the District
The District takes issue with the Association's contention that payroll should continue
two-week basis, no matter when or why teachers commence in-service or instruction. The
not that simple. The District did not have an "extraordinary" reason to start the school term
September 1st under State law, and despite the Association's belief, the
timing of commencement of
teaching services is crucial to the outcome of this case. The fact is that the law changed and
District was required to conform to that change. There is nothing in the contract, which
states when paychecks are to be issued. What if the law required school districts to start
October 1st? Would the Association argue that teachers would be entitled
to be paid for the entire
month of September? The District does not believe the language carries such a promise.
Association is basically arguing that the language reads: "Teachers are to be
continually paid every
two weeks." Teachers are to be paid for services rendered for the entire year, and they will
timing of the payment is strictly tied to the commencement of those services.
Both parties argue that the Arbitrator would have to add words to Article X, Section
order for the opposing party to prevail in this case. I disagree. Article X, Section D, is as
clear as any contract language can be. It states: "Teachers will be paid every two weeks."
is nothing ambiguous about that, nothing that needs to be added to it. The Association is
this case. There should not have been any break in the two-week payroll schedule, as the
that schedule would clearly violate Article X, Section D. While the District asserts that the
Association wants the sentence to read: "Teachers are to be continually paid
every two weeks," the
two-week mandate means the same thing they get
paid every two weeks, no break in the action. I agree with the Association that the
interpretation would mean adding something to the language of Article X in order to tie it to
of the school year or the commencement of services.
While the District argues that the first payroll of the school year should be tied to the
commencement of services, the contract says nothing about that. It may be logical, but the
were in a hiatus period with no successor contract in place at the beginning of the school
2002-2003. The District does not dispute the Association's point that Article XVIII,
requires that the provisions of the Agreement continue until a successor agreement is
Agreement contains the clear mandate in Article X, Section D, that teachers will be paid
weeks. Moreover, the District was aware of that obligation and continued the two-week
the prior school year of 2001-2002. While the District argues that the contract does not
starting date for paying every two weeks, the parties were already a year into the hiatus
paychecks were paid every two weeks. The District could not suddenly take a break from
The claim that the District had to change the payroll date due to the change in State
rejected. The law did not deal with pay dates, and while the District believes that payroll
after teachers teach for awhile, the contract does not call for that. The law did not invalidate
in the contract. It may have made it more difficult from a bookkeeping perspective
but it did
nothing to change the payroll.
The District claims it would be difficult to get all the information needed to issue a
when teachers have not started working. The Arbitrator is confident that the District can
how to manage its own business in order to meet its contractual payroll obligations.
District has concerns about teachers leaving the District and having to recover a paycheck
issued to those teachers, it has not shown this to have been a hardship in the past. It only
that those teachers who are paid before starting to teach and who then resign would not
return money they didn't earn. Hardly says much for integrity.
In conclusion, I find that the District was contractually obligated to continue paying
every two weeks under Article X, Section D, and that its failure to do so by skipping the
2002 payroll violates the contract. A remedy will be ordered accordingly.
The grievance is sustained.
The District violated the collective bargaining agreement, specifically Article X,
when it failed to pay bargaining unit employees on August 30, 2002. The District is ordered
bargaining unit employees for the paycheck missed on that date as soon as feasible. The
will hold jurisdiction until February 21, 2003, for the sole purpose of resolving any disputes
scope and application of the remedy ordered.
Dated at Elkhorn, Wisconsin, this 23rd day of December, 2002.
Karen J. Mawhinney, Arbitrator